Exhibit 10.4
RENEWAL LEASE AGREEMENT made this 1st day of December, 2002
BETWEEN:
NORAMA INC.
(hereinafter called "the Landlord")
OF THE FIRST PART
- and -
NORTH AMERICAN CONSTRUCTION GROUP INC.
(hereinafter called "the Tenant")
OF THE SECOND PART
WHEREAS by a Lease dated the 1st day of December, 1997 (the "Original
Lease") the Landlord (formerly named NAR Group Holdings Ltd.) granted to the
Tenant a Lease demising the premises located at #▇, ▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Premises") and more particularly described in the Original
Lease for a term of Five (5) years commencing the 1st day of December, 1997 and
ending on the 30th day of November, 2002, and subject to the covenants and
conditions contained therein;
AND WHEREAS the Tenant has requested the Landlord to grant a lease to
him of the Premises for a further term of Five (5) years from December 1/st/,
2002 until November 30, 2007 on the terms hereinafter set forth which the
Landlord has agreed to do;
NOW THEREFORE the parties covenant and agree as follows:
1. The Landlord hereby demises to the Tenant the Premises subject to the
covenants, terms and conditions of the Original Lease except as amended herein.
2. The Landlord and Tenant hereby covenant that they shall perform and
observe the covenants, provisos and stipulations in the Original Lease as fully
as if such covenants, provisos and
2
stipulations had been repeated in this Lease in full with such modifications
only as are necessary to make them applicable to this Renewal Lease together
with such modifications as are set out herein.
3. Article 1 - (e), (i) and (ii) are hereby amended to extend the term
of the Original Lease for a further Five (5) years, with the Commencement Date
being December 1,2002.
4. Article 1 - (f) - Minimum Rent is hereby amended to reflect the agreed
upon amount per annum of $600,000.00 by equal consecutive monthly instalments of
$50,000.00.
5. The name of the Landlord in the Original Lease shall be amended to
reflect the amalgamation between NAR Group Holdings Ltd. and Norama Inc., which
corporations now continue under the name of NORAMA INC.
6. Except as amended, the Original Lease is hereby affirmed and ratified.
IN WITNESS WHEREOF the parties hereto have executed this Renewal Lease
as of the day and year first above written.
NORAMA INC.
Per: /s/
------------------------------------
Per: /s/
------------------------------------
NORTH AMERICAN CONSTRUCTION GROUP INC.
Per: /s/
-----------------------------------
Per: /s/
-----------------------------------
THIS SUBLEASE made as of the 1st day of December, 2002.
BETWEEN:
NORTH AMERICAN CONSTRUCTION GROUP INC., of the City of
Edmonton, in the Province of Alberta, a body corporate duly
incorporated pursuant to the laws of the Province of Alberta
(the "SUBLANDLORD")
- and -
NORTH AMERICAN EQUIPMENT LTD., of the City of Edmonton, in
the Province of Alberta, a body corporate duly incorporated
pursuant to the laws of the Province of Alberta (the
"SUBTENANT")
SUBLEASE
--------
PREAMBLE
--------
WHEREAS:
A. By a lease in writing dated the 1st day of December, 1997, (the
"HEADLEASE"), NORAMA INC. (formerly NAR GROUP HOLDINGS LTD.), (the
"HEADLANDLORD") leased to the SUBLANDLORD as tenant those premises known as the
Acheson Property, located at #▇, ▇▇▇▇▇ - ▇▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
all as more particularly described in the HEADLEASE, a copy of which is attached
hereto as Schedule "A";
B. The SUBLANDLORD agreed to sublease a portion of the PREMISES to the
SUBTENANT which included all the shop-yard area and shop building excluding the
administrative office area (the "SUB-PREMISES").
C. The HEADLEASE was renewed by TENANT and a copy of the Renewal Lease
Agreement is attached as Schedule "B".
D. AND WHEREAS the SUBTENANT requested the SUBLANDLORD to grant a
sublease of the PREMISES for a further term of Five (5) years from December
1/st/, 2002 until November 30, 2007 on the terms hereinafter set forth which the
SUBLANDLORD has agreed to;
E. AND WHEREAS the SUBTENANT surrenders any interest it may have had in
any prior sublease and enters into this agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree as follows:
- 2 -
ARTICLE 1
---------
1.1 Grant of SUBLEASE
-----------------
The SUBLANDLORD hereby leases the SUB-PREMISES to the SUBTENANT for a
term of Five (5) years, commencing on the 1st day of December, 2002, and ending
on the 30th day of November, 2007, unless terminated earlier as provided for in
this SUBLEASE.
1.2 Intent of SUBLEASE
------------------
The SUBTENANT acknowledges and agrees that this SUBLEASE is an
absolutely net SUBLEASE with all and every cost, expense, rate, tax or charge in
any way related to the SUB-PREMISES being the responsibility of the SUBTENANT.
ARTICLE 2
---------
2.1 Minimum Rent
------------
The SUBTENANT shall pay Minimum Rent to the SUBLANDLORD without
setoff, deduction or abatement, on the first day of each and every month
throughout the term hereof at the following rates:
(a) $25,000.00 per month; $300,000.00 per annum.
2.2 Other Costs
-----------
The SUBTENANT shall pay to the SUBLANDLORD at the times and in the
manner provided for in the HEADLEASE, all Operating Costs and items of
Additional Rent as defined in the HEADLEASE, together with all other costs, sums
and amounts payable by the tenant to the HEADLANDLORD pursuant to the HEADLEASE.
2.3 Improvements and Alterations
----------------------------
The SUBTENANT shall pay all costs incidental to its occupation of the
SUB-PREMISES including telephone and communication equipment installation fees
and rentals, signage costs and expenses and the cost of all leasehold
improvements installed or to be installed by the SUBTENANT.
ARTICLE 3
---------
3.1 Compliance with HEADLEASE
-------------------------
The SUBTENANT agrees:
(a) at all times during the term of this SUBLEASE and any renewal thereof,
to observe, perform and be bound by each and every of the terms,
covenants and conditions contained in the HEADLEASE on the part of the
tenant therein to be observed and performed as if the SUBTENANT were
the tenant named therein for the benefit of both the SUBLANDLORD and
the HEADLANDLORD; the tenant's covenants in the HEADLEASE being
incorporated herein by reference;
- 3 -
(b) not to do or omit to do any act or thing during the term of this
SUBLEASE which will cause or result in the SUBLANDLORD being in
default of, or breaching any term of the HEADLEASE;
(c) to use the SUB-PREMISES only for the purpose of repair and maintenance
of heavy equipment.
