EXHIBIT 10.101
SINGLE TENANT INDUSTRIAL LEASE
WESTPEN PROPERTIES LTD.
LANDLORD
- AND -
AMRAM'S DISTRIBUTING LTD.
TENANT
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L E A S E
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PREMISES: 18 Parkshore Drive, Brampton, Ontario
TABLE OF CONTENTS
SECTION
1. LEASE SUMMARY........................................................ 1
2. DEFINITIONS.......................................................... 2
3. INTENT OF LEASE...................................................... 6
3.1 Net Lease....................................................... 6
3.2 Freely Negotiated............................................... 6
4. LEASE OF PREMISES.................................................... 6
4.1 Premises........................................................ 6
4.2 Term............................................................ 6
4.3 Acceptance of Premises.......................................... 6
4.4 Quiet Enjoyment/Permitted Encumbrances.......................... 6
4.5 Intentionally deleted........................................... 7
5. RENT................................................................. 7
5.1 Tenant to Pay................................................... 7
5.2 Basic Rent...................................................... 7
5.3 Additional Rent and Management Fee.............................. 7
5.4 Deemed Rent and Allocation...................................... 7
5.5 Monthly Payments of Additional Rent............................. 8
6. TAXES AND OPERATING COSTS............................................ 8
6.1 Taxes Payable by Tenant......................................... 8
6.2 Payment of Realty Taxes......................................... 8
6.3 Business Taxes and Sales Taxes.................................. 9
6.4 Tax Bills and Assessment Notices................................ 9
6.5 Contest of Realty Taxes......................................... 9
6.6 Tenant's Payment of Operating Costs............................. 9
7. USE OF PREMISES..................................................... 10
7.1 Use of Premises................................................ 10
7.2 Conduct of Business............................................ 10
7.3 Intentionally deleted.......................................... 10
7.4 Signs.......................................................... 10
7.5 Waste Removal.................................................. 10
7.6 Pest Control................................................... 10
7.7 Waste and Nuisance............................................. 10
7.8 Compliance with Laws........................................... 11
7.9 Environmental.................................................. 11
8. SERVICES AND UTILITIES.............................................. 13
8.1 Utilities...................................................... 13
8.2 Heating and Air Conditioning................................... 13
8.3 Non-Liability of Landlord...................................... 14
9. MAINTENANCE, REPAIRS AND ALTERATIONS................................ 14
9.1 Maintenance and Repairs of Premises............................ 14
9.2 Approval of Repairs and Alterations............................ 14
9.3 Repair According to Landlord's Notice.......................... 15
9.4 Notice by Tenant............................................... 15
9.5 Ownership of Leasehold Improvements............................ 15
9.6 Construction Liens............................................. 15
9.7 Landlord's Repairs............................................. 16
10. END OF TERM......................................................... 16
10.1 Vacating of Possession......................................... 16
10.2 Removal of Trade Fixtures...................................... 16
10.3 Removal of Leasehold Improvements.............................. 16
10.4 Overholding by Tenant.......................................... 16
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11. DAMAGE AND DESTRUCTION.............................................. 16
11.1 Damage to Premises............................................. 16
11.2 Insured Damage to Premises..................................... 17
11.3 Damage in Last Year............................................ 18
11.4 Restoration of Premises........................................ 18
11.5 Determination of Matters....................................... 18
12. INSURANCE AND INDEMNITY............................................. 18
12.1 Landlord's Insurance........................................... 18
12.2 Tenant's Effect On Landlord's Insurance........................ 19
12.3 Tenant's Insurance............................................. 19
12.4 Landlord's Right to Place Tenant's Insurance................... 20
12.5 Landlord's Non-Liability....................................... 20
12.6 Indemnity of Landlord.......................................... 21
12.7 Landlord's Employees and Agents................................ 21
12.8 Mutual Release................................................. 21
13. ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL........................ 21
13.1 Consent Required............................................... 21
13.2 Obtaining Consent.............................................. 22
13.3 Landlord's Option.............................................. 23
13.4 Terms of Transfer.............................................. 23
13.5 Effect of Transfer............................................. 24
13.6 No Advertising of Premises..................................... 24
13.7 Mortgage of Lease.............................................. 24
13.8 Corporate Tenant............................................... 24
13.9 Assignment by Landlord......................................... 25
14. STATUS AND SUBORDINATION OF LEASE................................... 25
14.1 Status Statement............................................... 25
14.2 Subordination.................................................. 25
14.3 Intentionally deleted.......................................... 26
14.4 Registration................................................... 26
15. DEFAULT AND REMEDIES................................................ 26
15.1 Default and Remedies........................................... 26
15.2 Intentionally deleted.......................................... 28
15.3 Interest and Costs............................................. 28
15.4 Bankruptcy and Insolvency...................................... 28
15.5 Intentionally deleted.......................................... 28
15.6 Intentionally deleted.......................................... 28
15.7 Landlord's Right of Distress................................... 28
15.8 Intentionally deleted.......................................... 29
15.9 Intentionally deleted.......................................... 29
15.10 Remedies to Subsist............................................ 29
15.11 Impossibility of Performance................................... 30
15.12 Tenant's Licences.............................................. 30
16. CHANGES AND ENTRY TO PREMISES....................................... 30
16.1 Landlord's Control............................................. 30
16.2 Changes to Premises............................................ 30
16.3 Access to Premises............................................. 31
16.4 Expropriation.................................................. 31
17. MISCELLANEOUS....................................................... 31
17.1 Notices........................................................ 31
17.2 Planning Act................................................... 32
17.3 Complete Agreement............................................. 32
17.4 Intentionally deleted.......................................... 32
17.5 Time of the Essence............................................ 32
17.6 Applicable Law................................................. 32
17.7 Severability................................................... 32
17.8 Section Numbers and Headings................................... 32
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17.9 Interpretation................................................. 33
17.10 Successors..................................................... 33
17.11 Privacy Policy................................................. 33
18. LIMITATION OF LIABILITY............................................. 33
19. INDEPENDENT LEGAL ADVICE............................................ 33
20. COUNTERPARTS AND FACSIMILE.......................................... 33
Schedules
Schedule "A" Legal Description of Premises
Schedule "B" Outline Plan of Premises
Schedule "C" Special Provisions
Schedule "D" Environmental Questionnaire
SINGLE TENANT INDUSTRIAL LEASE
THIS LEASE is dated December 29, 2005 and is made
B E T W E E N:
WESTPEN PROPERTIES LTD.
(hereinafter called "Landlord")
OF THE FIRST PART
- and -
AMRAM'S DISTRIBUTING LTD.
(hereinafter called "Tenant")
OF THE SECOND PART
1. LEASE SUMMARY
The following is a summary of some of the basic terms of this Lease,
which are elaborated upon in the balance of this Lease. For details of the terms
referred to below, recourse should be had to the balance of this Lease. This
Section 1 is for convenience and if a conflict occurs between the provisions of
this Section 1 and any other provisions of this Lease, the other provisions of
this Lease shall govern.
(a) PREMISES: the lands and building(s) municipally known as 18
Parkshore Drive, Brampton, Ontario;
(b) TERM: approximately, but no less, than Ten (10) years;
(c) COMMENCEMENT DATE: December 29, 2005;
(d) EXPIRY DATE: the last day of the One Hundred and Twentieth
(120th) month of the Term such that, if the Commencement Date
is not the first day of a calendar month, the Ten (10) year
term shall be extended by the requisite number of days such
that the Expiry Date shall fall on the last day of the month
in which the Commencement Date occurred;
(e) BASIC RENT: an amount per square foot of Rentable Area of the
Building per annum as follows:
RENTAL PERIOD RATE/SQUARE FOOT RENTABLE
AREA/ANNUM
Years 1, 2 and 3 $6.28
Years 4, 5 and 6 $6.40
Years 7, 8, 9 and 10 $6.55
(f) RENTABLE AREA OF BUILDING: approximately One Hundred Seventeen
Thousand, Four Hundred and Thirty-Six (117,436) square feet,
of which approximately, One Hundred Three Thousand,
Seventy-Four (103,074) square feet of Rentable Area is
warehouse space and approximately Fourteen Thousand, Three
Hundred and Sixty-Two (14,362) square feet of Rentable Area is
office space, subject to determination in accordance with this
Lease;
(g) RENT DEPOSIT: Not applicable;
(h) USE OF PREMISES: Warehouse and distribution purposes and
ancillary general business offices required therefor, all to
the extent permitted by all Laws and to the extent in keeping
with the standards of a first-class industrial building;
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(i) ADDRESS FOR SERVICE OF NOTICE ON TENANT:
at the Premises, to the Attention: Elliot Rivkin, President
Fax: 905-798-1889
ADDRESS FOR SERVICE OF NOTICE ON LANDLORD:
c/o Bentall Investment Management LP
55 University Avenue
Suite 300
Toronto, Ontario M5J 2H7
Attention: Asset Manager
Fax: 416-681-3405
(j) SPECIAL PROVISIONS, if any: See Schedule "C".
2. DEFINITIONS
Where used in this Lease, the following words or phrases shall have the
meanings set forth in the balance of this Article.
2.1 "Additional Rent" shall have the meaning ascribed to it in Section 5.3.
2.2 "Architect" means a duly qualified independent architect, engineer or
quantity surveyor or other qualified person appointed or employed by Landlord.
2.3 "Basic Rent" shall have the meaning ascribed to it in Section 5.2 hereof.
2.4 "Building" means the building or buildings on the Lands.
2.5 "Capital Taxes" means the amount determined by multiplying each of the
"Applicable Rates" by the "Premises Capital" and totalling the products.
"Premises Capital" is the amount of capital which Landlord determines, without
duplication, is invested from time to time by Landlord, the owners or all of
them, in doing all or any of the following: acquiring, developing, expanding,
redeveloping and improving the Premises. Premises Capital will not be increased
by any financing or refinancing (except to the extent that the proceeds are
invested directly as Premises Capital). An "Applicable Rate" is the capital tax
rate specified from time to time under any statute of Canada and any statute of
the Province which imposes a tax in respect of the capital of corporations. Each
Applicable Rate will be considered to be the rate that would apply if none of
Landlord or owners employed capital outside of the Province in which the
Premises is situate.
2.6 "Commencement Date" shall have the meaning ascribed to it in subsection
1(c).
2.7 "CPI" means the Consumer Price Index for all items for Canada published by
Statistics Canada or by any successor thereof or any other governmental agency
whose responsibility it is to publish such statistics, or, if such index is at
any time not published, such other index or numerical factor as designated or
determined by Landlord, acting reasonably, reflecting the relative purchasing
power of the Canadian dollar from time to time. In case of any required
comparison of the CPI for any period of time with the CPI of any other period of
time, Landlord shall be entitled to make such adjustments or conversions as
shall be determined by Landlord to be appropriate, including any adjustments for
the calculation of the CPI in respect of different base years from time to time.
2.7A "Excluded Assets" means the warehouse conveyor systems, the warehouse
racking, the warehouse compactor and the showroom track lighting located on or
in the Building or elsewhere in, on, or under the Lands as of the Commencement
Date, as the same may be replaced at any time or times during the Term.
2.8 "Expiry Date" shall have the meaning given to it in subsection 1(d).
2.9 "Insured Damage" shall mean that part of any damage or destruction occurring
to the Premises or the Project (as the case may be) to the extent to which the
cost of repair is actually recovered or recoverable pursuant to policies of
insurance which Landlord has maintained pursuant hereto or which Landlord
otherwise maintains, to the extent that the premiums for which are included in
Operating Costs.
2.10 Intentionally Deleted.
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2.11 "Lands" means the lands described in Schedule "A" hereto.
2.12 "Laws" means all statutes, regulations, by-laws, orders, rules,
requirements and directions of all federal, provincial, municipal and other
governmental and other authorities having jurisdiction.
2.13 "Lease" means this Lease, including all Schedules attached hereto.
2.14 "Leasehold Improvements", where used in this Lease, includes without
limitation, all buildings, fixtures, improvements, installations, alterations
and additions from time to time made, erected or installed in or about the
Premises, and includes all the following, whether or not any of the same are in
fact Tenant's or trade fixtures and whether or not they are easily disconnected
and moveable: doors, partitions and hardware; mechanical, electrical and utility
installations; carpeting, drapes, other floor and window coverings and drapery
hardware; decorations; heating, ventilating, air conditioning and humidity
control equipment; lighting fixtures; built-in furniture and furnishings;
counters in any way connected to the Premises or to any utility services located
therein. The only exclusions from "Leasehold Improvements" are free-standing
furniture, trade fixtures and equipment not in any way connected to the Premises
or to any utility systems located therein.
2.15 "Letter of Credit Agreement(s)" means the Letter of Credit Agreement(s), if
any, provided pursuant to this Lease.
2.14A "Management Company" means a company or other entity, if any, retained by
the Landlord from time to time to operate or manage the Project. In sections
that contain a release or other exculpatory provision or an indemnity in favour
of Landlord it shall include any Management Company, and its servants,
employees, agents and invitees, its officers, directors, employees.
2.16 "Operating Costs" means the aggregate of all expenses and costs of every
kind determined for each fiscal period designated by Landlord, on an accrual
basis in accordance with reasonable accounting principles and without
duplication incurred by or on behalf of Landlord with respect to and for the
operation, maintenance, repair, replacement and management of the Premises and
the administration of this Lease, and all insurance relating to the Premises.
(a) Without in any way limiting the generality of the foregoing,
Operating Costs shall include all costs in respect of the
following:
(i) all remuneration, including wages and fringe
benefits, of employees directly employed or engaged
in the operation, maintenance, repair, replacement
and management of the Premises including
contributions and premiums towards unemployment and
Workers Compensation insurance, pension plan
contributions and similar premiums and contributions;
(ii) heating, ventilating, air conditioning and humidity
control and fire sprinkler maintenance and
monitoring, if any, of the Building;
(iii) cleaning, janitorial services, window cleaning, waste
removal and pest control;
(iv) maintenance, repair and replacement of the Premises
including all maintenance, repairs and replacements,
other than to the Structure, and all costs of all
improvements, furnishings, fixtures, equipment,
machinery, systems and facilities constructed or
installed in or used in connection with the Premises;
(v) depreciation or amortization of the costs of the
Premises, including structures, improvements,
furnishings, fixtures, equipment, machinery,
facilities, systems and property which is part of or
installed in or used in connection with the Premises
(except to the extent that the costs are charged
fully in the year in which they are incurred) (for
clarification, including the costs, as determined by
Landlord, acting reasonably, of those components in
existence at the date hereof) which, by their nature,
require periodic or substantial repair or
replacement, depreciated or amortized as determined
by Landlord, and interest to be calculated and paid
annually on the undepreciated or amortized cost of
such items in respect of which depreciation or
amortization is included herein at two (2%) percent
in excess of the average prime rate of interest
charged by Landlord's bank at Toronto from time to
time;
(vi) all costs in the nature of Operating Costs in respect
of areas, services and facilities outside the
Premises, such as sidewalks and boulevards, off-site
utilities and other service connections;
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(vii) engineering, accounting, legal and other consulting
and professional services related to the Premises
including the cost of preparing statements respecting
Operating Costs;
(viii) intentionally deleted;
(ix) Sales Taxes payable by Landlord on the purchase of
goods and services included in Operating Costs
(excluding any such Sales Taxes which are available
to and claimed by Landlord as a credit or refund in
determining Landlord's net tax liability on account
of Sales Taxes, but only to the extent that such
Sales Taxes are included in Operating Costs); and
(x) all insurance which Landlord is obliged to obtain
and/or which Landlord otherwise obtains and the cost
of any deductible amounts payable by Landlord in
respect of any insured risk or claim;
(xi) policing, supervision, security and traffic control;
(xii) office expenses including telephone, stationery and
supplies;
(xiii) Intentionally deleted;
(xiv) all costs in the nature of Operating Costs incurred
by Landlord in consequence of its interest in the
Premises such as landscaping and maintaining all
outside areas and maintaining, cleaning, and clearing
of ice and snow from municipal sidewalks, adjacent
property and the like;
(xv) a reasonable share of the fair rental value (having
regard to rentals prevailing from time to time for
similar space) of space occupied by the Landlord for
management, supervisory or administrative purposes
relating to the Premises;
(xvi) costs and expenses of environmental site reviews and
investigations, removal and/or clean up of Hazardous
Substances;
(xvii) all costs incurred by Landlord for the purpose or
intent of reducing any Realty Taxes or other taxes,
including, without limitation, costs incurred by
Landlord, whether or not Realty Taxes are in fact
reduced;
(xviii) interest on any deposit paid by Landlord to the
supplier of a utility at a rate which shall be 1% per
annum in excess of the rate of interest known as the
prime rate of interest charged by Landlord's Bank in
Toronto which serves as the basis on which other
interest rates are calculated for Canadian dollar
loans in Ontario from time to time ("Prime Rate");
(xix) the amount of any deposits paid to a utility supplier
lost by Landlord as a result of any bankruptcy of any
utility supplier amortized over a period of three (3)
years from the date of such bankruptcy and interest
thereon at a rate of 2% in excess of the Prime Rate.
