BETWEEN:
0000 XXXXXX XXXX HOLDINGS LTD.
- and -
STEELBANK TUBULAR INC.
LEASE
regarding 0000 Xxxxxx Xx., Xxxxxxxxxxx, Xxxxxxx
XXXXXXXX XXXXXXX LLP
Barristers and Solicitors
Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Schedule "A" - Description of Lands
Schedule "B" - Definitions
Schedule "C" - Exterior Maintenance
Schedule "D" - Form of Guarantee
Schedule "E" - Sketch showing Leased Premises, Lands and Common Areas and
Facilities
Schedule "F" - Rules and Regulations
THIS INDENTURE made as of the 22nd day of November, 2006
BETWEEN:
0000 XXXXXX XXXX HOLDINGS LTD.
(Hereinafter called the "Landlord")
OF THE FIRST PART;
- and -
STEELBANK TUBULAR INC.
(Hereinafter called the "Tenant")
OF THE SECOND PART;
ARTICLE I
DEMISE AND TERM
1.1 Premises
WITNESSETH that in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord does demise and lease unto the Tenant and
the Tenant leases from the Landlord, the Leased Premises.
1.2 Term
To have and to hold the Leased Premises for and during the term of 10 years
and 9 days commencing on the 22nd day of November, 2006 and ending on the 30th
day of November, 2016.
1.3 Acceptance of Premises
The Tenant shall accept the Leased Premises and take possession thereof in
its then current condition on an "as-is" basis and such taking of possession
shall be conclusive evidence as against the Tenant that at the time thereof the
Leased Premises were in good order and satisfactory condition and that all
promises, representations and undertakings by or binding upon the Landlord with
respect to any alteration, remodelling or decorating of or installation of
fixtures in the Leased Premises, have been fully satisfied and performed by the
Landlord. The Tenant acknowledges that the existing leasehold improvements, if
any, are acceptable and that the Tenant is taking possession of the Leased
Premises as is.
1.4 Quiet Enjoyment
If the Tenant pays the Rent hereby reserved and observes and performs the
covenants on its part contained in this Lease, then the Tenant may peaceably
possess and enjoy the Leased Premises for the Term hereby granted without
disturbance from the Landlord or any other party lawfully claiming by, from or
under the Landlord.
ARTICLE II
RENT
2.1 Intent of Lease
The Tenant acknowledges that it is intended and agreed that this is a
completely carefree net lease for the Landlord and that the Landlord is not
responsible during the Term for any taxes, impositions, costs, charges, expenses
or outlays of any nature or kind relating to the Leased Premises, save only as
specifically set out in this Lease, and that the Tenant shall be responsible for
and shall promptly pay all such taxes, costs, impositions, charges, expenses and
outlays.
2.2 Basic Rent
The Tenant covenants and agrees to pay to the Landlord, without any prior
demand therefore and without any deduction, abatement of set-off whatsoever,
from and after the commencement date, yearly and every year during the Term as
Basic Rent for the Leased Premises the following:
Years 1 to 5: the sum of $465,595.00 in lawful money of Canada to be paid
in advance in equal consecutive monthly instalments of $38,799.58 on the first
day of each and every month during said period, based on $5.30 per square foot
of rentable area of the Building per annum;
Years 6 to 10: the sum of $509,519.00 in lawful money of Canada to be paid
in advance in equal consecutive monthly instalments of $42,459.91 on the first
day of each and every month during said period, based on $5.80 per square foot
of rentable area of the Building per annum,
the first of such payments to be made on the commencement date of the Term.
If the Term commences on any day other than the first or ends on any day other
than the last day of a month, then Basic Rent for the fractions of a month at
the commencement and at the end of the Term shall be adjusted pro rata on a per
diem basis.
2.3 Calculation of Basic Rent
The Basic Rent is calculated on the basis of the rentable area of the
Building, which the Landlord and Tenant agree is 00,000 xxxxxx xxxx (xxxxxxxxx
xx xxxxxxxxx xxxx). Neither the area of the Building nor the Rent shall be
subject to re-adjustment, notwithstanding any further measurement of the
rentable area of the Building.
2.4 Additional Rent
The Tenant shall pay Additional Rent due and owing to the Landlord on the
due date thereof, and otherwise within ten (10) days of written demand therefor
or as otherwise hereinafter expressly set out.
2.5 Deposit
The Landlord acknowledges receipt of:
(a) $41,127.55 to be held by the Landlord and applied without interest on
account of the Basic Rent plus applicable GST for the first month of
the Term; and
(b) $50,000.00 to be held by the Landlord as security for the full and
faithful performance by the Tenant of all the agreements, terms,
covenants and conditions herein set forth and applied against expenses
or other costs or damages incurred by the Landlord and to be payable
as liquidated damages and not as penalty, upon forfeiture, default or
early termination, without prejudice to any further claims by the
Landlord for damages and/or any remedy for recovery thereof. In the
event the Tenant observes and performs the terms and conditions on its
part under this Lease, such monies shall be returned to the Tenant
after expiration of the Term or, at the Landlord's option, shall be
applied without interest toward Rent for the last month of the Term.
The Landlord may apply all or part of the amount retained as a
security deposit, as compensation for any loss or damage arising from
the breach by the Tenant of any provision of this Lease. This right
will not be construed to limit the Landlord's other rights under this
Lease or at law or to limit the amount recoverable by the Landlord for
damages in respect of breaches by the Tenant of this Lease. If the
Landlord uses all or part of the security deposit, the Tenant will,
upon notification by the Landlord, pay to the Landlord the amount
required to reimburse it for the amounts so applied. The Landlord will
not be required to pay interest to the Tenant on any of the amounts
paid to the Landlord or retained by it under this Section. The
Landlord may deliver the aforesaid deposit to any purchaser of the
Landlord's interest in the Project, Lands and/or Building or any part
thereof, whereupon the Landlord will immediately be discharged from
any further liability with respect to the deposit. The Tenant will not
assign or encumber its interest in the deposit except in connection
with a permitted assignment, in which case the Tenant's interest in
the deposit will be deemed to have been assigned to the permitted
assignee as of the date of the assignment.
2.6 Payments to Landlord
All payments to be made by the Tenant to the Landlord under this Lease
shall be made at the address hereinafter designated or, at such other place or
places as the Landlord may designate in writing, or to such agent of the
Landlord as the Landlord may from time to time direct.
2.7 Overdue Rent
The Tenant covenants to pay the Basic Rent and Additional Rent and all
other charges provided for in this Lease on their respective due dates in full.
The Tenant shall pay the Landlord interest on all overdue Rent, all such
interest to be calculated from the date upon which the amount is first due
hereunder until actual payment thereof and at a rate being the lesser of (i)
three percent (3%) per annum in excess of the minimum lending rate charged to
prime commercial borrowers by the Landlord's bank from time to time; and (ii)
the maximum rate permitted by law.
2.8 Set-Off
All Rent payable by the Tenant to the Landlord shall be paid without any
deduction, set-off or abatement whatsoever except as expressly hereinafter
provided.
2.9 Pre-Authorized Bank Debit
If the Tenant is late in the payment of any Rent (or any part thereof) in
any two (2) consecutive months or more than twice in any twelve (12) month
period, then the Tenant shall forthwith provide the Landlord upon demand with
such written authorizations as may be required from time to time to debit the
Tenant's bank account in favour of the Landlord for outstanding amounts owing by
the Tenant to the Landlord under the Lease.
ARTICLE III
TAXES
3.1 Taxes Payable by Tenant
The Tenant shall pay, without duplication, to the extent any of the
following overlap:
(a) its share of the Taxes attributable to the Project, as determined by
the Landlord, acting equitably and reasonably. For greater certainty,
to the extent any portion of the Lands other than the Leased Premises
is improved by the Landlord or its tenants, the Landlord shall be
responsible for any incremental increase in Taxes that result from
such improvements. The Landlord shall seek a separate assessment of
the Leased Premises if and when the Landlord wishes to sever the
Leased Premises from the remainder of the Lands and prior to such
time, if the Landlord reasonably requires same, the Landlord shall
retain the services of a tax consultant to determine the equitable
allocation of such Taxes. For clarity, the Tenant's responsibility for
such Taxes as determined by such tax consultant shall be equal to the
Taxes the tax consultant reasonably determines that are equitably
allocated to the Building, plus a proportionate share of the Taxes the
tax consultant reasonably determines are equitably allocated to the
Lands. In the event that the Landlord determines the Tenant's share of
Taxes as set out above and the Tenant disagrees with the share as
determined by the Landlord, the Landlord shall engage a tax consultant
to determine the Tenant's share, provided that the Tenant shall pay
the full cost of the tax consultant in the event that the tax
consultant determines the Tenant's share of Taxes are equal to or more
than that determined by the Landlord, or within 5% of the Taxes as
determined by the Landlord.
(b) all taxes, rates, duties, assessments and other charges that are
levied, rated, charged or assessed against or in respect of all
improvements, equipment and facilities of the Tenant on or in the
Leased Premises or any part thereof;
(c) its share of the Taxes attributable to the Common Areas and
Facilities. If the Landlord, acting reasonably, determines same is
required, the Landlord shall retain the services of a tax consultant
to determine the equitable allocation of such Taxes;
(d) the full amount of any taxes in the nature of a business transfer tax,
value added tax, sales tax or any other tax levied, rated, charged or
assessed in respect of the Rent payable by the Tenant under this Lease
or in respect of the rental of space under this Lease, whether
characterized as a goods and services tax, sales tax, value added tax,
business transfer tax or otherwise; and
(e) its proportionate share of Capital Tax, provided that the Tenant's
contribution toward Capital Tax shall be capped at the greater of
one-half of the Capital Tax imposed on the Landlord (calculated as if
the Property was the only property held by the Landlord) and $2,500
per annum.
For the purposes of the calculation and allocation of Taxes, the Tenant's
share shall be determined by the Landlord or its tax consultant, acting
reasonably, which shall be an amount reasonably allocated to the Building,
the Tenant's Lands, and a proportionate share of the Taxes for the Common
Areas and Facilities. As described above, the Landlord shall engage a tax
consultant in the event the Tenant disputes the amount of Taxes allocated
by the Landlord.
3.2 Payment of Taxes
(a) Taxes payable pursuant to paragraph (a), and (c) of Section 3.1 shall,
at the option of the Landlord, as directed in writing by the Landlord,
either be paid by the Tenant directly to the lawful taxing authority
when due, based on an invoice from the Landlord that sets out the
total amount of the Taxes and the amount for which the Tenant is
responsible, or, directly to the Landlord, based on the same
description of the amount of Taxes due, within ten (10) days' written
demand therefor;
(b) Taxes payable pursuant to paragraph (b) of Section 3.1 shall be paid
by the Tenant to the lawful taxing authority when due;
(c) Taxes payable pursuant to paragraph (d) of Section 3.1 shall be paid
to the Landlord along with the corresponding payment that is due, such
as Basic Rent.