3.2 Indemnity
---------
The SUBTENANT shall reimburse the SUBLANDLORD for each and every loss,
cost and expense incurred by the SUBLANDLORD pursuant to the HEADLEASE and
attributable to acts or omissions of the SUBTENANT or to the SUBTENANT'S
occupation of the PREMISES and the SUBTENANT hereby indemnifies and saves
harmless the SUBLANDLORD from and against any and all claims, damages, actions,
causes of action and liabilities of every nature whatsoever which may arise
directly or indirectly out of the SUBTENANT'S possession or occupation of the
SUB-PREMISES.
3.3 Disposition
-----------
The SUBTENANT shall not assign, transfer, sublet or otherwise dispose
of the SUBTENANT'S interest under this SUBLEASE or part with possession of the
SUB-PREMISES, either in whole or in part, without the prior written consent of
the SUBLANDLORD and the HEADLANDLORD. It is agreed that notwithstanding any
further assignment or subletting, the SUBTENANT shall remain fully liable under
this SUBLEASE and shall not be released from performing any of the terms,
covenants or conditions of this SUBLEASE. It is further agreed that the
SUBTENANT may not profit from any permitted assignment or further subletting and
any rent payable by any permitted assignee or sub-subtenant of the SUBTENANT in
excess of the rental payable hereunder shall be paid to the SUBLANDLORD or at
the SUBLANDLORD'S request to the HEADLANDLORD on the first day of each and every
month throughout the term hereof.
ARTICLE 4
---------
4.1 Covenants of SUBLANDLORD
------------------------
Provided that the SUBTENANT keeps and performs all covenants herein
contained on the SUBTENANT'S part to be kept or performed, the SUBLANDLORD
covenants directly with the SUBTENANT as follows:
(a) to allow the SUBTENANT to peaceably and quietly possess and enjoy the
SUB-PREMISES during the term of this SUBLEASE without any hindrance
or disturbance from or by the SUBLANDLORD or any person claiming under
or through the SUBLANDLORD; and
(b) to do all things required of the SUBLANDLORD to keep the HEADLEASE in
good standing.
- 4 -
ARTICLE 5
---------
5.1 Termination
-----------
It is mutually agreed between the SUBLANDLORD and the SUBTENANT that
the provisions relating to default and re-entry set out in the HEADLEASE shall
apply, mutatis mutandis to the tenancy created by the terms of this SUBLEASE and
that if the SUBTENANT breaches or fails to perform any obligation contained in
this SUBLEASE or in the HEADLEASE on its part to be performed, the SUBTENANT
shall be subject to and the SUBLANDLORD may exercise and enjoy all rights and
remedies of the landlord against a defaulting tenant contained in the HEADLEASE.
Notwithstanding anything else contained in this SUBLEASE or in the HEADLEASE and
without prejudice to any other right or remedy which the SUBLANDLORD may have,
if, during the term of this SUBLEASE, a breach or default is made by the
SUBTENANT of any of the covenants, provisos or conditions herein contained on
the part of the SUBTENANT to be observed or performed, the SUBLANDLORD may enter
upon the SUB-PREMISES and therefor have, possess and enjoy them absolutely,
whereupon the term of this SUBLEASE shall immediately be forfeited and void and
an amount equal to the rental for the unexpired term of this SUBLEASE shall
immediately become due and payable in full as agreed liquidated damages and not
as a penalty and without prejudice to any other rights or remedies of the
SUBLANDLORD.
ARTICLE 6
---------
6.1 Notices
-------
Any notice required to be given hereunder by any party shall be deemed
to have been well and sufficiently given if:
(a) personally delivered to the party to whom it is intended or if such
party is a corporation to an officer of that corporation; or
(b) mailed by prepaid registered mail, transmitted by facsimile or
delivered, to the address or facsimile number of the party to whom it
is intended as follows:
(i) if to the SUBLANDLORD, then:
#▇, ▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile Number 960-7103;
(ii) if to the SUBTENANT, then:
#▇, ▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile Number 960-7103;
or to such other address or number as a party may from time to time
direct in writing.
- 5 -
Any notice delivered before 4:30 p.m. local time on a day that is not a
Saturday, Sunday or statutory holiday in Alberta (a "Business Day") shall be
deemed to have been received on the date of delivery and any notice delivered
after 4:30 p.m. local time on a Business Day or delivered on a day other than a
Business Day, shall be deemed to have been received on the next Business Day.
Any notice mailed shall be deemed to have been received seventy two (72) hours
after the date it is postmarked. Any notice sent by facsimile before 4:30 p.m.
local time on a Business Day shall be deemed to have been received when the
sender receives the answer back confirming receipt by the recipient; provided,
however, that any facsimile received after 4:30 p.m. local time on a Business
Day or received on a day other than a Business Day shall be deemed to have been
received on the next Business Day. If normal mail or communications service is
interrupted by strike, slow-down, force majeure or other cause after the notice
has been sent the notice will not be deemed to have been received until actually
received. In the event normal mail service is impaired at the time of sending
the notice, then personal delivery or facsimile transmission only shall be
effective.
6.2 Further Assurances
------------------
The SUBTENANT shall promptly execute, at its sole expense, all
documents, agreements and assurances as may be necessary or advisable to
facilitate compliance with this SUBLEASE in accordance with its true intent,
including, without restricting the generality of the foregoing, any agreement
with the HEADLANDLORD covenanting directly to be bound by all terms and
conditions of the HEADLEASE.
6.3 Enurement
---------
This SUBLEASE shall enure to the benefit of and shall be binding upon
the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this SUBLEASE as
of the day and year first above written.
NORTH AMERICAN CONSTRUCTION
GROUP INC.
Per: /s/
------------------------------------
Per: /s/
------------------------------------
NORTH AMERICAN EQUIPMENT LTD.
Per: /s/
------------------------------------
Per: /s/
------------------------------------
SCHEDULE "A"
LEASE
LANDLORD: NAR GROUP HOLDINGS LTD.
TENANT: NORTH AMERICAN CONSTRUCTION GROUP INC.