(b) Operating Costs, however, shall be reduced by the amount of
any proceeds of insurance and damages paid by third parties in
respect of and to the extent of costs included in Operating
Costs as set forth above to the extent actually received by
Landlord;
(c) Operating Costs, however, shall exclude the following:
(i) repairs or replacements to the extent that the cost
of the same is recovered by Landlord pursuant to
original construction warranties;
(ii) interest and principal payments on financing of the
Landlord, and any other debt costs of the Landlord;
(iii) costs of repairs done by the Landlord and for which
the Landlord has been reimbursed either as a result
of an insurance claim or otherwise;
(iv) income taxes and other taxes personal to the
Landlord;
(v) the amount of any Sales Tax paid or payable by the
Landlord on the purchase of goods and services
included in Operating Costs which may be available to
the Landlord as a credit in determining the
Landlord's net tax liability or refund on
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account of Sales Tax, but only to the extent Sales
Tax is included in Operating Costs;
(vi) costs incurred by the Landlord to the extent the
Landlord is reimbursed from warranties or guarantees;
(vii) Capital Taxes.
2.17 "Owners" means any party or parties with an ownership interest in the
Premises but who is not the Landlord.
2.18 "Premises" means the Lands, together with the Building and all other
structures, improvements, equipment and facilities of any kind erected or
located on the Lands from time to time; the municipal address of the Premises is
as set out in subsection 1(a).
2.19 "Realty Taxes" means all taxes, rates, duties, levies, fees, charges, local
improvement rates, imposed charges, levies and assessments whatever, including
school taxes, water and sewer taxes, extraordinary and special assessments and
all rates, charges, excises or levies, whether or not of the foregoing nature
("Taxes"), and, whether municipal, provincial, federal or otherwise, which may
be levied, confirmed, imposed, assessed, charged or rated against or in respect
of the Premises or any part thereof or any furniture, fixtures, alterations,
equipment or improvements therein, or against Landlord or the Owners in respect
of any of the same or in respect of any rental or other compensation receivable
by Landlord or the Owners in respect of the same, and including all of such
Taxes which may be incurred by or imposed upon Landlord or the Owners or the
Premises in lieu of or in addition to the foregoing including, without
limitation, any Taxes on real property rents or receipts as such (as opposed to
a tax on such rents as part of the income of Landlord or the Owners) any Taxes
based in whole or in part on the value of the Premises, any commercial
concentration levy in respect of the Premises, and any licence fee measured by
rents or other charges payable by occupants of space in the Premises. Taxes
shall, in every instance be calculated on the basis of the Premises being fully
assessed and taxed at prevailing commercial rates for occupied space for the
period for which Taxes are being calculated. Notwithstanding the foregoing
provisions of this Section 2.19, Realty Taxes shall not include Capital Taxes.
2.20 "Rent" shall have the meaning ascribed to it in Section 5.1.
2.21 "Rentable Area" when applied to the Building means the sum of the areas of
each floor of the Building, including any basement, measured from the exterior
face of exterior walls and windows, and from the centre line of any party
wall(s) between the Premises and any adjacent building, without deduction for
any space occupied by structures, columns, beams, conduits, ducts or projections
of any kind, and without deduction for the recessing of any entranceway or other
indentation from the exterior wall line. If necessary for the determination of
the Rent or for any other purpose pursuant to this Lease, the Rentable Area of
the Building shall be as determined by the Architect or by a quantity surveyor
or other qualified person appointed by Landlord and as soon as reasonably
practical Landlord shall give Tenant a certificate prepared by such person of
the Rentable Area of the Building which certificate shall be conclusive as to
the Rentable Area of the Building.
2.22 "Rental Year" means a period of twelve (12) consecutive calendar months,
except that:
(a) the first Rental Year in the Term shall commence on the
Commencement Date and expire on the next succeeding December
31;
(b) the last Rental Year in the Term shall terminate upon the
expiration or earlier termination of this Lease; and
(c) Landlord shall have the right at any time or times, by written
notice to Tenant, to change the expiry date of any Rental Year
and, in such case, such Rental Year shall terminate on the day
thus determined by Landlord and any appropriate adjustments
resulting from any Rental Year being shorter or longer shall
be made.
2.23 "Rent Deposit Agreement(s)" shall mean the Rent Deposit Agreement(s), if
any, provided pursuant to this Lease.
2.24 "Sales Taxes" means all business transfer, multi-stage sales, sales, use,
consumption, value-added or other similar taxes imposed by any federal,
provincial or municipal government upon Landlord, or Tenant, or in respect of
this Lease, or the payments made by Tenant hereunder or the goods and services
provided by Landlord hereunder including, without limitation, the rental of the
Premises and the provision of administrative services to Tenant hereunder.
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2.24A "Structure" shall mean the roof deck (but not roof membrane) weight
bearing walls, columns, footings and foundations of the Building.
2.25 "Term" shall have the meaning ascribed to it in Section 4.2.
2.26 Intentionally deleted.
2.27 Intentionally deleted.
2.28 "Year" shall mean each consecutive period of three hundred sixty-five (365)
days (or three hundred sixty-six (366) days in the case of a Year which includes
the month of February in a leap year), the first Year commencing on the
Commencement Date and each successive Year commencing on the anniversary of the
Commencement Date, except that if the Commencement Date is other than the first
day of a calendar month then the first Year shall commence on the Commencement
Date and end on the anniversary of the last day of the month in which the
Commencement Date occurred, and each successive Year shall commence on the
anniversary of the first day of the first full month in the Term.
3. INTENT OF LEASE
3.1 NET LEASE
It is the intent of the parties hereto that, except as expressly herein
set out, this Lease be a lease that is absolutely net and carefree to Landlord,
and that Landlord shall not be responsible for any expenses or obligations of
any kind whatsoever in respect of or attributable to the Premises, all of which
shall be Tenant's responsibility.
3.2 FREELY NEGOTIATED
Landlord and Tenant acknowledge and covenant that they are each
experienced and knowledgeable in commercial leasing matters and that they have
both been represented by legal counsel in the discussion, negotiation and
execution of this Lease. Landlord and Tenant further acknowledge and covenant
that the provisions of this Lease, including without restriction all schedules
attached hereto and forming part hereof, have been freely and fully discussed
and negotiated and that the execution of this Lease constitutes and is deemed to
constitute full and final proof of the foregoing statement. Landlord and Tenant
acknowledge and agree that they have read, examined, understood and approved all
of the provisions of this Lease, including without restriction all schedules
attached hereto and forming part hereof. Tenant acknowledges and agrees that it
has examined the Premises and is satisfied that the Premises may be used for the
purpose for which they are leased in accordance with the terms of this Lease.
4. LEASE OF PREMISES
4.1 PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises, including the Building now or hereafter to be constructed as part
of the Premises.
4.2 TERM
The term of this Lease (the "Term") shall be for the period described as
the Term in Section 1(b) hereof, commencing on the Commencement Date and to be
fully completed and ended on the date described as the Expiry Date, as described
in Section 1(d) hereof. The Term of this Lease is non-cancellable and may only
be terminated by Landlord in accordance with its terms.
4.3 ACCEPTANCE OF PREMISES
Tenant shall accept the Premises in an "as is where is" basis as at the
date hereof without any obligation on the part of Landlord to perform any work
therein.
4.4 QUIET ENJOYMENT/PERMITTED ENCUMBRANCES
(a) Subject to all of the terms of this Lease and subject to Tenant's
paying all Rent and performing all obligations whatsoever as and
when the same are due to be paid and performed by Tenant, Tenant may
peaceably possess and enjoy the Premises for the Term without
interruption by Landlord or any person claiming by, from or under
Landlord.
(b) Tenant acknowledges that this Lease is subject to those encumbrances
registered against the Premises as of the Commencement Date (other
than any mortgages or security collateral thereto on title)
("Permitted Encumbrances") and Tenant acknowledges that it shall be
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responsible for any costs, charges or expenses incurred to comply
with any obligations resulting from such Permitted Encumbrances.
4.5 Intentionally deleted
5. RENT
5.1 TENANT TO PAY
Tenant shall pay in lawful money of Canada at par at such address as shall
be designated from time to time by Landlord Basic Rent and Additional Rent (all
of which are collectively herein sometimes referred to collectively as "Rent")
as herein provided without any deduction, set-off or abatement whatsoever,
Tenant hereby agreeing to waive any rights it may have pursuant to the
provisions of Section 35 of the Commercial Tenancies Act (Ontario) or any other
statutory provision to the same or similar effect and any other rights it may
have at law to set-off.
5.2 BASIC RENT
Commencing on the Commencement Date, Tenant shall pay to Landlord a fixed
minimum annual rent ("Basic Rent") for each Year of the Term in the annual
amount(s) described as Basic Rent in subsection 1(e) hereof, to be paid in equal
monthly instalments, as described as Basic Rent in subsection 1(e) hereof, in
advance on the first day of each month during the Term.
If the first day upon which Basic Rent is payable is other than the first
day of a calendar month, then Tenant shall pay upon such date Basic Rent from
such date to the end of such month calculated at a daily rate of 1/365th of the
annual Basic Rent. If an amount per square foot is specified in the description
of Basic Rent in subsection 1(e), then the Basic Rent is intended to be such
amount per square foot of Rentable Area of the Building per annum, and the Basic
Rent shall be subject to adjustment based upon the Rentable Area of the Building
determined in accordance with this Lease. Within thirty (30) days after such
adjustment, if any, being made Tenant shall pay to Landlord any deficiency in
previous payments of Basic Rent and Additional Rent, and if Tenant is not in
default under the terms of this Lease the amount of any overpayment by Tenant of
Basic Rent and Additional Rent shall be paid to Tenant or credited to the
account of Tenant.
5.3 ADDITIONAL RENT AND MANAGEMENT FEE
(a) In addition to Basic Rent, Tenant shall pay to Landlord as Additional
Rent: (i) all other amounts as and when the same shall be due and payable
pursuant to the provisions of this Lease; and (ii) all other amounts as
and when the same shall be due and payable pursuant to any agreement or
other obligation between Landlord and Tenant; all of such amounts other
than Sales Taxes payable pursuant hereto, whether originally payable
pursuant to this Lease or otherwise, being herein sometimes referred to as
"Additional Rent". Tenant shall promptly deliver to Landlord upon request
evidence of due payment of all payments of Additional Rent required to be
paid by Tenant hereunder.
(b) Tenant shall pay, as Additional Rent, a management fee of two (2%) percent
of all Basic Rent payable by Tenant pursuant to this Lease, to be paid in
equal monthly instalments at the same time as instalments of Basic Rent
are to be paid; provided however that if the Tenant is no longer
responsible for the operation, maintenance, repair, management and
supervision of the Premises in accordance with the terms of Section 6.6,
the management fee shall be increased to two (2%) percent of all Rent
payable by Tenant pursuant to this Lease (except for this management fee),
disregarding any reduction or limitation, deferral or abatement of any
amount in the nature of Rent.
5.4 DEEMED RENT AND ALLOCATION
If Tenant defaults in payment of any Rent (whether to Landlord or
otherwise) or any Sales Taxes as and when the same is due and payable hereunder,
Landlord shall have the same rights and remedies against Tenant (including
rights of distress and the right to accelerate Rent in accordance with the
provisions of this Lease) upon such default as if such sum or sums were rent in
arrears under this Lease. All Rent and Sales Taxes shall, as between the parties
hereto, be deemed to be rent due or Sales Taxes due on the dates upon which such
sum or sums were originally payable pursuant to this Lease and shall be paid in
accordance with this Lease without any deduction, abatement or set-off
whatsoever.
Landlord may, at its option from time to time, apply or allocate or
re-apply or re-allocate any sums received from or payable by Tenant to Landlord
on account of any amounts payable by Tenant hereunder in such manner as Landlord
determines in its sole and absolute discretion, without regard to and
notwithstanding any instructions given by or allocations in respect of such
amounts made by Tenant.
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No payment by Tenant or acceptance of payment by Landlord of any amount
less than the full amount payable to Landlord, and no endorsement, direction or
note on any cheque or other written instruction or statement respecting any
payment by Tenant shall be deemed to constitute payment in full or an accord and
satisfaction of any obligation of Tenant and Landlord may receive any such
lesser amount and any such endorsement, direction, note, instruction or
statement without prejudice to any of Landlord's other rights under this Lease
or at law, whether or not Landlord notifies Tenant of any disagreement with or
non-acceptance of any amount paid or any endorsement, direction, note,
instruction or statement received.
5.5 MONTHLY PAYMENTS OF ADDITIONAL RENT
(a) Landlord may from time to time by written notice to Tenant, estimate
or re-estimate any amount(s) payable by Tenant to Landlord hereunder
including, without limitation, amounts in respect of Realty Taxes
and insurance premiums, for the then current or next following
fiscal period used by Landlord in respect of each of the said
amounts. The fiscal period used by Landlord may correspond to a
shorter period within any twelve month period where an item, for
example Realty Taxes, is payable in full by Landlord over such
shorter period. The amounts so estimated shall be payable by Tenant
in advance in equal monthly instalments over the applicable fiscal
period on the same days as the monthly payments of Basic Rent.
Landlord may, from time to time, alter the fiscal period selected in
each case. As soon as practical after the expiration of each Fiscal
Year, Landlord shall furnish to Tenant a statement of the actual
amounts payable by Tenant in respect of Operating Costs, Realty
Taxes and any other relevant provisions hereof for such Fiscal Year
(a "Final Statement"). If the amount determined to be payable by
Tenant as aforesaid shall be greater or less than the payments on
account thereof previously made by Tenant, then within thirty (30)
days after delivery of such Final Statement the appropriate
adjustments will be made and Tenant shall pay any deficiency to
Landlord and if Tenant is not in default under the terms of the
Lease, the amount of any overpayment shall be paid to or credited to
the account of Tenant. Such Final Statement of Landlord shall be
final and binding and Tenant shall have no right to dispute the
accuracy or propriety of any amounts or calculations included
therein nor make any claim in respect thereof, except to the extent
that Tenant shall have, within sixty (60) days after being given
such Final Statement, demonstrated to the satisfaction of Landlord
any error in such Final Statement. Tenant agrees that it shall not
be entitled to make any claim, including the commencing of an action
against Landlord, with respect to any Additional Rent charges
payable hereunder for any fiscal period unless such claim is made
within six (6) months after the date of which Landlord has delivered
to Tenant a Final Statement for such fiscal period; subject to any
claim being made within the time as aforesaid, each Final Statement
shall be final and binding on Tenant.
(b) Notwithstanding the provision of paragraph 5.5(a), while the Tenant
is responsible for the operation, maintenance, repair, management
and supervision of the Premises in accordance with the terms of
Section 6.6, no monthly instalments of Additional Rent shall be
required.
6. TAXES AND OPERATING COSTS
6.1 TAXES PAYABLE BY TENANT
Commencing on the Commencement Date, and thereafter at all times
throughout the Term, Tenant shall pay in the manner set out herein all Realty
Taxes, and all other taxes, if any, levied, confirmed, imposed, assessed or
charged (herein collectively or individually referred to as "charged") against
or in respect of the Premises and all buildings, furnishings, fixtures,
equipment, improvements and alterations in, on or forming part of the Premises.
All amounts payable by Tenant on account of Realty Taxes shall be adjusted on a
per diem basis in respect of any period not falling wholly within the Term.
6.2 PAYMENT OF REALTY TAXES
Tenant shall pay to Landlord all Realty Taxes, unless and to the extent
Landlord directs Tenant to pay such Realty Taxes directly to the relevant taxing
authority. If Landlord directs Tenant to pay any Realty Taxes directly to a
taxing authority, then Tenant shall deliver to Landlord, by not later than the
due date of each instalment of such Realty Taxes, receipted tax bills or other
written evidence of the payment by the due date of each such instalment of
Realty Taxes. In addition, Tenant shall deliver to Landlord on or before
December 31st of each calendar year during the Term, and on or before the Expiry
Date, receipted tax bills or other written evidence of the payment of all Realty
Taxes and other amounts, including interest and penalties for any late payment
or non-payment, payable by Tenant to such taxing authority in respect of such
calendar year and any partial calendar year at the end of the Term.
If Landlord does not require Tenant to pay Realty Taxes, or any portion
thereof, directly to the applicable taxing authority then Tenant shall pay to
Landlord all such Realty Taxes paid or payable by Landlord, within ten (10) days
after request from Landlord, accompanied by a copy of the relevant tax bill,
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assessment, calculation or statement unless Tenant receives a copy of the same
directly from the relevant taxing authority. Provided that Landlord may require
payment to Landlord by Tenant of periodic instalments on account of Realty Taxes
based on Landlord's estimates pursuant to Section 5.5 hereof. Alternatively,
Landlord shall have the right at any time, upon furnishing to Tenant a copy of
the interim or final Realty Tax bill(s) for the current or ensuing calendar
year, to require Tenant to make timely payment to Landlord, at least fourteen
(14) days prior to the due date in each case, of the amount of each instalment
of Realty Taxes as set out in the said tax bill(s), and if so requested by
Landlord Tenant shall forthwith deliver to Landlord a series of post-dated
cheques, payable to the taxing authority if Landlord so requests, for the Realty
Tax instalments payable during such calendar year in accordance with the said
tax bill(s). When the actual amount of Realty Taxes payable by Tenant has been
determined for each calendar year, all necessary adjustments in respect of any
underpayment of overpayment by Tenant shall be made in accordance with Section
5.5 hereof. To the extent of Realty Taxes received by Landlord from Tenant,
Landlord shall pay same to the taxing authority.
