Exhibit 10.9
[LOGO OMITTED]
Dated this 5th day of November, 2007
THE XXXX XXXXX DEVELOPMENT CORPORATION
- and -
METHES ENERGIES CANADA INC.
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LEASE
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TABLE OF CONTENTS
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1. DEMISE ........................................................... 3
2. TERM ............................................................. 3
3. RENT.............................................................. 3
4. TENANT'S COVENANTS................................................ 3
5. INSURANCE......................................................... 7
6 INDEMNITY......................................................... 10
7. SUBORDINATION AND ATTORNMENT ..................................... 10
8. CONDITION OF DEMISED PREMISES .................................... 10
9. DEFAULT .......................................................... 11
10. RE-ENTRY BY LANDLORD.............................................. 11
11. WAIVER OF EXEMPTION FROM DISTRESS ................................ 12
12. REMOVAL OF CHATTELS .............................................. 12
13. OVERHOLDING ...................................................... 12
14. LANDLORD'S COVENANTS ............................................. 12
15. DAMAGE AND DESTRUCTION............................................ 13
16. EXPROPRIATION..................................................... 13
17. CONDONING ........................................................ 14
18. RENT PAST DUE .................................................... 14
19. ADDITIONAL RENT .................................................. 14
20. RULES AND REGULATIONS ............................................ 14
21. REPAIRS BY LANDLORD .............................................. 14
22. NOTICE............................................................ 15
23. ENVIRONMENTAL AUDIT .............................................. 15
24. SECURITY DEPOSIT ................................................. 16
25. REGISTRATION ..................................................... 16
26. UNAVOIDABLE DELAY................................................. 16
27. PROPORTIONATE SHARE .............................................. 17
28. ENTIRE AGREEMENT ................................................. 17
29. OPTION TO RENEW .................................................. 17
30. LIENS ............................................................ 17
31. INTENT AND INTERPRETATION......................................... 18
SCHEDULE "A" -- Legal Description
SCHEDULE "B" -- Site Plan
SCHEDULE "C" -- Rules and Regulations
SCHEDULE "D" - Special Conditions
THIS INDENTURE made as of the 5th day of November 2007.
BETWEEN:
THE XXXX XXXXX DEVELOPMENT CORPORATION, a Corporation
incorporated under the laws of the Province of Ontario
hereinafter called the "Landlord"
OF THE FIRST PART
- and -
METHES ENERGIES CANADA INC., a Corporation incorporated
under the laws of the Province of Ontario
hereinafter called the "Tenant"
OF THE SECOND PART
1. DEMISE
In consideration of the rents, covenants and agreements reserved and
contained on the part of the Tenant to be paid, observed and performed, the
Landlord by these presents does demise and lease unto the Tenant that certain
real property situated at 0000 Xxxxxxxxx Xxxxxxxx, Xxxx 0, xxxxx and being in
the City of Mississauga in the Regional Municipality of Peel and being the
premises (the "Demised Premises") outlined in red on the sketch hereto annexed
of the building (the "Building") located on the lands (the "lands") referred to
in Schedule "A" hereto. The parties acknowledge and agree that, for the purposes
of all financial calculations herein, the gross floor area of the Demised
Premises shall be conclusively deemed to be six thousand, three hundred and
nineteen (6,319) square feet.
2. TERM
TO HAVE AND TO HOLD the Demised Premises for and during the term (the
"Term") of five (5) years commencing on the 1st day of January, 2008 (the
"Commencement Date") and from thenceforth next ensuing and fully to be completed
and ended on the 31st day of December, 2012.
3. RENT
The Tenant shall pay from and after the Commencement Date and throughout
the Term to the Landlord at the office of the Landlord, or at such other place
designated by the Landlord, in lawful money of Canada, without any prior demand
therefor and without any deduction, abatement, set-off or compensation
whatsoever, as Minimum Rent, the annual amounts based upon annual rates per
square foot of the gross floor area of the Demised Premises all as set out in
the following table. Minimum Rent is payable in advance in equal consecutive
instalments on the first day of each calendar month of each year of the Term, in
the monthly amounts set out in the following table and will be prorated on a
daily basis for any fractional portion of a month at the beginning or end of the
Term. The table is as follows:
Annual Monthly Annual Rate
Period of Time Minimum Rent Minimum Rent Per Square Foot
-------------- ------------ ------------ ---------------
Year 1 $54,975.36 $4,581.28 $8.70
Year 2 $55,291.20 $4,607.60 $8.75
Year 3 $55,607.16 $4,633.93 $8.80
Year 4 $55,923.12 $4,660.26 $8.85
Year 5 $56,239.08 $4,686.59 $8.90
The Tenant shall receive the month of January, 2008 Minimum Rent free only,
however during such period the Tenant hereby acknowledges and agrees that it
shall remain responsible for the payment of taxes, maintenance, insurance and
utilities in accordance with the Lease and shall remain bound by all of the
terms, conditions and covenants contained in the Lease.
4. TENANT'S COVENANTS
The Tenant covenants and agrees with the Landlord as follows:
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(b) (i) From the Commencement Date until December 31st following, to
pay as additional rental on the 1st day of each and every month
the amount that is required to be paid to satisfy the Tenant's
responsibility for Taxes during such period. Commencing on the
1st day of January next following the Commencement Date and
yearly thereafter, to pay as additional rental on the 1st day of
each and every month for the twelve months of the calendar year
one-twelfth of the yearly amount of Taxes attributable to the
Demised Premises.
(ii) If the Demised Premises are assessed separately from the
remainder of the Building, the Tenant's shall pay the amount of
Taxes assessed against the Demised Premises. If the Demised
Premises are not assessed separately from the remainder of the
Building, the Tenant shall pay its Proportionate Share of Taxes.
(iii) For the purposes of this Lease, "Taxes" means all taxes,
licenses, fees, real property taxes, rates, duties and
assessments (including local improvement and commercial
concentration taxes), impost charges or levies, whether general
or special, that are levied, rated, charged or assessed against
the lands and Building and/or the Demised Premises from time to
time by any lawful taxing authority, whether federal,
provincial, municipal, school or otherwise, but not including
taxes on the income of the Landlord or capital gains taxes, and
including any taxes or other amounts which are imposed in lieu
of or in addition to any Taxes, whether of the foregoing
character or not and whether in existence at the Commencement
Date or not.
(c) If the Tenant or any person, firm or corporation occupying the
Demised Premises or any part thereof shall elect to have the Demised Premises or
any part thereof assessed for separate school taxes, the Tenant shall pay as
additional rent the amount by which the separate school taxes exceed the amount
which would be payable by the Landlord for Taxes had such election not been
made.
(d) The Tenant shall also pay as additional rent to the Landlord on
demand the amount, if any, by which the actual Taxes exceed any estimated
amount. If, before any sum or sums paid by the Tenant to the Landlord on account
of Taxes shall have been paid towards Taxes, there shall be default by the
Tenant in respect to any payment of rent herein provided, the Landlord may at
its option apply such sum or sums in or towards payment of rent in default. If
the Tenant desires to take advantage of any discounts or incurs any penalties in
connection with the payment of Taxes, it shall pay the Landlord such additional
amounts as are required for that purpose. The Tenant further covenants and
agrees to transmit to the Landlord the assessment notices, tax bills and other
notices affecting the imposition of Taxes forthwith after the receipt of same by
the Tenant.
(e) To pay to the Landlord as additional rent from time to time as
and when they become due its Proportionate Share of all Taxes now or at any time
during the Term rated, charged, levied or assessed upon or in respect of the
common areas and facilities (as hereinafter defined) and including, but without
limiting the generality of the foregoing, its Proportionate Share of all
business taxes, if any, from time to time payable by the Landlord in respect of
the said common areas and facilities or any part thereof. Common Areas and
Facilities shall, for the purpose of this Lease, mean all of the lands not for
the time being demised by the Landlord and not covered by any building (other
than any service building for the general benefit of all tenants of the said
Lands) and those portions of the Building that do not constitute rentable
premises and shall include any improvements thereon and thereto.
(f) In addition to the Taxes hereinbefore set out, the Tenant shall
pay as additional rent to the Landlord, at the same time or times as the Tenant
shall make payment of either or both of Minimum Rent and/or additional rent, all
Goods and Services Tax payable with respect to such Minimum Rent and/or
additional rent pursuant to the Excise Tax Act (Canada).
(g) In each and every year during the term hereof to pay, satisfy
and discharge directly or to the Landlord, as the case may be, all charges in
connection with water, electric current, gas, rental charges for the hot water
heater and other public or private utilities and services supplied at any time
to the Demised Premises.
