EXHIBIT 6.1
SUBLEASE
Sublease dated as of the ________day of March, 2000, between UNITED
RENTALS OF CANADA, INC. (the "Sublandlord") and ONTARIO POWER CONTRACTING
LIMITED (the "Subtenant").
RECITALS:
(a) by a lease (the "Lease") dated September 4, 1988, as amended
by a lease renewal agreement (the "RENEWAL AGREEMENT") dated
November 1, 1993 and a lease amending agreement (the "AMENDING
AGREEMENT") dated April 1, 1997 between Skyreach Equipment
Ltd. ("SKYREACH") as tenant and Joehma Investments Ltd. (the
"Head Landlord") as landlord (the Lease, the Renewal Agreement
and the Amending Agreement being hereinafter collectively
referred to as the "HEAD LEASE"), the Head Landlord leased to
Skyreach certain premises municipally known as 396 and 000X
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx consisting of 12,000 sq.
ft. of rentable area more or less (the "LEASED PREMISES");
(b) by an asset purchase agreement dated August 26, 1999 among,
INTER ALIA, Skyreach and the Sublandlord, Skyreach assigned
the lease to the Sublandlord with the consent of the Head
Landlord pursuant to a Landlord's Acknowledgement and consent
dated August 20, 1999;
(c) by an offer to sublease dated February 24, 2000 (the "OFFER"),
the Sublandlord and the Subtenant have agreed to enter into a
sublease (the "SUBLEASE") of the Leased Premises for the
balance of the term of the Head Lease less one day at a rent
and on such terms as are hereinafter set forth;
(d) the Head Landlord has given its written consent to this
Sublease by Consent by Landlord to Sublease (the "CONSENT")
dated March 10, 2000, in accordance with the terms and
provisions of the Head Lease.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
SECTION 1 DEMISE AND TERM.
The Sublandlard hereby subleases to the Subtenant the Leased Premises
to have and to hold for a term of two (2) years and one (1) month less one (1)
day (the "TERM") to commence on the 1st day of April, 2000 and to expire on 29th
day of April, 2002.
SECTION 2 RENT.
The Subtenant shall pay to the Sublandlord an annual rental in the
amount of:
(a) EIGHTY ONE THOUSAND DOLLARS ($81,000) in lawful money of
Canada without any abatement or deduction for any reason
whatsoever (being SIX DOLLARS AND SEVENTY FIVE CENTS ($6.75)
per rentable square foot per annum) payable in equal monthly
instalments of SIX THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS
(6,750) in advance on the first of each and every month during
the first year of the Term; and
(b) EIGHTY FOUR THOUSAND DOLLARS ($84,000) in lawful money of
Canada without any abatement of deduction for any reason
whatsoever (being SEVEN DOLLARS ($7.00) per rentable square
foot per annum) payable in equal monthly instalments of SEVEN
THOUSAND DOLLARS ($7,000) in advance on the first of each and
every month during the balance of the Term,
(such rent being hereinafter collectively referred to as "BASIC RENT"
with the rent for any broken portion of a calendar month being
prorated.
In the event that the actual square footage is greater or less than
12,000 square feet, Basic Rent shall be adjusted to reflect the actual square
footage.
SECTION 4 ADDITIONAL RENT.
The Subtenant acknowledges that the Head Lease is a carefree fully net
lease to the Head Landlord, and that this Sublease is on the same basis. The
Subtenant agrees to pay to the Sublandlord, or in accordance with its direction,
all sums which the Sublandlord is required to pay to the Head Landlord under the
Head Lease as additional rent pursuant to the provisions of the Head Lease (the
"ADDITIONAL RENT"). Utility charges shall be based on separate meters. Basic
Rent and additional Rent are hereinafter collectively referred to as "RENT".
SECTION 5 USE.
The Leased Premises shall be used only for those purposes of offices
and a contractor's yard and other functions ancillary to the Subtenant's
business.
SECTION 6 OVERLOADING.
The Subtenant shall not bring upon the Leased Premises or any part
thereof any machinery, equipment, article or thing that by reason of its weight,
size or use might damage the floors of the building located on the Leased
Premises or the asphalt surfaces located on the Leased Premises. If any damage
is caused to the Leased Premises by any machinery, equipment, article or thing
or by overloading or by any act, neglect or misuse on the part of the Subtenant
or any of its servants, agents or employees or any person having business with
the Subtenant, the Subtenant will forthwith repair the same or pay to the
Sublandlord the cost of making good the same.