6.3 BUSINESS TAXES AND SALES TAXES
(a) Tenant shall pay to the relevant taxing authority as and when the
same are due and payable all business taxes including all taxes
charged in respect of any business conducted on the Premises, or in
respect of any use or occupancy of, the Premises, whether or not
charged against Landlord or the Premises.
(b) Tenant shall pay to Landlord when due all Sales Taxes imposed on
Landlord or Tenant with respect to Rent payable by Tenant hereunder
or in respect of the rental of space under this Lease.
6.4 TAX BILLS AND ASSESSMENT NOTICES
Tenant shall deliver to Landlord forthwith upon Tenant's receiving the
same copies of all assessment notices, tax bills, receipts and other documents
received by Tenant relating to Realty Taxes.
6.5 CONTEST OF REALTY TAXES
Landlord may contest any Realty Taxes and appeal any assessments related
thereto and may withdraw any such contest or appeal or may agree with the
relevant authorities on any settlement in respect thereof. Tenant will
co-operate with Landlord in respect of any such contest and appeal and shall
provide to Landlord such information and execute such documents as Landlord
requests to give full effect to the foregoing.
Tenant shall have the right to contest any Realty Taxes or appeal any
assessments related thereto, provided that it shall give the Landlord prior
written notice of its intention to do so. Tenant shall promptly upon request pay
all costs and expenses, including without limitation legal expenses, incurred by
Landlord as a result of any such contest or appeal by Landlord or Tenant, and
indemnify Landlord against all costs, liabilities or damages incurred by
Landlord arising out of such contest or appeal by Tenant. While any such contest
or appeal by either Landlord or Tenant is in progress, Tenant shall continue to
pay Realty Taxes as if such contest or appeal had not been commenced.
6.6 TENANT'S PAYMENT OF OPERATING COSTS
(a) Subject to paragraph (b), commencing on the Commencement Date, and
thereafter at all times throughout the Term, Tenant shall pay to
Landlord all Operating Costs. The amounts payable by Tenant pursuant
to this Section 6.6 may be computed on the basis of such periods of
time as Landlord shall determine from time to time and shall be paid
by Tenant to Landlord without deduction, abatement or set-off
whatsoever, within ten (10) days after the submission to Tenant of a
statement showing the amount payable by Tenant from time to time.
All amounts payable under this Section 6.6 in respect of any period
not falling entirely within the Term shall be adjusted on a per diem
basis.
(b) Notwithstanding the provisions of paragraph 6.6(a), the parties
acknowledge and agree that the Tenant shall during the Term, at its
sole cost and expense, be responsible for and undertake directly
without the need of the involvement of the Landlord (save as
otherwise expressly provided for in this Lease) all aspects of the
operation, maintenance, repair, replacement, management and
supervision of the Premises to a standard consistent with that which
a prudent owner would undertake having regard to the size, age,
location and character of the Building, and shall be responsible for
all costs relating thereto. The parties acknowledge that, during any
such period of self-management, Tenant shall not be required to make
any payments of Operating Costs to Landlord under paragraph 6.6(a)
(provided that Tenant acknowledges that, to the extent required to
be incurred by Tenant in respect of its self-management of the
Premises, Tenant shall be responsible for all Operating Costs so
incurred), but Tenant shall nevertheless be responsible for payment
of Realty Taxes and the premiums for the Landlord's insurance
premiums referred to in Section 12.1 which will be
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billed to the Tenant by the Landlord and be payable by the Tenant
immediately upon receipt of same or, at the option of the Landlord,
be billed monthly based on estimates for same and be payable as
Additional Rent at the same time as the payment of Basic Rent.
However, should the Tenant be in default of its operation,
maintenance, replacement, management and supervisory
responsibilities, the Landlord shall have the right to revoke the
Tenant's right to self manage the Premises and to itself assume such
management responsibilities in which event all of the provisions of
this Lease applicable to such management by the Landlord shall be in
full force and effect, including payment of Operating Costs.
7. USE OF PREMISES
7.1 USE OF PREMISES
Tenant covenants that it shall not use and shall not permit the Premises
to be used for any purpose other than as described as Use of Premises in
subsection 1(h) hereof. Tenant acknowledges that Landlord is making no
representation or warranty as to Tenant's ability to use the Premises for its
intended use, and acknowledges that it has satisfied itself that its use is
permitted under all applicable laws.
7.2 CONDUCT OF BUSINESS
At all times throughout the Term, Tenant shall, when it is carrying on
business in the Premises, conduct its business in a first class and reputable
manner. Tenant shall have the right to cease business operations on the Premises
if Tenant gives Landlord not less than fifteen (15) days' prior written notice.
7.3 INTENTIONALLY DELETED
7.4 SIGNS
Tenant shall not erect, install or display any sign on the Lands, or on or
visible from the exterior of the Building, except that Tenant shall have the
right at its cost to erect signs on the Premises identifying Tenant's business
on the Premises, provided that such signs shall: (a) not be offensive and shall
comply with all applicable Laws; (b) be maintained and kept in good and
attractive condition and repair by Tenant; and (c) not be erected or maintained
in such manner as to weaken or impair any portion of the Building or the Lands.
Landlord approves the current sign situate on the Building as of the date of
this Lease. Tenant shall, unless Landlord requires otherwise, remove all such
signs at the expiry or earlier termination of the Term and shall restore the
Premises to their condition prior to the installation and removal of such signs.
7.5 WASTE REMOVAL
Tenant shall not allow any refuse, garbage or any loose, objectionable
material to accumulate in or about the Premises and will at all times keep the
Premises in a clean and neat condition. Tenant shall be responsible for all
costs of removal of waste from the Premises. Until removed from the Premises,
all waste from the Premises shall be kept in appropriate containers within the
Premises and perishable refuse shall be kept in a properly refrigerated area in
the Premises until removed from the Premises.
7.6 PEST CONTROL
Subject to Section 6.6, Tenant shall co-operate with Landlord and with any
contractor(s) engaged by Landlord in respect of pest control and extermination
in the Premises.
If so required by Landlord, Tenant shall be responsible for pest control
and pest extermination in respect of the Premises and shall engage, for such
purpose, such contractors and at such intervals as Landlord may require. Tenant
shall not bring or permit to be brought onto the Premises any animals or birds
of any kind.
7.7 WASTE AND NUISANCE
(a) Tenant shall not cause, suffer or permit any waste or damage to the
Premises or leasehold improvements, fixtures or equipment therein
nor permit any overloading of the floors thereof and shall not use
or permit to be used any part of the Premises for any dangerous,
noxious or offensive activity or goods and shall not do or bring
anything or permit anything to be done or brought on or about the
Premises which Landlord may reasonably deem to be hazardous or a
nuisance or annoyance. Tenant shall take every reasonable precaution
to protect the Premises from risk of damage by fire, water or the
elements or any other cause.
(b) Tenant shall not use any advertising, transmitting or other media or
devices which can be heard, seen, or received outside the Premises,
or which could interfere with any communications or other systems
outside the Premises.
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(c) Tenant shall conduct its business on the Premises in keeping with a
first class industrial building. To that end, Tenant covenants and
agrees that it shall not cause, suffer or permit any fumes, odours,
noise or other element, any of which is determined by Landlord to be
a nuisance or disturbance, to emanate from the Premises; if Landlord
determines that any such fumes, odours, noise or other element is
emanating from the Premises in such manner as to cause any nuisance
or disturbance, Tenant shall forthwith, upon notice from Landlord,
cause the same to be rectified.
7.8 COMPLIANCE WITH LAWS
Tenant shall be solely responsible for obtaining from all authorities
having jurisdiction all necessary permits, licences and approvals as may be
necessary to permit Tenant to hold this Lease and to occupy the Premises and
conduct its business thereon, as required by all applicable Laws, including,
without limiting the generality of the foregoing, any necessary extra-provincial
licence, any necessary licence under applicable legislation and any necessary
approvals under the Investment Canada Act, or any similar legislation.
Tenant shall be responsible for and shall comply at its own expense with
all applicable Laws respecting the use, condition and occupation of the
Premises, and all leasehold improvements, trade fixtures, furniture, fixtures,
equipment and contents thereof (collectively called "Contents") and Tenant shall
promptly perform all necessary repairs, alterations, changes and improvements to
the Premises and Tenant's business, use, or occupancy thereon and the Contents
in order to comply with all of such Laws.
Tenant shall provide Landlord on request with evidence satisfactory to
Landlord acting reasonably that Tenant has obtained and is complying with the
terms of all applicable licenses, approvals and permits from time to time.
7.9 ENVIRONMENTAL
(a) As used herein:
(i) "Environmental Laws" means all statutes, laws, ordinances,
codes, rules, regulations, orders, notices and directives, now
or at any time hereafter in effect, made or issued by any
municipal, provincial or federal government, or by any
department, agency, board or office thereof, or by any board
of fire insurance underwriters or any other agency or source
whatsoever, regulating, relating to or imposing liability or
standards of conduct concerning any matter which may be
relevant to the use or occupancy of the Premises or any part
thereof or the conduct of any business or activity in, on,
under or about the Premises or any part thereof, or any
material, substance or thing which may at any time be in, on,
under or about the Premises or any part thereof or emanate
therefrom;
(ii) "Hazardous Substance" means any substance or thing or mixture
of them which alone, or in combination, or in concentrations,
are flammable, corrosive, reactive or toxic or which might
cause adverse effects or be deemed detrimental to living
things or to the environment, including, but not limited to,
any pollutant, contaminant, toxic or hazardous substance, such
as by way of example, urea formaldehyde, asbestos,
polychlorinated biphenyl, pesticides, mold, mildew, mycotoxins
or microbial growths or any other substance the removal,
manufacture, preparation, generation, use, maintenance,
storage, transfer, handling or ownership of which is subject
to applicable Laws.
(b) Tenant covenants with Landlord that:
(i) it shall not use or permit or suffer the use of the Premises
or any part thereof to generate, manufacture, refine, treat,
transport, store, handle, dispose of, transfer, produce,
process or contain any Hazardous Substance except in strict
compliance with all Environmental Laws including, without
limitation, the Environmental Protection Act, R.S.O. 1990, c.
E-19, the Gasoline Handling Act, R.S.O. 1990, c. G.4 and all
other Environmental Laws in respect of environmental, land
use, occupation, or health and safety matters. In the event
Tenant fails to comply with any such Environmental Laws,
Landlord may, but shall not be obligated to, do such things as
necessary to effect such compliance, and all costs and
expenses incurred by Landlord in so doing, together with an
administration charge equal to fifteen (15%) percent of such
costs and expenses, shall be payable forthwith by Tenant to
Landlord as Additional Rent;
(ii) it shall forthwith notify Landlord upon receipt of any order,
directive, notice or other communication whatsoever received
from any governmental or other authority
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relating to any Laws, which notice shall be accompanied by a
copy of such order, directive, notice or other communication
and Tenant shall keep Landlord advised on a weekly basis of
Tenant's progress in complying with same;
(iii) Landlord shall be entitled at any time or times to inspect the
Premises and to conduct such other investigations as in its
sole discretion it deems necessary for the purpose of
satisfying itself as to compliance by Tenant with all
Environmental Laws and with all provisions of this Lease.
Without limiting the generality of the foregoing, Landlord
shall have the right to conduct such physical inspections of
the Premises and examination of documentation relating to the
Premises and the conduct of business thereon by Tenant, as it
may deem necessary in respect of compliance with Environmental
Laws and for such purpose Tenant shall produce, at the offices
of Tenant, all of its relevant files, books, records,
statements, plans and other written information in Tenant's
possession relating to compliance with Environmental Laws,
provided that all of such information shall be used by
Landlord solely for the purpose of ensuring compliance by
Tenant with Environmental Laws and this Section 7.9 and shall
otherwise be kept strictly confidential;
(iv) it shall indemnify and save harmless Landlord and all of its
servants, agents, employees, officers and directors,
contractors and persons for whom Landlord is in law
responsible, against any and all liabilities, claims, damages,
interest, penalties, fines, monetary sanctions, losses, costs
and expenses whatsoever, including without limitation costs of
professional advisors and consultants and experts in respect
of investigation, remedial action and clean-up costs and
expenses, arising in any manner whatsoever out of:
(A) any breach by Tenant of any provisions of this Section
7.9 or any non-compliance with any Environmental Laws
during the Term;
(B) any act or omission of any persons on the Premises
during the Term or any use or occupancy of or any thing
in, on, under or about the Premises during the Term
relating to Environmental Laws, including, without
limitation, the generating, manufacture, refinement,
treatment, transportation, storage, handling, disposal,
transfer, production or processing of any Hazardous
Substance by Tenant or any other person in, on, under or
about the Premises, and any nuisance arising therefrom;
(C) any act or omission of Tenant or any of its servants,
agents, employees, invitees, licensees, subtenants,
concessionaires, contractors or persons for whom Tenant
is in law responsible during the Term on or about the
Premises or elsewhere relating to Environmental Laws; or
(D) any illness, injury or death of persons, or any loss or
damage to property, on or about the Premises relating to
Environmental Laws.
The aforesaid indemnity shall survive the expiration or
earlier termination of this Lease.
(v) if at any time required by Landlord, or by any governmental or
other authority pursuant to any Environmental Laws, to take
all required remedial action in respect of any Hazardous
Substances in, on, under or about the Premises or emanating
therefrom during the Term, including, without limitation, any
repairs or replacements to the Premises or any buildings or
other leasehold improvements in or on the Premises and the
removal, treatment, disposal, restoration and replacement of
the soil or any other part of the Premises. The said
obligations shall survive the expiration or earlier
termination of this Lease.
(vi) Tenant hereby covenants and agrees to obtain an intrusive
environmental assessment of the Premises (the "Exit Report")
by an independent and qualified environmental consultant as
appointed or approved by Landlord, at least three (3) months
prior to the expiry of the Term. If the Exit Report reveals
the existence of any Hazardous Substances at the Premises
caused by the Tenant's operations during the Term, then the
consultant preparing the Exit Report shall also include in the
Exit Report its recommendations for remediating such Hazardous
Substances in order that the Lands, are remediated to the
standard as is then existing (that is, at the time of the
commencement of such remediation) pursuant to guidelines
prepared by the Ministry of the Environment for the province
of Ontario, providing for the
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restoration of property for residential use or such higher
standard as may be required to restore the Lands to their
condition as of the Commencement Date (the "Remediation").
Tenant shall complete any Remediation which Tenant is
obligated to conduct at its sole cost and expense prior to the
expiry of the Term. In performing such Remediation, Tenant
shall compensate Landlord, its successors and assigns for any
demolition or destruction on, under or to the Premises in
order to complete such Remediation and shall rebuild or repair
any demolished or destroyed property on, under or attached to
the Premises following such Remediation and restore the
Premises to the condition to which Tenant is required to
maintain the Premises under this Lease.
(vii) any Hazardous Substances on or about the Premises shall remain
the sole and exclusive property of Tenant and shall not become
the property of Landlord, notwithstanding the degree of
affixation to the Premises. This affirmation of Tenant's
interest in the Hazardous Substances or the goods containing
the Hazardous Substances shall not, however, prohibit Landlord
from dealing with such material as otherwise provided for in
this Lease.
(viii) Tenant acknowledges that Landlord may elect to obtain and
maintain environmental impairment insurance at Tenant's sole
cost, and Tenant shall reimburse Landlord for same, forthwith
as Additional Rent; provided, however, while the Tenant is
Amram's Distributing Ltd. or a Permitted Transferee, this
subsection 7.9(b)(viii) shall not be applicable.
(c) As used in this Section 7.9, the "Term" includes any period
subsequent thereto during which Tenant or any assignee, subtenant,
employee, agent, contractor, licensee or invitee of Tenant occupies
the Premises or any part thereof, either actually or constructively,
any renewal(s) or extension(s) of the Term, and any period during
which Tenant overholds.
(d) Tenant agrees to complete the environmental questionnaire attached
hereto as Schedule "D" and to forthwith advise Landlord, in writing,
of any changes in its activities that may alter the information
provided herein.
8. SERVICES AND UTILITIES
8.1 UTILITIES
(a) Tenant shall be solely responsible for and shall promptly pay for,
as and when they fall due, all costs of utilities consumed in the
Premises and the cost of providing and supplying such utilities
including, without limitation, water, electricity, gas, steam and
other utilities to or in respect of the Premises.
(b) Tenant's use of any such utilities shall not exceed the available
capacity of the existing systems from time to time. If Tenant
desires at any time to obtain any such utilities in excess of such
available capacity, Tenant may supply and install at its expense any
special wires, conduits or other equipment necessary to provide such
additional capacity subject to the prior written consent of
Landlord.
(c) Tenant shall promptly pay as and when the same shall be payable all
costs for all fittings, connections and meters and all work or
services performed in connection with any services or utilities
provided to or in respect of the Premises.
(d) The amounts payable by Tenant under this Section 8.1 shall be
payable directly to the supplier of such utilities, and Tenant shall
deliver to Landlord no less frequently than once every three months,
receipted invoices or other reasonable proof of the timely payment
of such utilities. To the extent any utility company requires the
Landlord to also be responsible for or to guarantee the payment of
utilities, the Landlord may require payment of utilities directly to
it by the Tenant.