(h) To indemnify and keep indemnified the Landlord in respect of all
losses, costs, charges, penalties and expenses occasioned by or arising from the
non-payment of any and every tax, rate, assessment, charge, expense or fee,
including any business or similar tax assessed against the Tenant or any other
persons occupying or using the Demised Premises or any part thereof, and
provided that the same shall not be of a kind personal to the Landlord such as
taxes on the income of the Landlord, and corporation taxes of the Landlord. It
is hereby agreed that when and so often as the Tenant neglects or omits to pay
any of the charges contemplated by the preceding sub-paragraphs hereof and by
this clause, then the Landlord may pay them and the Tenant shall forthwith pay
to the Landlord the full amount so paid by the Landlord together with an
administrative and supervisory fee equal to 15% of the amount so paid.
(i) At its own expense, to promptly carry out all repairs,
maintenance and replacement and painting of the Demised Premises and of all
machinery and equipment including heating ventilating and air-conditioning
equipment situated therein and thereon (both inside and outside) and whether
with or without written notice from the Landlord, and to repair the Demised
Premises or any part thereof, reasonable wear and tear not inconsistent with the
maintenance of the Building or the Demised Premises suitable as a first class
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industrial building, and damage by fire and all other insured risks only
excepted. Provided that, in the event of the default of the Tenant under the
provisions hereof, the Landlord may itself comply with any such requirements and
the Tenant shall forthwith upon demand pay all costs incurred by the Landlord in
this regard plus an administrative and supervisory fee equal to 15% thereof as
additional rent.
(j) At its own expense, to keep entrance ways and all steps and
platforms leading to the Demised Premises clear of all snow, ice and debris.
(k) To promptly comply with and conform to the requirements of all
applicable statutes, laws, by-laws, regulations, ordinances and orders from
time to time or at any time in force during the Term, whether the same affect
the condition, equipment, maintenance, use or occupation of the Demised Premises
or otherwise and to promptly comply with and conform to every applicable
regulation, order and requirement of the Insurance Advisory Organization or any
body having similar function or of any liability or fire insurance company by
which the Landlord and Tenant or either of them may be insured at any time
during the Term. In the event of the default of the Tenant under the provisions
hereof, the Landlord may itself comply with any such requirements and the Tenant
will forthwith pay as additional rent all costs and expenses incurred by the
Landlord together with an administration and supervisory fee of 15% of the cost
thereof as additional rent in this regard.
(l) To notify the Landlord, in writing, of any structural defects or
weaknesses in or about the Demised Premises of which it has or receives notice,
and in the event of any substantial damage to the Demised Premises by any cause,
to give notice in writing to the Landlord of such damage forthwith upon the same
becoming known to the Tenant, it being understood and agreed that the giving of
such notice shall not place any onus on the Landlord to make repairs unless the
Landlord is obligated to make such repairs pursuant to the terms of this Lease.
(m) To permit the Landlord and its agents, at all reasonable times
to enter upon and view the state of repair of the Demised Premises and to comply
with all reasonable requirements of the Landlord herein in writing with regard
to the care, maintenance and repair thereof, reasonable wear and tear not
inconsistent with the maintenance of the Building as a first-class industrial
building and damage by fire, lightning and tempest and all other insured risks
and structural defects only excepted.
(n) That it is the absolute owner of all fixtures, goods and
chattels that are to be brought upon the Demised Premises. Tenant hereby
covenants not to encumber such fixtures, goods or chattels without the written
consent of the Landlord being first obtained. No fixtures, goods or chattels of
any kind will except in the ordinary course of business, be removed from the
Demised Premises during the Term without the prior written consent of the
Landlord until all Minimum Rent and additional rent to become due during the
remainder of the Term shall have been fully paid or the payment thereof secured
to the satisfaction of the Landlord.
(o) That upon the expiration of the Term, the Tenant will peaceably
quit and deliver up the Demised Premises to the Landlord and that it will leave
the Demised Premises in good repair, reasonable wear and tear not inconsistent
with the maintenance of the Building as a first class industrial building and
damage by fire, lightning and tempest, and all other insured risks and
structural defects only excepted.
(p) That it will not carry on or permit to be carried on in the
Demised Premises or thereon any business or activity which shall be deemed upon
reasonable grounds to be a nuisance and the Demised Premises shall be used only
for operating biodiesel production showcase and ancillary administration offices
and for no other purpose.
(q) The Tenant shall not use or permit to be used all or any part of
the Demised Premises for any dangerous, noxious or offensive trade or business.
The Tenant shall not carry on any auction, fire or bankruptcy sales,
going-out-of-business sales, or sales of used, distress or out-dated merchandise
upon the Demised Premises without the prior written consent of the Landlord.
(r) During the Term, any stranger who is a prospective purchaser or
tenant may inspect the Demised Premises or any part thereof at reasonable times
on producing an order to that effect signed by the Landlord; provided that such
inspections shall not impinge on the classified nature of the business of the
Tenant, if any, and provided that the Tenant may elect to cause its employees or
agents to be present at the time of such inspections.
(s) To assume the sole responsibility for the condition (structural
defects excepted), operation, maintenance and management of the Demised Premises
and to heat the same with the heating equipment supplied by the Landlord. The
Landlord shall be under no liability for damage to the property of the Tenant or
of any other person at or in the Demised Premises which is or may at any time be
on the Demised Premises, on any account or for any reason whatsoever.
(t) (i) The Tenant, provided it is not in default hereunder may,
with the consent of the Landlord in writing first had and
obtained, which consent will not to be unreasonably withheld,
assign or sublet the Demised Premises. In the event the Tenant
intends to assign, sublet or part with the possession of all or
any part of the Demised Premises (hereinafter collectively
called the "Transfer"), the Tenant shall deliver to the Landlord
notice in writing of such intention and the Landlord shall have
sixty (60) days from the date of the receipt of such notice
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within which to advise the Tenant that it consents or does not
consent to such Transfer. It is a condition of the giving of any
such consent by the Landlord that: (A) such consent shall not
release the Tenant from any of its obligations under this Lease,
which obligations shall be joint and several with such assignee
or sub-lessee ("Transferee); (B) any such consent shall not
deprive the Landlord of any of its rights hereunder with respect
to any further Transfer; (C) the Transferee shall execute the
Landlord's standard form assumption of lease agreement agreeing
to be bound by all of the terms of this Lease and to assume all
of the terms, covenants, conditions, and agreements by this
Lease imposed upon the Tenant; (D) the Tenant shall pay to the
Landlord its administrative costs, in an amount of not less than
three hundred dollars ($300.00), and legal fees whether or not
such consent is granted; and (E) the Landlord may in its sole
and uncontrolled discretion refuse to give its consent to any
Transfer by the Tenant of less than the whole of the Demised
Premises notwithstanding any statutory authority to the
contrary.
(ii) If the Tenant is a corporation or if the Landlord has
consented to a Transfer to a corporation, any transfer or issue
by sale, assignment, operation of law or other disposition
(other than by bequest or inheritance) or by subscription from
time to time of all or any part of the corporate shares of the
Tenant or of any parent or subsidiary corporation of the Tenant
or any corporation which is an associate or an affiliate of the
Tenant (as those terms are defined by the Business Corporations
Act, 1990, of Ontario and any amendments thereto) which results
in any change in the present voting control at the date of
execution of this Lease (or at the date a Transfer to a
corporation is permitted) and which does not receive the prior
written consent of the Landlord as aforesaid shall be deemed to
be a Transfer and shall be subject to what is hereinbefore in
this sub-clause set forth. The Tenant shall give the Landlord
access to its corporate books and records and those of its
associated and affiliated corporations at all reasonable times
and from time to time in order that the Landlord may review the
same and determine whether there has in fact been a change of
corporate control.
(iii) Provided, however, that sub-section 4(t) (ii) shall not
apply to the Tenant if and so long as:
(A) the Tenant is a public corporation whose shares are
traded and listed on any recognized stock exchange in
Canada or the United States; or
(B) the Tenant is a private corporation but is
controlled by a public corporation defined as aforesaid;
so long as in either of cases (A) and (B), prior to or as soon
as reasonably possible after any such change of control of the
Tenant, the Landlord receives assurances satisfactory to the
Landlord that there will be a continuity of the existing
management of the Tenant of its business practices and policies
(including those affecting the advertising and promotion of the
business in the Demised Premises), notwithstanding any such
change of control.
(u) Not to place anything on the roof, whether signs or otherwise or
in any way make any openings in the roof for stacks or other purposes whatsoever
without the written consent of the Landlord.
(v) Not to use any outside garbage or other containers or allow any
ashes, refuse, garbage or other loose or objectionable material to accumulate in
or about the Demised Premises and will at all times keep the Demised Premises in
a clean and wholesome condition. Further the Tenant will not store or cause to
be stored outside of the Demised Premises any of its inventory of stock in trade
or raw materials.