Dated: December 1, 1997
TABLE OF CONTENTS
-----------------
ARTICLE 1 - BASIC TERMS, SCHEDULE, DEFINITIONS ............................... 1
1.1 Basic Terms ..................................................... 1
1.2 Schedule ........................................................ 2
1.3 Definitions ..................................................... 2
ARTICLE 2 - GRANT OF LEASE ................................................... 2
2.1 Demise .......................................................... 2
ARTICLE 3 - TERM, COMMENCEMENT, RENEWAL ...................................... 2
3.1 Term ............................................................ 2
3.2 Commencement Date ..........................,.................... 2
3.3 Option to Renew ................................................. 2
ARTICLE 4 - RENT ............................................................. 2
4.1 Minimum Rent .................................................... 2
4.2 Payment of Minimum Rent ......................................... 2
4.3 Pro Rata Adjustment of Rent ..................................... 3
4.4 Payments Generally .............................................. 3
4.5 Security Deposit ................................................ 3
ARTICLE 5 - ADDITIONAL RENT .................................................. 4
5.1 Intent of Lease ................................................. 4
5.2 Additional Rent ................................................. 4
5.3 Estimate of Additional Rent ..................................... 4
5.4 Payment of Additional Rent ...................................... 4
5.5 Adjustment of Additional Rent ................................... 4
5.6 Pro Rata Adjustment of Additional Rent .......................... 5
5.7 Review of Additional Rent ....................................... 5
ARTICLE 6 - TAXES ............................................................ 5
6.1 Tenant's Taxes .................................................. 5
6.2 Payment of Property Taxes ....................................... 5
6.3 Sales Tax ....................................................... 5
ARTICLE 7 - UTILITIES AND SERVICES ........................................... 5
7.1 Tenant's Utilities and Services ................................. 5
ARTICLE 8 - INSURANCE ........................................................ 5
8.1 Tenant's Insurance .............................................. 5
8.2 Landlord's Insurance ............................................ 7
8.3 Increases in Rates .............................................. 7
8.4 Recovery of Landlord's Premiums ................................. 7
ARTICLE 9 - USE AND OCCUPATION ............................................... 7
9.1 Quiet Enjoyment ................................................. 7
9.2 Use ............................................................. 7
9.3 Covenant to Operate ............................................. 7
9.4 Signs ........................................................... 8
9.5 Compliance with Laws ............................................ 8
9.6 Nuisance ........................................................ 8
ii
ARTICLE 10 - HAZARDOUS SUBSTANCES ON THE PREMISES ............................ 8
10.1 Hazardous Substances ........................................... 8
10.2 Reporting Requirements ......................................... 8
10.3 Compliance with Environmental Laws ............................. 8
10.4 Clean Up or Removal ............................................ 9
10.5 Indemnity ...................................................... 9
10.6 Ownership of Hazardous Substances ............................. 10
ARTICLE 11 - CLEANING, REPAIR ................................................ 9
11.1 Cleaning ....................................................... 9
11.2 Tenant's Repairs .............................................. 10
11.3 View Repairs .................................................. 10
11.4 Landlord may Maintain and Repair .............................. 10
11.5 Landlord's Repairs ............................................ 10
11.6 Taking of Possession .......................................... 11
ARTICLE 12 - ALTERATIONS, FIXTURES .......................................... 11
12.1 Tenant's Alterations .......................................... 11
12.2 Removal of Fixtures ........................................... 11
ARTICLE 13 - SUBSTANTIAL DAMAGE AND DESTRUCTION, EXPROPRIATION .............. 12
13.1 No Abatement .................................................. 12
13.2 Substantial Damage or Destruction ............................. 12
13.3 Rebuilding .................................................... 12
13.4 Expropriation ................................................. 12
ARTICLE 14 - ASSIGNMENT, SUBLETTING, SALE OR MORTGAGE ....................... 13
14.1 Assignment and Subletting ..................................... 13
14.2 Bulk Sale ..................................................... 13
14.3 Subordination and Attornment .................................. 13
14.4 Estoppel Certificate, Acknowledgment .......................... 14
14.5 Sale by Landlord .............................................. 14
14.6 Financial Information ......................................... 14
ARTICLE 15 - INDEMNITY, LIENS ............................................... 14
15.1 Tenant's Indemnity ............................................ 14
15.2 Personal Injury and Property Damage ........................... 15
15.3 Liens ......................................................... 15
15.4 Granting of Security Interest ................................. 15
ARTICLE 16 - DEFAULT, REMEDIES, TERMINATION ................................. 15
16.1 Default ....................................................... 15
16.2 Landlord may Perform .......................................... 17
16.3 Distress ...................................................... 17
16.4 Costs and Interest ............................................ 17
16.5 Vacate Upon Termination, Survival ............................. 17
16.6 Additional Rights on Default or Re-Entry ...................... 17
16.7 No Waiver ..................................................... 18
16.8 Remedies Cumulative ........................................... 19
16.9 For Lease Signs ............................................... 19
16.10 Holding Over .................................................. 19
16.11 Failure to Pay ................................................ 19
16.12 Charge on Personal Property ................................... 19
iii
ARTICLE 17 - GENERAL PROVISIONS ............................................. 20
17.1 Approvals ..................................................... 20
17.2 Landlord's Performance ........................................ 20
17.3 Relationship of Parties ....................................... 20
17.4 Sole Agreement and Survival of Agreement to Lease ............. 20
17.5 Modifications ................................................. 20
17.6 No Brokerage Commission ....................................... 20
17.7 Registration .................................................. 21
17.8 Construed Covenant, Severability .............................. 21
17.9 Further Assurances ............................................ 21
17.10 Governing Law ................................................. 21
17.11 Time .......................................................... 21
17.12 Notices ....................................................... 21
17.13 Extended Meanings ............................................. 22
17.14 No Transfer on Bankruptcy ..................................... 22
17.15 Successors Bound .............................................. 22
17.16 Index and Headings ............................................ 22
17.17 Tenant's Acceptance ........................................... 22
SCHEDULE "A" - DEFINITIONS .................................................. 24
SCHEDULE "B" - LEGAL DESCRIPTION OF PREMISES ................................ 26
LEASE
THIS LEASE, dated December 1, 1997, is made and entered into by the Landlord and
Tenant named herein who, in consideration of the covenants herein contained,
agree as follows:
ARTICLE 1 - BASIC TERMS, SCHEDULE, DEFINITIONS
----------------------------------------------
1.1 Basic Terms
-----------
(a) (i) Landlord: NAR GROUP HOLDINGS LTD.
(ii) Address and Facsimile No. of Landlord:
#▇, ▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇▇
(b) (i) Tenant: NORTH AMERICAN CONSTRUCTION GROUP INC.
(ii) Address and Facsimile No. of Tenant:
#▇, ▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇▇
(c) Address of Premises: #▇, ▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(d) Legal Description of Premises: SCHEDULE "B"
(e) (i) Term: Five (5) years
(ii) Commencement Date: December 1, 1997
(f) Minimum Rent:
Lease Years $/Annum $/Month
Five (5) $480,000.00 $40,000.00
(g) Security Deposit: N/A
(h) Permitted Use of Premises: Administration and operation of
construction company, including repair and
maintenance of heavy equipment.