3.3 Appeal of Assessment
Provided that the Landlord is not already contesting the Taxes for a
particular year and does not plan to contest such Taxes, and provided the Tenant
provides the Landlord with reasonable security, as determined by the Landlord,
acting reasonably, the Tenant shall have the right to contest at its own expense
(and in the name of the Landlord, if necessary) by appropriate legal proceedings
the validity of any Taxes. The Tenant shall be responsible for all increases in
Taxes occurring as a result of any such contest of Taxes and the Tenant shall
not be entitled to defer payments of Taxes. The Landlord shall execute all
powers of attorney and other documents or proceedings necessary or useful in
order to permit the Tenant to contest, at the Tenant's own expense in its own
name or in the Landlord's name, the validity of any Taxes. Nothing herein shall
oblige the Tenant or the Landlord to contest the validity of such Taxes.
ARTICLE IV
HEATING AND UTILITIES
4.1 Utility Charges
The Tenant shall pay to the suppliers thereof on the due dates, all charges
for electric current and all other utilities supplied to or used in connection
with the Leased Premises.
4.2 Heating
The Tenant shall maintain the temperature in the Building at a reasonable
level to avoid damage occurring in or to the Building.
4.3 Service Contracts
The Tenant covenants and agrees to take out a standard servicing contract
with a capable and reputable company for the service and maintenance of the
heating units and furnaces and air conditioning equipment serving the Building,
such contract to include the monthly cleaning of exchangers and the replacement
of filters, and to keep such contract in force at its own cost throughout the
Term. The Tenant agrees to provide the Landlord with a copy of such servicing
contract and all service records.
ARTICLE V
MAINTENANCE AND REPAIR
5.1 Repairs and Replacements
The Tenant shall at its own cost repair, replace, maintain and keep the
Leased Premises and every part thereof, including without limitation the
Leasehold Improvements and the heating, ventilating and air conditioning
equipment serving the Building, fixtures and furnishings (whether or not
installed or furnished by the Tenant), in good and substantial repair and
condition as a prudent owner would do, reasonable wear and tear and repairs and
replacements to the Structure only excepted (provided that there shall be no
exception for damage caused by the negligent act or omission of the Tenant or
anyone for whom it is in law responsible). For clarity, it is acknowledged that
the Tenant shall be responsible for maintenance of the Structure, but not for
repairs or replacements to the structure, except to the extent necessary as a
result of any act or omission of the Tenant, its employees, agents, suppliers or
invitees, including, without limitation, failure to properly maintain the
Structure. The Landlord shall be responsible for Structural repairs and
replacements (except the extent previously set forth) and the Tenant shall pay
to the Landlord, upon demand, the cost of such repairs and replacements made by
the Landlord, provided that for repairs and replacements to the Structure that
are capital in nature, as determined by the Landlord, in accordance with
generally acceptable accounting principles, the Landlord shall amortize such
costs (plus interest on the unamortized portion of such costs at the rate of
Prime plus 5% per annum), over the useful life of the relevant repair or
replacement on a straight-line basis and the Tenant shall only be required to
pay the portion of such cost as is amortized over the remainder of the Term (and
any extensions or renewals thereof), to be paid by annual instalments. By way of
example, in the event of a capital repair costing $20,000 with a useful life of
10 years, the Tenant would be required to pay $2,000 (plus interest) each year
as its contribution, until the expiration of the Lease as may be extended or
renewed, or until the full amortization and payment to the Landlord of such
amount, whichever is earlier.
The Tenant agrees that the Landlord may enter for the purpose of making
Structural repairs and/or replacements as may be required, and may enter to view
the state of repair and condition and that the Tenant shall repair in accordance
with notice in writing from the Landlord; provided that if the Tenant neglects
to so maintain or to make such repairs or replacements promptly after notice,
the Landlord may, at its option, do such maintenance or make such repairs or
replacements at the expense of the Tenant, and in any and every such case the
Tenant covenants with the Landlord to pay to the Landlord forthwith as
Additional Rent all sums which the Landlord may have expended in doing such
maintenance and making such repairs and/or replacements, together with an
administration fee of 15% of the cost of such repairs and/or replacements;
provided further that the doing of such maintenance or the making of any such
repairs or replacements by the Landlord shall not relieve the Tenant from its
obligation to maintain, repair and replace. The Tenant shall provide the
Landlord with notice of all accidents, or any material damage or defect to the
Leased Premises or on the Project of which the Tenant is aware.
5.2 View and Repair
The Tenant shall allow the Landlord or its duly appointed agent and work
people at reasonable times on request to enter the Leased Premises and view the
state of repair and the Tenant shall repair as aforesaid according to notice in
writing, provided always that if the Tenant shall not within fifteen (15) days
of such notice, commence and proceed diligently with the execution of the
repairs and works mentioned in such notice, it shall be lawful for the Landlord
to enter upon the Leased Premises and execute such repairs and works and to
charge the cost thereof to the Tenant.
5.3 Alterations
The Tenant shall not, without the prior written approval of the Landlord,
which approval shall not be unreasonably withheld, make any installations,
alterations, additions, partitions, repairs or improvements in or to the Leased
Premises, including, without limitation, doing anything which might affect the
structural portions of the Leased Premises or the electrical, lighting, heating,
ventilating, air-conditioning, sprinkler, fire protection or other systems
therein. The Tenant's request for approval shall be in writing and accompanied
by an adequate description of the contemplated work, and where appropriate,
working drawings and specifications therefor; the Landlord's costs of having its
architects, engineers or others examine such drawings and specifications shall
be payable by the Tenant upon demand as Additional Rent; the Landlord may
require that any or all such work be done by the Landlord's contractors or
workmen or by contractors or workmen engaged by the Tenant but first approved by
the Landlord. All such work shall be subject to inspection by and the reasonable
supervision of the Landlord and shall be performed in accordance with all
applicable laws and any reasonable conditions (including but not limited to a
reasonable supervision fee of the Landlord to be paid by the Tenant) and
regulations imposed by the Landlord, and shall be completed in a good and
workmanlike manner and with reasonable diligence in accordance with the
approvals given by the Landlord. Any connections of apparatus to the base
electrical, plumbing, heating, ventilating or air-conditioning systems shall be
deemed to be an alteration within the meaning of this Section. The Tenant shall,
at its own cost and before commencement of any work, obtain all necessary
building or other permits and keep same in force.
5.4 Removal of Fixtures and Improvements
Leasehold Improvements shall immediately become the property of the
Landlord upon affixation or installation without compensation therefor to the
Tenant but the Landlord is under no obligation to repair, maintain or insure
Lease hold Improvements. Leasehold Improvements shall not be removed from the
Leased Premises either during or at the expiration or earlier termination of the
Term, except that the Tenant shall, at the end of the Term, remove such
Leasehold Improvements installed or constructed by or on behalf of the Tenant's
as the Landlord may require to be removed. The Tenant may, during the Term,
remove its trade fixtures provided that the Tenant is not in default under this
Lease and such trade fixtures are immediately replaced by trade fixtures of
equal or better value. The Tenant shall at the expiration or earlier termination
of the Term remove its trade fixtures as the Landlord may require. Any removal
of Tenant's trade fixtures or Leasehold Improvements shall be done at the
Tenant's sole cost and expense and the Tenant shall forthwith repair at its own
cost any damage caused to the Leased Premises or any part thereof by the
installation or removal of trade fixtures or Leasehold Improvements. If the
Tenant does not remove its trade fixtures at the expiration or earlier
termination of the Term, then the trade fixtures shall, at the option of the
Landlord, become the property of the Landlord and may be removed from the Leased
Premises and/or sold or otherwise disposed of by the Landlord in such manner as
it deems advisable. For greater certainty, the Tenant's trade fixtures shall not
include any heating, ventilating or air-conditioning equipment or other building
services or floor covering affixed to the floor of the Leased Premises. The
obligations of the Tenant set forth in this Section shall survive the expiry or
other termination of the Term. Notwithstanding the foregoing, the Tenant shall
not be required to remove the Leasehold Improvements in existence on the
commencement date, or any other Leasehold Improvements installed by the Tenant
which the Landlord has agreed in writing, are not required to be removed.
5.5 Construction Liens
The Tenant covenants to pay promptly all its contractors and material men
and do any and all things necessary to minimize the possibility of a lien
attaching to the Leased Premises or to any part of the Building or the Lands
and, should any such lien be made or filed, the Tenant shall discharge the same
forthwith (after notice thereof is given to the Tenant) at the Tenant's expense
and in any event within fifteen (15) days of receipt of notice, unless the
Landlord is currently involved in the sale, financing or refinancing or the
potential sale, financing or refinancing of the Project in which case the Tenant
shall discharge same within five (5) days of receipt of notice. In the event the
Tenant shall fail to cause any such lien to be discharged as aforesaid, then, in
addition to any other right or remedy of the Landlord, the Landlord may, but it
shall not be so obligated, discharge same by paying the amount claimed to be due
into Court or directly to any such lien claimant and the amount so paid by the
Landlord and all costs and expenses including but not limited to solicitor's
fees (on a solicitor and client basis), incurred for the discharge of such lien
shall be due and payable by the Tenant to the Landlord as Additional Rent on
demand.
5.6 Repairs on Termination
At the expiration or sooner termination of the Term the Tenant shall, at
its own expense:
(a) deliver up possession of the Leased Premises to the Landlord in the
same condition in which the Tenant is required under this Lease to
repair and maintain the Leased Premises, together with all Leasehold
Improvements which the Tenant is required or permitted to leave
therein or thereon free and clear of all encumbrances and in a clean
and tidy condition and free of all rubbish and to deliver to the
Landlord all keys and security devices;
(b) remove any and all materials which may be deemed by any applicable
legislation as contaminated or hazardous (and which have been brought
onto the Leased Premises by or on behalf of the Tenant or which are a
result of the Tenant's use or occupation of the Leased Premises), and
clean up any and all resultant contamination in compliance with all
applicable laws and regulations;
(c) remove from the Leased Premises at the option of the Landlord, in
compliance with all applicable laws and regulations, any and all
storage and/or holding tanks (whether above or below ground) installed
by or on behalf of the Tenant from and after the Commencement Date and
all pits and trenches created by or on behalf of the Tenant; and
(d) remove such Leasehold Improvements and repair all damage of
installation and removal of same, as may be required pursuant to
Section 5.4.
The covenants contained in this Section shall survive the expiry or other
termination of the Term.