SECTION 7 DEMISING WALL.
The Sublandlord shall be solely responsible for restoring the demising
wall between 396 and 000X Xxxxxxxx Xxxx at the end of the term, pursuant to
section 2(h) of the Amending Agreement, and the Subtenant shall have no
obligation with respect to same.
SECTION 8 SUBTENANT'S COVENANTS.
The Subtenant covenants with the Sublandlord:
(a) to pay Basic Rent and Additional Rent to the Sublandlord or in
accordance with its direction as herein provided.
(b) to keep the Leased Premises clean and in good and tenantable
condition;
(c) to repair the Leased Premises in accordance with the
Sublandlord's obligations under the Head Lease;
(d) to observe and perform all covenants and obligations of the
Subtenant under this Sublease;
(e) not to do or omit to do any act or thing which would cause a
breach of any of the Sublandlord's obligations under the Head
Lease or which would or might cause the Sublandlord to be
liable for any damage, claim or penalty;
(f) to perform or cause to be performed with respect to the Leased
Premises all of the covenants of the Sublandlord as tenant
under the Head Lease, including the performance of the
Sublandlord's obligations with respect to the Lease Premises,
except basic rent payable under the Head Lease and except as
otherwise provided herein;
(g) the Subtenant shall comply with all requirements of all laws,
orders, ordinances, rules and regulations of any federal,
provincial, regional or municipal authority or other
governmental body, tribunal or commission having jurisdiction
with respect to the Subtenant's occupancy, operation or use of
the Leased Premises;
(h) to pay all applicable GST on the amounts due to the
Sublandlord under this Sublease; and
(i) not to engage in a business which is competitive with that of
the Sublandlord.
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SECTION 10 SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES.
The Sublandlord represents and warrants to the Subtenant as follows:
(a) the Sublandlord is not in default of any of its obligations
under the Head Lease and the Head Lease is in full force and
effect and binding on the Sublandlord;
(b) except as set forth above and except as contemplated by this
Sublease, the Head Lease has not been amended or assigned and
no portion of the Leased Premises has been sublet;
(c) there is no outstanding dispute under the Head Lease
(including, without limitation, as to the payment of rent) and
there has been no default by the Sublandlord thereunder; and
SECTION 11 SUBLANDLORD'S COVENANTS.
(1) The Sublandlord covenants with the Subtenant:
(a) for quiet enjoyment;
(b) to pay all Basic Rent and Additional Rent reserved under the
Head Lease (in breach of which payment by the Sublandlord, the
Subtenant may pay such Rent to the Head Landlord itself and
deduct the cost thereof from the Rent and all other amounts
due to the Sublandlord from time to time hereunder);
(c) to keep the Head Lease in good standing and to indemnify and
hold the Subtenant harmless from and against any and all
liability, costs and expenses (including reasonable legal
fees) arising from a breach of the Head Lease;
(d) to enforce for the benefit of the Subtenant and other lawful
occupants of Leased Premises the obligations of the Head
Landlord under the Head Lease, with the intent that the
benefit of such covenants shall extend to the Leased Premises
and be enjoyed by the Subtenant and its permitted successors
and assigns and subtenants and other occupants of the Leased
Premises; and
(e) not to terminate the Head Lease before the expiration of the
Term, without the prior written consent of the Subtenant,
which consent may be arbitrarily withheld.
(2) Notwithstanding anything to the contrary in this Sublease, the
Sublandlord does not assume or agree to perform for the benefit of the
Subtenant any of the duties of the Head Landlord under the Head Lease
and shall under no circumstances be responsible or liable to the
Subtenant for any default, failure of delay on the part of the Head
Landlord in the performance of any obligations under the Head Lease,
nor shall such default of the Head Landlord affect this Sublease or
waive or defer the performance of any of Subtenant's obligations
hereunder. If the Subtenant desires to enforce the duties of the Head
Landlord under the Head Lease or the rights of the Sublandlord under
the Head Lease, the sole obligation of the Sublandlord shall be to use
all reasonable commercial efforts to cause the Head Landlord to perform
such duties or honour such rights. The Subtenant shall indemnify and
hold the Sublandlord harmless from and against any and all liability,
costs and expenses (including reasonable legal fees) arising with
respect to such efforts.