The foregoing Basic Terms are hereby approved by the parties and each
reference in this Lease to any of the Basic Terms shall be construed to include
the provisions set forth above as well as all of the additional terms and
conditions of the applicable sections of this Lease where such Basic Terms are
more fully set forth.
2
1.2 Schedule
--------
The following schedule to this Lease is incorporated into and forms an
integral part of this Lease:
Schedule "A" - Definitions
Schedule "B" - Legal Description of Premises
1.3 Definitions
-----------
In this Lease, the words, phrases and expressions set forth in
Schedule "A" are used with the meanings defined therein.
ARTICLE 2 - GRANT OF LEASE
--------------------------
2.1 Demise
------
The Landlord, being registered as owner of the Premises legally
described in Section l.l(d), subject, however, to such mortgages and
encumbrances as are registered against title thereto as of the date hereof, does
hereby lease the Premises to the Tenant, for the Term and upon and subject to
the covenants and conditions hereinafter expressed.
ARTICLE 3 - TERM, COMMENCEMENT, RENEWAL
---------------------------------------
3.1 Term
----
The Term of this Lease shall be for the period set out in Section
l.l(e)(i), beginning on the Commencement Date, plus any partial calendar month
following the Commencement Date if the Commencement Date is other than the
first day of a calendar month.
3.2 Commencement Date
-----------------
The Term shall commence on the Commencement Date.
ARTICLE 4 - RENT
----------------
4.1 Minimum Rent
------------
The Tenant shall pay to the Landlord in and for each Lease Year,
Minimum Rent in the amount per annum set out in Section 1.1(f) for the
respective Lease Year, by equal consecutive monthly instalments in the amount
set out in Section 1.1(f) for such Lease Year. If the Commencement Date is not
the first day of a calendar month, the Tenant shall pay, on such Commencement
Date, as an instalment of Minimum Rent, for the period from the Commencement
Date to the last day of such calendar month, inclusive, an amount calculated by
multiplying the annual Minimum Rent for the first Lease Year by the number of
days during such period and dividing by three hundred and sixty-five (365), and
such instalment shall be in addition to the Minimum Rent payable for such first
Lease Year and the first regular instalment of Minimum Rent for such first Lease
Year shall be paid on the first day of the calendar month next following the
Commencement Date.
4.2 Payment of Minimum Rent
-----------------------
The first monthly instalment of Minimum Rent shall be paid on or
before the Commencement Date and subsequent instalments of Minimum Rent shall be
paid strictly in advance on the first day of each and every
3
succeeding month throughout the Term.
4.3 Pro Rata Adjustment of Rent
---------------------------
All rent shall be deemed to accrue from day to day, and if for any
reason it shall become necessary to calculate rent for irregular periods of less
than one (1) year or one (1) month, as the case may be, an appropriate pro rata
adjustment shall be made in order to calculate rent for such irregular period.
4.4 Payments Generally
------------------
All payments by the Tenant to the Landlord of whatsoever nature
required or contemplated by this Lease shall be:
(a) paid to the Landlord by the Tenant in lawful currency of Canada;
(b) made when due hereunder, without prior demand therefor and without any
set-off, compensation or deduction whatsoever at such place as the
Landlord may designate from time to time to the Tenant;
(c) applied towards amounts then outstanding hereunder, in such manner as
the Landlord may, in its discretion, see fit, and without restricting
the generality of the foregoing, no acceptance by the Landlord of any
amount less than the full sum which is due and owing by the Tenant
shall constitute an accord and satisfaction or oblige the Landlord to
accept in full settlement, anything less than the full amount owing
and outstanding at any time;
(d) deemed to be rent, in partial consideration for which this Lease has
been entered into, and shall be payable and recoverable as rent, such
that the Landlord shall have all rights and remedies against the
Tenant for default in making any such payment which may not be
expressly said to be rent as the Landlord has for default in payment
of rent;
(e) subject to an overdue charge if any such payment is not made when due,
which charge shall be Additional Rent equal to the then existing Bank
of Canada Prime Rate plus five (5%) per cent per annum on the overdue
amount both before and after judgment payable with the next monthly
instalment of Minimum Rent, all without prejudice to any other right
or remedy of the Landlord; and
(f) made, if the Landlord so requests, by way of a series of cheques,
postdated to the respective due dates of such payments, which the
Tenant shall supply to the Landlord at the commencement of each Lease
Year or earlier should the Landlord so request, or by way of an
automatic debiting system by which payments are deducted from the
Tenant's bank account and credited to the Landlord's, all at the
Tenant's cost and all without prejudice to any other right or remedy
of the Landlord.
4.5 Security Deposit
----------------
The Tenant shall pay the Security Deposit to the Landlord which shall
be retained by the Landlord without liability for interest thereon, as security
for the due performance by the Tenant of its obligations under this Lease. The
Security Deposit may be applied, in the Landlord's discretion, to remedy any
default by the Tenant hereunder, whether in respect to the payment of monies or
otherwise, and in the absence of such default the Landlord shall return the
Security Deposit to the Tenant at the expiration of the Term. If any or all of
the Security Deposit is applied by the Landlord to remedy any default, then the
Tenant shall forthwith upon written demand from the Landlord, remit to the
Landlord such monies as are sufficient to restore the amount of money held on
deposit by the Landlord to the original balance.
4
ARTICLE 5 - ADDITIONAL RENT
---------------------------
5.1 Intent of Lease
---------------
It is the intent of the parties and agreed that this Lease shall be
absolutely net and carefree to the Landlord such that, without limiting the
generality of the foregoing, the Tenant shall pay for its own account, and
without any variation, set-off or deduction, all amounts, charges, costs,
duties, expenses, fees, rates, sums, taxes and increases therein in any way
relating to the Premises.
5.2 Additional Rent
---------------
Without limiting the generality of the preceding Section, the Tenant
shall pay to the Landlord as Additional Rent in each Lease Year the aggregate
of:
(a) Property Taxes;
(b) Landlord's Insurance as provided for in this Lease;
(c) the Sales Tax;
(d) such other amounts, charges, costs, sums or increases therein as are
required to be paid by the Tenant to the Landlord pursuant to this
Lease in addition to Minimum Rent.
5.3 Estimate of Additional Rent
---------------------------
The Landlord may, in respect of any or all of the items of Additional
Rent, compute bona fide estimates of the amounts which are anticipated to accrue
in the next following Lease Year, calendar year or fiscal year, or portion
thereof, as the Landlord in its discretion may determine is the most appropriate
period for each or all items of Additional Rent, and the Landlord may provide
the Tenant with written notice of the amount of any such estimate.