ARTICLE VI
ASSIGNING AND SUBLETTING
6.1 Assigning or Subletting
(a) The Tenant shall not assign this Lease or sublet or franchise,
license, grant concessions in, or otherwise part with or share
possession of the Leased Premises or any part thereof (hereinafter
referred to as a "Transfer") without the prior written consent of the
Landlord, not to be unreasonably withheld or delayed; at the time the
Tenant requests such consent the Tenant shall deliver to the Landlord
such information in writing as the Landlord may reasonably require,
including, without limitation, a copy of the proposed offer or
agreement, if any, to Transfer and the name, address and nature of
business and evidence as to the financial strength of the proposed
assignee or subtenant or other user (hereinafter referred to as a
"Transferee"). Notwithstanding anything else herein contained, in no
event shall any Transfer of this Lease release or relieve the Tenant
in any regard whatsoever from any of its obligations or liabilities
under or in respect of the Lease. It shall not be considered
unreasonable for the Landlord to withhold its consent to a Transfer in
the event the Landlord is not satisfied, in its reasonable discretion,
that the proposed Transferee has a sufficient financial strength and
covenant to perform all the Tenant's obligations and covenants in this
Lease, including, without limitation, the Tenant's remediation
obligations set out in Sections 14.15 and 14.16 herein.
PROVIDED however, and it is made a condition to any Transfer that:
(i) The proposed Transferee shall agree in writing to assume and
perform all of the terms, covenants, conditions and agreements by
this Lease imposed upon the Tenant herein in a form to be
approved by the solicitor for the Landlord;
(ii) The Tenant shall pay the Landlord all reasonable legal fees in
connection with the Transfer;
(iii) The consent of the Landlord is not a waiver of the requirement
upon the Tenant for the Landlord's consent for any subsequent
Transfer;
(iv) The acceptance by the Landlord of Rent from a Transferee without
the Landlord's consent to such Transfer shall not constitute a
waiver of the requirement of such consent nor shall it constitute
an acceptance of such party as the Tenant;
(v) If the Transfer does not take place within sixty (60) days of the
giving of consent by the Landlord, then the Landlord's consent to
such Transfer shall, at the Landlord's option, expire and become
null and void; and
(vi) If the Lease is disaffirmed, disclaimed or terminated by any
trustee in bankruptcy of a Transferee, then the original Tenant
named in this Lease will be deemed on notice from the Landlord
given within sixty (60) days from the date of such
disaffirmation, disclaimer or termination to have entered into a
Lease with the Landlord containing the same terms and conditions
as in this Lease.
(b) If a Transfer occurs without the consent of the Landlord when
required, then the Landlord may collect Rent from the party in whose
favour the Transfer was made and apply the net amount collected to the
Rent herein reserved but no such Transfer will be considered a waiver
of this covenant or the acceptance of the party in whose favour the
Transfer was made as a tenant hereunder.
(c) The Landlord shall not be liable for any claims or actions by or for
any damages, liabilities, losses or expenses of the Tenant arising out
of the Landlord unreasonably withholding its consent to any Transfer
and the Tenant's only recourse shall be to bring an application for a
declaration that the Landlord shall grant its consent to such
Transfer.
(d) Intentionally deleted.
6.2 Change of Control
If the Tenant or any assignee or subtenant is a private corporation and any
part or all of the corporate shares of the Tenant or such assignee or subtenant
shall be transferred by sale, assignment, amalgamation, bequest, inheritance,
operation of law or other disposition or dispositions so as to result in a
change in the control of the corporation, such change of control shall be
considered a Transfer and shall be subject to the provisions of Section 6.1
hereof. The Tenant shall make available to the Landlord upon its request for
inspection and copying, all books and records of the Tenant, any assignee or
subtenant and their respective shareholders which, alone or with other data, may
show the applicability or inapplicability of this Section.
The foregoing does not apply to the Tenant as long as:
(i) the Tenant is a public corporation whose shares are traded and listed
on any recognized stock exchange in Canada or the United States; or
(ii) the Tenant is a private corporation and is controlled by a public
corporation described above in subsection (i).
Furthermore, the following shall not be considered Transfers
that require the Landlord's consent:
a) change of control to a holding corporation or a subsidiary corporation
of the Tenant or a corporation that is an affiliate of the Tenant (as
defined in the Ontario Business Corporations Act) so long as such
corporation remains an affiliate of the Tenant;
b) change of control to any corporation formed as a result of a merger or
amalgamation with the Tenant or its parent with another corporation or
corporations;
c) change in control among the shareholders of the Tenant in existence as
of the commencement date.
6.3 Advertising Premises
The Tenant shall not advertise or allow the Leased Premises or a portion
thereof to be advertised as being available for assignment, sublease or
otherwise without the prior written approval of the Landlord as to the form,
size, content and location of such advertisement, which approval shall not be
unreasonably withheld, provided that (i) no such advertising shall contain any
reference to the Rent for the Leased Premises and (ii) any such advertising
shall be on a standard ground-mounted real estate sign.
6.4 Disposition by Landlord
If the Landlord sells or leases the Project, the Leased Premises or any
part thereof, or assigns this Lease, and to the extent that the covenants and
obligations of the Landlord under this Lease are assumed by the purchaser,
lessee or assignee, the Landlord, without further written agreement, will be
discharged and relieved of liability under the said covenants and obligations.
ARTICLE VII
USE
7.1 Use of Leased Premises
(a) Subject to paragraph (b) of this Section, the Tenant shall not use the
Leased Premises nor allow the Leased Premises to be used for any
purpose other than for manufacturing and processing of steel tubular
and rolled formed products and ancillary processes and products
including UVC, lacquer and power coating of tubing and in respect of
the Tenant Lands, for outside storage, access and egress and parking
for customers, employees, workmen and invitees, but only to the extent
(i) in compliance with the provisions of this Lease and (ii) permitted
by all applicable laws, by-laws and other governmental regulations
from time to time in force.
(b) The Tenant covenants to not use or permit the Leased Premises to be
used for any retail sales whatsoever.
(c) The Tenant shall abide by the rules and regulations attached hereto as
Schedule F and any other rules and regulations adopted by the Landlord
and conveyed to the Tenant, provided such rules shall not contradict
any term of this Lease.
7.2 Observance of Law
The Tenant shall comply promptly with and conform to the requirements of
all applicable statutes, by-laws, laws, regulations, ordinances and orders from
time to time or at any time in force during the Term and affecting the
condition, maintenance, repair, use or occupation of the Leased Premises (or
equipment therein) and with every applicable regulation, order and requirement
of the Insurance Advisory Organization or any body having similar functions or
of any liability or fire insurance company by which the Landlord and the Tenant
or either of them may be insured at any time during the Term, and, in the event
of the default of the Tenant under the provisions of this Section, the Landlord
may itself comply with any such requirements as aforesaid and the Tenant will
forthwith pay all costs and expenses incurred by the Landlord in this regard and
the Tenant agrees that all such costs and expenses shall be recoverable by the
Landlord as if the same were Additional Rent reserved and in arrears under this
Lease.
7.3 Waste and Nuisance
The Tenant shall not do or suffer any waste, damage, disfiguration or
injury to the Leased Premises or the fixtures and equipment thereof and shall
not use or permit to be used any part of the Leased Premises for any dangerous,
noxious or offensive trade or business nor use the Leased Premises in any manner
which, in the opinion of the Landlord acting reasonably, is or with time would
likely become detrimental to the Building or the Project, nor keep, sell, use,
handle or dispose of any goods or things which may be objectionable nor cause or
maintain any nuisance in, at or on the Leased Premises nor cause any annoyance,
nuisance or disturbance to the occupiers or owners of any adjoining lands and/or
premises and shall keep the Leased Premises free of hazardous waste and
contamination and take reasonable precautions to protect the Leased Premises
from danger of fire, water damage or the elements. Notwithstanding the
foregoing, the Landlord acknowledges that the permitted use of the Leased
Premises pursuant to this Lease is manufacturing and processing of steel tubular
and rolled formed products and ancillary processes and products including UVC,
lacquer and power coating of tubing and so long as such use is performed in
accordance with all requirements of this Lease and good industry practices, such
use shall not constitute a nuisance.
7.4 Signs
The Tenant covenants and agrees not to affix or display or cause to be
affixed or displayed any sign or signs on any part of the exterior of the
Building (including, without limitation, the windows), without the prior written
approval of the Landlord, which approval shall not be unreasonably withheld and
subject to applicable municipal and other governmental regulations. The Tenant
shall at its own cost remove all such signage at the expiration of the Term, or
other sooner termination thereof, and forthwith repair all damage which may be
caused or occasioned by such affixing and/or removal and this covenant shall
survive the expiry or other termination of the Term.
7.5 Outside Storage
Notwithstanding any provision to the contrary contained in this Lease, the
Tenant shall be entitled to use the Tenant Lands for outside storage, for the
storage of steel coils and other raw materials and finished products associated
with its permitted use of the Leased Premises. The Tenant shall not allow any
waste, refuse, garbage or other loose material to accumulate in the Leased
Premises or on the Tenant Lands and will use covered metal receptacles for same
and will arrange for waste removal service at regular intervals.
7.6 Overloading Floors
The Tenant covenants that it will not bring upon the Building or any part
thereof any machinery, equipment, article or thing that, by reason of its
weight, size, configuration, operation or otherwise, might damage the Building
and will not at any time overload or damage the floors of the Building. The
Tenant shall remove any such machinery, equipment (including but not limited to
mobile equipment such as a forklift), article or thing within five (5) days'
written notice thereof and if any damage is caused to the Building by any
machinery, equipment, article or thing or by overloading, the Tenant shall
forthwith repair such damage at its own expense to the satisfaction of the
Landlord.
7.7 Use of Common Areas and Facilities
The Tenant shall have the right to the use of the Common Areas and
Facilities of the Lands for itself and its invitees in common with the Landlord,
other tenants, and their invitees. Such use shall be for the purpose of access
to the Leased Premises, loading and receiving and parking while using the Leased
Premises and such other purposes as may be approved by the Landlord, acting
reasonably.
7.8 Contribution Toward Maintenance and Repair of Common Areas and Facilities
The Tenant shall pay to the Landlord, as Additional Rent, its proportionate
share of the costs and expenses incurred in maintaining, operating, repairing
and replacing the Common Areas and Facilities. The Tenant shall pay its
proportionate share of all such amounts as Additional Rent within 15 days of
invoice by the Landlord. For clarity, in the event of any capital costs incurred
in connection with the altering, repairing, replacing or upgrading of the Common
Areas for access and egress to the Lands, the Tenant shall pay its proportionate
share of such capital costs if such alterations, repairs, replacements or
upgrades benefit the Tenant, as demonstrated by the Landlord, acting reasonably
(provided if there is no benefit to the Tenant, the Tenant shall not bear any
portion of such capital cost) and for such purposes, the Landlord shall provide
the Tenant with prior notice of any such capital costs to be incurred.
