EXHIBIT 10.5
WESTDALE PROPERTIES
LEASE
PROJECT: 000 XXXXXX XXXXX, XXXX 0
XXXXXXXXXXX, XXXXXXX
LANDLORD: 789542 ONTARIO LIMITED
TENANT(S): ASTRIS ENERGI INC.
INDUSTRIAL LEASE
TABLE OF CONTENTS
Page
ARTICLE I Definitions.........................................................4
1.01 In this Lease and the schedules forming part
of it, the following definitions apply:...........................4
ARTICLE II Intent and Interpretation..........................................6
2.01 Net Lease.........................................................6
2.02 Extended Meanings.................................................7
2.03 Entire Agreement..................................................7
2.04 Governing Law.....................................................7
2.05 Time of the Essence...............................................7
ARTICLE III Grant and Term....................................................7
3.01 Leased Premises...................................................7
3.02 Use of Additional Areas...........................................8
3.03 Commencement and Ending Date of Term..............................8
3.04 Option to Renew...................................................8
ARTICLE IV Rent...............................................................9
4.01 Covenant to Pay...................................................9
4.02 Minimum Rent......................................................9
ARTICLE V Taxes..............................................................10
5.01 Taxes-Definition.................................................10
5.02 Taxes Payable by the Landlord....................................11
5.03 Taxes Payable by the Tenant......................................11
5.04 Business Taxes and Other Taxes of Tenant.........................11
5.05 Tenant's Responsibility..........................................12
5.06 Per Diem Adjustment..............................................12
ARTICLE VI Project and Common Area and Facilities - Control and Payment......13
6.01 Control of the Project by the Landlord...........................13
6.02 Tenant to Bear Proportionate Share of Expense....................13
6.03 Estimated Costs..................................................15
ARTICLE VII Utilities........................................................15
7.01 Charges for Utilities............................................15
ARTICLE VIII HVAC............................................................17
8.01 Heating, Ventilating and Air-Conditioning........................17
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ARTICLE IX Use of the Leased Premises........................................17
9.01 Use of the Leased Premises.......................................17
9.02 Conduct of Business..............................................17
9.03 Nuisance and Waste...............................................17
9.04 Energy Conservation..............................................18
9.05 Observance of Law................................................18
ARTICLE X Insurance and Indemnity............................................18
10.01 Tenant's Insurance...............................................18
10.02 Increase in Insurance Premiums...................................21
10.03 Cancellation of Insurance........................................21
10.04 Loss or Damage...................................................21
10.05 Landlord's Insurance.............................................22
10.06 Indemnification of the Landlord..................................22
ARTICLE XI Maintenance, Repairs and Alterations..............................23
11.01 Maintenance and Repairs by the Tenant............................23
11.02 Landlord's Approval of the Tenant's Work.........................23
11.03 Maintenance and Repairs by the Landlord..........................24
11.04 Repair on Notice.................................................24
11.05 Surrender of the Leased Premises.................................24
11.06 Repair where Tenant at Fault.....................................24
11.07 Tenant not to overload floors or other facilities................25
11.08 Removal and Restoration by the Tenant............................25
11.09 Notice by the Tenant.............................................25
11.10 Liens............................................................25
11.11 Signs and Advertising............................................26
11.12 Pest Extermination...............................................26
11.13 Excess Waste or Garbage..........................................26
ARTICLE XII Damage and Destruction and Expropriation.........................26
12.01 Destruction of the Leased Premises...............................26
12.02 Destruction of the Project.......................................27
12.03 Expropriation....................................................27
12.04 Architect's Certificate..........................................28
ARTICLE XIII Assignment, Subletting, Parting with Possession and
Corporate Control...............................................28
13.01 Consent Required.................................................28
13.02 Landlord's Option................................................30
13.03 No Advertising of the Leased Premises............................30
13.04 Corporate Ownership..............................................30
13.05 Assignment or Transfer by the Landlord...........................31
ARTICLE XIV Access and Alterations...........................................31
14.01 Right of Entry...................................................31
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ARTICLE XV Status Statement, Attornment and Subordination....................32
15.01 Status Statement.................................................32
15.02 Subordination and Attornment.....................................32
15.03 Attorney.........................................................33
15.04 Financial Information............................................33
ARTICLE XVI Default..........................................................33
16.01 Event of Default.................................................33
16.02 Rights of the Landlord...........................................34
16.03 Expenses.........................................................35
16.04 Removal of Chattels..............................................35
16.05 Waiver of Exemption from Distress................................35
16.06 Landlord's Right to Cure the Tenant's
Default or Perform the Tenant's Covenants........................36
16.07 Remedies Generally...............................................36
ARTICLE XVII Miscellaneous...................................................36
17.01 Rules and Regulations............................................36
17.02 Overholding......................................................37
17.03 Successors.......................................................37
17.04 Tenant Partnership...............................................37
17.05 Waiver...........................................................37
17.06 Accord and Satisfaction..........................................37
17.07 Notices..........................................................38
17.08 Notices..........................................................38
17.09 Quiet Enjoyment..................................................38
SCHEDULES AND APPENDICES
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THIS LEASE is dated the 14TH day of APRIL, 2000.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT.
BETWEEN:
789542 ONTARIO LIMITED
(the "Landlord")
OF THE FIRST PART
-and-
ASTRIS ENERGI INC.
(the "Tenant")
OF THE SECOND PART
ARTICLE I
DEFINITIONS
1.01 In this Lease and the schedules forming part of it, the following
definitions apply:
(i) "Additional Rent" means the money or charges which the Tenant is
required to pay under this Lease (except Minimum Rent) whether or not
they are designated "Additional Rent" and whether they are payable to
the Landlord or to third parties.
(ii) "Architect" means the architect which the Landlord names from time to
time.
(iii) "Common Areas and Facilities" means those areas, facilities,
utilities, Improvements, equipment and installations which, (a) are in
the Project and from time to time, are not designated or intended by
the Landlord to be leased to tenants of the Project, (b) although they
are not in the Project, they serve or are for the benefit of the
Project and are designated from time to time by the Landlord as part
of the Common Areas and Facilities, or (c) are provided or designated
from time to time by the Landlord for the use or benefit of the
tenants in common with others entitled to their use or benefit, in the
manner and for the purposes permitted by this Lease.
Common Areas and Facilities includes but is not limited to the roof,
exterior wall assemblies including weather walls, exterior and
interior structural elements and bearing walls in the building or
buildings and improvements comprising the Project, parking areas, the
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entrances and exits, the structural elements, employee parking areas,
access roads, truck courts, driveways, truckways, loading docks and
related areas, sidewalks, landscaped areas, equipment, furniture,
furnishings and fixtures, stairways, interior areas (which interior
areas are referred to as the "Interior Common Areas" and include but
are not limited to, corridors, tenant common washrooms, electrical,
telephone, meter, mechanical, mail, storage and janitor rooms), fire
prevention, security and communication systems, general signs,
columns, pipes, electrical, plumbing, drainage, mechanical, and the
other installations, equipment or services located in the Project or
related to it as well as the structures housing them, and the HVAC
System of the Project as defined in Schedule "D".
(iv) "Indemnifier" means the Person who has executed or agreed to execute
the Indemnity Agreement which is attached to this Lease as Appendix
"A" (if there is such a Person).
(v) "Landlord" means the party of the First Part, and for the purpose of
Section 10.04 includes the officers, servants, contractors and agents
of the Landlord.
(vi) "Leasable Premises" means those premises within the Project form time
to time which are leased to tenants or which are designated by the
Landlord for that purpose, and do not form part of the Common Areas
and Facilities.
(vii) "Leased Premises" means the premises leased to the Tenant and
described in Section 3.01.
(viii)"Minimum Rent" means the annual rent payable by the Tenant under
Section 4.02.
(ix) "Mortgagee" means any mortgagee or hypothecary creditor (including any
trustee for bondholders) of the Project or any part of it.
(x) "Person" if the context allows, includes any person, firm, partnership
or corporation, or any group of persons, firms, partnerships, or
corporations or any combination of them.
(xi) "Project" means the lands described in Schedule "A" as those lands are
altered, expanded, or reduced from time to time and any buildings,
improvements, equipment and facilities erected on them or situated on
or in them from time to time.
(xii) "Proportionate Share" means a fraction which has as its numerator the
Rentable Area of the Leased Premises, and as its denominator, the
Rentable Area of the Project.
(xiii)"Rent" means the Minimum Rent, and Additional Rent payable under this
Lease.
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(xiv) "Rentable Area of the Leased Premises" means the total area expressed
in square feet determined by aggregating:
(a) the floor area of the Leased Premises, measured from the exterior
face of the exterior walls, doors and windows and the centre line
of all interior walls separating the Leased Premises from
adjoining Leasable Premises or Interior Common Areas with no
deduction for space occupied by projections, structures, or
columns, structural or non-structural, and
(b) an attributed area (the "Attributed Area") being a fraction of
the total floor areas of the Interior Common Areas (measured in
accordance with subparagraph (a) above, as though they were
Leasable Premises), which fraction has as its numerator the floor
area of the Leased Premises determined in accordance with
subparagraph (a) above and as its denominator the Rentable Area
of the Project.
(xv) "Rentable Area of the Project" means the total of the Rentable Areas
of all Leasable Premises in the Project.
(xvi) "Rental Year" means a period o time, the first Rental Year commencing
on the first day of the Term, and ending on the last day of the month
of April next following. After the first Rental Year each Rental Year
consists of consecutive periods of twelve (12) calendar months, but
the last Rental Year of the Term terminates on the expiration of the
Term or earlier termination of this Lease, as the case may be.
Despite what is stated above, if the Landlord considers it necessary
or convenient, it may from time to time, by written notice to the
Tenant, specify an annual date from which each subsequent Rental Year
for the purposes of any of the Articles, Sections or other provisions
of this Lease Is to commence, and , the Rental Year then current for
that purpose or those purposes, will terminate on the day immediately
preceding the commencement of the new Rental Year.
(xvii)"Tenant" means the part of the Second Part and every Person mentioned
as Tenant in this Lease. If there is more than one Tenant, any notice
under this Lease may be given by or to any one of them and has the
same force as if given by or to all of them. A reference to "Tenant"
Includes, where the context allows (and in Section 10.05 the context
allows), the servants, employees, agents, invitees and licensees of
the Tenant and those over whom tike Tenant may reasonable be expected
to exercise control.
ARTICLE II
INTENT AND INTERPRETATION
2.01 Net Lease
This Lease is a completely carefree net lease to the Landlord. Except as
otherwise stated in this Lease, (i) the Landlord is not responsible for any
costs, charges, or outlays of any nature whatsoever arising from or
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relating to the Leased Premises, or the used and occupancy of them, or
their contents or the business carried on in them, and (ii) the Tenant will
pay all charges, impositions, costs and expenses of every nature relating
to the Leased Premises.
2.02 Extended Meanings
Use of the neuter singular pronoun to refer to the Landlord or the Tenant
is considered a proper reference even though the Landlord or the Tenant is
an individual, a partnership, a corporation, or a group of two or more
individuals, partnerships or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural
sense where there is more than one Landlord or Tenant and to either
corporations, associations, partnerships, or individuals, males or females,
will in all instances be assumed as though they were fully expressed.
2.03 Entire Agreement
This Lease is comprised of the main body of this document, as well as the
schedules and riders, if any, attached to it and the Rules and Regulations
adopted and promulgated by the Landlord under Section 17.01 all of which
set out every covenant, promise, agreement, condition and understanding
between the Landlord and the Tenant concerning the Leased Premises and
there are no covenants, promises, agreements, conditions or understandings,
oral or written, between them other than those set out in this Lease.
Except as may be expressly stated otherwise in this Lease, no subsequent
alteration, amendment change or addition to this Lease will be binding upon
the Landlord or the Tenant unless in writing and signed by the Tenant and
the Landlord.