5.4 Payment of Additional Rent
--------------------------
With respect to any item of Additional Rent which the Landlord elects
to estimate from time to time, following receipt of the written notice of the
estimated amount thereof, the Tenant shall pay to the Landlord such amount, in
equal consecutive monthly instalments throughout the applicable period with the
monthly instalments of Minimum Rent. With respect to any item of Additional Rent
which the Landlord has not elected to estimate from time to time, the Tenant
shall pay to the Landlord the amount of such item of Additional Rent, determined
pursuant to the applicable provisions of this Lease, forthwith upon receipt of
an invoice therefor.
5.5 Adjustment of Additional Rent
-----------------------------
Within ninety (90) days of the end of each Lease Year, calendar year
or fiscal year, or portion thereof, as the case may be, for which the Landlord
has estimated any item of Additional Rent, the Landlord shall compute the actual
amount of such item of Additional Rent, and make available to the Tenant for
examination a statement of the gross amount of such item of Additional Rent, and
the calculation of the Tenant's share thereof for each year or portion thereof.
If the actual amount of such item of Additional Rent, as set out in any such
statement, exceeds the aggregate amount of the instalments paid by the Tenant in
respect of such item, the Tenant shall pay to the Landlord the amount of the
excess within fifteen (15) days of the receipt of such statement. If the
contrary is the case, any such statement shall be accompanied by a refund to the
Tenant of any such overpayment without interest, provided that the Landlord may
first deduct from such refund any rent or other sum which is then owing by the
Tenant or in arrears.
5
5.6 Pro Rata Adjustment of Additional Rent
--------------------------------------
In the event this Lease commences, expires or is terminated before the
end of the period for which any item of Additional Rent would otherwise be
payable, the amount thereof payable by the Tenant shall be apportioned and
adjusted in accordance with the adjustment provisions of this Lease.
5.7 Review of Additional Rent
-------------------------
No party hereto may claim a readjustment in respect of any item of
Additional Rent whether paid or payable in instalments or otherwise, if based on
any error of estimation, allocation, calculation or computation thereof, unless
claimed in writing prior to the expiration of one (1) year from the conclusion
of the period in respect of which such item of Additional Rent accrued.
ARTICLE 6 - TAXES
-----------------
6.1 Tenant's Taxes
--------------
The Tenant shall pay promptly when due all business, sales, machinery,
equipment and all other taxes, assessments, charges and rates, as well as any
permit or license fees, attributable to the Premises or the property, business,
sales or income of the Tenant in respect of the Premises.
6.2 Payment of Property Taxes
-------------------------
The Tenant shall pay the Property Taxes to the Landlord as Additional
Rent.
6.2 Sales Tax
---------
The Tenant shall pay to the Landlord as Additional Rent, or as
otherwise required by law, all Sales Tax. The Landlord shall determine on a
reasonable basis the extent to which the Sales Tax is imposed by reason of any
sum payable by the Tenant to the Landlord pursuant to any provisions of this
Lease and any report of the Landlord's chartered accountant for such purpose
shall be conclusive as to the amount of any Sales Tax for any period to which
such report relates.
ARTICLE 7 - UTILITIES AND SERVICES
----------------------------------
7.1 Tenant's Utilities and Services
-------------------------------
The Tenant shall pay all rates, charges, costs and expenses as may be
assessed or levied and at the rates so assessed or levied by all suppliers of
utilities and services directly to the Premises.
ARTICLE 8 - INSURANCE
---------------------
8.1 Tenant's Insurance
------------------
(a) The Tenant shall, during the whole of the Term and during such other
time as the Tenant occupies the Premises, take out and maintain the
following insurance, at the Tenant's sole expense, in such form and
with such companies as the Landlord may reasonably approve:
(i) comprehensive general liability insurance applying to all
operations of the Tenant and against claims for bodily injury,
including death, and property damage or loss arising out of the
use or occupation of the Premises, or the Tenant's business on
or about the
6
Premises; such insurance shall include the Landlord as an
additional insured and indemnify and protect both the Tenant and
Landlord and shall contain a "cross liability" or "severability
of interests" clause so that the Landlord and the Tenant may be
insured in the same manner and to the same extent as if
individual policies had been issued to each, and shall be for
the amount of not less than One Million ($1,000,000.00) Dollars
combined single limit or such other amount as may be reasonably
required by the Landlord from time to time; and such
comprehensive general liability insurance shall, for the
Tenant's benefit only, include contractual liability and
tenant's legal liability insurance in a form and of a nature
broad enough to insure the obligations imposed upon the Tenant
under the terms of this Lease;
(ii) "all risks" insurance upon its merchandise, stock-in-trade,
furniture, fixtures and improvements including leasehold
improvements and upon all other property in the Premises owned
by the Tenant or for which the Tenant is legally liable, and
insurance upon all glass and plate glass in the Premises,
against breakage and damage from any cause, all in an amount
equal to the full replacement value thereof, which amount in the
event of a dispute shall be determined by the decision of the
Landlord; and
(iii) boiler and machinery insurance on such boilers and pressure
vessels as may be installed by or under the exclusive control of
the Tenant in the Premises.
(b) The policies of insurance referred to above shall contain the
following additional provisions:
(i) provisions that the Landlord is protected notwithstanding any
act, neglect or misrepresentation of the Tenant which might
otherwise result in the avoidance of a claim under such policies
and such that such policies shall not be affected or invalidated
by any act, omission or negligence of any third party which is
not within the knowledge or control of the insured(s);
(ii) provisions that such policies and the coverage evidenced thereby
shall be primary and non-contributing with respect to any
policies carried by the Landlord and that any coverage carried
by the Landlord shall be excess coverage;
(iii) all property and boiler insurance referred to above shall
provide for waiver of the insurer's rights of subrogation as
against the Landlord;
(iv) provisions that such policies of insurance shall not be
cancelled without the insurer providing the Landlord thirty (30)
days written notice stating when such cancellation shall be
effective.
(c) Evidence satisfactory to the Landlord of all such policies of
insurance shall be provided to the Landlord upon request.
(d) The Tenant shall further during the whole of the Term maintain such
other insurance in such amounts and upon such sums as the Landlord may
reasonably determine from time to time.
(e) The proceeds of all property insurance maintained by the Tenant are
hereby assigned and made payable to the Landlord, and to the extent
that such proceeds have been paid to the Landlord, they shall be
released to the Tenant (provided the Tenant is not in default
hereunder):
(i) upon the Tenant's written request, in progress payments, at
stages determined by the Architect, upon receipt by the Landlord
of a certificate from the Architect stating that repairs to each
stage have been completed, free of liens, by the Tenant,
provided that in the event of the Tenant's default in making
such repairs and if the Landlord performs
7
repairs, the proceeds may be applied by the Landlord to the
costs thereof; or
(ii) upon termination of this Lease by the Landlord upon the
happening of Substantial Damage or Destruction, but only to the
extent of the value of any trade fixtures or stock-in-trade of
the Tenant, but not to the extent of the value of any leasehold
improvements made by the Tenant to the Premises.