(w) All loading and unloading of merchandise, supplies, materials,
garbage, refuse and other chattels shall be made only through or by means of
such doorways or corridors as the Landlord shall designate in writing from time
to time. Garbage and refuse shall be contained in containers of a type approved
by the Landlord in writing.
(x) To keep well painted at all times the interior of the Demised
Premises in accordance with the reasonable requests of the Landlord, provided
that, except as is otherwise herein provided for the making of repairs and
general maintenance of the premises, the Landlord shall not require the Tenant
to repaint the inside of the Demised Premises more often than once every five
(5) years of the Term or any renewal thereof.
(y) The Tenant acknowledges that the Demised Premises may form part
of a larger project and that a part or the whole of the project may be served by
one sprinkler system and in the event that repairs are necessary to the
sprinklers in any portion of the entire project, save by reason of the neglect
of the Landlord or the Tenant or Tenants occupying other portions of the entire
project, their servants or agents and save by reason of structural defects, then
the Tenant covenants to pay as additional rent to the Landlord on demand that
portion of the total cost of such repairs which the floor area of the Demised
Premises bears to the floor area of all rentable premises in the project. The
Tenant shall provide reasonable access to the Demised Premises to the workmen
making the repairs herein contemplated.
(z) The Tenant acknowledges and agrees that walls of the Demised
Premises may be party walls to be used by the occupants of premises adjoining
the same or by the Landlord and the Tenant covenants and agrees that as to any
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repair required to any party wall, it will bear one-half of the cost of such
repair, payable as additional rent on demand, unless such repair is made
necessary wholly by reason of the neglect or wilful conduct of the Tenant or any
person in the Demised Premises with the consent of the Tenant, in which case the
Tenant shall be responsible for the entire cost of such repair. In the event
that such repairs are made necessary wholly by reason of the neglect or wilful
conduct of the Landlord or the occupant of the adjoining premises, then no part
of the cost of the repair shall be borne by the Tenant.
(aa) To pay to the Landlord, as additional rent, the costs incurred
by the Landlord in carrying out regular inspections of and preventive
maintenance for the heating, ventilating and air conditioning systems serving
the Demised Premises.
(bb) (i) To pay to the Landlord by monthly installments (fixed from
time to time by the Landlord) as additional rent, its Proportionate Share of the
cost of cleaning, lighting, snow removing, supervising, policing, insuring and
maintaining and administering, including such repairs and replacements of
paving, curbs, walkways, landscaping and drainage as may be from time to time
necessary, and other costs which may be reasonably incurred with respect to the
common areas and facilities, structural defects excepted;
(ii) The manner in which the said common areas and facilities
shall be maintained and the expenditures therefore shall be at
the sole discretion of the Landlord.
(iii) The Tenant agrees that in the event the Landlord for any
reason whatsoever performs any function resulting in the
improvement, maintenance or repair of the Building or the
Demised Premises, then in addition to the cost of such
improvement, maintenance or repair, the Landlord shall be
entitled to its usual management and supervisory fee with
respect thereto.
(iv) Each twelve month period ending on December 31st, shall be
deemed to be an accounting year for adjusting the said costs
respecting the said common areas and facilities and within
thirty days after the end of each such accounting year, the
Landlord shall compute the said costs for such accounting year
and the Tenant's Proportionate Share thereof and shall submit to
the Tenant a statement showing such Proportionate Share and, in
reasonable detail, the basis of the costs and the Proportionate
Share of the Tenant. To the extent that the Tenant's
Proportionate Share of such cost for an accounting year shall be
greater or less than the total amount actually paid by the
Tenant by said monthly payments in respect of such year, the
difference shall be paid by the Tenant to the Landlord or by the
Landlord to the Tenant, as the case may be, within 10 days after
the receipt of such statement by the Tenant. The said accounting
period may be modified at the commencement or termination of the
Lease, or by agreement.
(cc) Upon the commencement of this Lease, the Tenant shall pro rata,
adjust, apportion and allow between itself and the Landlord, as may be
necessary, upon the said date, water rates, hydro charges, gas charges, Taxes,
business taxes, insurance premiums and other charges payable by the Tenant
hereunder and upon the termination of this Lease, the parties shall again pro
rata, adjust, apportion and allow between themselves as of the said date of such
termination all of the said items and any part of the Taxes and other charges
which the Tenant is herein required to pay, to the intent that the burden
thereof shall be borne by the Landlord until the commencement of this Lease and
by the Tenant thereafter until it shall deliver up possession of the said
Demised Premises in accordance with the provisions hereof at the end of the Term
or any holding over thereafter.
(dd) Notwithstanding anything provided for in this Lease, if the
Landlord elects to itself purchase any Utility (as defined in this Lease) for
the Building and then sell same to the tenants of the Building, or if the
Landlord appoints a particular supplier or suppliers as exclusive supplier or
suppliers of a Utility to the Building, the Tenant shall satisfy all of its
needs for such Utility through the Landlord or its appointed supplier or
suppliers, as the case may be, provided that, in no event shall the Tenant be
required to pay more for any such Utility than it would otherwise be required to
pay if it obtained same as a single consumer, and in no event shall the Landlord
be accountable to the Tenant for any profit, rebate or other form of
compensation realized by the Landlord from any such arrangement.
(ee) Notwithstanding any other provision contained in this Lease, in
the event that, in the opinion of the Landlord, any realty taxes or other tax,
cost, charge or expense is/are directly attributable to a unit or a tenant's use
and occupation of the said unit, the Landlord may allocate such cost and expense
solely to that unit.
5. INSURANCE
(a) The Landlord shall obtain and maintain at the sole expense and
cost of the Tenant, the following insurance:
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(i) "All Risks" Insurance on the Demised Premises (including
the foundations and excavations) and the machinery,
boilers and equipment contained therein or servicing the
Leased Premises and owned by the Landlord (excluding any
property with respect to which the Tenant is obliged to
insure);
(ii) Flood, sewer backup, earthquake and water damage
insurance;
(iii) Replacement cost cover, stated amount co-insurance, and
increased costs due to by-laws;
(iv) Rental income insurance;
(v) Broad form boiler and machinery insurance on a repair
and replacement basis, including increased costs due to
by-laws;
(vi) Such other forms of insurance as the Landlord or its
mortgagee reasonably considers advisable.
Such insurance shall be in such reasonable amounts and with such
reasonable deductions as would be carried by a prudent owner of
a reasonably similar building, having regard to size, age and
location. Notwithstanding any contribution by the Tenant to the
cost of the insurance premiums provided herein, the Tenant
acknowledges and agrees that: (I) no insurable interest is
conferred upon the Tenant under any policies of insurance
carried by the Landlord: and (ii) the Tenant has no right to
receive any proceeds of any such insurance policies carried by
the Landlord.
(b) The Tenant shall throughout the entire Term at its sole cost and
expense, take out and keep in full force and effect the following insurance in
the name of the Tenant, and the Landlord and any mortgagee of the Lands as
additional insured, as their respective interests may appear:
i. Property Insurance -All risks property insurance including
flood, earthquake and collapse, on:
1. Tenant's improvements: Property of every description
owned by the Tenant, or for which the Tenant is legally
liable or which is installed by or on behalf of the
Tenant and which is located within the Building
including, without limitation, fittings, installations,
alterations, additions, partitions, fixtures and
anything in the nature of a leasehold improvement (but
specifically including the Tenant's stock-in-trade,
furniture and moveable equipment), in an amount of not
less than ninety percent (90%) of the full replacement
cost thereof.
2. Tenant's Stock-in-Trade, Furniture and Moveable
Equipment: The Tenant's stock-in-trade, furniture and
moveable equipment in an amount not less than ninety
percent (90%) of the full replacement cost thereof. If
there is a dispute as to the amount which comprises full
replacement cost, the decision of the Landlord shall be
conclusive.
3. Business interruption: Business interruption insurance
in such form and in such amount as will reimburse the
Tenant for direct loss of earnings and for extra
expenses necessarily incurred to continue the Tenant's
business or attributable to prevention of access to the
Demised Premises or the Building as a result of an
insured peril.
4. Boiler and Machinery: Broad form Boiler and Machinery
insurance on a blanket repair and replacement basis with
limits for each accident in an amount not less than the
replacement cost of all leasehold improvements, boilers,
pressure vessels, air-conditioning equipment, process
equipment and miscellaneous electrical apparatus owned
by the Tenant, or for which the Tenant may be liable or
operated by the Tenant or by others (other than the
Landlord) on behalf of the Tenant in the Demised
Premises, or relating to or serving the Demised
Premises.