2.04 Governing Law
This Lease will be construed in accordance with and governed by the laws of
the Province of Ontario.
2.05 Time of the Essence
Time is of the essence of this Lease and each part of it.
ARTICLE III
GRANT AND TERM
3.01 Leased Premises
(a) The Landlord leases to the Tenant, and the Tenant leases from the
Landlord, the premises, now or to be erected as part of the Project,
which premises are presently designated as Unit No.'s 6, in Building
No. 0000 XXXXXX XXXXX, XXXXXXXXXXX, XXXXXXX, and have a Rental Area of
1,850 square feet.
(b) The approximate location of the Leased Premises is shown outlined in
red on the plan attached as Schedule "B". The Common Area and
Facilities (including, but not limited to, the columns and walls which
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form part of the Common Area and Facilities) which are within the
space enclosed by the boundaries of the Leased Premises do not form
part of the Leased Premises.
The Tenant acknowledges that it has inspected and accepts the Leased
Premises on an "as-is" basis, subject to completion of Landlord's Work
as outlined in Schedule "E".
(c) The boundaries of the Leased Premises extend:
(a) (i) to the Exterior face of all exterior walls, doors, and
windows;
(ii) to the Centre line of all Interior walls separating the
Leased Premises from adjoining Leasable Premises and
Interior Common Areas, and
(b) from the top surface of the structural subfloor to the bottom
surface of the structural ceiling.
3.02 Use of Additional Areas
The use and occupation by the Tenant of the Leased Premises includes the
non-exclusive and non-transferable right or licence to use, subject to this
Lease the Common Areas and Facilities in common with others entitled to do
so, and for the purposes for which they are intended.
3.03 Commencement and Ending Date of Term
The Tenant will have and hold the Leased Premises for and during the Term
which will be, unless sooner terminated under other provisions of this
Lease, the period of THREE (3) years, Commencing on the 1ST DAY OF MAY,
2000 (the "Commencement Date") and to be fully completed and ended on the
30TH day of APRIL, 2003 (the "Expiry Date"). SHOULD THE TENANT TAKE
POSSESSION OF THE PREMISES PRIOR TO THE COMMENCEMENT DATE, HE SHALL BE
ENTITLED TO HAVE THIS PERIOD OF TIME TOTALLY RENT FREE BUT SHALL BE
RESPONSIBLE FOR ALL UTILITIES FROM THE DATE THAT HE ACTUALLY TAKES
POSSESSION OF THE PREMISES.
3.04 Option to Renew
Provided the Tenant has not been and is not in breach of the Offer to Lease
or Lease document, the Tenant shall have an option to renew the Lease for a
period of Three (3) years on the same terms and conditions, save and except
rental and any further right of renewal. The rent during the renewal period
shall be negotiated based on the fair market rental for comparable premises
in the area and failing such agreement as determined by arbitration
pursuant to the Arbitrations Act, Ontario. The Tenant shall give written
notice to the Landlord no later than Three (3) months prior to the date of
the expiry of the current term of its intention to exercise its option to
renew.
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ARTICLE IV
RENT
4.01 Covenant to Pay
The Tenant will pay Minimum Rent and Additional Rent as provided in this
Lease.
4.02 Minimum Rent
(a) The Tenant will pay, beginning on the Commencement Date, to the
Landlord at the office of the Landlord or any other place designated
by the Landlord, in Canadian money, without any previous demand and
without any deduction, abatement (except as indicated in subparagraph
(e) below and Section 12.01(a), or set-off, as Minimum Rent;
(i) During the period from MAY 1, 2000 THROUGH MAY 31, 2000, the
annual sum of ZERO ($0.00) payable in equal consecutive monthly
installments of $0 each in advance on the first day of each
calendar month during such period.
(ii) During the period from JUNE 1, 2000 THROUGH TO APRIL 30, 2001,
the annual sum of SEVENTEEN THOUSAND ONE HUNDRED DOLLARS
----00/000 ($17,100.00) payable in equal consecutive monthly
installments of ONE THOUSAND FOUR HUNDRED TWENTY-FIVE DOLLARS
----00/00 ($1,425.00) each in advance on the first day of each
calendar month during such period;
(iii) During the period from MAY 1, 2001 TO APRIL 30, 2002, the annual
sum of SEVENTEEN THOUSAND NINE HUNDRED FIFTY-FIVE DOLLARS
----00/00 ($17,955.00) payable in equal consecutive monthly
installments of ONE THOUSAND FOUR HUNDRED NINETY-SIX DOLLARS
----25/00 ($1,496.25) each in advance on the first day of each
calendar month during such period;
(iv) During the period from MAY 1, 2002 THROUGH TO APRIL 30, 2003, the
annual sum of EIGHTEEN THOUSAND EIGHT HUNDRED FIFTY-TWO DOLLARS
----72/00 ($18,852.72) payable in equal consecutive monthly
installments of ONE THOUSAND FIVE HUNDRED SEVENTY-ONE DOLLARS
----06/00 ($1,571.06) each in advance on the first day of each
calendar month during such period;
(b) If the Commencement Date is on a day other than the first day of a
calendar month, then the Tenant will pay, on the Commencement Date, a
part of the Minimum Rent pro-rated on a per diem basis from the
Commencement Date to the end of the month in which the Commencement
Date occurs, based upon a period of three hundred and sixty-five (365)
days.
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(c) The Tenant will deliver to the Landlord at the beginning of each
Rental Year a series of monthly post-dated cheques for the Rental Year
for the aggregate of the monthly payments of Minimum Rent and any
payments of Additional Rent estimated by the Landlord in advance as
well as any payments required by this Lease to be paid monthly in
advance.
(d) The Landlord acknowledges receipt of the sum of THREE THOUSAND TWO
HUNDRED FIVE DOLLARS ----78/00 ($3,205.78) which represents a security
deposit equal to the last month of the Term, the balance for
application by the Landlord against payment of Rent for the first
month of the Term. The Landlord may apply all or part of the amount
retained for 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 a law or to limit the amount recoverable by the
Landlord for damages in respect of other breaches by the Tenants of
this Lease. If the Landlord uses all or part of the Security Deposit
as provided above, the Tenant will, upon notification of 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 paragraph. The Landlord will refund the Security
Deposit within thirty (30)days of the expiry of the Lease upon
satisfactory inspection of the Leased Premises.
(e) If construction of the Leased Premises or the Project is not completed
by the Commencement Date or if on that date, a previous Tenant or
occupant is overholding, and the Landlord is therefore unable to
deliver vacant possession of the Leased Premises, the Landlord will
exercise all its rights diligently in order to obtain completion of
the construction and vacant possession, and the Rent payable under
this Lease will xxxxx until the Leased Premises are available for
occupancy by the Tenant. The Landlord will not be liable to the Tenant
for damages and this Lease will, subject to the abatement of Rent
provided for in this paragraph, be in full force with no change to the
Commencement Date or the Expiry Date.
(f) If the Tenant fails to pay when it is due, Minimum Rent, Additional
Rent, or any other amount payable by it under this Lease, the unpaid
amount will bear interest at the rate of four (4%) percent per month
pro-rated from the due date to the date of payment and subject to
annual compounding.
ARTICLE V
TAXES
5.01 Taxes-Definition
"Taxes" means all real property taxes, rates, duties and assessments
(including local improvement taxes) impost charges or levied, wether
general or special, that are levied, rated, charged or assessed against the
Project or any part of it from time to time, (including, but not limited
to, the Common Areas and Facilities) by any lawful taxing authority,
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whether federal, provincial, municipal, school or otherwise and any taxes
or other amounts which are imposed in lieu of, or in addition to, any such
real property taxes whether of the foregoing character or not and whether
in existence at the Commencement Date or not, and any such real property
taxes levied or assessed against the Landlord on account of its ownership
of the Project or its interest in it.
5.02 Taxes Payable by the Landlord
The Landlord will pay all taxes which are levied, rated, charged or
assessed against the Project or any part of it subject to Sections 5.03,
5.04 and 6.02 of this Lease. However, the Landlord may defer payment of any
such Taxes or defer compliance with any statute, law, by-law, if it
diligently prosecutes any contest or appeal of those Taxes.
5.03 Taxes Payable by the Tenant
The Tenant will pay as Additional Rent to the Landlord a share of the Taxes
determined as follows:
(a) the Tenant will pay the amount determined when the appropriate mill
rate for Taxes is applied to the Assessment for the Leased Premises;
"Assessment" in this Section 5.03 means the assessed value upon which
business assessments are calculated, or would be calculated if a
business were being conducted in the premises in respect of which the
assessed value is determined;
(b) the Tenant will also pay its Proportionate Share of any amounts
determined by applying the appropriate mill rate for Taxes against any
separate Assessments for the Common Areas and Facilities or any part
of them, and
(c) if there is not or if there ceases to be a separate Assessment for the
Leased Premises or if there ceases to be a separate Assessment for any
part of the Common Areas and Facilities for which there was one
previously during the Term, the Landlord will determine what the
separate Assessments would have been, having regard, to the extent
possible, to the assessment principles and methods properly employed
by the assessment authority having jurisdiction and the Landlord's
determination will be considered to be that separate Assessment.
5.04 Business Taxes and Other Taxes of Tenant
In addition to the Taxes payable by the Tenant under Section 5.03, the
Tenant will pay as Additional Rent to the proper taxing authorities or to
the Landlord, as it might direct, and will discharge in each Rental Year
when they become due and payable, the following (collectively called
"Business Taxes"), (i) all taxes, rates, duties, assessments and other
charges that are levied, rated, charged or assessed against or in respect
of the improvements, equipment and facilities of the Tenant on or in the
Leased Premises or the Landlord on account of its ownership of them or its
interest in them, and (ii) every tax and license fee which is levied,
rated, charged, or assessed against or in respect of the business carried
on in the Leased Premises or in respect of the use or occupancy of the
Leased Premises by the Tenant, and every occupant of the Leased Premises,
or against the Landlord on account of its ownership of or interest in the
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Leased Premises whether the taxes, rates, duties, assessments or license
fees are rated, charged or assessed by any federal, provincial, municipal,
school or other body during the Term. If there are not separate bills
provided for Business Taxes, the Tenant will pay its Proportionate Share of
the Business Taxes or Taxes in the nature of Business Taxes levied, rated,
charged or assessed on the Project.
5.05 Tenant's Responsibility
The Tenant will, (a) upon request of the Landlord deliver to the Landlord
for inspection, receipts for payment of all Taxes and Business Taxes
payable by the Tenant, (b) promptly deliver to the Landlord by registered
mail at least ten (10) days before the last day for appeal or contestation,
notices of any Assessments or any Taxes or Business Taxes or other
assessments received by the Tenant which relate to the Leased Premises, (c)
furnish such other information in connection with any such Taxes and any
such Business Taxes as the Landlord reasonably determines from time to
time, (d) promptly deliver to the Landlord notice, by registered mail, of
any appeal or contestation the Tenant intends to institute with respect to
any Taxes or any Business Taxes and consult with and obtain the prior
written approval of the Landlord to the appeal or contestation. If the
Tenant obtains that approval, the Tenant will deliver to the Landlord
whatever security for the payment of the Taxes and Business Taxes the
Landlord considers advisable and the Tenant will diligently prosecute the
appeal or contestation to a speedy resolution and will keep the Landlord
informed of its progress from time to time. If the Tenant fails to five
notice to the Landlord required in this subparagraph, then, without
limiting the Landlord's other remedies, the Tenant will be responsible
during the Term, for payment to the Landlord, the difference between the
Taxes and Business Taxes which would have been payable as the result of the
appeal or contestation not been made and the Taxes and Business Taxes
payable as a result of the appeal or contestation, (e) the Tenant will
indemnify the Landlord against all loss, cost, charges and expenses
occasioned by or arising from all Taxes in respect of the Leased Premises
and all Business Taxes and any taxes which may in future be levied in lieu
of Taxes or Business Taxes or which may be assessed against any rentals
payable under this Lease in Lieu of Taxes or Business Taxes, whether
against the Landlord or the Tenant including but not limited to any
increase occurring in Taxes or Business Taxes arising directly or
indirectly out of any appeal or contestation of the Tenant of the Taxes or
Business Taxes relating to the Leased Premises or the Project or any part
of them. The Tenant will promptly deliver to the Landlord whatever security
for any increase in Taxes and Business Taxes which the Landlord considers
advisable.