8.2 Landlord's Insurance
--------------------
The Landlord may take out or cause to be taken out and keep or cause
to be kept in full force and effect:
(a) standard fire and extended coverage insurance on the Premises,
except foundations, and should the Landlord so elect, insurance
to cover any loss of rental income which may be sustained by the
Landlord;
(b) comprehensive general liability insurance against claims for
bodily injury, including death and property damage in such form
and subject to such deductions and exceptions as the Landlord may
determine;
provided that nothing herein shall prevent the Landlord from providing or
maintaining such lesser, additional or broader coverage as the Landlord may
elect in its discretion.
8.3 Increases in Rates
------------------
The Tenant shall not do, omit or permit to be done or omitted upon the
Premises anything which shall cause any rate of insurance upon the Premises or
any part thereof to be increased or cause insurance to be cancelled. If any such
rate of insurance shall be increased as aforesaid, the Tenant shall pay to the
Landlord the amount of the increase as Additional Rent. If any insurance policy
upon the Premises or any part thereof is cancelled or threatened to be cancelled
by reason of the use or occupancy by the Tenant or any act or omission as
aforesaid, the Tenant shall forthwith remedy or rectify such use, occupation,
act or omission upon being requested to do so by the Landlord, and if the Tenant
fails to so remedy or rectify, the Landlord may at its option terminate this
Lease forthwith and the Tenant shall immediately deliver up possession of the
Premises to the Landlord.
8.4 Recovery of Landlord's Premiums
-------------------------------
For purposes of the recovery of the cost of insurance premiums paid by
the Landlord, such premiums shall be included in Additional Rent and recovered
in accordance with the provisions of this Lease.
ARTICLE 9 - USE AND OCCUPATION
------------------------------
9.1 Quiet Enjoyment
---------------
The Landlord covenants with the Tenant for quiet enjoyment, for so
long as the Tenant is not in default hereunder, and except as provided herein.
9.2 Use
---
The Premises shall be used for the purpose set forth in Section l.l(h)
and for no other purpose.
9.3 Covenant to Operate
-------------------
The Tenant shall throughout the whole of the Term continuously
operate, occupy and utilize the
8
entire Premises and conduct its business therein complying strictly with the
provisions of this Lease. The Tenant acknowledges that the Landlord is executing
this Lease in reliance upon the Tenant's covenant herein contained and that such
covenant is a material element inducing the Landlord to execute this Lease.
9.4 Signs
-----
The Tenant may erect, install and maintain, all at the Tenant's sole
expense, a sign of a kind and size and in a location as first approved in
writing by the Landlord. The Tenant shall not erect, install or maintain any
sign other than in accordance with this Article. At the expiration or earlier
termination of this Lease, the Tenant shall, if required to do so by the
Landlord, remove any such sign or signs and repair any loss or damage to the
Premises occasioned thereby, all at the Tenant's sole expense.
9.5 Compliance with Laws
--------------------
The Tenant shall carry on and conduct its business from the Premises
in such manner as to comply with any and all statutes, by-laws, rules and
regulations of any Federal, Provincial, Municipal or other competent authority
for the time being in force, and shall not do anything upon the Premises in
contravention thereof.
9.6 Nuisance
--------
The Tenant shall not do or permit to be done or omitted anything which
could damage the Premises or injure or impede the business of the Tenant or
which shall or might result in any nuisance in or about the Premises, whether to
the Landlord, or any other party, the whole as determined by the Landlord,
acting reasonably. In any of the foregoing events, the Tenant shall forthwith
remedy the same and if such thing or condition shall not be so remedied, the
Landlord may, after such notice, if any, as the Landlord may deem appropriate in
the circumstances, correct such situation at the expense of the Tenant and the
Tenant shall pay such expense to the Landlord as Additional Rent.
ARTICLE 10 - HAZARDOUS SUBSTANCES ON THE PREMISES
-------------------------------------------------
10.1 Hazardous Substances
--------------------
The Tenant shall not cause or permit any Hazardous Substance to be
brought upon, kept or used in or about the Premises without the prior written
consent of the Landlord, which consent shall not be unreasonably withheld if the
Tenant demonstrates to the Landlord's reasonable satisfaction that such
Hazardous Substance is reasonably necessary for the Tenant's permitted use of
the Premises and that it will be used, kept, stored and disposed of in a manner
that complies with all Environmental Laws.
10.2 Reporting Requirements
----------------------
At the commencement of each Lease Year the Tenant shall disclose to
the Landlord the names and approximate amounts of all Hazardous Substances that
the Tenant intends to store, use or dispose of on the Premises in the coming
Lease Year. In addition, at the commencement of each Lease Year, beginning with
the second Lease Year, the Tenant shall disclose to the Landlord the names and
amounts of all Hazardous Substances that were actually used, stored or disposed
of on the Premises if those materials were not previously identified to the
Landlord at the commencement of the previous Lease Year.
10.3 Compliance with Environmental Laws
----------------------------------
(a) The Tenant shall at the Tenant's own expense comply with all
Environmental Laws and shall make, obtain and deliver all reports
and studies as required by any governmental agency, authority or
any Environmental Laws.
9
(b) The Tenant authorizes the Landlord to make inquiries from time to
time of any governmental agency or authority in order to
determine the Tenant's compliance with the Environmental Laws.
The Tenant covenants and agrees that it will from time to time
provide to the Landlord such written authorization as the
Landlord may reasonably require in order to facilitate the
obtaining of such information.
(c) The Tenant shall immediately advise the Landlord of any breach of
any part of this Article or if any governmental agency or
authority issues an order, notice, cancellation, amendment,
charge, violation, ticket or other document concerning the
release, investigation, clean up, remediation or abatement of any
Hazardous Substance.
10.4 Clean Up or Removal
-------------------
If any government authority shall require the clean up or removal of
any Hazardous Substance held, released, spilled, abandoned or placed upon the
Premises or released into the environment by the Tenant in the course of the
Tenant's business or as a result of the Tenant's use or occupancy of the
Premises, then the Tenant shall, at its own expense, prepare and submit for
approval all necessary studies, plans and proposals, shall provide all bonds and
other security required by governmental authorities and shall forthwith carry
out the work required. The Tenant shall keep the Landlord fully informed of the
progress of the matter and shall provide to the Landlord full information with
respect to proposed plans and comply with the Landlord's reasonable requirements
with respect to such plans. The Tenant further agrees that if the Landlord
determines, in its discretion, that the Premises, the Landlord or the Landlord's
reputation is placed in any jeopardy by the requirements for any such work, the
Landlord may itself undertake such work or any part thereof at the cost and
expense of the Tenant.