8.2 HEATING AND AIR CONDITIONING
Tenant shall heat the Premises at its own expense and maintain and keep in
good repair and replacement, if necessary, at its expense, the said heating and
air conditioning equipment. Tenant shall heat the premises to ensure at all time
that the Premises and contents thereof are protected from damage by cold or
frost. If the heating, ventilating, air conditioning or humidity control
equipment in or serving the Premises shall require maintenance, repair or
replacement, Tenant shall, at its expense, promptly attend to the same in
accordance with the manufacturer's or supplier's specifications and
instructions. Tenant shall at its expense, maintain a service contract for such
equipment in or serving on terms and with a contractor first approved in
- 14 -
writing by Landlord and in any event to the standard of a prudent owner of such
a property. Notwithstanding the foregoing, but subject to Section 6.6, Landlord
shall have the option, exercisable by written notice to Tenant, of itself
attending to the maintenance, repair or replacement of any of the heating,
ventilating, air conditioning and humidity control equipment, in which case the
cost of such maintenance, repair or replacement shall either be charged to
Tenant or included in Operating Costs.
8.3 NON-LIABILITY OF LANDLORD
Landlord shall not be liable for any damages, direct or indirect,
resulting from or contributed to by any interruption or cessation of or failure
in the supply of any utilities or any heating, ventilating, air conditioning and
humidity control. Without limiting the generality of the foregoing, Landlord
shall not be liable for and Tenant shall indemnify Landlord and save Landlord
harmless from and against any and all indirect or consequential damages or
damages for personal discomfort or illness of Tenant or any persons permitted by
it to be on the Premises, by reason of the suspension or non-operation or
failure for any period of time of any utilities, heating, ventilating, air
conditioning or humidity control.
9. MAINTENANCE, REPAIRS AND ALTERATIONS
9.1 MAINTENANCE AND REPAIRS OF PREMISES
At all times throughout the Term, Tenant at its sole expense shall
maintain and repair the Premises and perform all replacements necessary in
connection therewith (other than to the Structure) including, without
limitation, maintenance, repairs and replacements to utility lines, heating,
ventilating and air conditioning systems and equipment, as required to keep the
Premises, including the Building and all contents thereof and all services and
equipment located in or primarily serving the Building, in first-class
appearance and condition, and in accordance with all Laws and Landlord's
reasonable requirements, subject only to the obligations of Landlord, if any,
expressly provided in Section 9.7 hereof. For the purposes of this Section 9.1,
Premises shall include, without limitation, all Leasehold Improvements.
9.2 APPROVAL OF REPAIRS AND ALTERATIONS
(a) Tenant shall not make any repairs, replacements, changes, additions,
improvements or alterations (hereinafter referred to as
"Alterations") to the Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld unless
such proposed Alterations might in any way affect: (i) the perimeter
walls or entrances, roof or structure of the Building or in any way
enlarge the Building or increase or reduce the floor area thereof;
(ii) the location or size of the driveways, walkways or parking or
loading areas of the Premises or utility services on or serving the
Premises; (iii) the coverage of the Premises for zoning purposes; or
(iv) the appearance, quality, value or usefulness of the Premises;
in any of which events such consent may be arbitrarily withheld in
Landlord's sole discretion.
Notwithstanding anything contained in the foregoing to the contrary,
provided the Tenant is Amram's Distributing Ltd. or a Permitted
Transferee and the Tenant is not then in default beyond the
applicable cure period, if any, expressly provided for under this
Lease, Tenant shall have the right to make minor non-structural
Alterations such as painting and carpeting provided that such
Alterations do not, in the aggregate, exceed Fifty Thousand Dollars
($50,000.00) without the written consent of but on prior written
notice to the Landlord, but only so long as such Alterations do not
affect any of the items referred to in subsections (a)(i) through
(iv) above and, further, provided such Alterations do not require a
building permit.
(b) With its request for Landlord's consent, Tenant shall submit to
Landlord details of the proposed Alterations including plans and
specifications prepared by qualified architects or engineers, and
such Alterations shall be completed in accordance with the plans and
specifications approved in writing by Landlord, acting reasonably.
(c) All Alterations shall be planned and completed in compliance with
all Laws and Tenant shall, prior to commencing any Alterations,
obtain at its expense all necessary permits and licences. Prior to
the commencement of any such Alterations Tenant shall furnish to
Landlord such evidence as reasonably required by Landlord of the
projected cost of Alterations and, where the cost of the Alterations
will exceed $100,000 and then if required by Landlord, acting
reasonably, a performance, completion and labour and materials bond
acceptable to Landlord guaranteeing completion of such Alterations.
(d) All Alterations shall be performed at Tenant's cost, promptly and in
a good and workmanlike manner and in compliance with Landlord's
rules and regulations, by competent contractors or workmen who shall
be first approved in writing by Landlord, which approval shall not
be unreasonably withheld. Unless expressly authorized by Landlord in
writing to the contrary,
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all Alterations which might require a building permit or which might
cost in excess of Fifty Thousand Dollars ($50,000) to complete or
which might affect the Structure or any mechanical, electrical,
utility, sprinkler, communications or other similar systems within
the Premises shall, at Landlord's option, be performed at Tenant's
expense by contractors designated by Landlord and under Landlord's
supervision and under the supervision of a qualified architect or
engineer approved by Landlord, in advance. For all Alterations
performed under Landlord's supervision, Tenant shall pay forthwith
upon request all amounts paid or payable by Landlord to third
parties and all reasonable charges of Landlord for its own personnel
plus fifteen (15%) of such amounts and charge for Landlord's
inspection, supervision, overhead and profit.
(e) If Tenant performs any such Alterations without compliance with all
of the foregoing provisions of this Article 9, Landlord without
prejudice to and without limiting Landlord's other rights pursuant
to this Lease and at law, shall have the right to require Tenant to
remove such Alterations forthwith and either restore the Premises to
their condition prior to such Alterations or perform such
Alterations in compliance with the foregoing provisions of this
Article.
(f) Tenant shall pay to Landlord forthwith upon request all of
Landlord's reasonable costs including, without limitation, fees of
architects, engineers and designers, incurred in dealing with
Tenant's request for Landlord's consent to any Alterations, whether
or not such consent is granted, and in inspecting and supervising
any such Alterations, and Landlord shall have the right to require
Tenant to pay Landlord a deposit on account of such costs as a
precondition to Landlord's granting such consent.
9.3 REPAIR ACCORDING TO LANDLORD'S NOTICE
Landlord and any persons designated by it shall have the right to enter
the Premises at any time during normal business hours to view the state of
repair and condition thereof and Tenant shall promptly perform any maintenance,
repairs, replacements or Alterations according to written notice from Landlord.
9.4 NOTICE BY TENANT
Tenant shall give immediate written notice to Landlord of any accident,
defect, damage or deficiency in any part of the Premises which comes to the
attention of Tenant or any of its employees or contractors notwithstanding the
fact that Landlord has no obligation in respect of the same; the provisions of
this Section 9.4 are for information purposes only and shall not be interpreted
so as to imply or impose any obligation whatsoever upon Landlord. Tenant shall
exercise all due diligence to become aware of any such situation.
9.5 OWNERSHIP OF LEASEHOLD IMPROVEMENTS
All Leasehold Improvements installed in the Premises by Tenant, or by
Landlord on Tenant's behalf, shall forthwith upon the installation thereof
become the absolute property of Landlord without compensation therefor but
without Landlord's having or thereby accepting any responsibility in respect of
the maintenance, repair or replacement thereof, all of which shall be Tenant's
responsibility.
Notwithstanding any other provisions in this Lease, the Excluded Assets
are and shall remain the property of the Tenant and may be removed by the Tenant
from the Premises at any time or times provided the Tenant repairs any damage
caused by such removal and otherwise restores the Premises as necessary as a
result of the removal.
9.6 CONSTRUCTION LIENS
Tenant shall make all such payments and take all such steps as may be
necessary to ensure that no lien or other charge or claim therefor or
certificate of action in respect thereof (any of which is herein referred to as
"Lien") is registered against the Premises or any portion thereof or against
either Landlord's or Tenant's interest therein as a result of any work done for
or services or material supplied to Tenant or in respect of the Premises. Tenant
shall cause any such registrations to be discharged or vacated within ten (10)
days after registration. Tenant shall indemnify and save harmless Landlord from
and against any liabilities, claims, liens, damages, costs or expenses,
including legal expenses, arising in connection with any work done for or
services or materials supplied to Tenant or in respect of the Premises.
If Tenant permits any such lien registration or fails to cause any such
registration to be discharged or vacated as aforesaid then, in addition to any
other rights of Landlord, Landlord may, but shall not be obliged to, discharge
or vacate the same by paying the amount claimed to be due together with any
other amounts into court, and the amounts so paid and all costs incurred by
Landlord, including legal fees and disbursements, in thus arranging for the
discharging or vacating of any such Lien shall be paid by Tenant to Landlord
forthwith upon demand together with reasonable compensation to Landlord for
administration in respect thereof.
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9.7 LANDLORD'S REPAIRS
Save and except as otherwise expressly provided for herein, Landlord shall
not be responsible for maintenance, repairs or replacements of any kind
whatsoever to the Building or any other portion of the Premises. The Landlord
shall be responsible, at its sole cost and expense, for maintenance, repair and
replacement of the Structure of the Building, as would a prudent owner, subject
to reasonable wear and tear, and unless the maintenance, repair or replacement
to the Structure was caused by the negligence of the Tenant or anyone for whom
the Tenant is responsible at law, in which event the Tenant shall be responsible
for same.
10. END OF TERM
10.1 VACATING OF POSSESSION
Forthwith upon the expiry or earlier termination of the Term, Tenant shall
peaceably deliver to Landlord vacant possession of the Premises in such
condition in which Tenant is required to maintain and keep the Premises during
the Term pursuant hereto and shall leave the Premises in a neat, clean and
broom-swept condition and Tenant shall deliver to Landlord all keys for the
Premises and all keys or combinations to locks on doors, safes or vaults within
the Premises.
10.2 REMOVAL OF TRADE FIXTURES
Tenant shall at the expiry of the Term and at Landlord's option, on the
earlier termination of the Term, remove its trade fixtures and shall repair all
damage or injury caused to the Premises resulting from the installation or
removal of such trade fixtures.
If at the expiry or earlier termination of this Lease, Tenant does not
remove its trade fixtures or any of its other property on the Premises, Landlord
shall have no obligation in respect of any such trade fixtures or property and
may sell or destroy the same or have them removed or stored at the expense of
Tenant (to be paid by Tenant within ninety (90) days after the expiry or earlier
termination of this Lease failing which Tenant shall not have the right to take
possession of such trade fixtures or property and shall thereupon be deemed to
have abandoned the same) or dispose of them in any other manner whatsoever as
may be determined by Landlord in its sole discretion; at the option of Landlord,
such trade fixtures or property not removed at the expiry or earlier termination
of this Lease shall become the absolute property of Landlord without payment of
any compensation therefor to Tenant and may be dealt with by Landlord in such
manner as it determines.
10.3 REMOVAL OF LEASEHOLD IMPROVEMENTS
Notwithstanding that the Leasehold Improvements become the absolute
property of Landlord upon installation, at the expiry or earlier termination of
the Term, Tenant shall remove, any or all Leasehold Improvements installed after
the Commencement Date as required by Landlord and in so doing shall repair all
damage resulting from, and shall restore the Premises to their condition prior
to the installation and removal of such Leasehold Improvements.
10.4 OVERHOLDING BY TENANT
If Tenant remains in possession of all or any part of the Premises after
the expiry of the Term with the consent of Landlord and without any further
written agreement, or without the consent of Landlord, this Lease shall not be
deemed thereby to have been renewed or extended and Tenant shall be deemed
conclusively to be occupying the Premises as a monthly tenant if Landlord did
consent to Tenant remaining in possession, or as a tenant at will if Landlord
did not consent to Tenant remaining in possession (notwithstanding the
acceptance of Basic or Additional Rent by Landlord), in either case on the same
terms as set forth in this Lease so far as they would be applicable to a monthly
tenancy except the monthly Basic Rent shall be one hundred and fifty (150%)
percent of an amount determined by taking 1/12 of the Basic Rent payable for the
period of the last twelve months of the Term. Tenant agrees that Landlord shall
have the right to distrain for any arrears of Rent payable by virtue of this
Section 10.4 and Article 15 (Default and Remedies) shall apply.
11. DAMAGE AND DESTRUCTION
11.1 DAMAGE TO PREMISES
If the Premises or any portion thereof is damaged or destroyed, in whole
or in part, by fire or any other occurrence, this Lease shall nonetheless
continue in full force and effect and there shall be no abatement of any item
included in Rent except to the extent that Landlord receives insurance proceeds
in respect thereof from an insurance policy or policies for which the premiums
had been paid by Tenant, and the following provisions of this Article 11 shall
apply.
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11.2 INSURED DAMAGE TO PREMISES
If there is damage or destruction to the Premises or any portion thereof
caused by an occurrence against which, and to not more than the extent that,
Landlord either is required to insure pursuant to this Lease or is otherwise
insured ("Insured Damage"), then the following provisions of this Section 11.2
shall apply:
(a) If such damage or destruction is such as to render the whole or any
part of the Building unusable for the purpose of Tenant's use and
occupancy thereof, Landlord shall deliver to Tenant within thirty
(30) days following the date on which such damage or destruction was
brought to the knowledge of Landlord, Landlord's reasonable opinion
as to whether or not the same is capable of being repaired, to the
extent of Landlord's repair obligations hereunder, within one
hundred and eighty (180) days of actual construction time.
(b) If this Lease is not terminated as herein in this Article 11
provided, Landlord, to the extent of insurance proceeds which it
receives or would have received had it maintained such insurance as
it is required to maintain hereunder, and to the extent that any
mortgagee entitled to be paid such insurance proceeds consents to
the use of the same for repair of such damage or destruction, shall
diligently proceed to repair or rebuild the structure of the
Building and all leasehold improvements covered under Landlord's
insurance policies, and Tenant, commencing as soon as practical but
without interfering with Landlord's repairs, shall diligently
perform such other repairs as are Tenant's responsibility pursuant
hereto.
(c) If in Landlord's reasonable opinion, the Building is not capable of
being repaired as aforesaid within one hundred and eighty (180) days
of actual construction time, either party may at its option, elect
to terminate this Lease, by written notice to the other party within
thirty (30) days after delivery by Landlord of the opinion provided
for in subsection 11.2(a) above, whereupon Tenant shall immediately
surrender possession of the Premises and Basic Rent and all other
payments for which Tenant is liable pursuant hereto shall be
apportioned to the effective date of such termination.
(d) If the damage is such as to render the whole or any part of the
Premises unusable in whole or in part for the purpose of Tenant's
use and occupancy thereof, and Tenant was, immediately prior to the
occurrence of the damage, actually using and occupying the damaged
portion of the Premises, then, to the extent of insurance proceeds
received under Landlord's insurance policies (or, in the event that
Tenant had been under the obligation to maintain insurance on the
Building and rental income insurance on behalf of Landlord pursuant
to the provisions hereof, to the extent of insurance proceeds
actually received by Landlord from insurance policies the premiums
for which had been paid by Tenant), the Basic Rent payable hereunder
shall abate to the extent that Tenant's use and occupancy of the
Premises is in fact diminished, which determination shall be made by
Landlord, until the earlier of: (i) the thirtieth (30th) day after
the Premises are determined by Landlord to be ready for Tenant to
commence its repairs to the Premises; and (ii) the date on which
Tenant first commences the conduct of business in any part of the
Premises which had been damaged.
(e) Notwithstanding anything else contained in this Section 11.2,
Landlord's obligation to repair or rebuild the Building and any
other damaged portions of the Premises pursuant hereto shall be
subject to the following provisions:
(i) if Landlord has insured in compliance with its obligations
pursuant hereto, but does not receive any insurance proceeds
which it would otherwise have received but for an act or
omission of Tenant or any person for whom Tenant is in law
responsible which is in breach of the applicable insurance
policy provisions, then Tenant shall pay to Landlord in
advance the amount of such deficiency and Landlord will apply
such amount toward the cost of repair or rebuilding and all
obligations of Landlord hereunder to repair or rebuild the
Premises shall be conditional upon Tenant making such payment
to Landlord; and
(ii) Tenant shall be responsible for the amount of any deductible
under Landlord's insurance policies and all obligations of
Landlord hereunder to repair or rebuild the Premises shall be
conditional upon Tenant paying to Landlord in advance the
amount of such deductible(s).
(iii) The respective obligations of Landlord and Tenant with respect
to repair of the Building following any damage or destruction
shall be performed with all reasonable speed and in accordance
with all applicable obligations to repair contained herein.
Tenant acknowledges that its obligations to repair the
Building after such damage or destruction shall be performed
at its sole cost without any contribution by Landlord whether
or not the damage or destruction was caused by
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Landlord's fault and whether or not Landlord had at any time
made any contribution to the cost of any leasehold
improvements to the Building. In any event, within ninety (90)
days after Landlord has completed its repairs to the Building
as aforesaid, Tenant shall complete its repairs to the
Building and shall recommence the conduct of business therein.