5.06 Per Diem Adjustment
If any Rental Year is less than twelve (12) calendar months, the Taxes that
the Tenant is required to pay under Section 5.03 will be subject to a per
diem adjustment on the basis of three hundred and sixty-five (365) days.
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IT IS UNDERSTOOD THAT DURING THE INITIAL TERM OF THE LEASE ONLY, AND PROVIDING
THE TENANT IS IN POSSESSION OF THE LEASED PREMISES, THE TENANT'S SHARE OF TAXES,
DUE UNDER ARTICLE 5.01, 5.02 AND 5.04 SHALL BE INCLUDED IN RENTAL DUE UNDER
SECTION 4.02(A) OF THIS LEASE.
ARTICLE VI
PROJECT AND COMMON AREA AND FACILITIES
- CONTROL AND PAYMENT
6.01 Control of the Project by the Landlord
(a) The Landlord will control the management and operation of the Project.
In its control management and operation of the Project the Landlord
will have, among its other rights, the right to, (i) close all or any
part of the Project to the extent which the Landlord's counsel advises
is legally sufficient to prevent a dedication of or the accrual of any
rights of any Person or the public in the Project, (ii) grant, modify
and terminate easements and other agreements pertaining to the use and
maintenance of all or any part of the Project, (iii) have the Project
managed by such other person as the Landlord designates in writing
from time to time, (iv) from time to time permit the Tenant to have
the exclusive use of parts of the parking areas forming part of the
Common Areas and Facilities and permit other tenants to have the
exclusive use of parts of the parking areas, (v) from time to time
change the area, level, location, arrangement or use of the Project,
and construct additional buildings or facilities adjoining or
proximate to the Project, (vii) expand, use or alter the Common Areas
and Facilities including the parking areas and, with the consent of
the Tenant, which consent will not be withheld unreasonably, relocate
or rearrange the Leased Premises, and (viii) do whatever else, in the
use of good business judgment the Landlord determines to be advisable
for the more efficient and proper operation of the Project.
(b) If as the result of the exercise by the Landlord of its rights set out
in this Section 6.01, the Common Areas and Facilities are diminished
or altered, the Landlord will not be subject to liability, nor will
the Common Areas and Facilities to be considered constructive or
actual eviction, or a breach of quiet enjoyment.
6.02 Tenant to Bear Proportionate Share of Expense
(a) In each Rental Year, the Tenant will pay to the Landlord, as
Additional Rent its Proportionate Share of the cost and expenses
incurred in maintaining and operating the Project and the Common Areas
and Facilities.
(b) The costs and expenses mentioned in Section 6.02 (a), include, but are
not limited to the aggregate, without duplication, of the costs and
expenses of:
(i) insuring (after deducting recoveries from tenants of the Project
under clauses similar to Section 10.02 of the Lease) the Lands,
buildings, improvements, equipment and other property in the
Project and the Common Areas and Facilities from time to time
13
owned or operated by the Landlord or for which the Landlord is
legally liable, in the manner and form, with the companies, and
with the coverage and the amounts which the Landlord, or the
Mortgagee from time to time determines advisable;
(ii) landscaping, cleaning, snow and ice removal, garbage and waste
collection and disposal, lighting hydro, policing, security,
supervision and traffic control and monies (including
contributions and premium toward fringe benefits, unemployment
and workmen's compensation insurance, pension plan contributions
and similar premiums and contributions) paid to Persons, employed
or retained by the Landlord to carry out the maintenance and
operation of the Project;
(iii) the costs of the rental of any equipment and signs, and the cost
of building supplies used by the Landlord in the maintenance and
operation of the Project and the Common Areas and Facilities;
(iv) the cost, if any, of heating, ventilating and air-conditioning
the Interior Common Areas;
(v) all repairs (including major repairs) and replacements to and
maintenance and operation of the Project and the Common Areas and
Facilities, and the systems, facilities and equipment serving the
project and the Common Areas and Facilities except for the cost
of repairing or replacing any inherent structural defects or
weaknesses;
(vi) and administration fee of 15% of the total of the costs as set
out above;
(vii) all Business Taxes and other taxes, if any, from time to time
payable by the Landlord with respect to the Common Areas and
Facilities and all Taxes which may be applicable or allocated by
the Landlord to the Common Areas and Facilities;
(viii) all Capital Tax as it relates to or is attributed by the
Landlord to the Project; Capital Tax is an amount imputed by the
Landlord to the Project in respect of taxes, rates, duties and
assessments presently or hereafter levied, rated, charged or
assessed from time to time upon the Landlord and payable by the
Landlord (or by any corporation acting on behalf of the Landlord)
on account of its Capital. Capital Tax shall be imputed (1) as if
the amount of such tax were that amount due if the Project were
the only property of the Landlord, and (2) on the basis of the
Landlord's determination of the amount of capital attributable to
the Project. Capital Tax also means the amount of any capital or
place of business tax levied by any government or other
applicable taxing authority against the Landlord with respect to
the Project whether known as Capital Tax or by any other name.
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6.03 Estimated Costs
(a) The amounts payable by the Tenant under Section 5.03 and Article VI
may be estimated by the Landlord for whatever period the Landlord
determines from time to time, and the Tenant will pay to the Landlord
the Tenant's share or the Tenant's Proportionate Share, as the case
may be, as so estimated, of the amounts in monthly instalments in
advance during that period as Additional Rent. If the Landlord revises
an estimated amount the Tenant will, within five (5) days of being
notified, provide to the Landlord a series of post-dated cheques for
the remaining months of the Rental Year in substitution of the
post-dated cheques which the Tenant was previously required to provide
to the Landlord and the Landlord will, upon receiving the substitute
cheques, return to the Tenant those which the Landlord previously
held. As soon as bills for all or any part of those estimated amounts
are received, the Landlord may xxxx the Tenant for the Tenant's share
or Proportionate Share as the case may be, and the Tenant will pay the
Landlord the amounts so billed, (less the amounts previously paid by
the Tenant on the basis of the Landlord's estimate as provided above)
as Additional Rent on demand.
(b) Within a reasonable period after the end of the period for which the
estimated payments have been made, the Landlord will deliver to the
Tenant, (i) a statement of the amounts and costs referred to in
Section 5.03 together with a statement of the Tenant's share of such
amounts and costs, and (ii) a statement of the costs and expenses
referred to in Article VI together with a statement of the Tenant's
Proportionate Share of those costs and expenses, and if necessary an
adjustment will be made between the parties in accordance with
subparagraph (c) below.
(c) If the Tenant has paid in excess of the amounts due the excess will be
refunded by the Landlord within a reasonable period after the deliver
of the statement or, at the Landlord's option, credited against the
next payment of Minimum Rent and Additional Rent payable by the
Tenant. If the amount the Tenant has paid is less that the amounts
due, the Tenant will pay the additional amounts with the next monthly
payment of Minimum Rent. If any Rental Year is greater or less than
the period determined by the Landlord as provided above, the Tenant's
Proportionated Share will be adjusted on a per diem pro rata basis.
IT IS UNDERSTOOD THAT DURING THE INITIAL TERM OF THE LEASE ONLY, AND PROVIDING
THE TENANT IS IN POSSESSION OF THE LEASED PREMISES, THE TENANT'S SHARE OF
OPERATING COSTS, DUE UNDER ARTICLE 6.01 AND 6.02 SHALL BE INCLUDED IN RENTAL DUE
UNDER SECTION 4.02 (A) OF THIS LEASE.
ARTICLE VII
UTILITIES
7.01 Charges for Utilities
(a) The Tenant will be responsible for and will promptly pay in the manner
provided below, as a charge (the "Charge") with respect to the Leased
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Premises the aggregate, without duplication, of (i) the total cost of
supplying utilities (the "Utilities") such as for example, water,
fuel, power and telephone used or consumed in or with respect of the
Leased Premises, (ii) the cost of any charges levied or assessed in
lieu of or in addition to the Utilities as determined by the Landlord,
and (iii) to the extent that Utilities are provided by the Landlord,
the costs incurred by the Landlord in determining or allocating the
Charge or determining the Utilities including, but not limited to,
professional, engineering and consulting fees and an administration
fee of 15% of the total costs mentioned in this Section 7.01(a).
(b) The following conditions apply to the Charge:
(i) the Tenant will enter into those contracts or other arrangements
in connection with the Utilities which the landlord requests it
to and will pay whatever deposits or other amounts are payable
under those contracts or other arrangements.
(ii) if the Landlord elects, for the more efficient operation of the
Project, or is required by municipal authorities or the suppliers
of the Utilities to supply the Utilities or any of them for the
Project, the Tenant will purchase the Utilities from the Landlord
and pay for the Utilities as Additional Rent immediately on
demand by the Landlord at rates which do not exceed appropriate
rates for the Utilities, if applicable;
(iii) the Tenant will pay to the Landlord, as Additional Rent, the
Charge in monthly instalments in advance based on estimates by
the Landlord and subject to adjustment by the Landlord within a
reasonable time after the end of the period in respect of which
the estimate has been made;
(iv) if required by the Landlord, the Tenant will install its own
separate check meter for the Leased Premises at its own expense
and in a location designated by the Landlord, and
(v) the Landlord will determine the charge applicable to the Leased
Premises by allocating the Utilities for the Project among the
several components of the Project, including the Common Areas and
Facilities, and Leasable Premises, acting on the advice of a
qualified engineer using as a basis, but not limited to, (1)
check meters installed in the Common Areas and Facilities and
Leasable Premises, (2) the relevant rates of demand and
consumption, and (3) the connected loads of the Common Areas and
Facilities, and the Leasable Premises for which there are no
check meters.
(c) The Landlord is not liable for, nor does it have any obligation with
respect to an interruption or cessation of or a failure in the supply
of any Utilities, services or systems, in, to, or serving the Project
or the Leased Premises, whether supplied by the Landlord or others.
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ARTICLE VIII
HVAC
8.01 Heating, Ventilating and Air-Conditioning
(a) The Tenant will operate and regulate the heating, ventilating and
air-conditioning equipment serving the Leased Premises in order to
maintain reasonable conditions of temperature and humidity within the
Leased Premises. The Tenant will comply with the stipulations and with
the Rules and Regulations of the Landlord pertaining to the operation
and regulation of that equipment.
(b) The Tenant will pay to the Landlord, as Additional Rent, the charges
described in Schedule "D" of this Lease.
IT IS UNDERSTOOD THAT DURING THE INITIAL TERM OF THE LEASE ONLY, AND PROVIDING
THE TENANT IS IN POSSESSION OF THE LEASED PREMISES, THE TENANT'S SHARE OF HVAC,
DUE UNDER ARTICLE 8.01 SHALL BE INCLUDED IN RENTAL DUE UNDER SECTION 4.02(A) OF
THIS LEASE.
ARTICLE IX
USE OF THE LEASED PREMISES
9.01 Use of the Leased Premises
The Tenant will use the Leased Premises solely for the purpose of STORAGE
AND FUEL CELL DEVELOPMENT AND SALES, LIKE PRODUCTS OFFICE USES and will not
use or permit, the use of the Leased Premises or any part of them, for any
other purpose.