Business interruption insurance as described in
subclause 3 above with respect to perils insured in the
Boiler and Machinery policy.
5. Plate Glass: Plate glass insurance insuring all exterior
glass in the Demised Premises.
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ii. Casualty Insurance
1. Commercial General Liability: Commercial General
liability insurance insuring the Tenant's occupancy and
use of the Demised Premises including all activities and
operations of the Tenant or others performing work or
providing services on behalf of the Tenant at or away
from the Demised Premises or for whom the Tenant is in
law responsible, the use of the common facilities by the
Tenant or others on behalf of the Tenant.
This insurance shall contain at least the following
coverages:
a) bodily injury and property damage, including
loss of use of property;
b) personal injury;
c) blanket contractual liability;
d) employer's liability including contingent
employer's liability;
e) products and completed operations;
f) owner's and contractor's protective liability;
and
g) non-owned automobile insurance including blanket
contractual liability (SEF #96) and liability
for damage to hired vehicles.
The limits of insurance shall be $5,000,000 each
occurrence bodily injury and property damage combined,
$5,000,000 each occurrence personal injury and
$5,000,000 each accident non-owned automobile or such
higher limits as the Landlord, acting reasonably,
requires from time to time. The general liability policy
shall contain a severability of interests clause and a
cross-liability clause.
2. Tenant's Legal Liability: All risks tenant's legal
liability insurance for the replacement cost value of
the Demised Premises including loss of use thereof.
3. Owned Automobile Insurance: Automobile liability
insurance on the standard owner's form providing limits
of $2,000,000 each accident inclusive bodily injury and
property damage, statutory accident benefits insurance,
direct compensation insurance, uninsured automobile
insurance and physical damage insurance on all vehicles
not more than 10 years old, covering all licensed
vehicles owned or operated by or on behalf of the
Tenant.
iii. Other Insurance
Any other form of insurance as the Tenant, the Landlord or any
mortgagee of the Building or lands, acting reasonably, requires
from time to time in form, in amounts and for risks against
which a prudent tenant would insure.
(c) All policies required to be written on behalf of the Tenant
pursuant to sections (b) i. 1, 2, 3 and 4 hereof shall contain the mortgagee's
standard mortgage clause and all property policies shall contain a waiver of any
subrogation rights which the Tenant's insurers may have against all and any of
the Landlord and those for whom the Landlord is in law responsible.
(d) All policies shall be taken out with insurers acceptable to the
Landlord, acting reasonably, shall be in a form satisfactory from time to time
to the Landlord, shall be non-contributing with and shall apply only as primary
insurance and not excess to any other insurance available to the Landlord or any
mortgagee of the Building or lands and shall not be invalidated as respects the
interest of the Landlord or any such mortgagee, by reason of any breach or
validation by the Tenant or those for whom he is in law responsible of any
warranties, representations, declarations or conditions contained in the
policies.
(e) All policies shall contain an endorsement by the insurers to
notify the Landlord and any mortgagee of the Building or lands in writing not
less than thirty (30) days prior to any material change, suspension of
insurance, cancellation or termination thereof.
(f) The Tenant agrees that certificates of insurance on the
Landlord's standard form or, if required by the Landlord or any mortgagee of the
Building or lands, certified copies of each insurance policy, will be delivered
to the Landlord as soon as practicable after the placing of the required
insurance.
(g) The Landlord shall be added as additional insured with respect
to General liability policies but only with respect to liability arising out of
the Tenant's use and operation at the Demised Premises.
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(h) The Tenant agrees that if the Tenant fails to take out or keep
in force any such insurance referred to in this section 5 or should any such
insurance not be approved by the Landlord, acting reasonably, and should the
Tenant not commence to diligently rectify (and thereafter proceed diligently to
rectify) the situation within forty-eight (48) hours after written notice by the
Landlord to the Tenant (stating if the Landlord does not approve of such
insurance, the reasons therefor) 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 on the first day of the next month
following said payment by the Landlord, without prejudice to any other rights
and remedies of the Landlord under this Lease.
(i) The Tenant shall not keep, use, sell or offer for sale in or
upon the Demised Premises any article which may be prohibited by any fire
insurance policy in force from time to time covering the Demised Premises or the
Building. If:
(i) the occupancy of the Demised Premises;
(ii) the conduct of business in the Demised Premises;
(iii) the sale of any merchandise from or on the Demised
Premises (whether or not the Landlord has consented to the sale
of such merchandise) or in any other portion of the Building
where permitted by the Landlord; or
(iv) any acts or omissions of the Tenant in the Building or any
part thereof;
causes or results in any increase in premiums for the insurance carried from
time to time by the Landlord with respect to the Building, the Tenant shall pay
any such increase in premiums as additional rent forthwith after invoices for
such additional premiums are rendered by the Landlord. In determining whether
increased premiums are caused by or result from the use or occupancy of the
Demised Premises, or the sale of any article therein or therefrom, a schedule
issued by the organization computing the insurance rate on the Building showing
the various components of such rate shall be conclusive evidence of the several
items and charges which make up such rate.
6. INDEMNITY
The Tenant hereby covenants and agrees with the Landlord to indemnify, protect
and save harmless the Landlord, its directors, officers, employees and
shareholders, from any and all liability, costs, claims, demands or actions for
damages, injury, sickness, disease or death or property damage including loss of
use thereof or loss, suffered or sustained, or alleged to have been suffered or
sustained, by any person, persons or organization in or about the Demised
Premises or any part thereof or arising out of the activities or operations of
the Tenant, its directors, officers, employees of shareholders or of others
acting on the Tenant's behalf whether on or off the Demised Premises occasioned
by the Tenant, its customers, directors, officers, employees, shareholders,
servants or agents, or by their neglect, default, error or omission or
misconduct.
7. SUBORDINATION AND ATTORNMENT
This Lease and everything herein contained shall be deemed to be
subordinate to any mortgage or charge from time to time created by the Landlord
with respect to the Building or lands. The Tenant covenants and agrees that it
will promptly, at any time and from time to time as required by the Landlord,
during the Term execute all documents and give all further assurances as may be
required to effectuate the postponement of its rights and privileges hereunder
to the holder or holders of any such mortgage or charge. The Tenant covenants
that it will if and whenever reasonably required by the Landlord, and at the
Landlord's expense, if necessary, consent to and become a party to any
reasonable instrument relating to this Lease, including the delivery of
statements as to the status of this Lease, which may be required by or on behalf
of any purchaser, mortgagee or insurer or other person, firm or corporation
which may have an interest in the Demised Premises.
8. CONDITION OF DEMISED PREMISES
The Tenant acknowledges and agrees that it accepts the Demised Premises
in their present state and without any representation or warranty by the
Landlord as to their condition or as to the use which may be made thereof.
Provided that if the Tenant is not then in default hereunder, the Tenant shall
remove its fixtures at the end of the Term. Further, the Tenant shall, at the
end of the Term, remove all alterations, decorations, additions or improvements
in or on the Demised Premises as the Landlord shall, at its option, require to
be removed. The Tenant shall repair any damage occasioned by such removal and
shall remove any garbage or other trash and shall leave the Demised Premises in
a broom-swept clean condition.
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9. DEFAULT
(a) Provided that if during the Term or any renewal thereof:
(i) any of the goods and chattels of the Tenant shall be at any
time seized or taken in execution or in attachment by any
creditor of the Tenant; or
(ii) if a writ of execution shall issue against the goods or
chattels of the Tenant; or
(iii) if the Tenant shall execute any chattel mortgage with
respect to any of its goods or chattels other than in the
ordinary course of its business; or
(iv) if the Tenant shall make an assignment for the benefit of
creditors or commit any other act of bankruptcy as defined in
The Bankruptcy Act of Canada or any amendment thereto or,
becoming bankrupt or insolvent, shall take the benefit of any
Act that may be in force for bankrupt or insolvent debtors; or
(v) shall abandon or attempt to abandon the Demised Premises; or
(vi) to sell or dispose of its goods or chattels so that there
would not in the event of such sale or disposal be, in the
opinion of the Landlord, a sufficient distress on the Demised
Premises for the next accruing three (3) month's rent and moneys
accruing hereunder as rent;
then the current month's rent, together with the Minimum Rent and additional
rent for the three (3) months next ensuing shall immediately become due and
payable and the Term shall, at the option of the Landlord, forthwith become
forfeited and determined, in which event the Landlord may re-enter and take
possession of the Demised Premises as though the Tenant or any occupant or
occupants of the Demised Premises was or were holding over after the expiration
of the Term, without any right whatsoever.