7.9 Landlord Not to Permit Use of Lands to Disrupt Tenant
The Landlord shall not use any part of the Lands or permit any part of the
Lands to be used in a manner that materially adversely interferes with or
disrupts the Tenant's use of the Leased Premises for the permitted use,
including the Tenant's outside storage use. Without limiting the generality of
the foregoing, the Landlord covenants not to permit any other tenant or occupant
of the Lands to use any part of the Lands nor will it use any part of the Lands
for any corrosive procedure, including through the use of lime, alkalines, acids
or phosphates.
Furthermore, to the extent the Landlord or any other tenant develops any
part of the Lands, the Landlord covenants to use its best commercially
reasonable efforts not to permit such development to materially disrupt or
impede the Tenant's business or its egress and ingress from and to the Leased
Premises.
7.10 Landlord to Maintain and Repair Common Areas and Facilities and Structure
The Landlord covenants to replace the Structure of the Building at its cost
(save and except to the extent such replacement is due to any act or omission of
the Tenant or those for whom it is in law responsible) and to maintain, repair
and replace the Common Areas and Facilities, including carrying out the Exterior
Maintenance and Repair Work described in Schedule "C", and the Tenant shall pay
its proportionate cost of such work as determined by the Landlord, acting
reasonably.
ARTICLE VIII
INSURANCE AND INDEMNITY
8.1 Tenant's Insurance
The Tenant shall, at its expense, maintain in force during the Term and any
other period of occupation (if any), in the name of the Tenant (with the
Landlord, the Landlord's property manager and/or asset manager and the
Landlord's mortgagee, if any, added as additional insureds) the following
insurance:
(a) comprehensive general liability insurance against claims for personal
injury, death or property damage (including but not limited to
tenants' legal liability, personal injury liability, products
liability, property damage and contractual liability to cover all
indemnities) with respect to the business or operations carried on in
and from the Leased Premises, in amounts required by the Landlord and
any mortgagee of the Building or any part thereof from time to time
but in no event less than Five Million Dollars ($5,000,000.00) per
occurrence;
(b) insurance covering all contents of the Leased Premises and all other
property for which the Tenant is responsible pursuant to this Lease
and/or which has been installed by or on behalf of the Tenant
(including without limitation all chattels, equipment, machinery,
furniture, inventory, fixtures and all Leasehold Improvements) in an
amount equal to the full replacement value thereof;
(c) broad form boiler and machinery insurance on a blanket repair and
replacement basis with limits for each accident in the amount of not
less than the replacement cost of the Leased Premises and all
Leasehold Improvements and of all boilers, pressure vessels,
air-conditioning equipment and miscellaneous electrical apparatus in
the Leased Premises;
(d) business interruption insurance in such amounts as will reimburse the
Tenant for direct or indirect loss of earnings including continuing
and extra expenses attributable to all perils insured against by the
Tenant hereunder; and
(e) such other forms of insurance as may be reasonably required by the
Landlord and its mortgagee from time to time.
All policies required to be written on behalf of the Tenant pursuant to
this Section shall contain the Landlord's mortgagee's standard mortgage clause
as applicable, and shall contain a waiver of any subrogation rights which the
Tenant's insurers may have against the Landlord and against those for whom the
Landlord is in law responsible, whether any such damage is caused by the act,
omission or negligence of the Landlord or those for whom the Landlord is in law
responsible. All policies will have reasonable deductibles and will be primary
and not call into contribution or be in excess of any other insurance available
to the Landlord or any additional insureds. All policies shall be taken out with
insurers acceptable to the Landlord and shall be in a form satisfactory from
time to time to the Landlord. The Tenant agrees that certificates of insurance
on the Landlord's standard form or if required by the Landlord or the Landlord's
mortgagee certified copies of each such insurance policy will be delivered to
the Landlord immediately after the placing, removal, amendment or extension of
the required insurance. All policies shall contain an undertaking by the
insurers to notify the Landlord and the Landlord's mortgagee in writing not less
than thirty (30) days prior to any material change, cancellation or termination
thereof.
The Tenant agrees that if the Tenant fails to take out or keep in force any
such insurance referred to in this Section, or should any such insurance not be
approved by either the Landlord or the Landlord's mortgagee and should the
Tenant not rectify the situation immediately after written notice by the
Landlord to the Tenant, the Landlord has the right without assuming any
obligation in connection therewith to effect such insurance at the sole cost of
the Tenant and all outlays by the Landlord shall be immediately paid by the
Tenant to the Landlord as Additional Rent without prejudice to any other rights
and remedies of the Landlord under this Lease.
8.2 Landlord's Insurance
The Landlord shall, throughout the Term, at the sole cost and expense of
the Tenant, keep insured the Building and appurtenances thereto and when
applicable, the Leased Premises, to the following extent: (
a) against such loss or damage as are customarily insured against under a
policy of insurance commonly known as a Multi-Peril or All-Risk
policy;
(b) if determined necessary by the Landlord, loss of rental income
insurance with respect to fire and other usual perils for which such
insurance is customarily issued for a period (as selected by the
Landlord) of not less than six (6) months and not more than twelve
(12) months for the Basic Rent and other sums payable as Additional
Rent under this Lease; and
(c) other casualties as are customarily insured against under insurance
contracts normally entered into from time to time during the Term by
owners of buildings in the area of a character similar to the Leased
Premises in such amounts as in the reasonable opinion of the Landlord
is necessary to protect the Landlord against loss or damage.
Notwithstanding anything contained in this Lease, including but not limited to
the covenant of the Landlord to take out the aforesaid insurance or the
contribution of the Tenant to the cost of such insurance, nothing in this Lease
shall confer any insurable interest upon the Tenant in respect of such insurance
and the Tenant acknowledges that it has no right to receive the proceeds or any
part thereof from such insurance policies. The Tenant shall pay to the Landlord,
within 15 days of invoice, as Additional Rent, the cost of the Landlord's
insurance as set out above. In the event that the Landlord's insurance is in
respect of the Project, the Landlord shall allocate the costs of same to the
Leased Premises and the remainder of the Lands, acting reasonably.
8.3 Not to Affect Landlord's Insurance
Neither the Tenant nor its officers, directors, agents, servants, licencees
or concessionaires, assignees or subtenants shall bring onto the Leased Premises
or the Project or do or omit or permit to be done or omitted to be done upon or
about the Leased Premises or the Project anything which shall cause the rate of
insurance upon the Leased Premises or the Project or any part thereof or its
contents to be increased, and if the said rate of insurance shall be increased
by reason of the use made of the Leased Premises even though such use may be a
permitted use hereunder or by reason of anything done or omitted or permitted to
be done or omitted to be done on the Project by the Tenant or its officers,
directors, agents, servants, licensees, concessionaires, assignees or subtenants
or by anyone permitted by the Tenant to be upon the Project or in the Leased
Premises, the Tenant shall pay to the Landlord forthwith upon demand the amount
of such increase.
8.4 Limit of Landlord's Liability
The Landlord shall not be responsible in any way for any injury to any
person (including but not limited to death) or for any loss of or damage to any
property belonging to the Tenant or to other occupants of the Leased Premises or
to their respective employees, agents, invitees, licensees or other persons from
time to time attending at the Leased Premises or the Project while such person
or property is in or about any part of the Project (including, without
limitation, the Leased Premises), including without limiting the foregoing, any
loss of or damage to any property caused by theft or breakage, or by steam,
water, rain or snow or for any loss or damage caused by or attributable to the
condition or arrangements of any electrical or other wiring or for any damage
caused by smoke or anything done or omitted to be done by any other tenant of
the Project or for any other loss whatsoever with respect to the Leased
Premises, goods placed therein or any business carried on therein.
8.5 Limit of Tenant's Liability
The Tenant shall not be liable to the Landlord for any direct injury, loss
or damage required to be insured by the Landlord pursuant to paragraphs (a) or
(b) of Section 8.2 to the extent of the proceeds actually recovered by the
Landlord under such policies of insurance.
8.6 Indemnity
The Tenant shall promptly indemnify and save the Landlord harmless from any
and all liabilities, damages, costs, expenses, claims, suits or actions arising
out of any breach, violation or non-observance by the Tenant of any of its
obligations under the Lease; from any damage to property while such property
shall be in or about the Leased Premises including but not limited to the
systems, furnishings and amenities thereof, as a result of the willful or
negligent act or omission of the Tenant, its employees, agents, invitees or
licensees; and from any injury to any employee, agent, invitee or licensee, of
the Tenant, including but not limited to death resulting at any time therefrom,
occurring on or about the Leased Premises or the Project and the Tenant shall
pay all such costs and expenses to the Landlord forthwith upon demand
(including, without limitation, legal fees on a solicitor and his own client
basis). Notwithstanding anything else herein contained, this indemnity shall
survive the expiry or earlier termination of the Term.
8.7 Limited Recourse
The Tenant will look solely to the interest of the Landlord in the Project
for the collection or satisfaction of any money or judgement which the Tenant
may recover against the Landlord, and the Tenant will not look for the
collection or satisfaction of any such money or judgement to the personal assets
of any person who is at any time a partner, joint venturer or co-tenant in the
Project.
ARTICLE IX
CONTROL OF PROJECT
9.1 Control of Project
(a) Subject to any express provision of this Lease to the contrary, the
Project shall, at all times, be subject to the exclusive control of
the Landlord and, without limiting the generality of the foregoing,
the Landlord shall have the right from time to time throughout the
Term:
(i) to construct in, to or on the Project, to make alterations,
additions and subtractions thereto and therefrom to erect new
buildings on the Project;
(ii) to monitor access to any of the parking areas by means of
barriers, control booths or any other method which the Landlord
deems proper;
(iii) to change the location of driveways and sidewalks and the
location, layout or size of the parking area, provided that the
Tenant shall bear no part of the cost of same unless the Tenant
receives some benefit from same; and
(iv) to do or perform such other acts in and to the Project as the
Landlord, acting as a prudent owner, deems advisable for the more
efficient and proper operation of the Project.
(b) The Landlord will operate and maintain the Project in such a manner as
the Landlord in its sole discretion shall determine from time to time.
Without limiting the scope of such discretion, the Landlord shall have
the full right and authority to employ all personnel and to make all
rules and regulations pertaining to and necessary for the proper
operation and maintenance of the Project.
(c) The Landlord shall not be liable for any diminution or alteration of
the Common Areas and Facilities of the Project resulting from the
exercise of the Landlord's rights under this Section and the Tenant
shall not be entitled to a reduction or abatement of Rent or to
compensation therefor.