9.02 Conduct of Business
The Tenant will, throughout the Term, occupy the Leased Premises and
conduct, in the whole of the Leased Premises, continuously actively the
business set out in Section 9.01.
9.03 Nuisance and Waste
(a) The Tenant will not commit any waste upon, or damage to the Leased
Premises or any nuisance or other act or thing which disturbs the
enjoyment of any other Tenant in or occupant of premises in the
Project and will nor perform any acts or carry on any practices which
may damage the Project. The Tenant will not permit any odours,
vapours, steam, water, vibrations, noises or other undesirable effects
to emanate from the Leased Premises or any equipment or installation
in them which, in the Landlord's opinion, are objectionable nor will
the Tenant cause any interference with the safety, comfort, or
convenience of the Landlord or any occupants of the Project, their
customers or invitees.
(b) The Tenant will not do or permit, any act in or about the Common Areas
or Facilities or the Project which in the Landlord's opinion hinders
or interrupts the flow of traffic to, in and from the Project and the
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Tenant will not do, nor will it permit anything to be done which, in
the Landlord's opinion obstructs the free movement of Persons doing
business in the Project.
9.04 Energy Conservation
(a) The Tenant will, at its costs, (1) comply with all laws, by-laws,
regulations and orders relating to the conservation of energy
affecting the Project or the Leases Premises, and (2) comply with all
reasonable requests and demands of the Landlord made with a view to
energy conservation.
(b) The costs or expenses incurred by the Landlord in installing energy
conservation equipment and systems, to the extent they apply to or
are apportioned to the Project by the Landlord, will be included in
the Landlord's costs and expenses of maintaining and operating the
Project and the Common Areas and Facilities for the purposes of
Section 6.02.
9.05 Observance of Law
The Tenant will at its expense, and subject to Sections 10.01 and 10.02,
promptly, (a) comply with the requirements of all governmental authorities,
including, federal, provincial and municipal legislative enactments,
by-laws and other regulations now or subsequently in force which pertain to
the Leased Premises, the Tenant's use of the Leased Premises, or the
conduct of any business in the Leased Premises, or the making of any
repairs, replacements, alterations or changes to the Leased Premises, and
(b) comply with the police, fire and sanitary regulations imposed by any
governmental authorities or made by fire insurance underwriters, and (c)
carry out all modifications or changes to the Leased Premises and the
Tenant's conduct of business in or use of the Leased Premises which are
required by any of those authorities.
ARTICLE X
INSURANCE AND INDEMNITY
10.01 Tenant's Insurance
(a) The Tenant will, throughout the Term, at its expense, take out and
maintain, in the names of the Tenant, the Landlord, and the Mortgagee
as their respective interests may appear, the following insurance:
(i) insurance upon all property 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 Project including,
but not limited to, fittings, installations, alterations,
additions, partitions, trade fixtures, fixtures and anything in
the nature of a leasehold improvement as well as the Tenant's
stock-in-trade, furniture and personal property, in an amount of
at least ninety (90%) percent of the full replacement cost with
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coverage against at least the perils of fire and standard
extended coverage, including sprinkler leakages (where
applicable), earthquake, flood and collapse. If there is a
dispute as to the amount which comprises full replacement costs,
the decision of the Landlord will be conclusive;
(ii) broad form boiler and machinery insurance on a blanket repair and
replacement basis with limits for each accident in an amount of
at least ninety (90%) percent of the full replacement cost of all
leasehold improvements and of all boilers, pressure vessels,
heating and air-conditioning equipment and miscellaneous
electrical apparatus owned or operated by the Tenant in the
Leased Premises or relating to or serving the Leased Premises;
(it being understood, however, that the Tenant is not required to
take out or maintain insurance on any part of the HVAC System of
the Project);
(iii) business interruption insurance in an amount which will
reimburse the Tenant for direct or indirect loss of earnings
attributable to all perils insured against in Section 10.01 (a)
(i) and Section 10.01 (a) (ii) and other perils commonly insured
against by prudent tenants or attributable to prevention of
access to the Leased Premises or the Project as the result of
such perils;
(iv) comprehensive general liability insurance including personal
injury liability, contractual liability, non-owned automobile
liability, employer's liability and owners' and contractors'
protective insurance coverage with respect to the Leased Premises
and the Tenant's use the Common Areas and Facilities, coverage to
include the activities and operations conducted by the Tenant and
any other Persons on the Leased Premises, and by the Tenant and
any other Person performing work on behalf of the Tenant and
those for whom the Tenant and any other Person performing work on
behalf of the Tenant and those for whom the Tenant is in law
responsible in any other part of the Project. Such policies shall
(1) be written on a comprehensive basis with inclusive basis with
inclusive limits of not less than $2,000,000.00 for bodily injury
to any one or more Persons, or property damage, and such higher
limits as the Landlord, acting reasonably, or the Mortgagee
requires from time to time; and (2) contain a severability of
interests clause and a cross-liability clause;
(v) tenant's legal liability insurance for the actual cash value of
the Leased Premises, including loss of use thereof;
(vi) standard owner's form automobile policy providing third party
liability insurance with $1,000 000.00 inclusive limits, and
accident benefits insurance, covering all licensed vehicles owned
or operated by or on behalf of the Tenant; and
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(vii) any other form of insurance as the Tenant or the Landlord,
acting reasonably, or the Mortgagee requires from time to time in
form, in amounts and for insurance risks against which a prudent
tenant would insure.
(b) The policies mentioned in Sections 10.01 (a) (i), 10.01 (a) (ii) and
10.01 (a) (iii) will contain the Mortgagee's standard mortgage clause
and the policies mentioned in Sections 10.01 (a) (i), 10.01 (a) (ii),
10.01 (a) (iii) and 10.01 (a) (iv) will 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 the damage is caused by the act, omission or
negligence of the Landlord or those for whom the Landlord in is law
responsible.
(c) All policies, (i) will be taken out with insurers acceptable to the
Landlord, (ii) will be in a form satisfactory from time to time to the
Landlord, (iii) will be non-contributing with, and will apply only as
primary and not as excess to any other insurance available to the
Landlord or the Mortgagee, and (iv) will no be invalidated as respects
the interests of the Landlord and of the Mortgagee by reason of any
breach or violation or any warranties, representations, declarations
or conditions contained in the policies. All policies will contain and
undertaking by the Insurers to notify the Landlord and the Mortgagee
in writing by registered mail at least thirty (30) days before any
material change, cancellation or termination of them.
(d) Certificates of insurance on the Landlord's standard form or, if
required by the Landlord or the Mortgagee, certified copies of each of
the insurance policies will be delivered to the Landlord as soon as
possible after the placing of the required insurance but in any case
before the Tenant obtains possession or use of the Leased Premises for
any purpose. Each certificate will contain an acknowledgement, to be
signed by the Tenants insurers, that the insurers have read this Lease
including Articles X and XII and that they agree to the terms of this
Lease. No review or approval of any Insurance certificate by the
Landlord derogates from or diminishes the Landlord's rights or the
Tenant's obligations in this Lease including, but not limited to,
those contained in this Article X.
(e) If the Tenant fails to take out or keep in force any insurance
referred to in this Section 10.01, or should any of that insurance not
be approved by either the Landlord or the Mortgagee, and should the
Tenant not commence to diligently rectify (and afterwards to proceed
diligently to rectify) the situation within forty-eight (48) hours
after written notice by the Landlord to the Tenant (stating if the
Landlord or the Mortgagee does not approve of the insurance, the
reasons) the Landlord may, without assuming any obligation in
connection with its doing so, effect the insurance at the Tenant's
cost and all costs and expenses of the Landlord will be immediately
paid by the Tenant to the Landlord as Additional Rent on the first day
of the next month following the payment by the Landlord together with
a fee of fifteen (15%) percent representing the Landlord's
20
overhead. This right is without prejudice to the other rights and
remedies of the Landlord under this Lease.
10.02 Increase in Insurance Premiums
The Tenant will comply promptly with all requirements of the Insurer's
Advisory Organization and of each insurer pertaining to the Leased Premises
or the Project. If the occupancy of the Leased Premises, the conduct of
business in the Leased Premises, or any acts or omissions of the Tenant in
the Project or any part of it cause an increase in premiums for the
insurance carried from time to time by the Landlord on the Project, the
Tenant will pay the increase as Additional Rent immediately after invoices
for the additional premiums are rendered by the Landlord.
10.03 Cancellation of Insurance
if any insurance policy on the Project or any part of it is cancelled or
threatened by the insurer to be cancelled, or if the coverage under it is
reduced in any way by the insurer because of the use or occupation of any
part of the Leased Premises by the Tenant or by any occupant of the Leased
Premises, and if the Tenant fails to remedy the condition giving rise to
the cancellation, threatened cancellation or reduction of coverage within
forty-eight (48) hours after notice by the Landlord, the Landlord may,
either (a) re-enter and take possession of the Leased Premises immediately
by leaving upon the Leased Premises a notice of its intention to do so upon
which the Landlord will have the same rights and remedies as are contained
in Article XVI, or (b) enter upon the Leased Premises and remedy the
condition giving rise to the cancellation, threatened cancellation or
reduction of coverage, and the Tenant will immediately pay the costs and
expenses to the Landlord, together with a fee of fifteen (15%) percent of
such costs and expenses representing the Landlord's overhead, which costs
and expenses may be collected by the Landlord as Additional Rent and the
Landlord will not be liable for any damage or injury caused to any property
of the Tenant or others located on the Leased Premises as the result of the
entry. Such an entry by the Landlord is not a re-entry or a breach of any
covenant for quiet enjoyment.
10.04 Loss or Damage
The Landlord will not be liable for any death or injury from or out of any
occurrence in, upon, at, or relating to the Project, or damage to property
of the Tenant or of others located on the Leased Premises, nor will it be
responsible for any loss of or damage to any property of the Tenant or
others from any cause whatsoever, whether or not the death, injury, loss or
damage results from the negligence of the Landlord, its servants,
employees, agents or other Persons for whom it may, in law be responsible.
Without limiting the general nature of the previous sentence, the Landlord
will not be liable for any injury or damage to Person, or property
resulting from fire, explosion, falling plaster, steam, gas, electricity,
21
water, rain, flood, snow or leaks from any part of the Leased Premises or
from the pipes, appliances, plumbing works, xxxx, or subsurface of any
floor or ceiling or from the street or any other place, or by dampness or
by any other cause whatsoever. The Landlord will not be liable for any
damage caused by other tenants or Persons in the Project or by occupants
of adjacent property, or the public, or caused by construction or by any
private, public or quasi public work. All of the property of the Tenant
kept or stored on the Leased Premises will be kept or stored at the risk
of the Tenant only, and the Tenant will indemnify the Landlord and save it
harmless from any claims arising out of any damages to that property
including, but not limited to, any subrogation claims by the Tenant's
Insurers.
10.05 Landlord's Insurance
The Landlord will carry:
(a) insurance on the Project (excluding foundations and excavations) and
the machinery, boilers, and equipment contained in it and owned by the
Landlord (excluding any property with respect to which the Tenant or
other occupants are required to insure under Section 10.01 or similar
Sections of their respective leases) against damage by fire and
extended perils coverage in those reasonable amounts and with those
reasonable reductions that would be carried by a prudent owner of a
reasonably similar Project, having regard to size, age and location;
(b) public liability and property damage insurance with respect to the
Landlord's operations in the Project, in those reasonable amounts and
with those reasonable deductions that would be carried by a prudent
owner of a reasonably similar Project, having regard to size, age and
location, and
(c) those other forms of insurance which the Landlord or the Mortgagee
considers advisable. Despite this Section 10.05, and regardless of any
contribution by the Tenant to the sorts of insurance premiums, (i) the
Tenant is not relieved of any liability arising from or contributed to
by its negligence or its wilful acts or omissions, and (ii) no
insurable interest is conferred upon the Tenant has no right to
receive any proceeds of any such insurance policies.