SECTION 12 NO REPRESENTATIONS.
There are no covenants, representations, agreements warranties or
conditions in any way relating to the subject matter of this agreement expressed
or implied, collateral or otherwise, except as expressly set forth herein.
SECTION 13 CONDITION OF LEASED PREMISES.
Subject to latent defects and the obligations of the Sublandlord or
Head Landlord, as the case may be, to make repairs and replacements to the
Leased Premises, the Subtenant accepts the Lease Premises in their present
condition. Notwithstanding the foregoing, the Sublandlord shall, at its own
expense and prior to the commencement of the Term, remove all the existing
materials and contents from the Leased Premises and clean xxxxxxxxxxxxxxxxxx.
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SECTION 14 ASSIGNMENT.
The Subtenant shall not assign this Sublease or further sublet the
Leased Premises or any portion of the Leased Premises.
SECTION 15 TERMINATION.
This Sublease shall terminate on any termination of the Head Lease, or,
at the election of the Sublandlord, by the Sublandlord giving notice of
termination on the occurrence of any of the following:
(a) if any petition in bankruptcy or for reorganization or
arrangement is filed by or against the Subtenant, or the
Subtenant becomes insolvent, or any receiver is appointed for
any of the Subtenant's assets, or the Subtenant makes any
assignment for the benefit of creditors; or
(b) the Subtenant fails to make any payment of money under any
provision of this Sublease when due, and such failure
continues for a period of five (5) days after written notice
to the Subtenant (it being agreed that the continuance of any
such failure for five (5) days after notice is to be
conclusively deemed a material breach of this Sublease); or
(c) the Subtenant defaults in the performance of any covenant,
agreement or obligation, other than for the payment of money,
required by this Sublease to be performed by the Subtenant and
such default continues for 15 days after written notice to the
Subtenant (it being agreed that the continuance of any such
failure for 15 days after notice is to be conclusively deemed
a material breach of this Sublease); or
(d) the Subtenant abandons or vacates the Leased Premises.
The only notices necessary to terminate this Sublease are those
expressly provided for in this Section. On the termination of this Sublease,
whether by lapse of time or otherwise, the Subtenant will immediately surrender
to the Sublandlord possession of the Leased Premises and the improvements in the
same condition in which the Subtenant received them, normal wear and tear and
other items specifically expected by the Head Lease only excepted; no acceptance
of rent by the Sublandlord after termination of this Sublease or after notice of
such termination shall constitute a waiver of such termination or notice or a
reinstatement of this Sublease. No termination of this Sublease shall discharge
or impair the Subtenant's obligation to pay any rent accrued to the date of
termination and/or for the whole unexpired term of this Sublease. Nothing
contained in this Sublease shall operate or in any way create a merger, or alter
or prejudice any rights, remedies or priorities of the Sublandlord as against
the Subtenant under any other agreement or agreements between them.
SECTION 16 ENVIRONMENTAL MATTERS.
(a) The Sublandlord warrants that it is not aware of any order or
SECTION 16 ENVIRONMENTAL MATTERS.
(a) The Sublandlord warrants that it is not aware of any order or
direction relating to environmental matters having been issued
pursuant to any environmental legislation which would require
any work, repairs, construction or capital expenditure with
respect to the Leased Premises. The Sublandlord agrees to
provide a copy of a previously prepared Phase II Environmental
Audit to the Subtenant prior to the occupancy by the Subtenant
and further agrees to be solely responsible for any necessary
remedial work identified in the report. The Sublandlord
further warrants and agrees to indemnify the Subtenant from
claims, orders or directions relating to environmental matters
that occurred prior to the Subtenant taking possession of the
premises or caused by adjacent tenants or property owners
during the Term of the Subtenant's tenancy hereunder.