(d) In the exercise of any of the Landlord's rights set out in this
Article IX, the Landlord shall not (unless on a temporary and
emergency basis) prevent or permit anyone to prevent the Tenant's
access to or egress from the Leased Premises and the Landlord shall
use commercially reasonable efforts not to materially interfere with
the Tenant's permitted use of the Leased Premises and reasonable use
of Common Areas and Facilities and where reasonably possible, the
Landlord shall communicate with the Tenant, provide prior written
notice of such changes and attempt to coordinate with the Tenant to
avoid or minimize potential disruptions to the Tenant's business. For
clarity, the Landlord acknowledges that prevention of access to and
egress from the Leased Premises would be a hardship to the Tenant and
unless required for reasons of emergency, any disruption of access
shall be temporary only, "temporary" in this Section meaning a number
of hours or less, but in any event not to exceed one day, unless due
to Force Majeure and the Landlord shall use reasonable efforts to
avoid any disruptions to access and egress to the Leased Premises by
the Landlord, its agents, contractors, subcontractors and others for
whom the Landlord is at law responsible.
ARTICLE X
DAMAGE AND DESTRUCTION
10.1 Abatement of Rent
If the Building or any portion thereof is damaged or destroyed by fire or
by other casualty against which the Landlord is required to insure under this
Lease, Rent shall xxxxx in proportion to the area of that portion of the
Building which, in the reasonable opinion of the Landlord, is thereby rendered
unfit for the purposes of the Tenant bears to the area of the entire Building
(but only to the extent to which the Landlord actually receives proceeds under
its loss of rental income insurance) until the Building is repaired and rebuilt
as certified by the Landlord's Architect and the Landlord agrees that it will,
with reasonable diligence, repair and rebuild the Building, subject to Section
10.2. The Landlord's obligation to rebuild and restore the Building shall not
include the obligation to rebuild, restore, replace or repair any chattel,
fixture, Leasehold Improvements, or any other thing that is the property of the
Tenant and/or for which the Tenant is to maintain insurance under paragraph (b)
of Section 8.1 (in this Section collectively called "Tenant's Improvements");
the Building shall be deemed repaired and rebuilt when the Landlord's Architect
certifies that the Building has been substantially repaired and rebuilt to the
state where the Tenant could occupy it for the purpose of rebuilding, restoring,
replacing or repairing the Tenant's Improvements. The issuance of the
certificate of the Landlord's Architect shall not relieve the Landlord of its
obligation to complete the repairing and rebuilding as aforesaid, but the Tenant
shall forthwith after issuance of such certificate proceed to rebuild, restore,
replace and repair the Tenant's Improvements, and the provisions of Section 5.04
shall apply to such work, mutatis mutandis.
10.2 Termination
Notwithstanding the provisions of Section 9.1 hereof, if:
(a) the Building or any portion thereof is damaged or destroyed by any
cause whatsoever and cannot in the reasonable opinion of the Landlord
be rebuilt or made fit for the purposes of the Tenant as aforesaid
within one hundred and eighty (180) days from the date of such damage
or destruction; or
(b) the Building is damaged or destroyed by an uninsured peril (provided
that neither party was required to insure for such peril pursuant to
the terms of this Lease),
the Landlord may, at its option, terminate this Lease by giving to the Tenant,
within thirty (30) days after the date of such damage or destruction, notice of
termination and thereupon Rent shall be apportioned and paid to the date of such
damage or destruction and the Tenant shall immediately deliver up possession of
the Leased Premises to the Landlord.
If neither party elects to terminate the Lease, the Landlord shall repair and
rebuild the Building in accordance with the provisions of Section 9.1 hereof.
Notwithstanding anything to the contrary in this Lease, the Landlord shall have
no obligation to rebuild the Building in the event of any damage and destruction
occurring during the last year of the Term (regardless of estimated time
required to rebuild).
ARTICLE XI
DEFAULT
11.1 Events of Default
An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any part thereof
on the day appointed for payment thereof, whether lawfully demanded or
not;
(b) the Tenant shall have breached or failed to comply with any of its
covenants and agreements contained in this Lease (save for non-payment
of Rent) and shall have failed to remedy such breach or non-compliance
within fifteen (15) days (or such longer period as the Landlord may
reasonably determine, having regard to the nature of the default)
after written notice thereof given by the Landlord to the Tenant;
(c) the Tenant shall make any assignment for the benefit of creditors or
become bankrupt or insolvent or take the benefit of any Act now or
hereinafter in force for bankrupt or insolvent debtors;
(d) the Tenant is a corporation and any order shall be made for the
winding-up of the Tenant or other termination of the corporate
existence of the Tenant;
(e) the Tenant makes or attempts to make a bulk sale of assets not in the
ordinary course of the Tenant's business;
(f) a trustee, receiver, interim receiver, receiver and manager, custodian
or liquidator is appointed for the business, property, affairs or
revenue of the Tenant;
(g) this Lease or any of the Tenant's assets on the Leased Premises are
taken or seized under writ of execution, an assignment, pledge,
charge, debenture or other security instrument;
(h) the Tenant abandons or attempts to abandon the Leased Premises;
(i) the Leased Premises shall be used by any person other than the Tenant
or the Tenant's permitted assignees or for any purpose other than as
set out in Section 7.1;
(j) any insurance policy on the Building or any part thereof shall be
cancelled or shall be threatened by the insurer to be cancelled or the
coverage thereunder reduced in any way by the insurer by reason of the
use or occupation of the Leased Premises or the Project or any part
thereof by the Tenant and the Tenant shall have failed to remedy the
condition giving rise to such cancellation, threatened cancellation or
reduction of coverage within forty-eight (48) hours' written notice
given by the Landlord to the Tenant;
(k) the Tenant sells or disposes of the goods, chattels or equipment in
the Leased Premises or removes, commences or threatens to remove them
from the Leased Premises so that in the opinion of the Landlord there
would not, in the event of such sale, disposal or removal, be
sufficient goods on the Leased Premises subject to distress which
would satisfy all Rent due or accruing hereunder for a period of six
(6) months;
(l) the Tenant shall at any time during the Term use the Leased Premises,
whether within the use permitted by Section 7.1 or not, in a manner
which imposes upon the Landlord any obligation to modify, extend,
alter or replace any part of the Leased Premises or any of the
machinery, equipment or other facilities used in connection with the
Leased Premises, which obligation is not fulfilled by the Tenant at
its own cost in a timely manner; or
(m) the Building is vacant for any period in excess of fifteen (15) days
other than during repairs or renovations or temporary holiday closure.
Notwithstanding the Bankruptcy and Insolvency Act (Canada) or otherwise, upon
the occurrence of an Event of Default, the then current month's Rent and next
ensuing three (3) months' Rent shall immediately become due and be paid by the
Tenant to the Landlord as accelerated Rent and the Landlord may immediately
distrain for the same together with any Rent arrears then unpaid.
11.2 Right of Re-entry
(a) Upon the occurrence of an Event of Default, the Landlord may at any
time thereafter, without notice to the Tenant, re-enter the Leased
Premises or any part thereof in the name of the whole and, at the
Landlord's option, and without prejudice to the Landlord's right to
recover all Rent payable under this Lease for the remainder of the
Term, terminate this Lease and all the rights of the Tenant
thereunder, provided that no action of the Landlord shall be deemed to
be a termination of this Lease except an express termination of this
Lease in writing.
(b) If and whenever the Landlord exercises its option to re-enter the
Leased Premises and terminate this Lease pursuant to paragraph (a) of
this Section:
(i) the Tenant shall immediately vacate the Leased Premises and the
Landlord may remove or cause to be removed from the Leased
Premises the Tenant and/or any other occupant or occupants
thereof and may remove all property therefrom and sell or dispose
of such property as the Landlord considers appropriate without
liability for loss or damage and without prejudice to the rights
of the Landlord to recover arrears of Rent or damages incurred by
the Landlord;
(ii) the Landlord shall be immediately entitled to the payment of Rent
up to the date of termination together with all expenses incurred
by the Landlord in respect of such termination and the value of
the Rent, calculated at the date of termination, for the
unexpired portion of the Term.
11.3 Reletting
At any time when the Landlord is entitled to re-enter the Leased Premises
or terminate this Lease, the Landlord may without notice to the Tenant and
without terminating the Lease enter upon and take custody of the Leased Premises
in the name of and as agent of the Tenant, together with all of the Tenant's
improvements, fixtures and furnishings, and sublet the Leased Premises in the
name of and as the agent of the Tenant on whatever terms the Landlord may deem
appropriate but no such action by the Landlord shall waive any of the
obligations of the Tenant or limit the subsequent exercise of any of the
Landlord's remedies for default. If the Landlord shall sublet the Leased
Premises as aforesaid, the Landlord shall be entitled to receive all sublease
rent and apply the same in its discretion to any indebtedness of the Tenant to
the Landlord under this Lease and/or to the payment of any costs and expenses of
reletting, and the Landlord shall be liable to account to the Tenant only for
the excess, if any, of monies actually received by it. If the sublease rent is
less than is necessary to pay and discharge all the then existing and continuing
obligations of the Tenant hereunder, the Tenant shall pay such deficiency to the
Landlord upon demand from time to time. Notwithstanding any such re-entry and
subletting without termination, the Landlord may at any time thereafter
terminate this Lease by reason of the previous or any other default under the
Lease and the provisions of Section 10.02 shall apply.
11.4 Distress
The Tenant waives and renounces the benefit of any present or future
statute taking away or limiting the Landlord's right of distress, and covenants
and agrees that notwithstanding any such statute, none of the goods and/or
chattels of the Tenant on the Leased Premises at any time during the Term shall
be exempt from levy by distress for rent in arrears.
11.5 Right of Landlord to Cure Defaults
If the Tenant fails to perform or cause to be performed any of the
covenants or obligations of the Tenant herein, the Landlord shall have the right
(but shall not be so obligated) to perform or cause to be performed and to do or
cause to be done such things as may be necessary or incidental thereto
(including without limiting the foregoing, the right to make repairs,
installations, erections and expend monies), and all payments, expenses,
charges, fees and disbursements incurred or paid by or on behalf of the Landlord
in respect thereof shall be deemed to be Additional Rent and shall be paid by
the Tenant to the Landlord within ten (10) days' written demand therefor
together with all reasonable legal and administrative costs of the Landlord in
respect thereof.
11.6 Remedies Not Exclusive
Mention in this Lease of any particular remedy or remedies in respect of
any default or threatened default by the Tenant in the performance of its
obligations shall not preclude the Landlord from exercising, or limit the extent
of, any other remedy in respect thereof, whether at law, in equity or pursuant
to any express provision hereof. No remedy shall be interpreted as exclusive or
dependent upon any other remedy, and the Landlord may from time to time exercise
any one or more of such remedies independently or in combination.