10.06 Indemnification of the Landlord
Despite anything else in this Lease, including, but not limited to Section
11.03, Section 10.05 and Section 6.02 (b) (i), the Tenant will indemnify
the Landlord and save it harmless from and against any and all loss
(including loss of Rent, payable by the Tenant under this Lease) claims,
actions, damages, liability and expenses in connection with loss of life,
personal injury, damage to property or any other loss or injury whatsoever
arising from or out of this Lease, or any occurrence in, upon or at the
Leased Premises, or the occupancy or xxx by the Tenant of the Leased
Premises, or any part of them, or occasioned wholly or in part by any act
or omission of the Tenant or by anyone permitted to be on the Leased
Premises by the Tenant. If the Landlord, without fault on its part, is made
a party to any litigation commenced by or against the Tenant, then the
Tenant will protect, indemnify and hold the Landlord harmless and will pay
all costs, expenses and reasonable legal fees incurred or paid by the
Landlord in connection with that litigation. The Tenant will also pay all
costs, expenses, and legal fees (on a solicitor and his client basis) that
22
may be incurred or paid by the Landlord in enforcing the terms, covenants
and conditions in this Lease, unless a court decides otherwise.
ARTICLE XI
MAINTENANCE, REPAIRS AND ALTERATIONS
11.01 Maintenance and Repairs by the Tenant
The Tenant will, throughout the Term, at is sole cost keep in first class
condition, as required by the Landlord, and will (subject to Sections 11.02
and 11.03) make, with due diligence and dispatch, the needed repairs and
replacements to the following:
(i) the whole of the Leased Premises including, but not limited to
entrances, all the glass, the windows and doors as well as their
frames and mouldings;
(ii) all signs (both interior and exterior), partitions, and fixtures
located in or upon the Leased Premises, and
(iii) all equipment and improvements in or benefiting the Leased Premises
(including but not limited to lighting, wiring, plumbing, plumbing
fixtures and equipment, and that part of the heating, ventilating and
air-conditioning distribution systems contained within the boundaries
of the Leased Premises). For clarity, it is stated here that the
heating, ventilating and air-conditioning units, and related machinery
do from part of the heating, ventilating and air-conditioning
distribution systems mentioned above.
11.02 Landlord's Approval of the Tenant's Work
(a) The Tenant will not make any repairs, alterations, replacements,
decorations or improvements (collectively called the "Work") to the
Leased Premises without first obtaining the Landlord's written
approval. The Tenant will submit to the Landlord, (i) details of the
proposed Work including drawings and specifications, (ii) whatever
indemnification against liens, costs, damages and expenses the
Landlord requires, and (iii) evidence that the Tenant has obtained the
necessary consents, permits, licenses and inspections from the
governmental authorities having jurisdiction. The Work will be
performed, (1) at the Tenant's sole cost, (2) by competent workmen
whose labour union affiliations are compatible with others employed by
the Landlord and its contractors, (3) in a good and workmanlike
manner, (4) in accordance with the drawings and specifications
approved by the Landlord, and (S) subject to the reasonable
restrictions imposed by the Landlord.
(b) Despite anything else in this Lease, if maintenance or Work on the
Leased Premises or any improvements installed by or on behalf of the
Tenant for the benefit of the Leased Premises, (i) affect the
structure of the Leased Premises, (ii) is to be done outside of the
Leased Premises, or (iii) is to be done within the Leased Premises but
on part of the Common Areas and Facilities, the maintenance or
23
Work will be performed only by the Landlord but at the Tenant's
expense. Upon completion of the maintenance or Work including the fees
of any architectural or other consultants plus a sum equal to fifteen
(15%) percent of the total costs representing the Landlord's overhead
and the payment will be made as Additional Rent on demand.
11.03 Maintenance and Repairs by the Landlord
(a) Subject to Article XII, the Landlord will maintain and repair the
structural elements of the Project and the Tenant will pay its
Proportionate Share of the costs (except for the costs of repairing or
replacing inherent structural defects or weaknesses) in accordance
with Sections 6.02 (b). However, if the Landlord is required, due to
the business carried on by the Tenant, to perform the maintenance and
repairs or replacements because of laws or other requirements of
governmental authorities having jurisdiction or because of the act,
omission, neglect or default of the Tenant, or those for whom the
Tenant is in law responsible, the Tenant will pay for the total cost
of the maintenance, repairs or replacements together with a sum equal
to fifteen (15%) percent of the total costs representing the
Landlord's overhead and the payment will be due and payable as
Additional Rent on demand.
11.04 Repair on Notice
In addition to the Tenant's obligations under Section 11.01, the Tenant
will effect the maintenance and Work referred to in that Section in
accordance with notice from the Landlord but failure to give the notice
does not relieve the Tenant from its obligations under Section 11.01.
11.05 Surrender of the Leased Premises
On the expiry or earlier termination of the Term, the Tenant will peaceably
surrender the Leased Premises to the Landlord in first class condition;
will deliver all the keys for the Leased Premises to the Landlord at the
place then fixed for the payment of rent and will inform the Landlord of
all combinations of locks, safes and vaults, if any in the Leased Premises.
The Tenant will also remove its trade fixtures, any alterations or
improvements which the Landlord requests it to remove before surrendering
the Leased Premises, and will immediately repair any damage to the Leased
Premises caused in the removal. This obligation survives the expiration of
the Term or earlier termination of this Lease.
11.06 Repair where Tenant at Fault
Despite anything else in this Lease, including but not limited to Section
11.03, Section 10.05 and Section 6.02 (b), if the Project or any part of it
or the Common Areas and Facilities or any part of them, require repair or
replacement because of the acts of the Tenant (negligent or otherwise) the
costs together with the sum equal to fifteen (15%) percent of that cost
representing the Landlord's overhead will be paid by the Tenant to the
Landlord as Additional Rent on demand.
24
11.07 Tenant not to overload floors or other facilities
The Tenant will not install any equipment which overloads the capacity of
any utility, electrical or mechanical facilities in the Leased Premises or
which the Landlord does not approve of and the Tenant will not bring upon
the Leased Premises any machinery, equipment or thing which might, in the
opinion of the Landlord damage the Leased Premises or the Project.
11.08 Removal and Restoration by the Tenant
(a) The alterations, decorations, additions and improvements made by the
Tenant, or made by the Landlord on the Tenant's behalf, immediately
become the property of the Landlord and will not be removed from the
Leased Premises except that, (i) the Tenant may, during the Term, in
the usual course of its business, and with the prior written consent
of the Landlord, remove any trade fixtures which it installed, but
only if they have become excess for the Tenant's purposes or the
Tenant is substituting new and similar trade fixtures, and the Tenant
is not in default under this Lease, and (ii) the Tenant will, at the
expiration of the Term, at its costs, remove all the trade fixtures
installed in the Leased Premises and those leasehold improvements and
fixtures installed in the Leased Premises which the Landlord requires
to be removed.
(b) Upon the removal, in accordance with subparagraph (a) above, of the
trade fixtures, leasehold improvements and fixtures installed in the
Leased Premises, title to them will revert to the Tenant.
(c) To avoid doubt, it is stated here that the Tenant's trade fixtures do
not include any, (i) heating ventilating or air-conditioning systems,
facilities and equipment in or serving the Leased Premises, (ii) floor
coverings, ceilings, partitioning, draperies, (iii) light fixtures,
(iv) washroom fixtures and hot water tank, (v) electrical house
service including transformer, (vi) internal stairways, (vii) show
windows and doors, and (viii) signs, all of which are leasehold
improvements.
11.09 Notice by the Tenant
The Tenant will, when it becomes aware of it, or when the Tenant, acting
reasonably, should have become aware of it, notify the Landlord of any
damage to, or deficiency or defect in the Project, including the Leased
Premises, and any equipment or utility systems, or installations located in
it, whether or not the Landlord has obligations to repair the damage, or
remedy the deficiency or defect.
11.10 Liens
The Tenant will promptly pay its contractors, materialmen, suppliers and
workmen and will do everything necessary to ensure that no lien is
registered against the Property or any part of it, or against the
Landlord's interest in the Project, or against the Tenant's interest in the
Leased Premises, and if such a lien is made, filed, or registered, the
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Tenant will discharge it or cause it to be discharged immediately at the
Tenant's expense. If the Tenant fails to complete this obligation, the
Landlord, in addition to its other remedies, may, but will not be required
to, discharge the lien by paying the amount claimed into court or directly
to the Lien claimant and the amount so paid together with the costs and
expenses including solicitors fees (on a solicitor and his client basis)
and a fee of fifteen (15%) percent of such costs and expenses representing
the Landlord's overhead, will be payable as Additional Rent on demand.
11.11 Signs and Advertising
The Tenant will not paint, affix, or display any sign, picture,
advertisement, notice, lettering or decoration on any part of the exterior
of or in any part of the Leased Premises which is visible from the exterior
of the Leased Premises, without, in each case, the prior written approval
of the Landlord. All signs erected by the Tenant will be of uniform size,
lettering and location as the signs of the other tenants in the Project. If
the Landlord establishes a policy for the tenants of the Project, then the
Landlord will be entitled to erect all of the signs and other advertising
material in or on the Project advertising the respective tenants business
operations. The cost of the sign and the install f it will be paid by the
Tenant.
11.12 Pest Extermination
The Tenant will engage for the Leased Premises at its cost, whatever pest
extermination contractor the Landlord directs and at the intervals which
the Landlord requires.
11.13 Excess Waste or Garbage
If the Landlord determines that the Tenant's use of the Leased Premises
results in amounts of waste or garbage substantially in excess of that
resulting from the use by the other occupants of Leasable Premises, the
Landlord may, at the Tenant's sole expense, make or require the Tenant to
make special arrangements for removal and disposal of waste or garbage at
the Tenant's sole expense.
ARTICLE XII
DAMAGE AND DESTRUCTION AND EXPROPRIATION
12.01 Destruction of the Leased Premises
(a) If the Leased Premises are destroyed or damaged (including, but not
limited to, smoke and water damage) as a result of a peril required to
be insured against by the Landlord under Section 10.05 or otherwise
insured against by the Landlord, and not caused by the Tenant, the
following provisions apply;
(i) if the Leased Premises are rendered partly untenantable, then,
subject to Section 12.02 (a), the Landlord will do the Landlord's
Work and Minimum Rent (but not Additional Rent) will xxxxx
proportionately to the part of the Leased Premises rendered
untenantable from the date of the damage or destruction until the
Landlord has completed the Landlord's Work; "Landlord's Work" in
this Article XII means the reconstruction or repair of the floor,
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walls and roof of the Leased Premises to the extent which the
Architect determines is necessary to enable the Tenant to do the
repairs and replacements described in Section 11.01 (a).
(ii) if the Leased premises are rendered wholly untenantable, the
Landlord will, subject to Section 12.02 (a), complete the
Landlord's Work and Minimum Rent (but not Additional Rent) will
xxxxx completely from the date of the damage or destruction until
the Landlord's Work is completed, and
(iii) if the Leased Premises are not rendered untenantable in whole or
in part, there will be no abatement of rent subject to Section
12.02 (a) the Landlord will complete the Landlord's Work.
(b) When the Landlord notifies the Tenant that the Landlord's Work has
been substantially completed, the Tenant will complete all work other
than the Landlord's Work required to fully restore the Leased Premises
and will reopen the Leased Premises to the public for business fully
fixtured, on the earliest date possible but in any case at lease as
early as thirty (30) days after notice that the Landlord's Work is
substantially completed. The Tenant acknowledges that the Landlord is
not required to rebuild or restore the Leased Premises to the same
condition as existed before the damage or destruction.