(b) The Subtenant covenants and agrees that it will comply with
all environmental legislation during the Term of this Sublease
and the Subtenant will be responsible for any environmental
problems, pollution or contamination arising as a result of
the Subtenant's occupation of the Leased Premises during the
term of the Sublease. At the end of the Term of this Sublease,
the Sublandlord will have the option requiring the Subtenant
to have a Phase I Environmental Audit performed and the
Sublandlord and the Subtenant agree to share the cost of such
audit equally. Any necessary remedial work identified in the
report would then be the sole responsibility of the Subtenant,
provided the necessity for such remedial work resulted from
the Subtenant's occupancy of the Leased Premises. The
Subtenant further warrants and agrees to indemnify the
Sublandlord from claims, orders or directions relating to
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xxxxxxxxxxxxxxxxxxx appointed by each party and a third to be
chosen by the first two named before they enter upon the
business of arbitration. If either party shall fail to appoint
an arbitrator within seven (7) clear days of service of notice
on it of the appointment of an arbitrator by the other party,
the arbitrator so appointed shall act as sole arbitrator in
the reference on notice by the other party to proceed with the
arbitration. The award and determination of such arbitrator or
arbitrators or any two of such three arbitrators shall be
binding upon the parties hereto and their respective
successors and assigns. In the event that a dispute arises as
to the procedures or conduct of the arbitration, the terms and
conditions of the ARBITRATIONS ACT (Ontario) shall apply.
SECTION 19 NOTICE.
The provisions of the Head Lease shall govern the giving of notice
hereunder. The address of the Sublandlord for the purpose of such notice shall
be Four Greenwich Office Park, Greenwich, Connecticut, USA. Fax: 000-000-0000,
Attention: Xxxx X. Xxxxx with a copy to Canada Trust Tower, Suite 3900, BCE
Place, 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 Attention: Xxxxx X. Xxxxxxx,
Fax: 000-000-0000, and the address of the Subtenant shall be 396 and 000X
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, Fax: 000-000-0000.
SECTION 20 APPLICATION OF HEAD LEASE.
Except as hereinbefore expressly provided, all terms, covenants,
conditions and agreements contained in the Head Lease shall apply to and be
binding upon the parties hereto, and their respective successors and permitted
assigns, the appropriate changes of reference being deemed to have been made
with the intent that such clauses shall govern the relationship in respect of
such matters as between the Sublandlord and the Subtenant. For greater
certainty, the obligations of the Head Landlord shall remain the obligations of
the Head Landlord for the purposes of this Sublease, and the obligations of the
Sublandlord shall become the obligations of the Subtenant with respect to this
Sublease.
SECTION 21 OVERHOLDING.
Provided that if the Subtenant shall continue to occupy the Leased
Premises after the expiration of the Term and any renewal thereof without any
further written agreement and without objection by the Sublandlord, the
Subtenant shall be a monthly tenant at a rent and (except as to length of
tenancy) subject to the provisions and conditions herein set out.
SECTION 22 GOVERNING LAW.
This Sublease and the Heal Lease shall be subject to and construed in
accordance with the laws of the province of Ontario and the laws of Canada, as
applicable.
SECTION 23 COMMISSION.
The parties hereto acknowledge that the Listing Broker and Co-operating
Broker are the same firm, CB Xxxxxxx Xxxxx Limited ("CB Xxxxxxx Xxxxx"), such
that there has been dual agency, the parties having previously consented to such
dual agency and waiving and conflict of interest or duty of confidentiality. The
Sublandlor shall be liable for commissions payable to CB Xxxxxxx Xxxxx.
SECTION 24 TIME OF THE ESSENCE.
Time shall be of the essence of this Sublease.
SECTION 25 ENUREMENT.
This Sublease shall enure to the benefit of and be binding upon the
respective successors and assigns of each of the parties hereto.
SECTION 26 ENTIRE AGREEMENT.
This Sublease, the provisions of the Head Lease incorporated herein,
the Offer and the Consent set forth the entire agreement between the Sublandlord
and the Subtenant concerning the Leased Premises and there are no agreements or
understandings between them other than as are herein set forth.
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SECTION 27 SEVERABILITY.
IN WITNESS WHEREOF the parties hereto have executed this Sublease as of
the date first written above.
UNITED RENTALS OF CANADA, INC.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: President
ONTARIO POWER CONTRACTING LIMITED
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Title: President
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