(b) Provided and it is hereby agreed that any obligation for payment
to which the Tenant is liable under the terms of this Lease and including, but
without limiting the generality of the foregoing, the Tenant's Proportionate
Share of the costs of maintaining the common areas and facilities, insurance
premiums, Taxes, business taxes, rates and other charges as herein provided,
shall be treated as rent whether or not, the same are designated as "additional
rent" payable by the Tenant to the Landlord and for all purposes of this
paragraph if such charges shall then be in arrears, the same shall be deemed to
be rent owing under the terms of this Lease and the same may be recovered by the
Landlord in the same manner as rent as in this paragraph provided.
(c) Provided that in the event the Landlord does not exercise its
option to terminate the Lease, it may nevertheless, at its option, make a
re-entry in order to minimize its damages and such re-entry shall be deemed to
be on behalf of the Tenant and notwithstanding the same, the within Lease shall
continue in full force and effect and such re-entry or other action taken by the
Landlord shall not relieve the Tenant of any of its obligations hereunder. The
options hereinbefore set out shall be deemed to be properly exercised by the
Landlord upon the Landlord sending by prepaid registered mail addressed to the
Tenant at the Demised Premises or left upon the Demised Premises a notice
stating which of the options the Landlord is exercising and such notice may be
sent either before or after the re-entry by the Landlord.
10. RE-ENTRY BY LANDLORD
(a) Provided, and it is hereby expressly agreed, that if and
whenever the rent hereby reserved or any part thereof, shall be unpaid on the
date upon which the same ought to have been paid, although no formal demand
shall have been made therefor, then it shall be lawful for the Landlord at any
time thereafter, to re-enter into and upon the Demised Premises or part thereof
in the name of the whole and to have, repossess and enjoy the same again, as of
its former estate.
(b) In the event that the Tenant shall be in default of any of its
covenants hereunder, other than its covenant to pay rent, in addition to any
other right which the Landlord may have hereunder, the Landlord may give to the
Tenant notice in writing stating the said default with reasonably sufficient
particularity and requiring the said default to be remedied. If such default is
not remedied by the Tenant within fifteen (15) days after the receipt of such
notice or such longer period as may be reasonably necessary in view of the
nature of default, the Landlord may, at its option, either:
(i) enter into and upon the Demised Premises or any part
thereof in the name of the whole and have again, repossess and
enjoy the same as of its former estate and this Lease shall
thereupon terminate; or
(ii) the Landlord may itself take such steps and do or cause
to be done such things as may be necessary to remedy and correct
such defaults and may thereupon charge as additional rent its
total costs and expenses incurred in respect thereof, plus an
administrative and supervisory fee equivalent to 15% thereof, to
the Tenant who hereby covenants and agrees to pay the same upon
demand.
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(c) Provided further that in addition to all other rights hereby
reserved to it, the Landlord shall have the right to re-enter the Demised
Premises as the agent of the Tenant either by force or otherwise, without being
liable for any prosecution therefor. Upon such re-entry the Landlord may re-let
the whole or any portion of the Demised Premises for any period equal to or
greater or less than the remainder of the Term and to receive the rent therefor,
which rent may be any sum which the Landlord may deem reasonable, to any Tenant
which it may deem suitable and satisfactory, and for any use and purpose which
it may deem appropriate. In connection with any such lease, the Landlord may
make such changes in the character of the improvements of the Demised Premises
as the Landlord may determine to be appropriate or helpful in effecting such
lease. In no event shall the Landlord be under any obligation to re-let the
Demised Premises in whole or in part for any purpose which the Landlord may
regard as injurious to the Demised Premises, or to any Tenant which the
Landlord, in the exercise of reasonable discretion, shall deem to be
objectionable and to apply any rent derived from so re-letting the Demised
Premises upon account of the rent due hereunder. The Tenant shall remain liable
to the Landlord for the deficiency, if any, it being the intention of the
parties hereto that nothing herein contained and no entry made by the Landlord
hereunder shall in any way release the Tenant from the payment of the rent
hereby reserved during the Term hereof beyond such sum as may be realized by the
Landlord by such re-letting or by the proceeds of any distress made by the
Landlord against the Tenant. The Landlord shall not in any event be required to
pay to the Tenant any surplus of any sums received by the Landlord on a
re-letting of the Demised Premises in excess of the rent reserved hereunder.
(d) Provided further that in the event that the Landlord shall be
entitled to and shall elect to make a re-entry as hereinbefore provided, any
re-entry or other action so taken shall not be deemed to relieve the Tenant of
its obligation to pay rent and other moneys payable as rent or otherwise in
accordance with the provisions hereof, but the same shall continue to accrue and
be payable until such time as the Landlord is able to re-let the Demised
Premises or otherwise deal with the same in such manner that it would not
sustain any loss should the Tenant thereafter fail to pay the rent and
additional rent.
11. WAIVER OF EXEMPTION FROM DISTRESS
The Tenant hereby covenants and agrees with the Landlord that, in
consideration of the premises and of the leasing and letting by the Landlord to
the Tenant the Demised Premises for the Term (and it is upon that express
understanding that these presents are entered into) that, notwithstanding
anything contained in any present or future statute which may hereafter be
passed , none of the goods or chattels of the Tenant at any time during the
continuance of the Term shall be exempt from levy by distress for rent in
arrears by the Landlord, and that upon any claim being made for such exemption
by the Tenant or on distress made by the Landlord, this covenant and agreement
may be pleaded as an estoppel against the Tenant in any action brought to test
the right to the levying upon any such goods or chattels; the Tenant waiving as
it hereby does all and every benefit that could or might have accrued to it by
any present or future statute, but for the above covenant.
12. REMOVAL OF CHATTELS
Provided that in case of removal by the Tenant of its goods and chattels
from the Demised Premises, the Landlord may follow the same for thirty (30) days
in the same manner as is provided for in the Landlord and Tenant Act with
respect to the fraudulent removal of goods.
13. OVERHOLDING
Provided that should the Tenant remain in possession of the Demised
Premises after the end of the Term, without other special agreement, it shall be
as a monthly tenant at a rental of two hundred per cent (200%) of the Minimum
Rent payable during the last month of the Term, payable monthly, in advance, on
the 1st day of each and every month and subject in all other respects to the
terms of this Lease.
14. LANDLORD'S COVENANTS
The Landlord covenants with the Tenant:
(a) That so long as the Tenant is paying the rent hereby reserved
and performing the covenants hereinbefore on its part contained, the Tenant may
peaceably possess and enjoy the Demised Premises for the Term hereby granted,
without any interruption or disturbance from the Landlord, or any other person
or persons lawfully claiming by, from or under the Landlord;
(b) The Tenant shall have the right, upon first obtaining the
written consent of the Landlord, from time to time to make alterations and
changes in the interior of the Demised Premises as it may find necessary for its
purposes and at its own expense, including but without limiting the generality
of the foregoing, the erection of partitions and installation of lighting
fixtures, and provided that such alterations do not cause irreparable damage to
the Demised Premises and provided that the same shall be done and made in a good
and workmanlike manner. In the event that such alterations shall affect the
structural integrity of the Demised Premises, then plans for such alterations or
changes shall be delivered to the Landlord and the prior consent of the Landlord
in writing shall be obtained, which consent may be unreasonably or arbitrarily
withheld notwithstanding any statutory or other authority to the contrary. All
such partitions and lighting fixtures and other alterations shall be Tenant's
13
fixtures and shall be removed by the Tenant unless the Landlord otherwise
directs. On such removal, the Tenant shall restore the interior of the Demised
Premises to their former condition immediately prior to the installation of such
alterations or changes, including the restoration of such standard fixtures as
may have been installed by the Landlord;
(c) The Tenant shall have the right at its own expense to attach,
paint or display such signs, signboards, posters, flags or other advertisements
or decorations in or about the Demised Premises provided that the Tenant shall
have first obtained the consent in writing of the Landlord thereto, such consent
not to be unreasonably or arbitrarily withheld, and provided that the same shall
be removed by the Tenant at the expiration of the Term and the Tenant shall
thereupon restore the Demised Premises to their former condition. The parties
acknowledge and agree that the Landlord is interested in a greater amount of
real property than the Demised Premises and, accordingly, reserves the right to
regulate all signs, signboards, posters, flags, advertisements or other
decorations in its sole and entire discretion in order to maintain a uniformity
in the area and to protect the aesthetics thereof for the benefit of its own
interest and those of the Tenant and other interested persons, and that the
aforesaid covenant by the Landlord not to unreasonably or arbitrarily withhold
its consent shall be construed accordingly. The Landlord shall have the right at
any time and from time to time during the Term to place upon the Demised
Premises a notice stating that the Demised Premises are for sale and at any time
during the last six months of the Term that the Demised Premises are for rent
and the Tenant shall not remove such sign or notices or permit the same to be
removed.