12.02 Destruction of the Project
(a) Despite anything else in this Lease, if twenty-five (25%) percent of
the Rentable Area of the Project is damaged or destroyed or becomes
unfit for occupancy or unsafe (including, but not limited to smoke and
water damage), then, whether or not the Leased Premises are damaged or
destroyed, the Landlord may, within ninety (90) days following the
occurrence, terminate this Lease by notice in writing to the Tenant
with termination to be effective on the thirtieth (30th) day after the
notice is given. Minimum Rent and Additional Rent will be due and
payable without abatement until the effective date of the termination,
unless the Leased Premises have been destroyed or damaged in which
case Minimum Rent will xxxxx as provided in Section 12.01 (a) above.
(b) If the Landlord does not elect to terminate this Lease in accordance
with Section 12.01 (a), the Landlord will reconstruct or repair, if
necessary, that part of the Project immediately adjacent to the Leased
Premises, but only to the extent of the Landlord's responsibilities
under the leases for the Leasable Premises. If the Landlord
reconstructs or rebuilds the Project or any part of it, the Landlord
may use plans and specifications and working drawings other than those
used in the original construction of the Project or any part of it.
12.03 Expropriation
(a) The Landlord and the Tenant will co-operate with each other in respect
of any expropriation of any part of the Leased Premises or
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the Project so that each receives the maximum award for which they are
respectively entitled. If part of the Project (other than the Leased
Premises) is expropriated, the full proceeds accruing or awarded, will
belong solely to the Landlord and the Tenant will assign to the
Landlord any rights which it may have or acquire in respect of those
proceeds and will not execute the documents which in the Landlord's
opinion may be necessary to give effect to this intention.
(b) If more than fifty (50%) percent of the Rentable Area of the Project
or more than fifty (50%) percent of the Common Areas and Facilities is
expropriated, or if reasonable access to the Leased Premises is
materially and adversely affected by the expropriation then the
Landlord may terminate this Lease as of the date the expropriated
interest vests in the expropriating authority and the Tenant will have
no claim against the Landlord for the value of any expired Term or for
any damages otherwise. If the Landlord does not terminate this Lease
as provided above, there will not be any reduction or abatement of
Rent but if any part of the Leased Premises is expropriated and the
Rentable Area of the Leased Premises is reduced, that reduced Rentable
Area will be adjusted for the purposes of Minimum Rent and Additional
Rent.
12.04 Architect's Certificate
The certificate of the Architect binds the parties as to each of the
matters for determination under this Article.
ARTICLE XIII
ASSIGNMENT, SUBLETTING, PARTING WITH POSSESSION AND
CORPORATE CONTROL
13.01 Consent Required
(a) The Tenant will not assign this Lease in whole or in part, nor sublet
all or any part of the Leased Premises, nor mortgage or encumber this
Lease or the Leased Premises or any part of them nor will it permit
the occupation of, or part with or share possession of all or any part
of the Leased Premises by any Person (all of which transactions are
referred to in this Article XIII as "Transfers") without the prior
written consent of the Landlord in each instance, which consent,
subject to Section 13.01 (b) will not be unreasonably withheld. The
consent by the Landlord to any Transfer, will not constitute a waiver
of the necessity for the Landlord's consent to any subsequent or other
Transfer. This restriction on Transfers applies also to any Transfer
by operation of law and no Transfer will be considered to take place
by reason of the failure by the Landlord to give notice to the Tenant
within thirty (30) days as is required by Section 13.02.
(b) Despite Section 23 of The Landlord and Tenant Act of Ontario, or any
statute passed to take the place of or to amend that Act, the Landlord
will rot be considered to be unreasonably withholding its consent, and
may, whether or not it would otherwise be considered unreasonable,
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refuse to give its consent if Its reason or reasons for doing so is or
are based upon all or any of the following factors:
(i) any factor which a court of law would consider to be reasonable;
(ii) whether the transferee has a good credit rating, Is of
substantial means, Is capable of financing its acquisition of the
Tenant's business and the Lease on terms and conditions at least
as favourable as those originally obtained by the Tenant and
whether the transferee has a history of successful business
operations in the business conducted on the Leased Premises;
(iii) whether the transferee or any partnership of which the
transferee was a member at the time or a corporation (other than
one described in Section 13.04 (b) of which the Tenant at the
time was a shareholder, has become bankrupt or insolvent or has
defaulted (other than by a minor technical default) under the
terms or any lease for commercial or office premises whether
leased from the Landlord or other parties;
(iv) whether any Mortgagee, whose consent is required, regardless of
its reason for doing so, refuses to consent to the Transfer;
(v) whether the transferee is an existing tenant of the Project, and
(vi) whether the Landlord has available for leasing to the transferee
other space in the Project or any other comparable project owned
or operated by the Landlord.
(c) If there is a permitted Transfer of this Lease, the Landlord may
collect Rent from the transferee and apply the net amount collected to
the Rent required to be paid under this Lease, but no acceptance by
the Landlord of any payments by a transferee as tenant or a release of
the Tenant from the performance of its obligations under this Lease.
Any document effecting the transfer of this Lease and every document
consenting to the Transfer will be prepared by the Landlord or its
solicitors and the legal costs and other expenses in connection with
the document will be paid to the Landlord by the Tenant as Additional
Rent upon demand. Any consent by the Landlord will be subject to the
following conditions:
(i) the transferee will promptly execute an agreement agreeing with
the Landlord to be bound by all the Tenants's obligations under
this Lease as if the transferee had originally executed this
Lease as tenant;
(ii) the transferee will execute and Indemnity Agreement in a form
satisfactory to the Landlord, in respect of the performance of
the Tenant's and the transferee's obligations under this Lease
and whether the Indemnity Agreement is executed or not, the
Tenant will remain jointly and severally liable with the
transferee on this Lease and will not be released from any
obligations under this Lease as amended from time to time;
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(iii) if the transferee agrees to pay to the Tenant a Rent or other
amount, in respect of its use of the Leased Premises or any part
of it in excess of the Rent payable by the Tenant to the
Landlord, the Rent under this Lease will be increased so that it
equals the Rent or amount payable by the transferee to the
Tenant;
(iv) if the transferee agrees to pay to the Tenant or party other than
the Landlord in respect of a Transfer of all or any part of this
Lease, any amount, or any benefit, then it will pay to the
Landlord as Additional Rent, on demand, an amount equal to the
value of the amount or benefit;
(v) the transferee in taking possession of the Leased Premises will
be considered to have confirmed and agreed to the Landlord's
right to continue charging for Rent including Additional Rent
under this Lease in accordance with the methods of calculation
employed by the Landlord at the time of the Transfer;
(vi) if the rate of the annual Minimum Rent is increased, the deposit
mentioned in Section 4.02 (d) will be increased accordingly.
13.02 Landlord's Option
If the Tenant intends to effect a Transfer, it will notify the Landlord and
will provide with the notice full information concerning the transferee,
including but not limited to, complete credit, financial, and business
information. Within thirty (30) days after the date the Tenant give to the
Landlord the information mentioned above, the Landlord will notify the
Tenant in writing that, (a) it consents to the Transfer, (b) that it does
not consent to the Transfer, or (c) that it elects to terminate this Lease.
If the Landlord elects to terminate this Lease the Tenant will, within
fifteen (15) days after receipt of the Landlord's notice of its election to
terminate, notify the Landlord whether it will, (i) refrain from the
Transfer, or (ii) accept the termination of this Lease. If the Tenant fails
to deliver its notice within the fifteen (15) day period this Lease will be
terminated upon the expiration of the fifteen (15) day period. If the
Tenant advised the Landlord that it intends to refrain from the Transfer,
then the Landlord's election to terminate this Lease will have no effect.
13.03 No Advertising of the Leased Premises
The Tenant will not advertise the whole or any part of the Leased Premises
or this Lease for the purpose of a Transfer and will not permit any broker
or other Person to do so on its behalf, unless the complete text and format
of the advertisement is first approved in writing by the Landlord.
13.04 Corporate Ownership
(a) If the Tenant is a corporation, any transfer or issue by sale,
assignment bequest inheritance, operation or law or other disposition,
or by subscription from time to time of all or any part of the
corporate shares of the Tenant, or of any subsidiary corporation of
30
the Tenant, or any corporation which is an associate or affiliate of
the Tenant (within the meaning of The Business Corporations Act of
Ontario) which results in any change in the present effecting voting
control of the Tenant by the Person holding that voting control at the
date of execution of this Lease (or a the date of a Transfer to a
corporation) will be considered for all purposes to be a Transfer to
which Section 13.01 and Section 13.02 of this Lease apply. The Tenant
will make available to the Landlord, all corporate books and records
of the Tenant for inspection at all reasonable times.
13.05 Assignment or Transfer by the Landlord
If the Landlords, sells, leases or otherwise disposes of the Project or any
part of it, or if it assigns this Lease or any interest of the Landlord in
it, then, to the extent that the purchaser, transferee or assignee assumes
the obligation of the Landlord under this Lease, the Landlord will, without
further agreement, be released from all liability with respect to the
Landlord's obligations under this Lease.
ARTICLE XIV
ACCESS AND ALTERATIONS
14.01 Right of Entry
(a) The Landlord and its agents may enter the Leased Premises at all times
to examine them and to make repairs, alterations, changes,
adjustments, improvements or additions to the Leased Premises or to
the Project or any part of them or any adjacent property including,
but not limited to, the pipes, conduits, wiring, ducts and other
installations in the Leased Premises, where necessary to serve another
part of the Project, and for that purpose, the Landlord may take
material into the Leased Premises without it constituting are-entry or
a breach of covenant for quiet enjoyment. The Rent will not xxxxx or
be reduced while the work is being done and the Landlord will not be
liable for any damage, injury or death caused to any Person or to the
property of the Tenant, or of others located on the Leased Premises,
as the result of the entry.
(b) The Landlord and its agents have the right to enter the Leased
Premises at all times to show them to prospective purchasers, lessees
or mortgagees and during the twelve (12) months prior to the expiry of
the Term, the Landlord may place upon the Leased Premises the usual
"For Rent" or "For Sale" notices.
(c) If the Tenant is not personally present to permit an entry into the
Leased Premises at any time when for any reason an entry is necessary
or permitted, the Landlord or its agents may forcibly enter them
without liability and without affecting this Lease. Any entry by the
Landlord on the Leased Premises in accordance with this Section is not
a re-entry or a breach of covenant for quiet enjoyment.
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ARTICLE XV
STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
15.01 Status Statement
Within ten (10) days after a written request by the Landlord, the Tenant
will deliver, in a form supplied by the Landlord, a status statement or
certificate to any proposed mortgagee or purchaser of the Project, or to
the Landlord, stating the following:
(a) that his Lease is unmodified and in full force and effect (or if there
have been modifications, that this Lease is in full force and effect
as modified and identifying the modification agreements) or if the
Lease is not in full force and effect, the certificate shall so state;
(b) the Commencement Date;
(c) the date to which Rent has been paid under this Lease;
(d) whether or not there is any existing default by the Tenant in the
payment of any Rent or other sum of money under this Lease, and
whether or not there are any existing or alleged default by either
party under this Lease with respect to which a notice of default has
been served and if there is any such default, specifying the nature
and extent of it;
(e) whether there are any set-offs, defences or counter claims against
enforcement of the obligations to be performed by the Tenant under
this Lease, and
(f) with reasonable particularity, details respecting the Tenant's and any
indemnifier's financial standing and corporate organization.
15.02 Subordination and Attornment
(a) The Tenant's rights under this Lease are subordinate to any
instruments or financing, refinancing, or collateral financing and
renewals or extensions of them from time to time in existence against
the lands, buildings and improvements forming the Leased Premises or
the Project. Upon request, the Tenant will subordinate this Lease and
all of its rights under it, in the form the Landlord requires, to the
mortgages, trust deeds and the charge or lien resulting from them, and
any instrument of financing, refinancing or collateral financing and
to all advances made or to be made upon the security of them, and if
requested, the Tenant will attorn to the holder or holders of them.