10.5 Indemnity
---------
The Tenant shall indemnify and hold harmless the Landlord from any and
all claims, damages, fines, judgments, penalties, costs, liabilities or losses
arising out of or in any way related to any contamination of the Premises in any
manner for which the Tenant is legally liable including, without limitation, any
personal injury or property damage, a decrease in value of the Premises, damages
caused by loss or restriction of rentable or useable space, or any damages
caused by adverse impact on marketing of the space, any and all sums paid for
settlement of claims and any lawyer's, consultant's, agent's or expert's fees.
The provisions of this Section shall be in addition to any other obligations and
liabilities that the Tenant may have to the Landlord at law or equity and shall
survive the transactions contemplated herein and the termination of this Lease.
10.6 Ownership of Hazardous Substances
---------------------------------
If the Tenant creates or brings to the Premises any Hazardous
Substances or if the conduct of the Tenant's business shall cause there to be
any Hazardous Substance at the Premises then, notwithstanding any rule of law to
the contrary, such Hazardous Substance shall be and remain the sole and
exclusive property of the Tenant and shall not become the property of the
Landlord notwithstanding the degree of affixation to the Premises of the
Hazardous Substances, and notwithstanding the expiry or earlier termination of
this Lease.
ARTICLE 11 - CLEANING, REPAIR
-----------------------------
11.1 Cleaning
--------
(a) The Tenant shall, at its sole expense, keep the Premises and, without
limitation, the yard and Parking Areas, the inside and outside of all
glass windows and doors of the Premises and all exterior surfaces of
the Premises, in a neat, clean and sanitary condition and shall not
allow any refuse, garbage or other loose or objectionable or waste
material to accumulate in or about the Premises, yard or Parking
Areas. All refuse shall be disposed of on a timely basis and in a
reasonable manner.
10
(b) The Tenant shall, immediately before the termination of the Term, wash
the floors, windows, doors, walls and woodwork of the Premises and
shall not, upon such termination, leave upon the Premises any refuse,
garbage or waste material.
(c) Without restricting the foregoing, the Tenant shall pay for its own
janitorial services, cleaning of debris, removal of garbage,
landscaping, yard and Parking Area maintenance, and such other costs
as may be incurred in cleaning in accordance with this Article.
(d) In the event the Tenant fails to clean or maintain in accordance with
this Article upon notice so to do from the Landlord, the Landlord may
attend to the same and the Tenant shall pay to the Landlord as
Additional Rent the cost thereof.
11.2 Tenant's Repairs
----------------
(a) The Tenant shall repair the Premises, only excepting reasonable wear
and tear and repairs which are the responsibility of the Landlord
pursuant to this Article, but including any damage to or breakage of
glass, plate glass, shop windows, mouldings, storefronts, signs,
doors, hardware, lighting, wiring, plumbing, improvements, partitions,
wall fixtures and all trade fixtures and furnishings of the Tenant or
otherwise in or for the Premises and the Tenant shall maintain in good
condition the interior of the Premises, any appurtenances thereto, any
improvements now or hereafter erected or installed therein and any
apparatus or equipment of the Tenant therein or therefor.
(b) The Tenant shall keep well-painted at all times the interior of the
Premises in accordance with the reasonable requests of the Landlord,
using colours which shall first be approved in writing by the
Landlord.
(c) The Tenant shall maintain all-heating, ventilation, air-conditioning
and plumbing facilities within the Premises and all drains therefrom
in good repair and working order.
(d) The Tenant, its employees or agents shall not ▇▇▇▇, paint, drill or in
any way deface any walls, ceilings, partitions, floors, wood, stone,
brick or ironwork without the written approval of the Landlord.
11.3 View Repairs
------------
The Landlord may enter the Premises at any reasonable time during
business hours and at any time during any emergency to view the state of repair
and the Tenant shall repair according to notice in writing from the Landlord so
to do, subject to the exceptions contained in this Article.
11.4 Landlord may Maintain and Repair
--------------------------------
If the Tenant fails to maintain and repair as required herein and
according to notice from the Landlord within fourteen (14) days of receipt
thereof, or such shorter period as may be reasonable in the circumstances, the
Landlord may complete such maintenance and repair without liability to the
Tenant for any loss or damage that may occur to the Tenant's merchandise,
fixtures or other property or to the Tenant's business by reason thereof, and
upon completion thereof, the Tenant shall pay as Additional Rent the Landlord's
cost for conducting such repairs or maintenance.
11.5 Landlord's Repairs
------------------
(a) The Landlord shall be responsible for Structural Repairs to the
Premises caused by perils against which the Landlord has insured,
unless caused by the negligence of the Tenant, or persons for whom the
Tenant is responsible in law.
11
(b) The Landlord shall not be liable for any loss or damage to any person
or property for its failure to repair in accordance with this Article,
unless such loss or damage is caused by the default or negligence of
the Landlord, its agents, employees or contractors and is not
specifically excepted pursuant to the provisions of this Lease.
(c) In fulfilling its obligations pursuant to this Article, the Landlord
shall be entitled to enter the Premises and shall act as expeditiously
as is reasonably possible in the circumstances.
11.6 Taking of Possession
--------------------
The taking of possession of the Premises by the Tenant shall be
conclusive evidence against the Tenant, that at the time of taking possession,
the Premises were in good and fully satisfactory order and condition.
ARTICLE 12 - ALTERATIONS, FIXTURES
----------------------------------
12.1 Tenant's Alterations
--------------------
(a) The Tenant shall not make or cause to be made any alterations,
additions or improvements or erect or cause to be erected any
partitions or install or cause to be installed any trade fixtures,
exterior signs, floor covering, interior or exterior lighting,
plumbing fixtures, shades, awnings, exterior decorations or make any
changes to the Premises without first obtaining the Landlord's written
approval thereto, such approval not to be unreasonably withheld in the
case of alterations, additions or improvements to the interior of the
Premises.
(b) All fixtures installed by the Tenant shall be new, provided that the
Tenant may install its usual trade fixtures in its usual manner so
long as such installation has first been approved by the Landlord and
does not damage the structure of the Premises.
(c) The Tenant shall not install in or for the Premises any special locks,
safes, or apparatus for air-conditioning, cooling, heating,
illuminating, refrigerating or ventilating the Premises without first
obtaining the Landlord's written approval thereto.