11.3 DAMAGE IN LAST YEAR
If there is damage or destruction to the Building and if, in Landlord's
reasonable opinion, the Building is not capable of being repaired within ninety
(90) days of actual construction time, and if such damage or destruction occurs
within the last year of the Term and either Tenant has no remaining rights to
extend this Lease or, having the right to extend this Lease fails to do so
within fifteen (15) days after such occurrence, then either party, at its option
to be exercised by written notice given to the other party within thirty (30)
days following the date on which such damage or destruction was brought to the
knowledge of Landlord, may terminate this Lease whereupon Tenant shall
immediately surrender possession of the Premises and Basic Rent and all other
payments for which Tenant is liable hereunder shall be apportioned to the
effective date of such termination. If this Lease is not terminated as
aforesaid, the parties shall repair as provided in subsection 11.2(b) hereof as
if such damage or destruction were Insured Damage and there shall be no
abatement of any Rent except to the extent expressly provided in subsection
11.2(d) hereof.
11.4 RESTORATION OF PREMISES
If there is damage or destruction to the Building and if this Lease is not
terminated pursuant hereto, Landlord, in performing its repairs as required
hereby, shall not be obliged to repair or rebuild in accordance with the plans
or specifications for the Building as they existed prior to such damage or
destruction; rather, Landlord may repair or rebuild in accordance with any plans
and specifications chosen by Landlord in its sole discretion provided that
Tenant's use of and access to the Building and the general overall quality of
the Premises are not materially detrimentally affected by any difference in
plans, specifications or form of the Building or the Premises from such plans,
specifications and form as the same existed immediately prior to the occurrence
of such damage or destruction, and in any event subject to all requirements
under then applicable Laws, including municipal by-laws and building code.
11.5 DETERMINATION OF MATTERS
For the purposes of this Article 11, all matters requiring determination
such as, without limitation, the extent to which any portion or portions of the
Building or the Premises are damaged or are not capable of being used, or the
time within which repairs may be made, unless expressly provided to the
contrary, shall be determined by an Architect appointed by Landlord, such
determination to be final and binding upon the parties.
12. INSURANCE AND INDEMNITY
12.1 LANDLORD'S INSURANCE
Tenant covenants to pay to Landlord within ten (10) days after request by
Landlord, subject to Landlord's right to require monthly payments pursuant to
Sections 5.5 and 6.6 hereof, the cost of all insurance placed or to be placed by
Landlord pursuant to this Section 12.1. Landlord shall obtain and maintain in
full force and effect during the Term with respect to the Premises insurance
against such occurrences and in such amounts and on such terms and conditions
and with such reasonable deductible(s) as would a prudent owner of a property
such as the Premises. Such insurance may include, without limitation: (a)
insurance on the Building and any improvements therein which Landlord desires to
insure, against damage by fire and other risks covered by extended coverage fire
insurance policies or, at Landlord's option, all risks insurance; (b) boiler and
machinery insurance; (c) rental income insurance; (d) public liability
insurance; (e) change of bylaw endorsement; and (f) such other form or forms of
insurance and with such provisions as Landlord, the Owners and any mortgagee or
other secured creditor of Landlord or the Owners reasonably consider advisable.
Notwithstanding that Tenant shall be contributing to the costs of such insurance
pursuant to the terms of this Lease, Tenant shall not have any interest in or
any right to recover any proceeds under any of Landlord's insurance policies.
Each of Landlord's insurance policies in respect of the Premises shall name
Landlord as insured, with loss payable to Landlord, subject to such mortgage
clause as may be required by any mortgagee(s) of Landlord. Any policy of
insurance required to be maintained by Landlord hereunder may provide that the
amount payable if a loss occurs will be reduced by a deductible amount which
shall be not greater than what is reasonable in all the circumstances, and
Tenant will be responsible for the amount so deducted from the insurance
proceeds paid if a loss occurs.
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12.2 TENANT'S EFFECT ON LANDLORD'S INSURANCE
(a) Tenant shall not do or permit anywhere on the Premises anything
which might: (i) result in an actual or threatened cancellation of
or adverse change in any insurance policy of Landlord on the
Premises; or (ii) be prohibited by any insurance policy of Landlord
on the Premises.
(b) If there is an actual or threatened cancellation of or adverse
change in any policy of insurance of Landlord on the Premises by
reason of anything done or permitted by Tenant anywhere on the
Premises, and if Tenant fails to remedy the situation giving rise to
such actual or threatened cancellation or change within twenty-four
(24) hours after notice from Landlord, then Landlord may, at its
option, either: (i) terminate this Lease forthwith by written
notice; or (ii) remedy the situation giving rise to such actual or
threatened cancellation or change, all at the cost of Tenant to be
paid to Landlord forthwith upon demand, and for such purpose
Landlord shall have the right to enter upon the Premises without
further notice.
12.3 TENANT'S INSURANCE
(a) Tenant shall, at its sole expense, maintain in full force and effect
at all times throughout the Term and such other times, if any, as
Tenant occupies the Premises or any portion thereof, such insurance
as would be maintained by a prudent tenant of a property such as the
Premises, which insurance shall include at least all of the
following:
(i) commercial general liability insurance including, but not
limited to, property damage, public liability, personal injury
liability, contractual liability, products and completed
operations and non-owned automobile liability, all on an
occurrence basis, with respect to any use, occupancy,
activities or things on the Premises, with coverage for any
one occurrence or claim of not less than Five Million
($5,000,000.00) Dollars and such higher amount as Landlord may
require if the Term of this Lease is extended or the Building
is expanded in accordance with the terms of Schedule "C";
(ii) insurance, in respect of such perils as are from time to time
covered in an all risks policy not less broad than the
standard commercial property floater policy with the
exclusions relating to earthquake and flood removed therefrom,
covering the leasehold improvements, trade fixtures
furnishings, equipment, stock-in-trade, storefront and store
facing materials and all signs in, on or about the Premises,
for not less than the full replacement cost thereof and with a
replacement cost endorsement;
(iii) broad form comprehensive boiler and machinery insurance on all
insurable objects located on the Premises, or which are the
property or responsibility of Tenant on a blanket repair or
replacement basis with a replacement cost endorsement and with
limits for each accident in an amount not less than the full
replacement cost of all Leasehold Improvements, trade
fixtures, furnishings, equipment, stock-in-trade, storefront
and store facing materials and all signs in, on or about the
Premises;;
(iv) business interruption or extra expense insurance in such
amounts from time to time as necessary to fully compensate
Tenant for direct or indirect loss of sales or earnings
resulting from or attributable to any of the perils required
to be insured against under the policies referred to in
subsections 12.3(a)(ii) and (iii) above and all circumstances
usually insured against by cautious tenants including losses
resulting from interference with or prevention of access to
the Premises as a result of such perils or for any other
reason;
(v) a disputed loss endorsement or agreement, where applicable;
(vi) intentionally deleted;
(vii) intentionally deleted;
(viii) intentionally deleted; and
(ix) any other insurance against such risks and in such amounts as
Landlord or any mortgagee, debenture holder or other secured
creditor of Landlord may from time to time reasonably require
upon not less than thirty (30) days' written notice to Tenant.
(b) Each of Tenant's insurance policies shall name Landlord and any
others designated by Landlord, as additional insureds, with Landlord
as loss payee as their respective interest may
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appear, and shall be taken out with insurers and shall be in such
form and on such terms as are satisfactory to Landlord, acting
reasonably, from time to time. Without limiting the generality of
the foregoing, each of Tenant's insurance policies shall contain:
(i) the standard mortgage clause as may be required by any
mortgagee, debenture holder or other secured creditor of
Landlord;
(ii) if Tenant is not Amram's Distributing Ltd. or a Permitted
Transferee, a waiver by the insurer of any rights of
subrogation to which such insurer might otherwise be entitled
against Landlord or any person for whom Landlord is in law
responsible;
(iii) an undertaking by the insurer that no material change adverse
to Tenant or Landlord or any mortgagee, debenture holder or
other secured creditor of Landlord will be made and the policy
will not expire, lapse or be cancelled or terminated, except
after not less than thirty (30) days' written notice to Tenant
and Landlord and to any mortgagee, debenture holder or other
secured creditor of either of them of the intended change,
lapse, cancellation or termination;
(iv) a provision stating that Tenant's insurance policy shall be
primary and shall not call into contribution any other
insurance available to Landlord;
(v) Intentionally deleted;
(vi) a severability of interests clause and a cross-liability
endorsement clause for liability policies, where applicable;
and
(vii) a waiver, in respect of the interests of Landlord, of any
mortgagee, debenture holder or other secured creditor of
Landlord, of any provision of any such insurance policies with
respect to any breach of any warranties, representations,
declarations or conditions contained in the said policies.
All of Tenant's insurance policies shall be taken out with
insurers and shall be in such form and on such terms as are
satisfactory to Landlord from time to time.
(c) Tenant shall ensure that Landlord shall at all times be in
possession of certificates of insurance in the form designated or
approved by Landlord.
(d) Tenant hereby releases Landlord and the Owners, their servants,
agents, employees, officers, directors, contractors, trustees of any
REIT which has an interest in the Premises, and those for whom
Landlord or the Owners are in law responsible from all losses,
damages and claims of any kind in respect of which Tenant is
required pursuant hereto to maintain insurance or is otherwise
insured.
12.4 LANDLORD'S RIGHT TO PLACE TENANT'S INSURANCE
If Tenant at any time fails to take out, renew and keep in force, or pay
any premiums for, any insurance as required to be obtained and maintained
pursuant hereto, or if Tenant fails from time to time to deliver to Landlord
satisfactory proof of the good standing of any such insurance or the payment of
premiums therefor or if the evidence submitted in respect thereof to Landlord is
unacceptable to Landlord, then, in any such event, Landlord, without prejudice
to any of its other rights and remedies pursuant to this Lease, shall have the
right but not the obligation to effect such insurance on behalf of Tenant and
the cost thereof and all other reasonable expenses incurred by Landlord in
respect thereof shall be paid by Tenant to Landlord forthwith upon demand.
12.5 LANDLORD'S NON-LIABILITY
Tenant agrees that Landlord shall not be liable or responsible in any way
for any injury or death to any person or for any loss or damage to any property,
at any time on or about the Premises, no matter how the same shall be caused and
whether or not resulting from any such death, injury, loss or damage is caused
or contributed to by the negligence of Landlord, its servants, agents,
employees, contractors or persons for whom Landlord is in law responsible.
Without limiting the generality of the foregoing, Landlord shall not be liable
or responsible for any such injury, death, loss or damage to any persons or
property caused or contributed to by any of the following: fire, explosion,
steam, water, rain, snow, electricity, gas or falling plaster, or by dampness or
leaks from any pipes, appliances, plumbing works, roof, exterior walls or any
other source whatsoever. All property kept or stored in or about the Premises
shall be at the sole risk of Tenant and Tenant shall indemnify Landlord and save
it harmless in respect of the same. Without in any way limiting or affecting the
generality or interpretation of the foregoing provisions of this Section 12.5,
and notwithstanding the foregoing provisions of this Section 12.5, Landlord
shall in no event be liable for any indirect or consequential damages suffered
by Tenant or any others.
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12.6 INDEMNITY OF LANDLORD
Tenant shall indemnify Landlord and the Owners and all of their servants,
agents, employees, contractors, trustees of any REIT which has an interest in
the Premises and persons for whom Landlord is in law responsible and all other
tenants and occupants of the Premises and shall hold them and each of them
harmless from and against any and all liabilities, claims, damages, losses and
expenses, including all legal fees and disbursements, due to, arising from or to
the extent contributed to by:
(a) any breach by Tenant of any of the provisions of this Lease;
(b) any act or omission of any person on the Premises or any use or
occupancy of or any articles in the Premises;
(c) any injury, death or damage to persons or property of Tenant or its
servants, agents, employees, customers, contractors or any other
persons on the Premises;
(d) any damage, destruction or need of repair to any part of the
Premises.
12.7 LANDLORD'S EMPLOYEES AND AGENTS
Every indemnity, exclusion or release of liability and waiver of
subrogation contained in this Lease for the benefit of Landlord shall extent to
and benefit all of Landlord's servants, agents, employees and others for whom
Landlord is in law responsible. Solely for such purpose, and to the extent that
Landlord expressly chooses to enforce the benefits of this section for the
foregoing persons, it is agreed that Landlord is the agent or trustee for such
persons.
12.8 MUTUAL RELEASE
(a) Subject to subsection 12.8(b) below, each of Landlord and Tenant
hereby release the other and waive all claims against the other and
those for whom the other is in law responsible with respect to
occurrences insured against by the releasing party, whether any such
claims arise as a result of the negligence or otherwise of the other
or those for whom it is in law responsible.
(b) Such release and waiver shall be effective only to the extent of
proceeds of insurance received by the releasing party and proceeds
which would have been received if the releasing party obtained all
insurance required to be obtained by it under this Lease and for
this purpose deductible amounts shall be deemed to be proceeds of
insurance not received.
13. ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
13.1 CONSENT REQUIRED
(a) Tenant shall not assign this Lease in whole or in part and shall not
sublet or part with or share possession of all or any part of the
Premises and shall not grant any concessions, franchises, licences
or other rights to others to use any portion of the Premises (all of
the foregoing being hereinafter individually or collectively
referred to as "Transfer"; a party making a Transfer is referred to
as a "Transferor" and a party taking a Transfer is referred to as a
"Transferee") without the prior written consent of Landlord in each
instance, which consent may not be unreasonably withheld. Without
limiting or affecting the meaning or interpretation of the
foregoing, Landlord shall be entitled to arbitrarily or unreasonably
withhold its consent to a Transfer in respect of which Landlord
exercises its right to terminate this Lease, or to take a Transfer
of the Premises or any portion thereof, pursuant to Section 13.3.
(b) Notwithstanding and without in any way affecting or limiting the
interpretation of the foregoing, it is agreed that it shall be
reasonable for Landlord to withhold its consent to a Transfer unless
it is shown to Landlord's satisfaction that:
(i) the proposed Transferee has a good business and personal
reputation;
(ii) the proposed Transferee and its principal shareholders have
not been bankrupt, or the holder of twenty (20%) percent or
more of the issued shares of any class of shares of a
corporation or of an interest in a partnership, either of
which has been bankrupt, in the ten (10) years preceding the
date of the proposed Transfer;
(iii) the proposed Transferee has financial strength at least
sufficient to satisfy all of the obligations of Tenant
hereunder;
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(iv) Tenant is not in default under this Lease, the Rent Deposit
Agreement or any other agreement affecting the Premises; and
(v) without affecting the interpretation of Section 7.1 or any
other provision hereof, the business proposed to be carried on
by the Transferee on the Premises will not be materially more
burdensome on the Premises than the business previously
carried on by Tenant on the Premises.
(c) If Landlord withholds, delays or refuses to give consent to any
Transfer, whether or not Landlord is entitled to do so, Landlord
shall not be liable for any losses or damages in any way resulting
therefrom and Tenant shall not be entitled to terminate this Lease
or exercise any other remedy whatever in respect thereof except to
seek the order of a court of competent jurisdiction compelling
Landlord to grant any such consent which Landlord is obliged to
grant pursuant to the terms of this Lease.
(d) No Transfer may be made other than pursuant to an agreement in
writing of which a copy is given to Landlord together with the
request for consent. The provisions of this Article 13 shall apply
to any Transfer which might occur by inheritance or operation of
law.
(e) Notwithstanding anything contained in herein to the contrary and
provided the Tenant is Amram's Distributing Ltd. and, further,
provided the Tenant is not then in default under the terms of this
Lease, the Tenant shall be entitled without the prior written
consent of, but on at least thirty (30) days prior written notice
to, the Landlord to effect (i) a Transfer, Sale or Reorganization,
as such latter terms are hereinafter defined, to any entity which is
an affiliated corporation of Amram's Distributing Ltd. (as that term
is defined by the Business Corporations Act (Ontario), R.S.O. 1990,
as amended or replaced from time to time) or (ii) a sale of the
business of the Tenant, either by way of an asset or share sale, to
any third party (any such action described in clauses (i) or (ii)
being a "Permitted Transfer" and any such affiliate or third party
being a "Permitted Transferee"), provided that:
(i) it is shown to Landlord's reasonable satisfaction that the
financial strength of Tenant will not be adversely affected by
such Permitted Transfer (written confirmation of which has
been delivered by Landlord to Tenant);
(ii) prior to such Permitted Transfer being effective the Permitted
Transferee shall enter into an agreement in writing with the
Landlord on the Landlord's standard form of assumption
agreement agreeing with the Landlord to be bound by all of the
terms, covenants and conditions contained in this Lease as if
it were the tenant named in this Lease; and
(iii) such Permitted Transfer shall be otherwise subject to the
applicable Transfer provisions of this Lease, including the
requirement for Tenant to reimburse Landlord for all costs
associated with such Permitted Transfer.
Notwithstanding anything contained in the foregoing to the contrary,
if at any time such "affiliated corporation" ever ceases to be an
affiliated corporation of Amram's Distributing Ltd., there shall
thereupon be deemed to have occurred a Transfer requiring the
Landlord's consent.