(b) The Tenant will, if possession is taken under, or any proceedings are
brought for the foreclosure of, or the power of sale is exercised
under any mortgage, charge, lease or sale and leaseback transaction,
deed of trust, or the lien resulting from any other method of
financing, refinancing, or collateral financing made by the Landlord
or otherwise in existence against the Leased Premises or the Project,
attorn to the mortgagee, chargee, lessee, trustee or other
encumbrancer or the purchaser upon any such foreclosure or sale and
32
recognize the mortgagee, chargee, lessee, trustee or other
encumbrancer or the purchaser as the Landlord under this Lease.
15.03 Attorney
The Tenant will, upon request of the Landlord or the Mortgagee or any
Person having an interest in the Project, execute and deliver promptly
those instruments and certificates needed to carry out the intent of
Section 15.02 and which are requested by the Landlord. If ten (10) days
after the date of request by the Landlord the Tenant has not executed and
delivered them, the Tenant hereby irrevocably appoints the Landlord as the
Tenant's attorney with full power and authority to execute and deliver in
the name of the Tenant the instruments and certificates or the Landlord may
terminate this Lease without incurring any liability.
15.04 Financial Information
The Tenant will, upon request, provide the Landlord with such information
as to the Tenant's or the Indemnifier's financial standing and corporate
organization as the Landlord or the Mortgagee requires. Failure of the
Tenant to comply with the Landlord's request will be a default under this
Lease.
ARTICLE XVI
DEFAULT
16.01 Event of Default
An "Event of Default" will be considered to have occurred when any one or
more of the following happens:
(a) The Tenant fails to pay any Rent or Additional Rent when they are due
and the failure continues for five (5) days;
(b) The Tenant fails to observe or perform any other of the terms,
covenants, conditions, or agreements contained in this Lease and the
failure continues for ten (10) days after notice from the Landlord to
the Tenant specifying the failure;
(c) The Term or any of the goods, chattels, or fixtures of the Tenant on
the Leased Premises are seized or taken in execution or attached by
any creditor;
(d) A writ of execution, sequestration or extent issues against the goods,
chattels or fixtures of the Tenant;
(e) The Tenant makes a bulk sale without complying with The Bulk Sales Act
of Ontario or any successor of it;
(f) The Tenant sells or disposes of the goods, chattels or fixtures or
removes them or any of them from the Leased Premises without complying
with Section 11.08;
33
(g) The Leased Premises remain vacant for fifteen (15) consecutive days
while they are suitable for use by the Tenant;
(h) The Leased Premises are used by any Person other than those Persons
entitled to use them under this Lease;
(i) The Tenant or any Indemnifier makes an assignment for the benefit of
creditors or commits any act of bankruptcy as defined in the
Bankruptcy Act of Canada or any successor of it, or becomes bankrupt
or insolvent or takes the benefit of any Act now or hereafter in force
for bankrupt or insolvent debtors;
(j) An order is made for the winding up or liquidation of the Tenant or
the Tenant voluntarily commences winding-up procedures for
liquidation, and
(k) An order or appointment Is made for a receiver or a receiver and
manner of the Tenant's assets or any part of them.
16.02 Rights of the Landlord
Upon the occurrence of any Event of Default the following provisions apply:
(a) The Landlord will be entitled to re-enter the Leased Premises and
remove all property from the Leased Premises and the property may be
sold or disposed of by the Landlord as it considers advisable or may
be stored in a public warehouse or elsewhere at the cost and for the
account of the Tenant, all without service of notice or resort to
legal process and without the Landlord being guilty of trespass or
being liable for any loss or damage which may be occasioned, and
(b) The Landlord may without notice re-enter and take possession of the
Leased Premises as though the Tenant or any occupant or occupants of
the Leased Premises was or were holding over after the expiration of
the Term without any right whatever, and this Lease and the Term will
be terminated.
(c) If the Landlord elects to re-enter the Leased Premises as provided in
this Article, or if it takes possession pursuant to legal proceedings
or pursuant to any notice provided for by law, it may either terminate
this Lease or it may from time to time, without terminating this
Lease, make those alterations and repairs which are necessary in order
to relet the Leased Premises or any part of them for the term or terms
(which may be for a term extending beyond the Term) and at the Rent
and upon those other terms, covenants and conditions which the
Landlord in its discretion considers advisable. Upon each reletting,
the Rent received by the Landlord from the reletting will be applied,
first to the payment of any indebtedness other than Rent due under
this Lease from the Tenant to the Landlord; second to the payment of
any costs and expenses of the reletting including brokerage fees and
solicitors fees and the costs of the alterations and repairs; third to
the payment of Rent due and unpaid under this Lease, and the residue
if any will be held by the Landlord and applied as payment of future
Rent as it becomes due under this Lease. If the Rent received from the
34
reletting during any month is less than that to be paid during that
month by the Tenant under this Lease, the Tenant will pay the
deficiency, which will be calculated and paid monthly in advance on or
before the first (1st) day of each month. No re-entry or taking
possession of the Leased Premises by the Landlord will be construed as
an election on its part to terminate this Lease unless a written
notice of that intention is given to the Tenant. Despite any reletting
without termination, the Landlord may at any time afterwards elect to
terminate this Lease for the previous breach. If the Landlord at any
time terminates this Lease for any breach, in addition to any other
remedies it may have, it may recover from the Tenant all damages it
incurs by reason of the breach including the costs of recovering the
Leased Premises, solicitors fees (on a solicitor and his client basis)
and including the worth at the time of the termination, of the excess,
if any, of the amount of Rent and charges equivalent to Rent required
to be paid under this Lease for the remainder of the stated Term over
the then reasonable rental value of the Leased Premises for the
remainder the stated Term. All of the mentioned amounts will be
immediately due and payable by the Tenant to the Landlord, and
(d) The full amount of the current month's instalment of Minimum Rent and
Additional Rent together with the next three (3) months instalments of
Minimum Rent and Additional Rent, all of which will be deemed to be
accruing on a day to day basis, will immediately become due and
payable as accelerated Rent, and the Landlord may immediately distrain
for that accelerated Rent together with any arrears.
16.03 Expenses
If legal action is brought for recovery of possession of the Leased
Premises, for the recovery of Rent or any other amount due under this
Lease, or because of the breach of any other terms, covenants or conditions
contained in this Lease on the part of the Tenant to be kept or performed,
and a breach is established, the Tenant will pay to the Landlord all the
expenses incurred in connection with it, including solicitor's fee (on a
solicitor and his client basis), unless a court otherwise awards.
16.04 Removal of Chattels
If the Tenant removes its goods and chattels from the Leased Premises, the
Landlord may follow them for thirty (30) days as provided in The Landlord
and Tenant Act of Ontario.
16.05 Waiver of Exemption from Distress
Despite anything contained in Section 30 of The Landlord and Tenant Act of
Ontario or any Statute passed to take its place or amend it, none of the
goods and chattels of the Tenant at any time during the Term, on the Leased
Premises, will be exempt from levy by distress for Rent in arrears and if
any claim is made for such an exemption by the Tenant, or if distress for
Rent in arrears and if any claim is made for such an exemption by the
Tenant, or if distress is made by the Landlord, this Section may be pleaded
as an estoppel against the Tenant in any action brought to test the right
35
of the levying upon any of those goods which are named as exempted in any
Sections of that Actor any amendments of it. The Tenant waives the rights
which it has or which it might have or which it might have had under any
Section of that Act, or any amendments of it, where it not for this
provision.
16.06 Landlord's Right to Cure the Tenant's Default or Perform the Tenant's
Covenants
In addition to its other rights and remedies, the Landlord, if the Tenant
defaults under this Lease, may remedy or attempt to remedy the default of
the Tenant and in so doing may make any payments due or alleged to be due
by the Tenant to third parties and may enter upon the Leased Premises to do
any work or other things on them in which case all the Landlord's costs and
expenses will be payable together with a fee of fifteen (15%) percent of
all those costs and expenses representing the Landlord's overhead, as
Additional Rent on demand. The Landlord will not be liable for any loss or
damage resulting from any action or entry by the Landlord under this
Section and will not be considered to have breached any covenant for quiet
enjoyment.
16.07 Remedies Generally
Mention in this Lease of any particular remedy of the Landlord for a
default or Event of Default by the Tenant does not preclude the Landlord
from any other remedy in respect of it. No remedy will be exclusive or
dependent upon any other remedy but the Landlord may from time to time
exercise one or more of its remedies generally or in combination, those
remedies being cumulative and not alternative. Whenever the Tenant seeks a
remedy in order to enforce the observance or performance of one or more of
the obligations of the Landlord under this Lease, the Tenant's only remedy
will be for damages. The Tenant will not apply for injunctive relief and
this provision may be pleaded as an estoppel in any proceedings taken by
the Tenant to obtain injunctive relief.
ARTICLE XVII
MISCELLANEOUS
17.01 Rules and Regulations
The Rules and Regulations adopted and promulgated by the Landlord from time
to time are a part of this Lease as set out in Schedule "C" attached, and
the Tenant will comply with and observe them. The Rules and Regulations
will be adopted and promulgated by the Landlord acting reasonably. The
Tenant's failure to keep and observe the Rules and Regulations is a default
under this Lease in the same manner as if the Rules and Regulations were
set out as covenants in this Lease. The Landlord may from time to time
amend or supplement the Rules and Regulations. Notice of the Rules and
Regulations and amendments and supplements, if any, will be given to the
Tenant and the Tenant's obligation to comply with and observe them rises
upon its being notified. The Rules and Regulations will not conflict with
or contradict the other provisions of this Lease. The Landlord will not be
responsible to the Tenant for non-observance or violation by other tenants
or occupants of Leasable Premises, of the Rules and Regulations or of the
terms, covenants or conditions in any other lease of premises in the
Project.
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17.02 Overholding
(a) If the Tenant remains in possession of the Leased Premises after the
end of the Term with the consent of the Landlord but without having
executed and delivered a new lease, the Tenant will be considered to
be occupying the Leased Premises as a Tenant from month to month on
the same terms and conditions as are set out in this Lease (including
the payment of Additional Rent).
(b) If the Tenant remains in possession of the Leased Premises after the
end of the Term without the written consent of the Landlord it will be
liable for payment of Rent at the rate equal to twice the rate of
Minimum Rent and Additional Rent which it was responsible for paying
during the last year of the Term.
17.03 Successors
The rights and liabilities granted to or imposed upon the respective
parties to this Lease, extend to and bind the successors and assigns of the
Landlord and the heirs, executors, administrators and permitted successors
and assigns of the Tenant. No rights, however, enure to the benefit of any
assignee of the Tenant unless the assignment to the assignee has been
approved by the Landlord in writing in accordance with Section 13.01. If
there is more than one Tenant, they are all bound jointly and severally by
the terms, covenants and conditions in this Lease.
17.04 Tenant Partnership
If the Tenant is a partnership (the "Tenant Partnership") each Person who
is presently a member of the Tenant Partnership, and each Person who
becomes a member of any successor Tenant Partnership, will be and will
continue to be liable jointly and severally for the full and complete
performance of, and will be and continue to be subject to the terms,
covenants and conditions of this Lease, whether or not that Person ceases
to be a member of the Tenant Partnership or successor Tenant Partnership.
17.05 Waiver
The waiver by the Landlord of any breach of an obligation by the Tenant is
not to be considered a waiver or any subsequent breach of the obligation or
any other obligation. The subsequent acceptance of Rent by the Landlord is
no to be construed as a waiver of any preceding breach by the Tenant of any
obligation under this Lease, regardless of the Landlord's knowledge of the
preceding breach at the time of acceptance of that Rent. No obligation will
be considered to have been waived by the Landlord unless the waiver is in
writing by the Landlord.