11.7 Non-Waiver
No condoning, excusing or overlooking by the Landlord of any default,
breach or non-observance by the Tenant at any time or times in respect of any
covenant, proviso or condition herein contained shall operate as a waiver of the
Landlord's rights hereunder in respect of any continuing or subsequent default,
breach or non-observance, or so as to defeat or affect in any way the rights of
the Landlord herein in respect of any such continuing or subsequent default or
breach, and no waiver shall be inferred from or implied by anything done or
omitted by the Landlord, save only an express waiver by the Landlord in writing.
11.8 Recovery of Adjustments
The Landlord shall have (in addition to any other right or remedy of the
Landlord) the same rights and remedies in the event of default by the Tenant in
payment of any amount payable by the Tenant hereunder as the Landlord would have
in the case of default in payment of Rent.
ARTICLE XII
SUBORDINATION AND ACKNOWLEDGEMENTS
12.1 Mortgages
At the option of the Landlord, this Lease shall be subject and subordinate
to any and all mortgages, charges and deeds of trust, which may now or at any
time hereafter affect the Leased Premises in whole or in part, or the Project or
Lands, or the Building whether or not any such mortgage, charge or deed of trust
affects only the Leased Premises or the Lands or the Building or affects other
premises as well. On request at any time and from time to time of the Landlord
or of the mortgagee, chargee or trustee under any such mortgage, charge or deed
of trust, the Tenant shall promptly, at no cost to the Landlord or mortgagee,
chargee or trustee:
(a) attorn to such mortgagee, chargee or trustee and become its tenant of
the Leased Premises or the tenant of the Leased Premises of any
purchaser from such mortgagee, chargee or trustee in the event of an
exercise of any permitted power of sale contained in any such
mortgage, charge or deed of trust for the then unexpired residue of
the Term on the terms herein contained; and/or
(b) postpone and subordinate this Lease to such mortgage, charge or deed
of trust to the intent that this Lease and all right, title and
interest of the Tenant in the Leased Premises shall be subject to the
rights of such mortgagee, chargee or trustee as fully as if such
mortgage, charge or deed of trust had been executed and registered and
the money thereby secured had been advanced before the execution of
this Lease (and notwithstanding any authority or consent of such
mortgagee, or trustee, express or implied, to the making of this
Lease).
Any such attornment or postponement and subordination shall extend to all
renewals, modifications, consolidations, replacements and extension of any such
mortgage, charge or deed of trust and every instrument supplemental or ancillary
thereto or in implementation thereof. The Tenant shall forthwith execute any
instruments of attornment or postponement and subordination which may be so
requested to give effect to this Section.
Any such mortgagee, chargee or trustee under any mortgage, charge or deed of
trust may, at its option, subordinate its interest in such mortgage, charge or
deed of trust to the interest of the Tenant in this Lease and the Leased
Premises.
The Landlord shall, upon written request of the Tenant, obtain for the Tenant a
non-disturbance agreement from any current mortgagee, on such mortgagee's
standard form.
12.2 Certificates
The Tenant shall, within not more than ten (10) days' written request
therefor, execute and return to the Landlord as required by the Landlord from
time to time and without cost to the Landlord, a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if modified,
stating the modifications and that the Lease is in full force and effect as
modified), the amount of the annual Basic Rent then being paid hereunder, the
dates to which the same, by instalment or otherwise, and other charges hereunder
have been paid, the amount of any prepaid Rent, whether or not there is any
existing default on the part of the Landlord of which the Tenant has notice, and
any other information reasonably required.
ARTICLE XIII
ACCESS BY LANDLORD
13.1 Entry by Landlord
The Tenant shall permit the Landlord and its agents, employees and workmen
to enter upon the Leased Premises from time to time, during normal business
hours, on at least 24 hours advance written notice (except no notice shall be
required in the event of a real or perceived emergency), for the purpose of
inspecting and making repairs, alterations or improvements to the Leased
Premises and the Tenant shall not be entitled to any compensation for any
inconvenience, nuisance or discomfort occasioned thereby.
13.2 Exhibiting Leased Premises
The Tenant shall permit the Landlord or its agents to exhibit the Leased
Premises to prospective tenants during the last six (6) months of the Term and
to prospective purchasers at any time during the Term, during normal business
hours upon at least two (2) business days advance written notice.
ARTICLE XIV
MISCELLANEOUS
14.1 Notice
(a) Any notice, request, statement or other writing pursuant to this Lease
shall be deemed to have been given if delivered by personal delivery
or courier, or if mailed by registered prepaid post as follows:
In the case of the Landlord, to:
Agellan Investments Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxxxxxx
And in the case of the Tenant, to:
the Leased Premises
Attention: Xxxxx Xxxxxxxx, Chief Executive Officer
and such notice shall be deemed to have been received by the Landlord or the
Tenant (as applicable) on the third business day after the date on which it
shall have been so mailed (provided that in the event that there is an
interruption of postal service, the aforesaid period shall be extended for a
period equivalent to the period of such interruption), or if delivered by
personal delivery or courier, on the date of such personal delivery or courier
if received prior to 5:00 p.m. and if received after 5:00 p.m., on the next
business day.
(b) Notice shall also be sufficiently given if and when the same shall be
delivered, in the case of notice to the Landlord, to an executive
officer of the Landlord, and in the case of notice to the Tenant, to
him personally or to an officer or manager of the Tenant if the Tenant
is a corporation. Such notice, if delivered, shall be conclusively
deemed to have been given and received at the time of such delivery.
If in this Lease two or more persons are named as Tenant, such notice
shall also be sufficiently given if and when the same shall be
delivered personally to any one of such persons.
Either the Landlord or the Tenant may from time to time, by notice to
the other as aforesaid, designate another address in Canada to which
notices issued more than ten (10) days thereafter shall be addressed.
14.2 Registration
The Tenant covenants and agrees with the Landlord that the Tenant will not
register or record this Lease or any part thereof against the title to the Lands
or any part thereof except by way of notice which shall be subject to the prior
written approval of the Landlord and which shall only describe the parties, the
Leased Premises and the Term. The Tenant covenants to execute and return to the
Landlord such notice, prepared by the Landlord in registrable form setting out
the aforesaid details, within ten (10) days' written request therefor.
14.3 Planning Act
Where applicable, this Lease shall be subject to the condition that it is
effective only if the Planning Act (Ontario) is complied with. Pending such
compliance, the Term and any extension periods shall be deemed to be for a total
period of one (1) day less than the maximum lease term permitted by law without
such compliance.
14.4 Obligations as Covenants
Each obligation or agreement of the Landlord or the Tenant expressed in
this Lease, even though not expressed as a covenant, is considered to be a
covenant for all purposes.
14.5 Severability
Any provision of this Lease that is determined to be illegal or
unenforceable at law shall be considered separate and severable from the
remaining provisions which shall remain in force and be binding upon the
Landlord and the Tenant.
14.6 Overholding
If the Tenant shall continue to occupy all or part of the Leased Premises
after the expiration of the Term with the consent of the Landlord, and without
any further written agreement, the Tenant shall be a monthly tenant at one
hundred and twenty five percent (125%) of the monthly Basic Rent payable during
the last year of this Lease and otherwise on the terms and conditions herein set
out except as to length of tenancy.
14.7 Unavoidable Delays
Whenever and to the extent the Landlord is unable to fulfil or shall be
delayed or restricted in the fulfilment of any obligation hereunder by reason of
being unable to obtain the material, goods, equipment, service, utility or
labour required to enable it to fulfil such obligation or by reason of any
statute, law, regulation, by-law or order or by reason of any other cause beyond
its reasonable control, whether of the same nature as the foregoing or not, the
Landlord shall be relieved from the fulfilment of such obligation for so long as
such cause continues and the Tenant shall not be entitled to compensation for
any inconvenience, nuisance or discomfort thereby occasioned. There shall be no
deduction from the Rent or other monies payable under this Lease by reason of
any such failure or cause.
14.8 Evidence of Payments
The Tenant shall produce to the Landlord upon request, satisfactory
evidence of due payment by the Tenant of all payments required to be made by the
Tenant under this Lease.
14.9 Goods and Services Tax
Any amount which is, by the terms of the Lease payable by the Tenant to the
Landlord and which is subject to Goods and Services Tax ("GST") pursuant to the
Excise Tax Act (Canada) shall be deemed to be exclusive of GST with the intent
that GST shall be calculated thereon and paid by the Tenant to the Landlord at
the time such amount is payable pursuant to the terms of the Lease.
14.10 Time of Essence
Time shall be of the essence of this Lease and every part thereof.
14.11 Law
This Lease shall be governed by and construed in accordance with the laws
of the Province of Ontario.
14.12 Captions/Headings
The captions appearing in the margin of this Lease and in the headings to
the Articles of this Lease have been inserted as a matter of convenience of
reference only and do not in any way whatsoever define, limit or enlarge the
scope or meaning of this Lease or any part thereof.
14.13 Joint and Several Liability
If the Tenant shall be comprised of more than one (1) party, the liability
of each such party under this Lease shall be joint and several.
14.14 Tenant Partnership
If the Tenant shall be a partnership, each person who shall be a member of
such partnership or successor thereof shall be and continue to be jointly and
severally liable for the performance and observance of all covenants,
obligations and agreements of the Tenant under this Lease even if such person
ceases to be a member of such partnership or successor thereof.
14.15 Environmental Covenants
For the purposes of this Section, "Hazardous Substances" means any
contaminant, pollutant, dangerous substance, potentially dangerous substance,
noxious substance, toxic substance, hazardous waste, flammable, explosive or
radioactive material, urea formaldehyde foam insulation, asbestos, PCB's or any
other substances or materials that are declared or defined to be hazardous,
toxic, contaminants or pollutants in or pursuant to any applicable federal,
provincial or municipal statute, by-law or regulation.
The Tenant shall, at its own cost, comply with all laws, regulations and
government orders or directions relating to the use, generation, manufacture,
production, processing, storage, transportation, handling, release, disposal,
removal or cleanup of Hazardous Substances and the protection of the environment
("Environmental Laws") on, under or about the Project and the Leased Premises.
The Tenant shall not use or cause or permit to occur the generation,
manufacture, production, processing, storage, handling, release, presence,
introduction or disposal (each such action referred to as "handling") of any
Hazardous Substance on, under or about the Project or the Leased Premises or the
transportation to or from the Project or the Leased Premises of any Hazardous
Substance except as specifically disclosed to the Landlord and permitted under
this Lease. Upon the request of the Landlord during the Term, the Tenant shall
provide to the Landlord an independent audit report, in form and substance and
from qualified experts approved by the Landlord acting reasonably, regarding
Hazardous Substances on, under or about: (i) the Project (if handled by the
Tenant, its employees, agents or anyone for whom the Tenant is in law
responsible); or (ii) the Leased Premises during the Term.