13.2 OBTAINING CONSENT
All requests to Landlord for consent to any Transfer shall be made to
Landlord in writing together with a copy of the agreement pursuant to which the
proposed Transfer will be made and payment to Landlord of a deposit in the
amount of One Thousand ($1,000.00) Dollars on account of all costs incurred by
Landlord in considering and processing the request for consent including legal
costs and an administrative fee which Landlord shall be entitled to charge for
the processing of such request for consent and including all costs of completing
any documentation to implement any Transfer and all other agreements
contemplated hereby, all of which shall be prepared by Landlord or its solicitor
if required by Landlord. All costs incurred by Landlord in respect of any such
request for consent, including legal costs and Landlord's administrative fee,
shall be the responsibility of and shall be paid by Tenant forthwith upon
demand, whether or not Landlord grants its consent to any proposed Transfer.
All such requests to Landlord for consent to any Transfer shall also be
accompanied by such information in writing as a landlord might reasonably
require respecting a proposed Transferee and which might be required to provide
Landlord with all the information necessary to determine whether the
aforementioned factors are satisfied, and which information shall include,
without limitation, the name, business and home addresses and telephone numbers,
business experience, credit information and rating,
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financial position and banking and personal references and a description of
business to be conducted by the Transferee on the Premises and parking
requirements for such business.
13.3 LANDLORD'S OPTION
Notwithstanding the other provisions contained in this Article 13, after
Landlord receives a request for consent to a Transfer with the information and
copy of agreement hereinabove required, it shall have the option, to be
exercised by written notice to Tenant within fifteen (15) days after the receipt
of such request, information and agreement, to: (a) terminate this Lease as it
relates to the portion of the Premises which is the subject of the proposed
Transfer ("Transferred Premises"); or (b) take a Transfer from Tenant of the
Transferred Premises on the same terms as the Transfer in respect of which
Tenant has requested Landlord's consent, as aforesaid. If Landlord gives Tenant
notice either electing to terminate this Lease or to take a Transfer of the
Transferred Premises as aforesaid, Tenant shall have the right, to be exercised
by written notice to Landlord within ten (10) days after receipt of such notice
from Landlord, to withdraw the request for consent to the Transfer, in which
case Tenant shall not proceed with such Transfer, the notice from Landlord shall
be null and void and this Lease shall continue in full force and effect. If,
pursuant to this Section 13.3 Landlord terminates this Lease as it relates to a
portion of the Premises, or takes a Transfer of a portion of the Premises,
Tenant hereby grants to Landlord and any others permitted by Landlord the right,
in common with Tenant and all others entitled to use the same, to use for their
intended purposes all portions of the Premises in the nature of common areas
(such as corridors, washrooms, lobbies and the like) or which are reasonably
required for proper access to or use of the Transferred Premises (such as
reception area, interior corridors, mechanical or electric systems and ducts and
the like).
Notwithstanding anything contained in the foregoing to the contrary,
provided the Tenant is Amram's Distributing Ltd., the foregoing provisions of
this Section 13.3 shall not apply if the proposed Transfer is as the result of
the sale of the whole of the Tenant's business in the Premises as a going
concern.
13.4 TERMS OF TRANSFER
In the event of any Transfer, Landlord shall have the following rights, in
default of any of which no such Transfer shall occur or be effective:
(a) intentionally deleted;
(b) to require Tenant and the Transferee and any indemnifier in respect
of Tenant's obligations hereunder to enter into an agreement in
writing and under seal to implement any amendments to this Lease to
give effect to Landlord's exercise of any of its rights hereunder;
(c) to require the Transferee to enter into an agreement with Landlord
in writing and under seal to be bound by all of Tenant's obligations
under this Lease, and to waive any right it, or any person on its
behalf, may have to disclaim, repudiate or terminate this Lease
pursuant to any bankruptcy, insolvency, winding-up or other
creditors' proceeding, including, without limitation, the Bankruptcy
and Insolvency Act (Canada) or the Companies' Creditors Arrangement
Act (Canada), and to agree that in the event of any such proceeding
Landlord will comprise a separate class for voting purposes;
(d) to receive fifty percent (50%) of all amounts to be paid to Tenant
under the agreement in respect of such Transfer in excess of the
Rent payable under this Lease (for which Landlord is entitled to one
hundred (100%) percent) less only any consideration which is bona
fide being paid to Tenant for equipment, furnishings and other
property to be conveyed by Tenant as part of or together with the
transaction of Transfer and which is not reasonably attributable to
Tenant's interest in this Lease and less, in the case of a sublease,
all amounts receivable by Tenant under the sublease equal to the
amounts payable by Tenant hereunder each month during the term of
the sublease;
(e) to require the Transferee to waive any rights, pursuant to
subsections 17, 21 and 39(2) of the Commercial Tenancies Act
(Ontario) and any amendments thereto and any other statutory
provisions of the same or similar effect, to pay any Rent less than
the amount payable hereunder or to retain the unexpired Term of the
Lease, or any portion thereof or obtain any right to enter into any
lease or other agreement directly with Landlord for the Premises or
any portion thereof, or otherwise remain in possession of any
portion of the Premises;
(f) to require, if the Transfer is a sublease or other transaction other
than an assignment, that upon notice from Landlord to the Transferee
all amounts payable by the Transferee each month shall be paid
directly to Landlord who shall apply the same on account of Tenant's
obligations under this Lease;
(g) intentionally deleted.
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13.5 EFFECT OF TRANSFER
(a) No consent of Landlord to a Transfer shall be effective unless
given in writing and executed by Landlord under seal and no
such consent shall be deemed or presumed by any act or
omission of Landlord or by Landlord's failure to respond to
any request for consent or by Landlord's accepting any payment
of any amount payable hereunder from any party other than
Tenant. Without limiting the generality of the foregoing,
Landlord may collect rent and any other amounts from any
Transferee and apply the net amount collected to any Rent and
the collection or acceptance of any Rent shall not be deemed
to be a waiver of Landlord's rights under this section nor an
acceptance of or consent to any such Transfer or a release of
any of Tenant's obligations under this Lease. No Transfer and
no consent by Landlord to any Transfer shall constitute a
waiver of the necessity to obtain Landlord's consent to any
subsequent or other Transfer.
(b) In the event of any Transfer or any consent by Landlord to any
Transfer, Tenant shall not thereby be released from any of its
obligations hereunder but shall remain bound by all such
obligations pursuant to this Lease for the balance of the
Term. Tenant hereby consents to any further Transfers and to
any amendments of this Lease which may be made between the
Transferee and Landlord without the further consent or
agreement of Tenant ("Amendments") and Tenant also consents to
all Alterations (as referred to in Section 9) after any such
Transfer. Tenant shall continue to be bound by all of its
obligations pursuant hereto notwithstanding any such further
Transfers or any Amendments or Alterations, to the extent of
what would have been Tenant's obligations pursuant hereto had
such Amendments or Alterations not been made. If this Lease is
renewed or extended by any Transferee pursuant to any option
of Tenant, or if any Transferee exercises any option to lease
other premises pursuant to any option of Tenant, each
Transferor shall be liable for all of the obligations of
Tenant resulting from the exercise of either options
throughout the Term as renewed or extended.
(c) Every Transferee shall be obliged to comply with all of the
obligations of Tenant under this Lease. Tenant shall enforce
all of such obligations against each Transferee. Any default
of any Transferee shall also constitute a default of Tenant
hereunder.
(d) Tenant agrees that if this Lease is ever disclaimed,
repudiated or terminated by or on behalf of a Transferee
pursuant to any bankruptcy, insolvency, winding-up or other
creditors' proceeding, including any proceeding under the
Bankruptcy and Insolvency Act (Canada) or the Companies'
Creditors Arrangement Act (Canada), or if Landlord terminates
this Lease as a result of any act or default of any
Transferee, Tenant shall nonetheless remain responsible for
fulfilment of all obligations of Tenant hereunder for what
would have been the balance of the Term but for such
disclaimer, repudiation or termination and shall, upon
Landlord's request, enter into a new lease of the Premises for
such balance of the Term and otherwise on the same terms and
conditions as in this Lease subject to such amendments hereto
to which Tenant had agreed at any time prior to such
disclaimer, repudiation or termination, and with the exception
that Tenant will accept the Premises in "as is" condition.
13.6 NO ADVERTISING OF PREMISES
Tenant shall not advertise this Lease or all or any part of the
Premises or the business or fixtures or contents therein for sale without
Landlord's prior written consent, which consent Landlord shall not unreasonably
withhold subject to the other provisions hereof.
13.7 MORTGAGE OF LEASE
Tenant shall not assign, sublet, mortgage, charge or otherwise transfer
the Premises or this Lease for the purpose of securing any loan or the repayment
thereof by Tenant or any other obligation of Tenant.
13.8 CORPORATE TENANT
(a) Subject to Section 13.1(e), no: (I) transfer of the issued
shares in the capital stock or transfer, issuance or division
of any shares of the Tenant sufficient to transfer control to
others than the then present shareholders of the Tenant
(collectively called "Sale"); or (II) merger, amalgamation,
consolidation or other corporate restructuring or
reorganization of the Tenant (collectively called
"Reorganization") shall take place, without first obtaining
the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed. Tenant acknowledges that,
in addition to Landlord's rights under this Lease and at Law
to withhold consent to any Transfer, Landlord may withhold
consent to any Sale or Reorganization unless it is shown to
Landlord's reasonable satisfaction that the financial strength
of Tenant will not be adversely affected by such Sale or
Reorganization. In order to
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ascertain whether or not there has been any Sale or
Reorganization, Tenant shall make available for inspection by
Landlord and its Representatives at Tenant's office, the
corporate books and records of Tenant, provided that Landlord
shall not be entitled to make copies of any such information
and, prior to inspecting same, Landlord and its
representatives, if any, shall sign Tenant's confidentiality
agreement.
(b) This Section shall not apply to a Sale by Tenant if and as
long as Tenant is in occupancy of the Premises and is a
corporation whose shares are listed and traded on any
recognized public stock exchange in Canada or the United
States.
13.9 ASSIGNMENT BY LANDLORD
Landlord shall have the right to sell, lease, convey, mortgage, or
otherwise dispose of the Premises or any part thereof and to assign this Lease
and any interest of Landlord pursuant to this Lease without any restriction. If
Landlord shall sell, lease, convey, mortgage or otherwise dispose of the
Premises or any part thereof or shall assign this Lease and any interest of
Landlord pursuant to this Lease, then to the extent that the purchaser or
assignee agrees with Landlord to assume the covenants and obligations of
Landlord hereunder, Landlord shall thereupon and without further agreement be
released of all liability pursuant to the terms of this Lease.
14. STATUS AND SUBORDINATION OF LEASE
14.1 STATUS STATEMENT
Tenant shall, within ten (10) days after written request from Landlord,
execute and deliver to Landlord, or to any actual or proposed lender, purchaser
or assignee of Landlord, a statement or certificate in such form as requested by
Landlord stating with reasonable particularity (if such is the case, or stating
with reasonable particularity the manner in which such may not be the case):
(a) that this Lease is unmodified and in full force and effect, or
particulars of any such modifications or stating that this
Lease is not in full force and effect if such is the case;
(b) the date of commencement and expiry of the Term and the dates
to which Basic Rent and any other Rent, including any prepaid
rent have been paid;
(c) whether or not there is any existing default by either party
under this Lease and, if so, specifying such default;
(d) that there is no reason why the obligations of Tenant under
this Lease may not be fully enforced in accordance with their
terms and that there are no defences, counter claims or rights
of set-off in respect of any of the same;
(e) details of any matters in respect of which the party giving
the statement or certificate currently has a claim or right to
setoff, defence or counterclaim against the other party
hereto;
(f) particulars of any outstanding obligations, if any, or
default, if any, under any other agreement between the parties
which would affect the obligations of any of the parties
pursuant hereto;
(g) Intentionally Deleted; and
(h) agreement, confirmation or acknowledgement by Tenant that it
will not agree to any amendment, surrender or early
termination of this Lease and will not prepay any Rent by more
than one (1) month beyond the specific terms hereof, without
the prior written consent of any Landlord Assignee to which
such statement or certificate is given.
In the event of any sale or financing of the Premises by Landlord, Tenant shall
make available for inspection by Landlord and its Representatives at Tenant's
office, the corporate books and records of Tenant, provided that Landlord shall
not be entitled to make copies of any such information and, prior to inspecting
same, Landlord and its representatives, if any, shall sign Tenant's
confidentiality agreement.
14.2 SUBORDINATION
At the option of Landlord to be expressed in writing from time to time,
but subject to the delivery of a non-disturbance agreement, this Lease and the
rights of Tenant hereunder are and shall be subject and subordinate to any and
all mortgages, trust deeds and charges (any of which are herein called
"Mortgage" or "Mortgages") on or in any way affecting the Premises or any part
thereof now or in the future, including all
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renewals, extensions, modifications and replacements of any Mortgages from time
to time. Tenant shall at any time on notice from Landlord or holder of a
Mortgage attorn to and become a tenant of the holder of any of such Mortgages
upon the same terms and conditions as set forth herein, and shall execute
promptly on request by Landlord any certificates, agreements, instruments of
postponement or attornment, or other such instruments or agreements as requested
from time to time to postpone or subordinate this Lease and all of Tenant's
rights hereunder to any of such Mortgages or to otherwise give full effect to
any of the provisions of this Article 14.
Tenant agrees to attorn to and become the tenant of any party whose
title to the Premises is superior to that of Landlord or to any assignee from
Landlord of Landlord's interest under this Lease upon the same terms and
conditions as are set forth in this Lease and shall execute promptly on request
any agreements or instruments of attornment to give effect to such attornment as
shall be requested by Landlord at any time and from time to time.
Notwithstanding the foregoing provisions of this Section 14.2, the
Tenant shall not be required to deliver any of the agreements or other documents
referred to in this Section 14.2 unless the Tenant has received a
non-disturbance agreement from the relevant party.
14.3 Intentionally deleted
14.4 REGISTRATION
Tenant shall not register this Lease or any short form or notice
hereof, except in Landlord's form prepared by Landlord on Tenant's request or in
such form as has been approved by Landlord in writing. The cost of preparation,
approval, execution and registration of any notice or short form of this Lease
or other document to be registered by Tenant shall be borne by Tenant and shall
be paid by Tenant forthwith upon demand. If Tenant registers or causes or
permits there to be registered against the title to the Premises any short form
or notice of this Lease or other document, Tenant shall forthwith provide to
Landlord details of such registration and a duplicate registered copy of the
registered document. Tenant agrees to remove such registration from title to the
Premises upon the expiry or earlier termination of this Lease.
15. DEFAULT AND REMEDIES
15.1 DEFAULT AND REMEDIES
If any of the following shall occur:
(a) Tenant shall fail, for any reason, to make any payment of Rent
as and when the same is due to be paid hereunder and such
default shall continue for five (5) days after such payment
was due, whether or not notice is given to Tenant;
(b) Tenant shall fail, for any reason, to perform any other
covenant, condition, agreement or other obligation on the part
of Tenant to be observed or performed pursuant to this Lease
(other than the payment of any Rent), the Rent Deposit
Agreement, Letter of Credit Agreement or any other agreement
between the parties, whether or not related to the Premises
(except for such events described in subsections 15.1(c)
through 15.1(l) for which no cure period is available), and
such default shall continue for fifteen (15) days after
written notice thereof or such shorter period as expressly
provided herein;
(c) Tenant shall purport to make a Transfer affecting the
Premises, or the Premises shall be used by any person or for
any purpose, other than in compliance with and as expressly
authorized by this Lease;
(d) Tenant shall make an assignment for the benefit of creditors
or become bankrupt or insolvent or take the benefit of any
statute for bankrupt or insolvent debtors or make any
proposal, assignment, arrangement or compromise with its
creditors, or, if any steps are taken or action or proceedings
commenced by any person for the dissolution, winding up or
other termination of Tenant's existence or liquidation of its
assets;
(e) a trustee, receiver, receiver-manager, manager, agent or other
like person shall be appointed in respect of the assets or
business of Tenant;
(f) Tenant attempts to or does abandon the Premises;
(g) Tenant makes any sale in bulk affecting any property on the
Premises (other than in the ordinary course of business or in
conjunction with a Transfer approved in writing by Landlord
and made pursuant to all applicable legislation);
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(h) this Lease or any goods or other property of the Tenant shall
at any time be seized or taken in execution or attachment
which remains unsatisfied for a period of five (5) days or
more;
(i) termination or re-entry by Landlord is permitted under any
provision of this Lease or at law;
(j) a writ of execution has been filed against the Tenant with
respect to the Premises;
(k) there is a default under any other agreement relating to the
Premises;
then, without prejudice to and in addition to any other rights and remedies to
which Landlord is entitled pursuant hereto or at law, the then current and the
next three (3) months' Rent shall be forthwith due and payable and Landlord
shall have the following rights and remedies, all of which are cumulative and
not alternative, to:
(i) terminate this Lease in respect of the whole or any
part of the Premises by written notice to Tenant (it
being understood that actual possession shall not be
required to effect a termination of this Lease and
that written notice, alone shall be sufficient); if
this Lease is terminated in respect of part of the
Premises, this Lease shall be deemed to be amended by
the appropriate amendments, and proportionate
adjustments in respect of Rent and any other
appropriate adjustments shall be made;
(ii) terminate this Lease by notice to Tenant without
re-entering the Premises provided that such
termination notice permits Tenant to remain on the
Premises as a tenant at will; Tenant agrees that, if
Landlord serves a notice of termination which, among
other things, permits Tenant to remain in possession
of the Premises as a tenant at will, this Lease will
thereupon be terminated and Tenant shall be a tenant
at will and Landlord may re-enter the Premises at any
time thereafter without further notice;
(iii) enter the Premises as agent of Tenant and as such
agent to relet them for whatever term (which may be
for a term extending beyond the Term) and on whatever
terms and conditions as Landlord in its sole
discretion may determine and to receive the rent
therefor and, as the agent of Tenant, to take
possession of any furniture, fixtures, equipment,
stock or other property thereon and, upon giving
written notice to Tenant, to store the same at the
expense and risk of Tenant or to sell or otherwise
dispose of the same at public or private sale without
further notice, and to make such alterations to the
Premises in order to facilitate their reletting as
Landlord shall determine, and to apply the net
proceeds of the sale of any furniture, fixtures,
equipment, stock or other property or from the
reletting of the Premises, less all expenses incurred
by Landlord in making the Premises ready for
reletting and in reletting the Premises, on account
of the Rent due and to become due under this Lease
and Tenant shall be liable to Landlord for any
deficiency and for all such expenses incurred by
Landlord as aforesaid; no such entry or taking
possession of or performing alterations to or
reletting of the Premises by Landlord shall be
construed as an election on Landlord's part to
terminate this Lease unless a written notice of such
intention or termination is given by Landlord to
Tenant;
(iv) remedy or attempt to remedy any default of Tenant in
performing any repairs, work or other covenants of
Tenant hereunder and, in so doing, to make any
payments due or claimed to be due by Tenant to third
parties and to enter upon the Premises, without any
liability to Tenant therefor or for any damages
resulting thereby, and without constituting a
re-entry of the Premises or termination of this
Lease, and without being in breach of any of
Landlord's covenants hereunder and without thereby
being deemed to infringe upon any of Tenant's rights
pursuant hereto, and, in such case, Tenant shall pay
to Landlord forthwith upon demand all amounts paid by
Landlord to third parties in respect of such default
and all reasonable costs of Landlord in remedying or
attempting to remedy any such default plus fifteen
(15%) percent of the amount of such costs for
Landlord's inspection, supervision, overhead and
profit;
(v) obtain damages from Tenant including, without
limitation, if this Lease is terminated by Landlord,
all deficiencies between all amounts which would have
been payable by Tenant for what would have been the
balance of the Term, but for such termination, and
all net amounts actually received by Landlord for
such period of time;
(vi) intentionally deleted;
(vii) intentionally deleted; and
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(viii) if this Lease is terminated due to the default of
Tenant, or if it is disclaimed, repudiated or
terminated in any insolvency proceedings related to
Tenant (collectively "Termination"), to obtain
payment from Tenant of the value of all tenant
inducements which are received by Tenant pursuant to
the terms of this Lease, the agreement to enter into
this Lease or otherwise, including, without
limitation, the amount equal to the value of any
leasehold improvement allowance, tenant inducement
payment, rent free periods, lease takeover, Leasehold
Improvements or any other work for Tenant's benefit
completed at Landlord's cost and moving allowance,
which value shall be multiplied by a fraction, the
numerator of which shall be the number of months from
the date of Termination to the date which would have
been the natural expiry of this Lease but for such
Termination, and the denominator of which shall be
the total number of months of the Term as originally
agreed upon.