17.06 Accord and Satisfaction
No payment by the Tenant or receipt by the Landlord of a lesser amount that
the monthly payment of Minimum Rent is to be construed as other than on
account of the earliest stipulated Minimum Rent, nor is any endorsement or
statement on any cheque or any letter accompanying any cheque or payment as
Rent to be considered an acknowledgement of full payment or an
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accord and satisfaction, and the Landlord may accept payment and cash
cheques without prejudice to the Landlord's right to recover the balance of
the Rent or pursue its other remedies.
17.07 Notices
Any notice, demand, request or other instrument which may be or is required
to be given under this Lease will be delivered in person or sent by
registered mail postage prepaid and will be addressed (a) if to the
Landlord at 000 Xxxxxxxx Xxxxxx West, Lower Level, Toronto, Ontario, MSV
IS7, or to such other person or at such other address as the Landlord
designates by written notice, and (b) if to the Tenant, at the Leased
Premises [, or, at the Landlord's option, to the Tenant's head office at ].
Any notice, demand, request or consent will be conclusively deemed to have
been given or made on the day upon which the notice, demand, request or
consent is delivered, or, if mailed, then seventy-two (72) hours following
the date of mailing and the time period referred to in the notice begins to
run from the time of delivery or seventy-two (72) hours following the date
of mailing. Either party may at any time give notice in writing to the
other of any change of address of the party giving the notice and upon the
giving of that notice, the address specified in it will be considered to be
the address of the party for the giving of notices under this Lease. If the
postal service is interrupted or is substantially delayed, any notice,
demand, request or other instrument will only be delivered in person.
17.08 Notices
The Tenant will not register this Lease, notice of this Lease, or any other
document related to this Lease nor any notice of those documents against
the lands or any part of them until it has obtained from the Landlord, its
approval in writing concerning the form and content of the document to be
registered. The Tenant will be responsible for payment to the Landlord of
its expenses including legal fees and disbursements in connection with its
review and approval.
17.09 Quiet Enjoyment
If the Tenant pays the Rent and other sums provided for under this Lease,
and observes and performs all of the terms, covenants, and conditions on
its part to be observed and performed, the Tenant will peaceably and
quietly hold and enjoy the Leased Premises for the Term demised under this
Lease, without hindrance or interruption by the Landlord or any other
Person lawfully claiming by, through or under the Landlord subject,
however, to the terms, covenants and conditions of this Lease.
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IN WITNESS WHEREOF, the Landlord and the Tenant have signed and sealed this
Lease.
SIGNED, SEALED AND DELIVERED ) 789542 ONTARIO LIMITED
in the presence of ) (Landlord)
)
)
)
) Per: /s/ Name Illegible c.s.
) ----------------------------
) Authorized Signing Officer
)
) ASTRIS ENERGI INC.
) (Tenant)
)
)
)
) Per: /s/ Xxxx X. Nor c.s.
) ------------------------------
) Authorized Signing Officer
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SCHEDULE "A"
LEGAL DESCRIPTION OF THE PROJECT
2171- 0000 Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
ALL AND SINGULAR that certain parcel or tract of land and premises situate lying
and being in the Town of Mississauga in the County of Peel in the Province of
Ontario, being composed of Lots 303 to 305 inclusive of Registered Plan 915.
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SCHEDULE "C"
LANDLORD & TENANT'S WORK
LANDLORD'S WORK:
1. Landlord warrants that the heating, air conditioning, electrical and
plumbing within the Premises are in good working order at the date of
possession.
2. Landlord to repair, replace any broken or damaged fixtures, ballasts and
lens
3. Landlord will replace, as soon as possible, the rear receiving door.
4. Landlord will replace any missing or damaged ceiling tiles.
5. Landlord will patch all holes etc. in the wall of the premises, drywall,
tape and sanded as necessary, to be ready for painting.
6. Landlord will close off any loose wires and replace cover plates where
necessary.
7. Landlord will remove all wallpaper and shingle tiles from all walls
including room dividers and washroom and repair all wall damage so it is
ready for painting.
8. Landlord will steam clean all carpets in the premises.
9. Landlord will replace the weather stripping on the front entrance door.
10. Landlord will wash and clean the concrete floor in warehouse area.
11. Landlord will clean and if necessary replace any broken washroom fixtures
and tile floor.
12. Landlord will leave the premises in broom clean condition once his work is
completed.
13. Landlord will repair the sliders in the closet doors
14. Landlord will remove and wash all light fixtures and diffussor and replace
any burned out bulbs.
15. Landlord will remove sign decals off front door and Majestic Roofing sign
fastened to front exterior wall.
16. The Tenant shall be allowed to keep all dividers, fixtures, etc. located in
the storage area of the premises.
TENANT'S WORK
1. Tenant shall perform in a good and workmanlike manner any other work
necessary to make the Leased Premises ready for business, and will meet all
governmental authority, rules, and requirements in completing such work.
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SCHEDULE "D"
RULES AND REGULATIONS
1. The sidewalk, entry passages, fire escapes and common stairways, if any,
shall not be obstructed by any of the tenants or used by them for any other
purpose other than for the Ingress and egress to and from their respective
Demised Premises. Tenants will rot place or allow to be placed in the
Building, corridors or public stairways, If any, any waster paper, dust,
garbage, refuse, or anything whatever that would tend to make them unclean
or untidy.
2. The windows that reflect or admit light Into passageways and common areas
of the Building, if any, shall not be covered or obstructed by any of the
tenants and awnings shall not be put up without the prior written consent
of the landlord.
3. 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
Building.
4. No tenant shall do or permit anything to be done in the 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.
5. Tenants, their clerks or servants shall not Interfere with the other
tenants or those having business with them.
6. Nothing shall be thrown by the tenants, their clerks or servants out of
windows or doors or down the passages of the Building.
7. No birds or animals 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 Demised Premises which
may be heard outside the Demised Premises.
8. No one shall use the Demised Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or articles
other then those required for business purposes.
9. 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 Building. Any Injury or damage caused to the Building 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.
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10. If shall be the duty of the respective tenants to assist and co-operate
with the Landlord in preventing injury to the premises demised to them
respectively.
11. No Inflammable oils or other Inflammable, dangerous or explosive materials
shall be kept or permitted to be kept in the Demised Premises. Nothing
shall be placed on the outside window xxxxx or projections.
12. No bicycles or other vehicles shall be brought within the building except
in the parking garage, If any.
13. Tenants shall not place any additional lock upon any door of the Building
without the prior written consent of the Landlord.
14. Tenants shall give the Landlord prompt notice of any accident to or any
defect in the plumbing, climate control, mechanical or electrical apparatus
or any other part of the Building.
15. The parking of cars in the parking garage, if any, shall be subject to the
reasonable regulations of the Landlord.
16. Tenants shall not xxxx, paint, drill into or in any way deface the walls,
ceilings, partitions, floors or other parts of the Demised Premises and the
Building except with the prior written consent of the Landlord and as it
may direct.
17. 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.
18. The Landlord shall have the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be needful
for the safety, care, cleanliness and appearance of the Demised Premises
and the Building and for the preservation of good order therein, and the
same shall be kept and observed by the tenants, their clerks and servants.
19. Tenants agree to the foregoing Rules and Regulations which are hereby made
a part of this lease, and each of them and agrees that for such persistent
Infraction of them, or any of them, as may in the opinion of the Landlord
be calculated to annoy or disturb the quiet enjoyment of any other tenant,
or anyone under it, the Landlord may declare a forfeiture and cancellation
of the accompanying lease and may demand possession of the Demised Premises
upon one weeks notice.
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SCHEDULE "E"
CHARGES FOR HEATING AND AIR-CONDITIONING
A. THE HVAC SYSTEM
The hearing, ventilating and air-conditioning system (the "HVAC System") of
the Project is composed of all hearing, ventilating and air-conditioning
equipment and facilities provided a operated and maintained by the landlord
and Includes from rime 6o rime, but is not limited to, any roof-top,
ceiling or wall-mounted, or window hearing, ventilating or air-conditioning
units Installed a maintained by the Landlord; the fuel and power facilities
of the systems, and distribution piping, air handling units and common fan
coil and ventilation units which form part of the system; and monitoring,
energy saving and control systems including the thermostat in each of the
Individual units supplied by the HVAC System and those ventilation systems
which serve more than one tenant; but does not include: (I) the individual,
self-contained hearing, ventilating and air-conditioning system in any
premises the tenant or occupant of which installs and maintains the system;
(II) the distribution system within each tenant's premises, Installed by or
for the tenant; and (iii) the tenant maintained ventilation duds, make-up
air facilities, or booster units which are installed by or for Individual
tenants or a group of tenants, to satisfy requirements which are in excess
of the standard maximum sensible cooling load established by the Landlord,
or which result from the production of air which Is not suitable for
recirculation.
B. THE HVAC CHARGE
(a) In each Rental Year, the total costs (the "HVAC Costs") of the
following services (the "Services"): operating, maintaining and
repairing the HVAC System, will be allocated by the Landlord as
between the Interior Common Areas (if any) and the Leasable Premises,
based where appropriate on the advice of the Landlord's engineer. The
HVAC Costs include, but are not limited to, costs for labour including
fringe benefits, domestic water, chemicals, lubricants, and
maintenance contrails, if any, all costs Incurred by the Landlord in
doing the allocation mentioned above, and in obtaining engineers'
advice concerning Supplementary Charges (defined in Section C of this
Schedule "D") and a fee of fifteen percent (1596) of the total of the
HVAC Costs allocated to the Leasable Premises and representing the
Landlord's overhead.
(b) That part (if any) of the HVAC Costs which is allocated to the
Interior Common Areas will be included in the costs described in
Section 6.02 (b) (N) of this Lease.
(c) The Tenant will pay during each Rental Year, monthly in advance, as
Additional Rent a charge (tire "HVAC Charge") being its share of the
HVAC Costs determined be deducting from the HVAC Costs allocated to
Leasable Premises, the total of the Supplementary Charges, if any, and
multiplying the amount so obtained by a fraction, the numerates of
which is the Rentable Area of those Leasable Premises or Parts of them
occupied throughout the period in respect of which the calculation is
made and served by the HVAC System of the Project.
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(d) Should Leasable Premises be occupied by tenants who are solely
responsible for providing any of the Services, the Tenants HVAC Charge
as applied to that Service a those Services will be adjusted by
excluding from the denominator referred to above in this Section B
(c), the Rentable Area of those Leasable Premises.
(e) The Tenant's HVAC Charge may be estimated by the Landlord for whatever
period the Landlord determines from time to rime and the Tenant will
pay as Additional Rent, to the Landlord, the Tenant's HVAC Charge as
so determined, In monthly instalments in advance during that period.
C. THE SUPPLEMENTARY CHARGE
If the Landlord, on the advice of its engineer, determines that the
Tenant's use of the HVAC System imposes abnormal demands on the system, the
Tenant agrees to pay an amount determined by the Landlord, acting on the
advice of its engineer, as Supplementary Charge which Supplementary Charge
will be payable on demand at times, and in the manner determined by the
Landlord.
D. LANDLORD AND TENANT RESPONSIBILITIES
(a) The Landlord will operate, maintain, repair and replace the HVAC
System, but the Tenant will be responsible for repairing and replacing
equipment damaged because of misuse, or the failure of the Tenant to
comply with Section 8.01 of this Lease.
(b) The Tenant will not nor will it permit anyone else to enter on the
roof of any buildings in the Project for any purpose unless
accompanied by a representative designated by the Landlord for that
purpose. Damage caused to the Project or the HVAC System which occurs
during any period of time when the Tenant is in default of dais
subparagraph (b), will be deemed to have been caused by the Tenant.
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