15. DAMAGE AND DESTRUCTION
Provided that if during the continuation of this Lease:
(a) The Building or the Demised Premises are totally destroyed by
fire or the elements or are partially destroyed so that they cannot be repaired
with reasonable diligence within 180 days of the commencement of reconstruction,
then this Lease shall, at the option of the Landlord, cease and become null and
void from the date of such damage or destruction and the Tenant shall
immediately surrender the Demised Premises and all interest therein to the
Landlord and the Tenant shall pay rent only to the time of such surrender and in
the case of destruction or partial destruction above mentioned, the Landlord may
re-enter or repossess the Demised Premises discharged of this Lease and may
remove all parties therefrom;
(b) If the Building or Demised Premises are partially destroyed by
fire or the elements and can be repaired with reasonable diligence within 180
days of the commencement of reconstruction, and if the damage is such as to
render the Demised Premises wholly unfit for occupancy, then the rent shall not
run or accrue after the said injury or while the process of repairs is going on
and the Landlord shall repair the same to the extent of the insurance proceeds
actually received, with all reasonable speed and then the rent shall recommence
immediately after the said repairs have been completed;
(c) If the Building or the Demised Premises are partially destroyed
by fire or the elements and can be repaired with reasonable diligence within 180
days of the commencement of reconstruction and if the damage is such that the
Demised Premises can be partially used, then until such damage shall have been
repaired, the rent shall xxxxx in the proportion that the part of the Demised
Premises rendered unfit for occupancy bears to the whole of the Demised
Premises;
(d) The Landlord shall not be liable to the Tenant for any loss or
damage whatsoever caused by any of the perils or casualties enumerated in
standard Fire, Extended Coverage, Boiler and Machinery, Multi-Peril, All-Risk or
Physical Damage policies and recovered by the insured party from its insurers,
even if such fire or other casualty or peril results from the negligence of the
Landlord; and to the extent of such recovery, the Tenant releases and waives all
rights and claims against the Landlord.
(e) Where the Tenant desires indemnity for furniture, fixtures,
equipment or improvements installed, or other property of the Tenant located in
the Demised Premises or used by the Tenant under the terms of this Lease, the
Tenant shall be responsible to insure the same and may not look to the Landlord
for recovery or reimbursement therefor in the event of loss or damage from any
cause.
16. EXPROPRIATION
(a) If at any time during the Term, any public body or paramount
authority shall take or expropriate a portion of the common areas and facilities
not covered by buildings or structures or any portion of the Demised Premises or
shall take or expropriate an easement or right or licence in the nature of an
easement over, upon or under a portion of the lands and:
(i) in the event that such taking or expropriation does not
materially affect the Tenant's use or enjoyment of the Demised Premises, then
the whole of the compensation awarded or settlement for the land so taken or
expropriated, whether fixed by agreement or otherwise, shall be paid to or
received by the Landlord and the Tenant releases any right, title and interest
thereto, and this Lease shall thereafter continue in effect with respect to the
Demised Premises without any abatement of rent;
(ii) In the event that the taking or expropriation does
materially affect the Tenant's use or enjoyment of the Demised Premises, the
whole of the compensation awarded or settlement, where fixed by agreement or
14
otherwise, for the said lands so taken or expropriated, shall nevertheless be
paid to the Landlord, but the rent thereafter payable by the Tenant shall xxxxx
accordingly and, in addition thereto, after payment of the amount to which the
Landlord is entitled as aforesaid, the Tenant shall be entitled to that portion
of the award or compensation granted by the expropriating body relating or
attributable to the Tenant's leasehold improvements so taken or expropriated.
(b) If the Landlord on the one hand and the Tenant and others (if
any) claiming under the Tenant, on the other hand, shall be unable to agree
within thirty (30) days after the amount of compensation award or settlement as
aforesaid has been fixed as to whether such taking or expropriation materially
affects the Tenant's use or enjoyment of the Demised Premises or as to the
extent to which the rent shall xxxxx, then the same shall be determined by
arbitrators to be selected as hereinafter provided, the determination of a
majority of such arbitrators to be final and binding upon the parties thereto.
The Landlord shall choose one of such arbitrators; the Tenant another; and the
two so chosen shall together choose a third. Any such arbitration shall be
carried out under the provisions of The Arbitrations Act of Ontario.
(c) In the event that such taking or expropriation so affects the
Demised Premises as not to terminate this Lease but as to require the
reconstruction or replacement of some portion of the Demised Premises, such
reconstruction or replacement shall be carried out at the Landlord's expense in
a good and workmanlike manner and as expeditiously as reasonably practicable,
provided the cost thereof does not exceed the amount of the compensation awarded
or fixed by agreement or otherwise.
17. CONDONING
Provided that any condoning, excusing or overlooking by the Landlord of
any default, breach or non-performance by the Tenant at any time with respect to
any covenant, proviso or condition herein contained shall not operate as a
waiver of the Landlord's rights hereunder in respect of any subsequent default,
breach or non-observance so as to defeat or in any way affect the rights of the
Landlord hereunder in respect of any such subsequent default, breach or
non-observance, and all rights and remedies herein contained of the Landlord or
any rights or remedies available to the Landlord by law, shall be deemed to be
cumulative and not alternative.
18. RENT PAST DUE
In the event of the Tenant making default in payment of any sum required
to be paid by it under this Lease, whether or not the same is payable to the
Landlord or otherwise, the Landlord shall have the right to pay any sums so in
default and such sums plus interest thereon at the rate of five (5) percentage
points above the rate per annum charged to the Landlord by its bank or financial
institution shall be recoverable as additional rent.
19. ADDITIONAL RENT
The Tenant covenants and agrees with the Landlord that subject as
hereinbefore provided, in the event of the Tenant making default in payment of
any sum required to be paid by it under the provisions of this Lease, the
Landlord shall have the right to pay any sums so in default and such sums shall
be recoverable by the Landlord in the same manner as if such sums were rent in
arrears under this Lease and the Landlord shall be entitled to take any action
for the recovery thereof which it may be entitled to take with respect to rent
in arrears under this Lease.
20. RULES AND REGULATIONS
The Tenant acknowledges and agrees that the Landlord shall have the
right to promulgate rules and regulations to regulate the use of the common
areas and facilities and to regulate parking thereon and the Tenant shall upon
written notice from the Landlord within five days furnish to the Landlord the
current provincial licence number of any vehicles owned or used by employees or
persons connected with the Tenant. The Tenant agrees that for the benefit and
welfare of the Tenant and Tenants occupying other premises in the project, such
reasonable rules and regulations shall form part of this Lease and shall be
binding upon the Tenant.
21. REPAIRS BY LANDLORD
The Landlord and any persons authorized by the Landlord shall have the
right to install, maintain and/or repair pipes, wires, ducts or other
installations in, under or through the Demised Premises, or in, under or through
the common areas and facilities about the Demised Premises for or in connection
with the supply of any services to the Demised Premises or other premises in the
project, but nothing herein contained shall oblige the Landlord to make such
installation or to do such maintenance or effect such repairs, and in the event
that the Landlord shall elect to do so, then it shall not be liable for any
consequential damages occasioned thereby, unless such maintenance or repairs are
for the benefit of any part of the Landlord's premises other than the Demised
Premises.
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22. NOTICE
Any notice herein provided or permitted to be given by the Tenant to the
Landlord or by the Landlord to the Tenant shall be sufficiently given if mailed
in Metropolitan Toronto or those regional municipalities immediately adjacent
thereto, Ontario, postage prepaid, registered, or delivered to the other party
addressed to it at the address noted below for such party. Any such notice given
as aforesaid shall be conclusively deemed to have been given on the day on which
such notice is delivered or on the fifth business day following the day on which
such notice is mailed, as the case may be. Either party may at any time give
notice in writing to the other of any change of address of the party giving such
notice and from and after the giving of such notice, the address therein
specified shall be deemed to be the address of such party for the giving of
notices hereunder. The word "notice" in this paragraph shall be deemed to
include any request, statement or other writing in this Lease provided or
permitted to be given by the Landlord to the Tenant or by the Tenant to the
Landlord.
Landlord: Tenant:
0000 Xxxxx Xxxxxx 0000 Xxxxxxxxx Xxxx.
Xxxxx 000 Xxxx 0
Xxxxxxx, Xxxxxxx Xxxxxxxxxxx, XX
X0X 0X0 L5L 0A1
23. ENVIRONMENTAL AUDIT
(a) In this lease:
(i) "Environmental Audit" shall mean a complete review of
the Demised Premises and the environmental practices of the
Tenant thereon by the Landlord, its employees or agents and
shall include such visual inspections, interviews with the
Tenant, its employees, servants, or agents, and such soil, air,
or other tests as the Landlord shall, in its sole discretion,
deem to be necessary;
(ii) "Hazardous Substance" shall mean any substance that
requires special precautions in its storage, collection,
transportation, treatment or disposal to prevent damage to
persons or property and includes explosive, flammable, volatile,
radioactive, toxic and pathological waste; and
(iii) "Property of the Landlord" shall include any real
property owned by the Landlord or any associate of the Landlord,
as that term is defined in the Business Corporations Act, 1990
(S.O. 1990, c. 4).