If the Tenant shall bring or create upon the Project, including the Leased
Premises, any Hazardous Substances, then such Hazardous Substances shall be and
remain the sole property of the Tenant. Upon demand by any governmental
authority or the Landlord that removal or a cleanup be undertaken because of the
presence, introduction, deposit, emission, leak, spill, discharge of Hazardous
Substances at the Leased Premises during the Term, the Tenant shall promptly at
its own expense, take all remedial action necessary to carry out a full and
complete removal, cleanup and remediation in accordance with the law and any
governmental order, directive or requirement. No action by the Landlord and no
attempt by the Landlord to mitigate damages under any law shall constitute a
waiver or release of the Tenant's obligations hereunder.
In addition to and without restricting any other obligations or covenants
herein, the Tenant covenants that it will (i) comply in all respects with all
Environmental Laws relating to the Project, the Leased Premises or the use of
the Project and the Leased Premises; (ii) promptly notify the Landlord in
writing of any notice by any governmental authority alleging a possible
violation of or with respect to any other matter involving any Environmental
Laws relating to operations in the Leased Premises or relating to any person for
whom it is in law responsible or any notice from any other party concerning any
release or alleged release of any Hazardous Substance; and (iii) permit the
Landlord to: (A) enter and inspect the Leased Premises and the operations
conducted therein; (B) conduct tests and environmental assessments or
appraisals; (C) remove samples from the Leased Premises; (D) examine and make
copies of any documents or records relating to the Leased Premises and interview
the Tenant's employees as necessary. The Tenant shall promptly notify the
Landlord of the existence of any Hazardous Substance in, on or under the Leased
Premises.
The Tenant shall indemnify and hold the Landlord harmless at all times from
and against any and all losses, damages, penalties, fines, costs, fees and
expenses (including legal fees on a full indemnity basis and consultants' fees
and expenses) resulting from any breach of or non-compliance with the foregoing
environmental covenants of the Tenant and any legal or administrative action
commenced by, or claim made or notice from, any third party, including, without
limitation, any governmental authority, to or against the Landlord and pursuant
to or under any Environmental Laws or concerning a release or alleged release of
any Hazardous Substance at the Project including the Leased Premises into the
environment and related to or as a result of the operations of the Tenant or
those acting under its authority or control at the Leased Premises, and any and
all costs associated with air quality issues, if any.
The Tenant's covenants, obligations and liabilities hereunder shall survive
the expiration or termination of this Lease.
14.16 Tenant's Remediation Obligations/Landlord's Indemnity
For the purposes of this Section 14.16:
(a) "Applicable Environmental Standards" means those generic standards for
industrial/commercial sites with non-potable ground water conditions
and medium to fine grained soils for Table 3 Sites as set out in the
document entitled "Soil, Ground Water and Sediments Standards for Use
Under Part XV.1 of the Environmental Protection Act, March 9, 2004"
published by the Ministry of the Environment (Ontario) and referenced
in Ontario Regulation 153/04;
(b) "Contaminated Areas" means the following specific portions of the
Leased Premises: (i) the petroleum hydrocarbon impacted soil located
around the Slitting Area Sump; (ii) the boron impacted soils around
Xxxxx 2 and 3; (iii) the beryllium impacted soils located around the
east end of Mill 1; and (iv) the petroleum hydrocarbon/xylene impacted
soils located around the east end of Mill 3, all as expressly
identified in Section 11 of the Environmental Report and shown as
impacted areas on Figure 3 of the Environmental Report; and
(c) "Environmental Report" means the Summary Report, May - October 2006
Subsurface Investigation, dated November 3rd, 2006, prepared by TRY
Environmental Services Inc. and addressed to the Vendor and to 0000
Xxxxxx Xxxx Holdings Ltd..
Without limiting the generality of Section 14.15 hereof, the Tenant
covenants and agrees that at such time as the Tenant vacates the Leased
Premises, whether upon the expiration or sooner termination of this Lease or
otherwise (excluding a Transfer to which the Landlord has consented in writing),
the Tenant shall, at its sole cost, remediate the Contaminated Areas of the
Leased Premises to the Applicable Environmental Standards and shall, without
limitation, remediate and remove therefrom all Hazardous Substances, as defined
in Section 14.15 hereof, as may be required to satisfy the Applicable
Environmental Standards all within one (1) year of that date which is the
earlier of: (i) the date of expiration or other termination of the Term; and
(ii) that date on which the Tenant ceases active operation of its business from
the Leased Premises. The Tenant shall provide to the Landlord in that regard a
report or certificate of a qualified environmental engineering consultant
acceptable to the Landlord, acting reasonably, confirming that the Contaminated
Areas have been remediated to the Applicable Environmental Standards. The Tenant
shall, in addition, and at its sole cost, following the completion of such
remediation, restore to a condition equivalent to that which existed as
immediately prior to the commencement of such remediation, any damage occasioned
to the floor slab or any other portion of the Building as a direct or indirect
result of the remediation undertaken by or on behalf of the Tenant pursuant to
this Section 14.16.
In consideration of, and subject only to, the Tenant's remediation
obligations contained in this Section 14.16, the Landlord hereby acknowledges
and agrees that it is satisfied with the environmental condition of the Project,
including the Leased Premises, as at the commencement of the Term and the
Landlord hereby releases the Tenant, and agrees to protect, indemnify and save
the Tenant harmless, in respect of any claims, actions, damages, liabilities and
expenses, including any fines, penalties, payments and/or damages (for the
purposes of this Section 14.16 a "Claim") relating to, arising out of, resulting
from or in any way connected with the existence upon any portion of the Project
or the Leased Premises (other than the Contaminated Areas) of any Hazardous
Substance as at the date of commencement of the Term. For greater certainty, the
Landlord and Tenant acknowledge and agree that this release and indemnity shall
survive the expiration or sooner termination of this Lease, but shall extend and
apply only to any Claim relating to the environmental condition of the Project
or the Leased Premises as at the date of commencement of the Term, it being
acknowledged and agreed that this release and indemnity shall not extend to, and
the Tenant shall be solely responsible for, any such Claim or Claims relating
to, arising out of, resulting from or in any way connected with a breach by the
Tenant during the Term of the Tenant's covenants set out in Section 14.15 hereof
(including, without limitation, any exacerbation of any existing Hazardous
Substance on, under or in the Leased Premises and/or the Project at the
commencement of the Term or exacerbation of any loss or damage in connection
therewith, to the extent of such exacerbation), in respect of any of which
breach or Claim the Tenant's indemnity set out in Section 14.15 shall apply.
For clarity, it is acknowledged and agreed that any consent by the Landlord
to a Transfer, or any transfer by operation of law or otherwise, shall not
release the Tenant of any of its obligations under this Section 14.16 and any
Transferee of all or any part of the Leased Premises shall be jointly and
severally liable with the Tenant for all covenants, obligations and liabilities
under this Section 14.16. The Tenant's covenants, obligations and liabilities
hereunder shall survive expiration or termination of this Lease.
14.17 Easements
The Tenant acknowledges that the Lands are subject to such rights-of-way
and other easements as are designated, if any, in Schedule "A" hereto. The
Tenant agrees to postpone this Lease, upon demand by the Landlord, to:
(i) such further easements in favour of adjoining lands for purposes of
ingress and egress as may be requested by the Landlord from time to
time; and
(ii) easements regarding utilities as may be required from time to time.
14.18 Entire Agreement
The Tenant acknowledges that there have been no representations made by the
Landlord which are not set out in the Lease. The Tenant further acknowledges
that the Lease constitutes the entire agreement between the Landlord and Tenant
and may not be modified except as herein explicitly provided or by subsequent
agreement in writing duly signed by the Landlord and the Tenant.
14.19 Effect of Lease
This Indenture and everything herein contained shall extend to and bind and
may be taken advantage of by the respective heirs, executors, administrators,
successors and assigns, as the case may be, of each of the parties hereto,
subject to the granting of consent by the Landlord as provided herein to any
assignment or sublease, and where there is more than one tenant or there is a
female party or a corporation, the provisions hereof shall be read with all
grammatical changes thereby rendered necessary and all covenants shall be deemed
joint and several. Any release, indemnity or covenant for the benefit of the
Landlord shall apply equally to the extent the context allows, to all agents,
directors, officers, employees, property managers and mortgagees of the
Landlord.
14.20 Options to Extend
Subject to the following terms hereof, the Tenant shall be entitled to
extend the this Lease for two (2) further and consecutive periods of five (5)
years each (with the first (the "First Extension Term") commencing on the day
after the expiry date of the original Term of this Lease, the second (the
"Second Extension Term") commencing on the day after the expiry date of the
First Extension Term, and each an "Extension Term"), provided that, as
preconditions to the Tenant exercising such right, the Tenant shall:
(a) intentionally deleted;
(b) not then be in default of this Lease and shall not have been in
material or repeated default hereunder; and
(b) have given written notice to the Landlord of the exercise of this
option at least nine (9) months prior to the expiry of the immediately
preceding original Term or the First Extension Term, as the case may
be.
Each such Extension Term shall be on the terms and conditions set out in this
Lease, save and except that:
(i) there shall be no further or other right of extension or renewal
beyond the Second Extension Term;
(ii) the Leased Premises shall be taken on an "as is" basis and there shall
be no rent-free or fixturing periods, and no allowances or inducements
or maximums and no obligation of the Landlord to perform or complete
any Landlord's Work or other construction or renovations;
(iii) the Basic Rent shall be equal to then prevailing market rent for
similar premises in the area or if there are no similar premises in
the area, then similar premises in similar areas, such areas to be as
agreed to between the Landlord and Tenant, provided that the Basic
Rent shall not be less than that payable immediately prior to such
extension; and
(iv) the Tenant shall enter into an agreement prepared by the Landlord at
the Tenant's expense to give effect to the terms of such extension.
In the event that the Landlord and the Tenant are unable to agree upon the Basic
Rent to be paid by the Tenant during any Extension Term by a date which is
ninety (90) days prior to the expiry of the then current original Term or First
Extension Term, as the case may be, then the Basic Rent shall be determined by a
single real estate appraiser mutually selected by the Landlord and Tenant, based
on the considerations set out in (iii) above. In the event that the Landlord and
Tenant cannot, in good faith, by the date that is eighty (80) days prior to the
expiry of the then current original Term or First Extension Term, agree upon a
single real estate appraiser, then each of the Landlord and Tenant shall, within
10 days thereafter, choose a real estate appraiser and those two appraisers
shall together select a third appraiser and the market rent shall be determine
by the three real estate appraisers, the market rent being the average of the
two closest appraisals. Until such time as the Basic Rent payable is agreed
between the Landlord and Tenant or until such time as the appraiser(s) decision
is delivered, the Tenant shall pay to the Landlord 120% of the Basic Rent set
forth in the Lease, which amount shall be adjusted to the commencement date of
the applicable Extension Term once market rent is determined in accordance with
this Section. If the Tenant fails to give the appropriate notice within the time
limit set out herein for extending the Extended Term, then this provision shall
be null and void and of no further force and effect.