15.2 Intentionally deleted
15.3 INTEREST AND COSTS
(a) All amounts of Rent shall bear interest from their respective
due dates until the actual dates of payment at a rate which
shall be three (3%) percent per annum in excess of the rate of
interest known as the prime rate of interest charged by
Landlord's bank in Ontario and which serves as the basis on
which other interest rates are calculated for Canadian dollar
loans in Ontario from time to time ("Prime Rate").
(b) Further, on each occurrence of default in the payment of Rent,
Tenant shall pay to Landlord on demand in addition to the
aforesaid interest an administration fee equal to the greater
of: (i) Five Hundred ($500.00) Dollars; and (ii) two percent
(2%) of the amount of Rent in default.
(c) The amounts payable pursuant to subsections 15.3(a) and (b)
above shall only become payable upon demand but shall, for
clarification, accrue from the respective due dates of the
relevant payments, whether demanded or not, to the date of
payment.
(d) Tenant shall be responsible for and pay to Landlord forthwith
upon demand all costs incurred by Landlord, including, without
limitation and without duplication of subsection 15.3(b),
reasonable compensation for all time expended by Landlord's
own personnel, legal costs on a substantial indemnity basis,
and all other costs of any kind whatsoever, arising from or
incurred as a result of any default of Tenant or any
enforcement by Landlord of any of Tenant's obligations under
this Lease or any other agreement or obligation of Tenant to
Landlord, whether or not related to the Premises including,
but not limited to, witness costs (such as transportation,
accommodation and the like).
15.4 BANKRUPTCY AND INSOLVENCY
Tenant hereby waives any right it, or any person on its behalf, may
have to disclaim, repudiate, terminate or compromise this Lease pursuant to any
bankruptcy, insolvency, winding-up or other creditors proceeding, including,
without limitation, the Bankruptcy and Insolvency Act (Canada) or the Companies'
Creditors Arrangement Act (Canada) ("Insolvency Proceedings") and agrees that in
the event of any such proceeding Landlord will comprise a separate class for
voting purposes. If this Lease is disclaimed, repudiated, terminated or
compromised pursuant to any Insolvency Proceedings, the Tenant shall pay to the
Landlord the Termination Payment to be calculated as of the day prior to the
date of such disclaimer, repudiation, termination or compromise.
15.5 Intentionally deleted
15.6 Intentionally deleted
15.7 LANDLORD'S RIGHT OF DISTRESS
(a) Tenant hereby waives and renounces the benefit of any present
or future statute taking away or limiting or purporting to
limit Landlord's right of distress and agrees with Landlord
that, notwithstanding any such statute, all goods and chattels
from time to time on the Premises shall be subject to distress
for Rent and the fulfilment of all of Tenant's obligations
under this Lease in the same manner as if such statute had not
been passed.
(b) In addition to any other rights of Landlord to distrain, but
subject to the terms of any agreement entered into by Landlord
with any of Tenant's lenders, Landlord shall have the right to
distrain for any arrears of Rent all goods and chattels,
including without limitation all
- 29 -
heavy or connected machinery and equipment. Landlord may
exercise any right of distress on the Premises and for such
purpose may lock the Premises, change any locks on the
Premises and by any means exclude Tenant from all or any parts
of the Premises and Landlord shall not thereby be terminating
this Lease in the absence of express written notice
terminating this Lease. Tenant consents to being excluded by
Landlord from all or any parts of the Premises for purposes of
Landlord's exercising any right of distress.
(c) Tenant further agrees that distress of all or any goods and
chattels may be effected by written notice whether or not
Landlord locks or otherwise secures such goods or chattels
from Tenant on the Premises or elsewhere.
(d) If Landlord effects distress by written notice or any other
means, Tenant agrees not to remove or permit to be removed any
distrained goods or chattels and not to interfere with the
exercise of any right of distress.
(e) Tenant agrees that Landlord's exercise of any right of
distress as permitted hereby or at law shall not constitute a
trespass or breach of any express or implied term of this
Lease. Landlord shall not be liable for loss or damage to
goods or chattels against which distress is levied no matter
how caused except to the extent of direct (and not indirect or
consequential) damage caused by the gross negligence of
Landlord or its employees; but Landlord shall not be liable
for any loss or damage caused by its bailiff or any agent
through negligence or otherwise.
(f) In exercising any right of distress, Landlord may distrain
against all or any goods or chattels, irrespective of whether
or of the degree to which the same may be excessive and Tenant
waives any and all rights and remedies in respect thereof,
including all rights under the Commercial Tenancies Act
(Ontario).
(g) In exercising any right of distress, Landlord may hold all
distrained goods or chattels without limit in time and Tenant
waives all rights and remedies in respect thereof.
(h) In addition to others entitled to do so, Landlord and its
agents and employees shall have the right to purchase any
goods or chattels on the Premises distrained by Landlord so
long as the price paid by Landlord or its agents or employees
is reasonably comparable to that which might reasonably be
obtained by sale under distress to an arm's length third
party.
(i) If any goods or chattels of Tenant shall be removed from the
Premises, Landlord shall have the right to follow the same and
exert against the same all of its rights as if such goods and
chattels had remained on the Premises, such right of Landlord
to include, without limitation, the right to follow such goods
and chattels for thirty (30) days in the same manner as is
provided for in the Commercial Tenancies Act (Ontario).
(j) Intentionally deleted
15.8 Intentionally deleted
15.9 Intentionally deleted
15.10 REMEDIES TO SUBSIST
(a) No waiver of any of Tenant's obligations under this Lease and
no waiver of any of Landlord's rights hereunder in respect of
any default by Tenant hereunder shall be deemed to have
occurred or be given as a result of any condoning, excusing,
overlooking or delay in acting upon by Landlord in respect of
any default by Tenant or by any other act or omission of
Landlord including, without limitation, the acceptance of any
Rent less than the full amount thereof, the acceptance of any
Rent after the occurrence of any default by Tenant, or any
verbal or written statements or agreements made by any
employee of Landlord other than an agreement in writing duly
executed on behalf of Landlord by one of its personnel with
ostensible authority to do so. No waiver of any of Tenant's
obligations or any of Landlord's rights hereunder shall be
effective except and only to the extent of any express waiver
in writing duly executed on behalf of Landlord by one of its
personnel with ostensible authority to do so. The waiver by
Landlord of any default of Tenant or of any rights of Landlord
in respect of any term, covenant or condition herein shall not
be deemed to be a waiver of any subsequent default of Tenant
or rights of Landlord in respect of such term, covenant or
condition.
(b) All rights and remedies of Landlord under this Lease and at
law shall be cumulative and not alternative, and the exercise
by Landlord of any of its rights pursuant to this Lease or at
law
- 30 -
shall at all times be without prejudice to any other rights of
Landlord, whether or not they are expressly reserved. Tenant's
obligations under this Lease shall survive the expiry or
earlier termination of this Lease and shall remain in full
force and effect until fully complied with.
(c) If Landlord assigns this Lease to a mortgagee or holder of
other security on the Premises or any part thereof or to any
other person whatsoever Landlord shall nonetheless be entitled
to exercise all rights and remedies available to it pursuant
to this Lease and at law without providing evidence of the
approval or consent of such mortgagee, holder of other
security or other person whatsoever.
(d) All Rent shall be paid by Tenant to Landlord without
deduction, abatement or set-off whatsoever, except as and to
the extent expressly permitted pursuant to the terms of this
Lease, and Tenant hereby waives any rights of deduction,
abatement or set-off available to it now or at any time in the
future, including any right to deduction, abatement or set-off
contained in any statute.
15.11 IMPOSSIBILITY OF PERFORMANCE
If and to the extent that either Landlord or Tenant shall be unable to
fulfill or shall be delayed or restricted in the fulfilment of any obligation
under this Lease, other than the payment by Tenant of any Rent, by reason of
unavailability of material, equipment, utilities, services or labour required to
enable it to fulfill such obligation or by reason of any Laws, or by reason of
any strike, lock out, civil commotion, war-like operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations, or
its not being able to obtain any permission or authority required pursuant to
any applicable Laws or by reason of any other such cause beyond its control and
not the fault of the party being delayed and not avoidable by the exercise of
reasonable foresight (excluding the inability to pay for the performance of such
obligation), then the party being delayed shall be entitled to extend the time
for fulfilment of such obligation by a time equal to the duration of such delay
or restriction, and the other party shall not be entitled to any compensation
for any loss, inconvenience, nuisance or discomfort occasioned thereby. The
party delayed will, however, use its best efforts to fulfil the obligation in
question as soon as is reasonably practicable by arranging an alternate method
of providing the work, services or materials being delayed subject, in the case
of performance by Tenant, to the approval of Landlord in its sole and absolute
discretion. In any event, the provisions of this subsection 15.11 shall not
apply to permit any delay in any payment by Tenant of any Rent.
15.12 TENANT'S LICENCES
Tenant shall during the whole of the Term maintain in good standing and
in accordance with all Laws all licences and permits of any kind whatever
required for the proper conduct by Tenant of its business pursuant to the terms
hereof (all of which licences and permits are hereinafter in this Section 15.12
referred to as "Licences").
16. CHANGES AND ENTRY TO PREMISES
16.1 LANDLORD'S CONTROL
Landlord shall have the right to: (a) obstruct or close off or restrict
entry to all or any part of the Premises for purposes of performing any
maintenance, repairs or replacements or for security purposes or to prevent the
accrual of any rights to any person or the public or any dedication thereof; or
(b) grant, modify or terminate any easements or other agreements respecting any
use or occupancy, or maintenance of or supply of services to, any part of the
Premises; provided that in exercising any of the foregoing rights Landlord shall
use reasonable best efforts to minimize interference with Tenant's access to and
use of the Premises.
16.2 CHANGES TO PREMISES
Tenant shall, from time to time, make such changes in, additions to,
deletions from or relocations of any part of the Premises as are required to
comply with all applicable Laws (any of which are herein referred to as
"Changes"). If Tenant fails to make any such Changes, Landlord shall have the
right to make such Changes as Landlord shall consider necessary, provided that
the Premises, as affected by such Changes, shall be substantially the same in
size and shall be in all other material respects reasonably comparable to the
Premises originally demised hereby. Tenant shall not have the right to object to
or make any claim on account of the exercise by Landlord of any of its rights
under this Section 16.2, except that Tenant shall be entitled to an abatement of
Basic Rent for any period of time that Tenant is unable to conduct business in
the Premises as a result of the making of such Changes. Landlord shall make any
such Changes as expeditiously as is reasonably possible and so as to interfere
as little as is reasonably possible with Tenant's business on the Premises.
- 31 -
16.3 ACCESS TO PREMISES
(a) Without limiting any other rights, Landlord may have pursuant
hereto or at law, Landlord shall have the right, but not the
obligation, to enter the Premises at any reasonable time on
reasonable prior notice to the Tenant (except in the case of
an emergency, in which case no notice shall be required), for
any of the following purposes:
(i) to examine the Premises and to perform any
maintenance, repairs or alterations to any part of
the Premises or to any equipment and services serving
the Premises, as may be permitted by this Lease;
(ii) in cases of emergency;
(iii) to read any utility or other meters;
(iv) during the last twelve (12) months of the Term to
show the Premises to prospective tenants and to
permit prospective tenants to make inspections,
measurements and plans;
(v) at any time during the Term to show the Premises to
prospective purchasers or lenders;
(vi) to protect the Premises in respect of any
construction or other work being performed in
premises adjoining or in the vicinity of the
Premises; and
(vii) to exercise any of the rights available to Landlord
pursuant to this Lease.
(b) Landlord shall exercise its rights pursuant to this Section
16.3 in such manner and at such times as Landlord, acting
reasonably but in its sole discretion, shall determine. At any
time that entry by Landlord is desired in case of emergency,
and if no personnel of Tenant are known by Landlord to be
present on the Premises or if such personnel fail for any
reason to provide Landlord immediate access at the time such
entry is desired, Landlord may forcibly enter the Building
without liability for any damage caused thereby.
16.4 EXPROPRIATION
If the Premises or any part thereof shall be expropriated (which for
the purposes of this Article 16 shall include a sale by Landlord to any
authority with the power to expropriate, in lieu of expropriation) by any
competent authority, then:
(a) Landlord and Tenant shall co-operate with each other so that
Tenant may receive such award to which it is entitled in law
for relocation costs, business interruption, and the value of
leasehold improvements paid for by Tenant and the amortized
portion, if any, of leasehold improvements paid for by
Landlord, and so that Landlord may receive the maximum award
to which it may be entitled in law for all other compensation
arising from such expropriation including, without limitation,
all compensation for the value of Tenant's leasehold interest
in the Premises;
(b) except for such compensation to which Tenant shall be entitled
as aforesaid, all Tenant's other rights in respect of such
expropriation are hereby assigned to Landlord, and within ten
(l0) days after request by Landlord Tenant shall execute such
further documents as requested by Landlord to give effect to
such assignment; and
(c) Landlord shall have the option, to be exercised by written
notice to the Tenant, to terminate this Lease, effective on
the date the expropriating authority takes possession of the
whole or any portion of the Premises.
17. MISCELLANEOUS
17.1 NOTICES
All notices, demands, requests or other instruments ("Notices") which
may be or are required to be given under this Lease shall be in writing and
shall be delivered in person or sent by prepaid registered Canadian mail if to
Tenant, at the Address for Service of Notice on Tenant, and if to Landlord, at
the Address for Service of Notice on Landlord, all as provided in section 1
hereof.
All such Notices shall be conclusively deemed to have been given and
received upon the day the same is personally delivered or, if mailed as
aforesaid, four (4) business days (excluding Saturdays, Sundays, holidays and
days upon which regular postal service is interrupted or unavailable for any
reason) after the
- 32 -
same is mailed as aforesaid. Any party may at any time by notice in writing to
the other change the Address for Service of Notice on it. If two or more persons
are named as Tenant or Indemnifier, any Notice given hereunder shall be
sufficiently given if delivered or mailed in the foregoing manner to any one of
such persons.