(b) The Landlord shall have the right to conduct an Environmental
Audit of the Demised Premises at any time and from time to time throughout the
Term.
(c) In the event that the Environmental Audit reveals that the
Tenant is storing, handling, transporting, manufacturing, processing or
otherwise dealing with (hereinafter collectively "handling") any Hazardous
Substance in a manner which does not comply with all governmental regulations in
accordance with first class environmental protection practices the Landlord
shall give the Tenant ninety (90) days within which to amend its manner of
handling such Hazardous Substances to comply with government regulations. The
Tenant shall further forthwith carry out such procedures as are, in the sole
opinion of the Landlord, necessary to correct any damage which may have been
done to any Property of the Landlord or to forestall any damage to any Property
of the Landlord which in the opinion of the Landlord may be created by the
unsatisfactory handling with such Hazardous Substances.
(d) In the event that the Tenant shall be in default of the
provisions hereof and shall fail to amend its practices or take such corrective
measures as are required pursuant to subparagraph (c) hereof within the
aforesaid ninety (90) day period the Landlord shall have the right to enter upon
the Demised Premises and carry out such procedures as are, in the sole opinion
of the Landlord, necessary to correct any damage which may have been done to any
Property of the Landlord, or to forestall any damage to any Property of the
Landlord which in the opinion of the Landlord may be created by the
unsatisfactory handling such Hazardous Substances and the Tenant shall pay to
the Landlord on demand, as additional rent, all costs and expenses of carrying
out such procedures. Further, in addition to and without limiting any other
remedies available to the Landlord, the Landlord may, on seven (7) days notice,
terminate the Lease.
(e) The Tenant shall pay to the Landlord as additional rent,
forthwith upon demand, the cost of any Environmental Audit conducted by the
Landlord together with the costs, if any, to carry out such procedures required
to correct any damage, or forestall any potential damage to the Property of the
Landlord due to the unsatisfactory handling of such Hazardous Substances by the
Tenant.
(f) The Tenant promptly comply with and conform to the requirements
of all applicable statutes, laws, by-laws, regulations, ordinances and orders of
any governmental or quasi governmental body having jurisdiction thereover with
respect to the production or odours or other emissions into the air in or
surrounding the Demised Premises, the Building, or any part thereof.
16
(g) In the event that the Landlord, acting reasonably, shall deem
any odour or emission to be an obnoxious odour (the "Obnoxious Odour") and shall
so notify the Tenant, the Tenant shall forthwith take all necessary actions to
eliminate the Obnoxious Odours or to reduce the level thereof to a level
acceptable to the Landlord. If the Tenant shall fail to so eliminate the
Obnoxious Odours or to reduce the level thereof as aforesaid, then, in addition
to and without limiting any other rights or remedies of the Landlord hereunder,
the Landlord may upon two (2) days notice to the Tenant the Landlord may itself
take such actions as it deems necessary to eliminate the Obnoxious Odours or to
reduce the level thereof. If the Landlord shall have taken such actions the
Tenant shall forthwith pay to the Landlord, as additional rent, upon demand all
costs incurred by the Landlord together with an amount equal to fifteen percent
(15%) thereof as an administrative and supervisory fee.
(h) In the event that any of the actions required to eliminate the
Obnoxious Odours or to reduce level thereof shall require alterations to the
Demised Premises the provisions of subsections 14(b) and (c) hereof shall apply.
24. SECURITY DEPOSIT
(a) The Tenant has deposited with the Landlord the sum of seven
thousand, four hundred and forty-five ...47/100 Dollars ($7,445.47) (the
"Security Deposit"), receipt of which is hereby acknowledged by the Landlord.
The Security Deposit will be held by the Landlord throughout the Term and any
renewal or renewals thereof, without liability for interest, as security for the
faithful and complete performance by the Tenant of all of the terms, covenants
and obligations under this Lease by the Tenant to be kept, observed and
performed.
(b) If at any time during the Term or any renewal thereof, the Rent
or other sums payable by the Tenant to the Landlord hereunder are overdue and
unpaid, or if the Tenant fails to keep or perform any of the terms, covenants
and conditions of this Lease to be kept, observed and performed by the Tenant,
then, the Landlord, at its option, may, in addition to any and all other rights
and remedies provided for in this Lease or by law, appropriate and apply the
entire Security Deposit, or so much thereof as is necessary to compensate the
Landlord for loss or damage sustained or suffered by the Landlord due to such
breach. If the entire Security Deposit, or any portion of it, is appropriated
and applied by the Landlord for the payment of overdue Rent or other sums due
and payable to the Landlord by the Tenant hereunder, then, the Tenant shall,
upon demand of the Landlord, forthwith remit to the Landlord a sufficient amount
in cash to restore the Security Deposit to the original sum deposited, and the
Tenant's failure to do so within five (5) days after receipt of such demand
constitutes a breach of this Lease. If the Tenant complies with all of the
terms, covenants and conditions and promptly pays all of the Rent and other sums
herein provided payable by the Tenant to the Landlord, the Security Deposit
shall be returned in full to the Tenant without interest within sixty (60) days
after the end of the Term or within sixty (60) days after the end of the Term or
any renewal or renewals thereof.
(c) The Landlord shall deliver or assign the Security Deposit to any
purchaser of the interest of the Landlord or the owner or owners of the land in
the Demised Premises or the lands or any part thereof, if such interest is sold,
and thereupon the Landlord is discharged from any further liability with respect
to the Security Deposit.
25. REGISTRATION
The Tenant shall not register this Lease without the written consent of
the Landlord. Upon the request of the Tenant, the other party shall join in the
execution of a memorandum or so-called "short form" of this Lease for the
purposes of registration. Said memorandum or short form of this Lease shall only
describe the parties, the Demised Premises and the Term of this Lease, and shall
be prepared by the Landlord's solicitors at the expense of the Tenant. If
required by the Landlord, the Landlord is hereby appointed the agent of the
Tenant to complete any Land Transfer Tax Affidavit on behalf of the Tenant for
the purposes of registering the short form or notice of this Lease.
26. UNAVOIDABLE DELAY
It is understood and agreed that whenever and to the extent that the
Landlord shall be unable to fulfil or shall be delayed or restricted in the
fulfilment of any obligation hereunder in respect of the supply or provision of
any service or utility or the doing of any work or the making of any repairs by
reason of being unable to obtain the material, goods, equipment, service or
labour required to enable it to fulfil such obligation, or by reason of any
statute, Law or Order in Council, or any regulation or order passed or made
pursuant thereto, or by reason of the order or direction of any administrator,
comptroller, board, governmental department or officer, or other authority,
required thereby, or by reason of any other cause beyond its control, whether of
the foregoing character or not, the Landlord shall be relieved from the
fulfilment of such obligation and the Tenant shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned.
17
27. PROPORTIONATE SHARE
Whenever used in this lease "Proportionate Share" shall mean a fraction
which has as its numerator the gross floor area of the Demised Premises and as
its denominator the gross floor area of the Building.
28. ENTIRE AGREEMENT
This Lease and the schedules and riders annexed, if any, together with
the rules and regulations promulgated by the Landlord from time to time, set
forth all of the covenants, promises, agreements, conditions and understandings
between the Landlord and the Tenant concerning the Demised Premises. If any
term, covenant or condition of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease or the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term, covenant or condition
of this Lease shall be valid and enforced to the fullest extent permitted by
law.
29. OPTION TO EXTEND
The Tenant shall have the right to renew the within Lease for one
extended term of five (5) years, subject to the following terms and conditions:
(a) The Tenant has not been in default under the terms of the within
Lease;
(b) The Tenant has given the Landlord at least six (6) months and
not more than twelve (12) months prior written notice of its intention to
exercise the option in this paragraph contained;
(c) The tenancy of the Tenant in the Demised Premises shall be on
the same terms and conditions as are contained in the within Lease, except that
there shall be no further option to extend and except that the Minimum Rent will
be as provided in this paragraph;
(d) The Minimum Rent during the aforesaid extended term shall be
negotiated and agreed to by the Landlord and the Tenant no later than three (3)
months prior to the commencement of the extended term. The Minimum Rent during
the extended term shall be the fair market rate for premises similar to the
Demised Premises, used for a purpose similar to that of the Demised Premises, in
properties similar to the Demised Premises, in the immediate vicinity of the
building, provided, however, that in no event will such Minimum Rent be less
than the Minimum Rent payable in the last year of the term immediately
proceeding the said extended term.