14.21 Guarantee by Tarpon Industries Inc.
The Tenant shall cause Tarpon Industries Inc. ("Tarpon") to guarantee all
obligations of the Tenant hereunder, including, without limitation, payment by
the Tenant of all Rent under this Lease, and to document such guarantee, Tarpon
shall execute and deliver to the Landlord a guarantee in the form attached as
Schedule "D", contemporaneous with execution and delivery of this Lease by the
Tenant.
IN WITNESS WHEREOF the parties hereto have duly executed this Lease.
LANDLORD: 0000 XXXXXX XXXX HOLDINGS LTD.
Per:
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signing Officer
I have authority to bind the corporation
TENANT: STEELBANK TUBULAR INC.
Per:
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chairman and Chief
Executive Officer
I have authority to bind the Corporation
SCHEDULE "A"
DESCRIPTION OF LANDS
PIN: 13340-0023 (LT)
That part of Xxx 0, Xxxxxxxxxx 0, Xxxxx xx Xxxxxx Xxxxxx, and those Parts of
Xxxx 00, 00, xxx 00, Xxxx X-00, designated as Part 1, Plan 43R-967, City of
Mississauga, Regional Municipality of Peel.
SCHEDULE "B"
DEFINITIONS
For the purposes of this Lease:
(a) "Additional Rent" means all amounts payable by the Tenant under the
provisions of this Lease, whether payable to the Landlord or
otherwise, over and above Basic Rent.
(b) "Basic Rent" means those amounts set out as Basic Rent in Section 2.2
of this Lease.
(c) "Building" means the industrial building of approximately 87,848
square feet erected on the Tenant Lands and municipally known as 0000
Xxxxxx Xx. in the City of Mississauga.
(d) "Capital Tax" means the taxes or excises, imposed by any and all
taxing authorities having jurisdiction, upon the Landlord and/or the
owners of the Project based upon or computed by reference to the
capital employed or invested by the Landlord and/or the owners of the
Project, the Lands, buildings and improvements thereto, provided that
in the event the Landlord owns property other than the Project,
Capital Tax shall be equitably allocated for the Project.
(e) "Common Areas and Facilities" means the internal access road as
outlined in green in the sketch attached as Schedule "E", as same may
be expanded, contracted or altered by the Landlord from time to time.
(f) "Landlord's Architect" means a qualified architect, engineer or
Ontario Land Surveyor from time to time chosen by the Landlord.
(g) "Lands" means the parcel of land described in Schedule "A" hereto as
may be contracted, expanded or altered from time to time.
(h) "Lease" means this Lease and any schedules attached hereto and any
amendments from time to time made to this Lease in accordance with the
provisions herein set out.
(i) "Leased Premises" means the Tenant Lands and the Building.
(j) "Leasehold Improvements" means all fixtures (save for trade fixtures),
installations, additions, improvements and alterations made, erected
or installed in or on the Leased Premises by or on behalf of the
Tenant.
(k) "Project" means the Building, the Lands and all other improvements and
structures on the Lands.
(l) "Rent" means Basic Rent and Additional Rent.
(m) "Structure" means the foundations, steel structure, joists, beams and
structural columns of the Building (excluding all parts of the roof
including the deck and membrane) and "Structural" shall have a
corresponding meaning.
(n) "Taxes" means all taxes, rates, duties, levies and assessments
whatsoever (imposed by any and all taxing authorities having
jurisdiction) levied, charged or assessed upon the Lands and Building
or upon any part or parts thereof and all improvements now or
hereafter erected or placed on the Lands, or charged against the
Landlord on account thereof, including but not limited to local
improvement charges (but excluding profit and excess profit taxes and
taxes assessed upon the income of the Landlord). In addition to the
foregoing, Taxes shall include any and all taxes, charges, levies or
assessments which may in the future be levied, charged or assessed in
lieu thereof or in addition thereto. Taxes shall also include all
costs and expenses incurred by the Landlord in obtaining or attempting
to obtain a reduction or prevent an increase in the amount thereof and
the cost of all consultants, solicitors and accountants retained by
the Landlord with respect thereto.
(o) "Tenant Lands" means that portion of the Lands leased to the Tenant as
part of the Leased Premises, as outlined in red in the sketch attached
as Schedule "E".
(p) "Term" means that period of time set out in Section 1.2 of this Lease
(and any and all extensions or renewals thereof, as may be
applicable).
(q) "Transfer" has the meaning ascribed thereto in paragraph (a) of
Section 6.1 of this Lease.
(r) "Transferee" has the meaning ascribed thereto in paragraph (a) of
Section 6.1 of this Lease.
SCHEDULE "C"
EXTERIOR MAINTENANCE/REPAIR WORK
Snow Removal: Snow removal, sanding and salting.
Paved Areas: Maintain and repair all asphalt and paved areas (including
but not limited to pavement surface, curbs, sidewalks,
catchbasins and concrete dolley pads).
Sweeping: Sweep entire access road.
SCHEDULE "D"
FORM OF GUARANTEE
GUARANTEE AGREEMENT
THIS AGREEMENT is dated November , 2006.
B E T W E E N:
0000 XXXXXX XXXX HOLDINGS LTD.
(the "Landlord")
- and -
TARPON INDUSTRIES INC.
(the "Guarantor")
In order to induce the Landlord to sign the lease between the Landlord, as
landlord, and Steelbank Tubular Inc., as tenant, dated November , 2006, (the
"Lease"), the Guarantor agrees with the Landlord that:
1. Throughout the Term of the Lease and any extension or renewal, the Guarantor
will (i) promptly pay all Rent and any other amounts payable by the Tenant under
the Lease, whether to the Landlord or anyone else; (ii) promptly perform each
and every obligation of the Tenant under the Lease; and (iii) indemnify and
protect the Landlord from any losses or costs incurred by the Landlord
(including legal fees) if the Tenant fails to pay the Rent or other amounts or
to perform any of its obligations under the Lease.
2. Even if there is an Early Termination, the Guarantor will remain obligated
under this Agreement throughout the Term and any renewals or extensions as
though the Early Termination had not occurred. An "Early Termination" means a
disaffirmance, disclaimer, repudiation, rejection or termination of the Lease
(as a result of court proceedings or otherwise), or a surrender of the Lease
which the Landlord did not accept in writing, which occurs prior to the
originally specified expiry date of the Term or renewal or extension. If there
is an Early Termination, the Guarantor will, at the Landlord's option, become
the Landlord's tenant on the terms of the Lease.
3. This guarantee is absolute and unconditional. The Guarantor's obligations
under this Agreement will not be affected by (a) any modifications to the
Tenant's rights or obligations under the Lease; (b) the fact that the Landlord
does not enforce any of the terms of the Lease; (c) any Transfer of the Lease by
the Tenant or by any trustee, receiver or liquidator; (d) any consent which the
Landlord gives to any Transfer; (e) any waiver by the Tenant of its rights under
the Lease; (f) any additional security accepted by the Landlord from the Tenant;
(g) the expiry of the Term or any extension or renewal thereof; (h) the release
or discharge of the Tenant by the Landlord or in any receivership, bankruptcy,
winding-up or other creditors' proceedings or by operation of law; or (i) lack
of notice of any of the foregoing. The Guarantor's obligations will not be
affected by any repossession of the Leased Premises by the Landlord, except that
if the Landlord re-lets the Leased Premises then the payments received by the
Landlord (after deducting all costs and expenses of repossessing and reletting
the Leased Premises) will be credited by the Landlord against the Guarantor's
obligations under this Agreement.
4. The Landlord is not required to notify the Guarantor that the Landlord has
accepted this Agreement or that the Tenant has failed to perform any of its
obligations under the Lease. Nevertheless, if the Landlord wishes to send any
notice to the Guarantor, it will deliver it or mail it by prepaid registered
mail addressed to the Guarantor at its head office address or, at the Landlord's
option, at the Leased Premises. Any notice will be considered to have been given
on the day it was delivered, or if mailed, three (3) days after the date it was
mailed. The Guarantor may notify the Landlord in writing of a substitute address
for the above address. If two or more parties are named as Guarantor, the
Landlord may give any notice to be given to the Guarantor to only one of the
parties, and in doing so both of them will be considered to have been notified.
5. If there is a default under the Lease or under this Agreement, the Landlord
will not be required to (a) proceed against or pursue anything against the
Tenant first; (b) proceed against any security of the Tenant held by the
Landlord; or (c) pursue any other remedy whatsoever. The Guarantor is not a mere
guarantor; the Guarantor is primarily responsible for the Tenant's obligations
under the Lease.
6. Even though the Landlord may have already taken action against the Guarantor
under this Agreement because of a default under the Lease, and whether or not
that action has succeeded or been completed, the Landlord may take further
action against the Guarantor under this Agreement if there is any further
default under the Lease.
7. This guarantee can only be modified in writing, signed by both the Guarantor
and the Landlord.
8. If two or more parties are named as Guarantor, each party is responsible for
the obligations of the Guarantor, both individually and together with the
others.
9. All of the terms of this Agreement apply to the Guarantor and to its
successors and permitted assigns, and may be enforced by the Landlord, its
successors and assigns, and any holder of any mortgage or charge over all or any
part of the lands on which the Leased Premises are located. This Agreement may
be assigned by the Landlord free of any equities. The Guarantor shall not assign
its obligations hereunder without the Landlord's prior written consent which may
be withheld in the Landlord's sole, absolute and unfettered discretion.
10. The expressions "Rent", "Term", "Transfer" and "Leased Premises" used in
this Agreement have the meanings they are given in the Lease.
11. This Agreement will be governed by the laws of the Province in which the
Shopping Centre is located.
THE LANDLORD AND GUARANTOR HAVE SIGNED BELOW, to confirm the terms of this
Agreement.
LANDLORD:
0000 XXXXXX XXXX HOLDINGS LTD.
Per:______________________________________
Per:______________________________________
I/we have authority to bind the corporation
--------------------------------- -------------------------------------------
)
) GUARANTOR:
TARPON INDUSTRIES INC.
Per:______________________________________
c/s
Per:______________________________________
I/we have authority to bind the corporation
SCHEDULE "E"
SKETCH SHOWING LEASED PREMISES, THE LANDS AND
THE COMMON AREAS AND FACILITIES
SCHEDULE "F"
RULES AND REGULATIONS