17.2 PLANNING ACT
This Lease is entered into subject to the provisions of and compliance
with the provisions of all applicable legislation dealing with planning
restrictions. If the Term, including any rights of renewal under this Lease,
shall be expressed to extend for a period in excess of the maximum period for
which a lease may be granted without the consent of the body having jurisdiction
pursuant to such legislation ("Maximum Period"), then, until any necessary
consent to this Lease is obtained pursuant to the provisions of the applicable
legislation, the Term together with any rights of renewal pursuant to this Lease
shall be conclusively deemed to extend for the Maximum Period less one (1) day
from the Commencement Date; any application required to obtain any necessary
consent pursuant to the applicable legislation shall be prosecuted by Tenant and
Tenant shall be solely responsible for all costs of such application and all
costs, levies and charges of any kind whatever which shall be charged or imposed
as a result of the application for consent pursuant to the applicable
legislation and to obtain such consent. Tenant shall provide to Landlord copies
of all applications, correspondence and other documents in respect of any
application for consent pursuant to such legislation and shall keep Landlord
informed of all matters relating to the prosecution of such application.
Notwithstanding the foregoing, Landlord shall have the right, at its option, to
apply for any such consent and if Landlord does so, Tenant shall bear the full
cost thereof and shall be responsible for all costs, levies and other charges
charged or imposed as a result of such application or in order to obtain such
consent.
17.3 COMPLETE AGREEMENT
It is understood and agreed that other than and to the extent that any
other written agreement between Landlord and Tenant respecting the Premises
expressly by its terms remains in force, this Lease constitutes the complete
agreement between the parties and that there are no covenants, representations,
agreements, warranties or conditions in any way relating to the subject matter
of this Lease or the tenancy created hereby, expressed or implied, collateral or
otherwise, except as expressly set forth herein. Tenant acknowledges that no
representatives of Landlord are authorized to make on Landlord's behalf any
covenants, representations, agreements, warranties or conditions of any kind or
in any manner whatsoever other than as expressly set forth in writing.
No amendment to this Lease shall be binding upon a party unless the
same is in writing and executed by such party.
17.4 Intentionally deleted
17.5 TIME OF THE ESSENCE
Time is of the essence of this Lease and all parts hereof.
17.6 APPLICABLE LAW
This Lease shall be governed by and interpreted in accordance with the
laws of the Province of Ontario. The parties agree that the Courts of Ontario
shall have jurisdiction to determine any matters arising hereunder, except to
the extent, if any, expressly provided to the contrary herein, and the parties
hereby attorn to the jurisdiction of the Courts of Ontario.
17.7 SEVERABILITY
If any provision of this Lease or any portion thereof or the
application of any of the same is illegal, unenforceable or invalid, it shall be
considered separate and severable from this Lease and all of the remaining
provisions hereof shall remain in full force and effect as though any such
provision of this Lease or any portion thereof had not been included in this
Lease but such provision of this Lease or portion hereof shall nonetheless
continue to be enforceable to the full extent permitted by law.
Neither party is obliged to enforce this Lease to the extent that by so
doing they would be contravening any applicable Laws.
17.8 SECTION NUMBERS AND HEADINGS
The table of contents of this Lease and all section numbers and all
headings are inserted as a matter of convenience only and shall in no way limit
or affect the interpretation of this Lease.
- 33 -
17.9 INTERPRETATION
Whenever a word importing singular or plural is used in this Lease,
such word shall include the plural and singular respectively. Where any party is
comprised of more than one entity, the obligations of each of such entities
shall be joint and several. Words importing either gender or firms or
corporations shall include persons of the other gender and firms or corporations
as applicable. Subject to the express provisions contained in this Lease, words
such as "hereof", "herein", "hereby", "hereinafter", and "hereunder" and all
similar words or expressions shall refer to this Lease as a whole and not to any
particular section, or portion hereof being less than the whole.
17.10 SUCCESSORS
This Lease and all portions hereof shall enure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors, assigns and other legal representatives excepting
only that this Lease shall not enure to the benefit of any of such parties
unless and only to the extent expressly permitted pursuant to the provisions of
this Lease.
17.11 PRIVACY POLICY
Tenant hereby consents to the collection, use and disclosure of
personal information collected by or on behalf of Landlord by Bentall Real
Estate Services Limited Partnership ("Bentall") or any of Landlord's or
Bentall's agents, affiliates, or service providers for the purposes of: (i)
considering this Lease and determining the suitability of Tenant both for the
initial Term and any renewals or extensions thereafter, if applicable; (ii)
taking action for collection of Rents in the event of default by Tenant; (iii)
facilitating the pre-authorization payment plan, if applicable; and (iv)
otherwise complying with Bentall's Privacy Policy, a copy of which is available
at www.Bentall.com. Consent under this Lease includes the disclosure of such
information to credit agencies, collection agencies and existing or potential
lenders, investors and purchasers. Tenant also consents to, and confirms its
authority to consent to Bentall's collection, use and disclosure, for such
purposes, of personal information about employees of Tenant and other
individuals whose personal information is provided to or collected by Bentall in
connection with this Lease.
18. LIMITATION OF LIABILITY
If Landlord or any assignee of the beneficial rights of Landlord is
ever a Real Estate Investment Trust (a "REIT"), then Tenant acknowledges and
confirms that the obligations of Landlord hereunder are not and will not be
binding on a trustee of the REIT, any registered or beneficial holder of one or
more units of a REIT ("Unitholder") or any annuitant under a plan of which such
a Unitholder acts as trustee or carrier, or any officers, employees or agents of
the REIT and that resort shall not be had to, nor shall recourse or satisfaction
be sought from, any of the foregoing or the private property of any of the
foregoing and for clarity, Tenant's recourse, if any, in respect of the
obligations of the REIT shall be limited to the REIT's interest in the Premises.
19. INDEPENDENT LEGAL ADVICE
Tenant acknowledges the suggestion of Landlord that, before executing
this Lease, Tenant should obtain independent legal advice and acknowledges that
same has been received.
20. COUNTERPARTS AND FACSIMILE
This Lease may be executed in counterparts, each of which shall be
deemed to be an original and all of which taken together shall be deemed to
constitute one and the same instrument. This Lease may be transmitted by
telecopier and the reproductions of signatures by way of telecopier will be
treated as though such reproductions were executed originals and each party
undertakes to provide the other with a copy o this Lease bearing original
signatures within a reasonable time after the date of execution.
- 34 -
IN WITNESS WHEREOF the parties have executed this Lease.
WESTPEN PROPERTIES LTD.
Per: /s/ Francis Navaratnam
-----------------------------------------
Name: Francis Navaratnam
Title:
Per: /s/ Paul Zemla
--------------------------------------
Name: Paul Zemla
Title:
I/We have authority to bind the Corporation.
AMRAM'S DISTRIBUTING LTD.
Per: /s/ Elliot Rivkin
-----------------------------------------
Name: Elliot Rivkin
Title: President
Per: c/s
--------------------------------------
Name:
Title:
I/We have authority to bind the Corporation.
SCHEDULE "A"
LEGAL DESCRIPTION OF PREMISES
PIN Nos. 14021-0257 (LT) and 14021-0155 (LT).
SCHEDULE "B"
OUTLINE PLAN OF PREMISES
Intentionally deleted
SCHEDULE "C"
SPECIAL PROVISIONS
1. CONDITIONS TO TENANT'S RIGHTS
If:
(a) Tenant is not in default and has not habitually been in
default during the Term;
(b) Tenant has not become insolvent or bankrupt, and has not made
any assignment for the benefit of creditors and has not,
becoming bankrupt or insolvent, taken the benefit of any Act
now or hereafter in force for bankrupt or insolvent debtors;
(c) a petition in bankruptcy has not been filed against Tenant and
a receiving order has not been made against Tenant, and no
proceedings have been commenced respecting the winding-up or
termination of the existence of Tenant; and
(d) no receiver or other person has taken possession or effective
control of the assets or business of Tenant or a substantial
portion thereof pursuant to any security or other agreement or
by any other means whatsoever, and there are no outstanding
writs of execution against Tenant;
(e) Tenant and/or its Permitted Transferee is in occupation of all
or a substantial portion of the Premises;
then, and only then, Tenant shall have the rights conferred under Sections 2 and
3 of this Schedule "C".
2. OPTION TO EXTEND
(a) Subject to Section 1 and 3 of this Schedule "C", Tenant shall
have the option to extend the Lease for One (1) further term
of Five (5) years (the "Extension Term"). Such extension shall
be on the same terms and conditions as contained in the Lease,
except that: (i) there shall be no further right to extend
after the expiry of the Extension Term; (ii) the Basic Rent
shall be such amount as determined pursuant to subsection (b)
of this section; and (iii) there shall be no tenant's
allowance or rent-free period for the Extension Term and the
Premises shall be accepted by Tenant in "as is" condition at
the commencement of the Extension Term without Landlord being
required to perform any work. Such right to extend shall be
exercisable by notice to Landlord ("Extension Notice") by,
subject to the provisions of Subsection 3(a) below, not later
than nine (9) months prior to the expiry of the original Term
hereof, failing which such right shall be null and void and
forever extinguished.
(b) The Basic Rent for the Extension Term shall be the market rent
for the Premises ("Market Rent"). As used herein, "Market
Rent" means the annual rental which could reasonably be
obtained by Landlord for the Premises from a willing tenant or
willing tenants dealing at arms' length with Landlord in the
market prevailing for a term commencing on the commencement
date of the Extension Term, having regard to all relevant
circumstances including the size and location of the Premises,
the facilities afforded, the terms of the lease thereof
(including its provisions for Additional Rent), the condition
of the Premises and the extent and quality of the improvements
therein (disregarding Tenant's trade fixtures and also
disregarding any deficiencies in the condition and state of
repair of the Premises as a result of Tenant's failure to
comply with its obligations hereunder in respect of the
maintenance and repair of the Premises) and the use of the
Premises and having regard to rentals currently being obtained
for comparable space in other buildings comparably located.
The Market Rent for the Extension Term shall be as agreed upon
between Landlord and Tenant or, failing agreement by Landlord
and Tenant by not later than three (3) months prior to the
expiry of the Term hereof, the Market Rent shall be
established in the manner set out in subsection (c) of this
section. In the event that the Basic Rent payable during the
Extension Term has not been determined prior to the
commencement of the Extension Term, then until such
determination has been made, Tenant shall pay Basic Rent at a
rate equal to one hundred and twenty-five (125%) percent of
the Basic Rent payable during the last year of the original
Term hereof. Upon determination of the Basic Rent for the
Extension Term, either Landlord shall pay to Tenant any
excess, or Tenant shall pay to Landlord any deficiency, in the
payments of Basic Rent previously made by Tenant.
(c) Either Landlord or Tenant (the "Requesting Party") shall be
entitled to notify the other party hereto (the "Receiving
Party") of the name of an expert for the purpose of
determining the Market Rent. Within fifteen (15) days after
such notice from the Requesting Party, the
- 2 -
Receiving Party shall notify the Requesting Party either
approving the expert proposed by the Requesting Party or
naming another expert for the purpose of determining the
Market Rent. Should the Receiving Party fail to give notice to
the Requesting party within the said fifteen (15) day period,
the expert named in the notice given by the Requesting Party
shall perform the expert's functions hereinafter set forth. If
Landlord and Tenant are unable to agree upon the selection of
the expert within fifteen (15) days after such notice from the
Receiving Party to the Requesting Party, then either party
shall be entitled to apply to a court to appoint an expert in
the same manner as an arbitrator may be appointed by a court
under the Arbitration Act, 1991 (Ontario), as amended or
replaced. The expert appointed, either by Landlord and/or
Tenant or by a court, shall be qualified by education,
experience and training to value real estate for rental
purposes in the Province of Ontario and have been ordinarily
engaged in the valuation of real property in the municipality
in which the Project is located for at least the immediately
preceding five (5) years. Within thirty (30) days after being
appointed the expert shall make a determination of the Market
Rent for the Extension Term, without receiving evidence from
either Landlord or Tenant. The cost of such determination
shall be borne by the parties equally. The determination of
the expert as to the Market Rent shall be conclusive and
binding upon Landlord and Tenant and not subject to appeal.
(d) Tenant shall execute such documentation as is required by
Landlord to give effect to the foregoing.
3. RIGHT TO EXPAND
(a) Subject to:
(i) the provisions of Section 1 of this Schedule "C";
(ii) Tenant's delivery to Landlord of financial
information reasonably satisfactory to Landlord in
order to enable Landlord to satisfy itself that the
financial strength of the Tenant is substantially as
good as it was on the Commencement Date;
(iii) Landlord being able to obtain a building permit and
all development approvals;
(iv) Landlord being able to obtain the consent of its
lender, which consent Landlord agrees to use
commercially reasonable efforts to obtain,
at any time during the first seven (7) years of the initial
Term only, Tenant may deliver written notice to Landlord
("Expansion Notice") requiring Landlord to construct expansion
premises ("Expansion Premises") comprising, at the Tenant's
option, either:
(A) approximately Forty-Eight Thousand (48,000)
square feet of Rentable Area, containing
approximately Thirty-Eight Thousand (38,000)
square feet of warehouse premises and
approximately Ten Thousand (10,000) square
feet of office premises, as shown on
Schedule "C-1"; or
(B) approximately Thirty-Eight Thousand (38,000)
square feet of Rentable Area being warehouse
premises only.
Concurrently with its delivery to Landlord of the Expansion
Notice, Tenant shall deliver to Landlord the Extension Notice
and the requirements for delivery of the Extension Notice, as
provided in subsection 2(a) above, shall hereby be waived for
such purpose. For greater certainty, if Tenant delivers the
Expansion Notice after the expiry of the fifth (5th) year of
the initial Term, the Extension Term shall be increased by the
number of days in the period between the first (1st) day of
the sixth (6th) year of the initial Term, and the date of the
Expansion Notice.
(b) On or before the seventh (7th) day following Landlord's
receipt of the Expansion Notice, the parties will meet to
discuss the preliminary plans and specifications with respect
to the Expansion Premises. Landlord will prepare the plans and
specifications for the construction of the Expansion Premises
and an estimated development schedule and Landlord's estimated
cost to complete the Expansion Premises to base building
standard, fully integrated with the Premises, including all
hard and soft costs and Landlord's development fee ("Cost").
Provided Landlord and Tenant, acting reasonably, agree to the
final plans and specifications, the development schedule and
the Cost (which the parties shall use commercially reasonable
efforts to do within ten (10) business days of initial meeting
as aforesaid), that the zoning permits such Expansion Premises
and that appropriate permits are obtainable from the necessary
authorities, Landlord will construct the Expansion Premises.
- 3 -
(c) Landlord shall have no obligation to apply for a building
permit or commence site plan approval or construction of the
Expansion Premises until Tenant has executed an agreement
amending the provisions of this Lease to incorporate the terms
and conditions of this Section 3. Effective on the date
construction of the Expansion Premises is substantially
complete, the Tenant shall pay Basic Rent in respect of the
Expansion Premises at an annual rate determined by multiplying
the actual Cost by eight (8%) percent.
SCHEDULE "C-1"
EXPANSION PREMISES
SCHEDULE "D"
ENVIRONMENTAL QUESTIONNAIRE
Tenant's Name: Premises:
----------------------- -------------------------
Address:
-----------------------------------------------------------
Telephone: ( ) Fax: ( )
----------------------- -------------------------
Person Responsible:
-----------------------------------------------------------
a) Describe the business activities carried on in the Premises and specify
raw materials used, goods manufactured and any resulting waste
materials or by-products that are generated;
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b) Will the business activities to be carried on in the Premises entail
the use, generating or storing of any Hazardous Substances in any
quantity? (including but not limited to chemical products, degreasers,
corrosives, flammable or combustibles, fuels, solvents, paints,
medication, oil, gas, batteries, extinguisher, etc.)
NO [ ] YES [ ] (If so, describe...)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
c) Indicate the approximate amounts of Hazardous Substances which will be
used or generated, monthly or annually, in the Premises.
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
d) How do you intend to store the Hazardous Substances described in c)?
------------------------------------------------------------------------
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e) How will you dispose of the Hazardous Substances generated in the
Premises by your business and who will be the carrier?
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f) Will the business activities to be carried on in the Premises require
that you obtain any certificate of authorization, permit, environmental
approvals, or provide environmental data (ie NPRI or Ontario Reg. 127)
to government agencies?
NO [ ] YES [ ] (If so, give details and attach your certificate)
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g) Will the business activities to be carried on in the Premises entail
the discharge of Hazardous Substances into the sewer system, water
system or into the air? If so, will pollution control equipment be
required in the Premises to comply with Environmental Law and
applicable Laws?
NO [ ] YES [ ] (If so, give details and list standards to be
met)
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i) Will the business activities to be carried on in the Premises
necessitate the installation of an underground or surface storage tank
in the Premises?
NO [ ] YES [ ] (If so, describe in detail the tank to be
installed and material to be stored)
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k) Do you intend to have a prevention training or emergency plan in place
to prevent an environmental incident or to deal with one if it occurs?
NO [ ] YES [ ] (If so, give details and attach a copy of the
plan and/or training procedure)
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l) Does your firm have an environmental management program in place?
NO [ ] YES [ ] (If so, give details and attach a copy of the
program)
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m) Do you have appropriate insurance to handle Hazardous Substances?
NO [ ] YES [ ] (If so, give details and attach a copy of the
policy or certificate of such policy)
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DATE: TENANT'S SIGNATURE:
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All defined terms where used herein shall have the meaning ascribed to them in
the Lease of which this Schedule forms part.