(e) If the Minimum Rent which shall be applicable during the renewal
term has not been mutually agreed upon by the Landlord and the Tenant at least 3
months prior to the expiry of the Term the Minimum Rent applicable during the
renewal term shall be determined by arbitration by a single arbitrator chosen by
the Landlord and the Tenant, and if they cannot agree upon the arbitrator within
5 days after written request for arbitration by either party to the other,
either party may apply to a judge for the appointment of an arbitrator in
accordance with the provisions of the Arbitrations Act (Ontario). The provisions
of the Arbitrations Act shall govern the arbitration and the decision of the
arbitrator shall be final and binding upon the parties. The arbitrator shall be
instructed to render its decision no later than 15 days prior to the expiry of
the Term. If, however, the arbitrator has not rendered its decision by the end
of the Term, the Tenant shall continue to pay the Minimum Rent it was paying
during the last month of the Term until such time as the arbitrator renders its
decision, whereupon the appropriate adjustments shall be made between the
parties. The rent payable for the renewal term shall be the fair market value
rent as determined by the arbitrator, but in no event will such minimum rent be
less than the minimum rent payable in the last year of the term immediately
preceding the said renewal term. All documents and proceedings with respect to
the arbitration are to be kept confidential by each of the parties, such cost of
arbitration shall be shared equally between the Landlord and Tenant.
30. LIENS
If any construction or other liens or order for the payment of money
shall be filed against the Lands or the Lease Premises by reason, or arising out
of any labour or material, work or service furnished to the Tenant or to anyone
claiming through the Tenant, the Tenant shall, within fifteen (15) days after
notice to the Tenant of the filing thereof, cause the same to be discharged. The
Tenant shall defend all suits to enforce such lien or Order whether against the
Tenant or the Landlord at the Tenant's own expense. The Tenant hereby
indemnifies the Landlord against any expense or damage as a result of such lien
or Order. If the same are not discharged within such time, the Landlord shall
have the right to pay any sums necessary to discharge the same and such sums
thereupon shall be recovered by the Landlord in the same manner as if such were
rental in arrears under this Lease and the Landlord shall be entitled to take
any action therefor which it may be entitled to take with respect to rental in
arrears under this Lease.
18
31. INTENT AND INTERPRETATION
This Indenture and everything herein contained shall enure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and assigns, subject to the consent of the
Landlord being obtained as herein provided to an assignment or sub-lease by the
Tenant. Time shall in all respects be of the essence hereof. All covenants
herein contained shall be deemed joint and several and all rights and powers
reserved to the Landlord may be exercised either by the Landlord or by its
agents or representatives from time to time. The provisions hereof shall in all
respects be construed according to and governed by the laws of the Province of
Ontario.
IN WITNESS WHEREOF the parties hereto have hereunto executed these
presents as of the date first above written.
SIGNED, SEALED AND DELIVERED ) THE XXXX XXXXX
in the presence of: ) DEVELOPMENT CORPORATION
)
) (Landlord)
) Per:/s/ Xxxxx Xxxxxxx
) -----------------
) I have authority to bind the Corporation
) Xxxxx Xxxxxxx
)
) METHES ENERGIES CANADA INC.
) (Tenant)
) Per:/s/ Xxxx Xxxxxx
) ----------------
) I have authority to bind the Corporation
) Xxxx Xxxxxx
SCHEDULE "A
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LEGAL DESCRIPTION
The Demised Premises are situate in the City of Mississauga in the Regional
Municipality of Peel and Province of Ontario, and comprise 6,319 square feet
more or less of the Building situate upon part of Lot No.
17,18,19,20,21,22,23,24,25,30,31,32,33 according to Registered Plan 43R-24548in
the said City of Mississauga and being known as Unit No.5 at 0000 Xxxxxxxxx
Xxxxxxxx.
ADDRESSES FOR NOTICE:
ADDRESS OF LANDLORD: ADDRESS OF TENANT :
0000 Xxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxxxx
Xxxxx 000 Xxxx 0
Xxxxxxx, Xxxxxxx Xxxxxxxxxxx, Xxxxxxx
X0X 0X0 L5L 0A1
SCHEDULE "B"
SITE PLAN
---------
[IMAGE OMITTED]
4170 SLADEVIEW CRES.
SCHEDULE "C"
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RULES AND REGULATIONS
1. The sidewalks and roadways, except as otherwise agreed by both parties
shall not be obstructed by any of the tenants or used by them for any
purpose other than for the ingress or egress to and from their
respective Demised Premises. Tenants will not place or allow to be
placed in the public areas of the property, any waste paper, dust,
garbage, refuse or anything whatever that would tend to make them
unclean or untidy.
2. The water closets and other water apparatus shall not be used for any
purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes, or other substances shall be thrown
therein. Any damage resulting by misuse shall be borne by the Tenant by
whom or by those agents, servants or employees the same is caused.
Tenants shall not let the water run unless it is in actual use, nor
shall they deface any part of the Demised Premises.
3. No tenant shall do or permit anything to be done in the Demised Premises
or bring or keep anything therein which will increase the risk of fire
or obstruct or interfere with the rights of other tenants or violate or
act at variance with the laws relating to fires or with the regulations
of the Fire Department, or the Board of Health.
4. Tenants and their employees shall not interfere with other tenants or
those having business with them.
5. No live birds or other live animals except fish shall be kept in or
about the Demised Premises nor shall the tenants operate or permit to be
operated any musical or sound producing instrument or device inside or
outside the Leased Premises which may be heard outside the Demised
Premises.
6. No one shall use the Demised Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or articles
other than those required for business purposes.
7. All tenants must observe strict care not to allow their windows or doors
to remain open so as to admit rain or snow or so as to interfere with
the heating of the Demised Premises. Any injury or damage caused to the
Demised Premises or its appointments, furnishings, heating and other
appliances or to any other tenant by reason of windows or doors being
left open so as to admit rain or snow or by interferences with or
neglect of the heating appliances or by reason of the tenant or any
other person or servant, subject to it, shall be made good by the tenant
in whose premises the neglect, interference or misconduct occurred.
8. It shall be the duty of the respective tenants to assist and cooperate
with the Landlord in preventing injury to the Demised Premises demised
to them respectively.
9. No inflammable oils or other inflammable, dangerous or explosive
materials shall be kept or permitted to be kept in the Demised Premises.
10. No storage of any kind is permitted outside the Demised Premises.
11. The Tenant has read and acknowledges Clause 14.00 of the Lease with
respect to signs and advertising, which provides that all signs must be
approved by the Landlord.
12. Tenants shall not place any additional lock upon any door of the Demised
Premises without the written consent of the Landlord.
13. Tenants shall give Landlord prompt notice of any accident to or any
defect in the plumbing, mechanical or electrical apparatus or any other
part of the Demised Premises.
14. The parking of cars in the parking areas shall be subject to the
reasonable regulations of the Landlord. No overnight parking of any
vehicles on the property is permitted.
15. Tenants will not do or omit to do or permit to be done or omitted
anything upon or in respect of the Demised Premises the doing or
omission of which (as the case may be) shall be or result in a nuisance.
16. Landlord shall have the right to make such other and further reasonable
rules and regulations as in its judgement may from time to time be
needful for the safety, care, cleanliness and appearance of the Demised
Premises and for the preservation of good order therein, and the same
shall be kept and observed by the tenants, their clerks and servants
provided said rules apply uniformly to all tenants of the Demisable
Premises.
SCHEDULE "D"
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SPECIAL CONDITIONS
1. The Landlord agrees to change one overhead door to a 12' x 14' opening.
2. The Landlord agrees to install epoxy flooring in the warehouse area
only.
3. The Tenant shall pay for the cost of additional office finishing, over
and above the Landlord's twenty percent (20%) finish, as follows:
Total area of office finish = 2,494 square feet
Less Landlord's 20% = 1,264 square feet
-----------------
Balance = 1,230 square feet
The Tenant agrees to pay for the additional construction as follows:
Cost of additional office finishing 1,230 sq. ft. X $40.00 per sq. ft. =
$49,200.00
Total cost = $ 49,200.00
Less 25% deposit = $ 12,300.00 plus GST
-----------
Balance = $ 36,900.00
Balance of $36,900.00 to be amortized over the 5 year term of the lease,
at an interest rate of 10% payable semi-annually, with payments as
follows:
$784.02 per month or $9,408.19 per annum plus GST.