(d) When seeking the approval of the Landlord as required by this Article,
the Tenant shall present to the Landlord plans and specifications of
the proposed work.
(e) The Tenant shall promptly pay all contractors, material suppliers and
workmen so as to minimize the possibility of a lien attaching to the
Premises and should any claim or lien be made or filed the Tenant
shall discharge the same.
12.2 Removal of Fixtures
-------------------
(a) So long as the Tenant is not in default hereunder at the expiration of
the Term, the Tenant shall then have the right to remove its trade
fixtures from the Premises but shall make good any damage caused to
the Premises resulting from the installation or removal thereof;
provided that all alterations, additions and improvements constructed
and installed in the Premises and attached in any manner to the
floors, walls or ceiling, including any floor covering and light
fixtures, are hereby deemed not to be trade fixtures and shall remain
upon and be surrendered with the Premises, except to the extent the
Landlord requires removal thereof.
(b) If the Tenant fails to remove its trade fixtures and restore the
Premises as aforesaid, all such trade fixtures shall become the
property of the Landlord except to the extent that the Landlord
continues to require removal thereof.
12
(c) Should the Tenant abandon the Premises or should this Lease be
terminated before the proper expiration of the Term due to a default
on the part of the Tenant then, in such event, as of the moment of
default by the Tenant, all trade fixtures and furnishings of the
Tenant (whether or not attached in any manner to the Premises) shall,
except to the extent the Landlord requires the removal thereof, become
and be deemed to be the property of the Landlord, without indemnity to
the Tenant and as additional liquidated damages in respect of such
default but without prejudice to any other right or remedy of the
Landlord.
(d) Notwithstanding that any trade fixtures, alterations, additions,
improvements or fixtures are or may become the property of the
Landlord, the Tenant shall forthwith remove all or part of the same
and shall make good any damage caused to the Premises resulting from
the installation or removal thereof, all at the Tenant's expense,
should the Landlord so require by notice to the Tenant.
(e) If the Tenant, after receipt of a notice from the Landlord, fails to
promptly remove any trade fixtures, furnishings, alterations,
additions, improvements and fixtures in accordance with such notice,
then the Landlord may enter into the Premises and remove therefrom all
or part of such trade fixtures, furnishings, alterations, additions,
improvements and fixtures without any liability and at the expense
of the Tenant, which expense shall forthwith be paid by the Tenant to
the Landlord.
ARTICLE 13 - SUBSTANTIAL DAMAGE AND DESTRUCTION, EXPROPRIATION
--------------------------------------------------------------
13.1 No Abatement
------------
If during the Term the Premises shall be damaged or destroyed by any
cause whatsoever such that the Premises are rendered unfit for occupancy by the
Tenant, the rent hereby reserved shall not ▇▇▇▇▇ in whole or part except to the
extent that such rent is recovered by the Landlord under any policies of
insurance against rental loss which the Landlord may have taken out.
13.2 Substantial Damage or Destruction
---------------------------------
In the event of Substantial Damage or Destruction of the Premises the
Landlord may within sixty (60) days after such damage or destruction and on
giving thirty (30) days written notice to the Tenant declare this Lease
terminated forthwith and in such event, the Term shall be deemed to have expired
and the Tenant shall deliver up possession of the Premises accordingly, rent
shall be apportioned and shall be payable up to the date of termination stated
in such notice and the Tenant shall be entitled to be repaid by the Landlord any
rent paid in advance and unearned or an appropriate portion thereof.
13.3 Rebuilding
----------
If this Lease is not terminated pursuant to this Article, and such
damage or destruction is insured against by the Landlord the Landlord shall
cause such damage or destruction to be repaired, restored or reconstructed, save
as to items which are the responsibility of the Tenant pursuant to any provision
of this Lease.
13.4 Expropriation
-------------
(a) If during the Term, title is taken to the whole or any part of the
Premises by any competent authority under the power of eminent domain
or by expropriation, the Landlord may at its option terminate this
Lease on the date possession is taken by or on behalf of such
authority. Upon such termination, the Tenant shall immediately deliver
up possession of the Premises, rent shall be payable up to the date of
such termination and the Tenant shall be entitled to be repaid by the
Landlord any rent paid in advance and unearned or an appropriate
portion thereof.
13
(b) In the event of any such taking, the Tenant shall have no claim upon
the Landlord for the value of its property or the unexpired portion of
the Term, but the parties shall each be entitled to separately advance
their claims for compensation for the loss of their respective
interests and to receive and retain such compensation as may be
awarded to each respectively. If an award of compensation made to the
Landlord specifically includes an award for the Tenant, the Landlord
will account therefor to the Tenant.
ARTICLE 14 - ASSIGNMENT, SUBLETTING, SALE OR MORTGAGE
-----------------------------------------------------
14.1 Assignment and Subletting
-------------------------
The Tenant shall not assign this Lease in whole or in part, nor sublet
all or any part of the Premises, nor grant any license or part with possession
of the Premises or transfer any other right or interest under this Lease, or, if
the Tenant is a corporation, cause or permit to occur either directly or
indirectly any change in its ownership or control, all without the prior written
consent of the Landlord in each instance, which consent shall not be
unreasonably withheld or delayed provided the proposed assignment or sublease or
change in ownership or control complies with the following provisions:
(a) notwithstanding any assignment or sublease, the Tenant shall remain
fully liable on this Lease and shall not be released from performing
any of the terms, covenants and conditions of this Lease;
(b) if the Lease is assigned or if the Premises or any part thereof are
sublet or occupied by anyone other than the Tenant, the Landlord may
collect rent directly from the assignee, subtenant or occupant, and
apply the net amount collected, or the necessary portion thereof, to
the rent herein reserved;
(c) no assignment, sublease or transfer of ownership or control of the
Tenant shall be made or proposed other than to substantial and
responsible persons, firms, partnerships or bodies corporate who have
financial strength equal to or greater than the Tenant and who are
experienced in and agree to carry on the type of business conducted in
the Premises by the Tenant, as set forth in Section l.l(h), and in the
case of any assignment or subletting who undertake in favour of the
Landlord to perform and observe the obligations of the Tenant
hereunder by entering into an assumption agreement directly with the
Landlord;
(d) the prohibition against assigning or subletting without the consent
required by this Article shall be construed to include a prohibition
against any assignment or sublease by operation of law;
(e) the consent by the Landlord to any assignment or sublease shall not
constitute a waiver of the necessity of such consent to any subsequent
assignment or sublease.
14.2 Bulk Sale
---------
No bulk sale of the goods and assets of the Tenant out of the ordinary
course of business may take place without first obtaining the written consent of
the Landlord, which consent shall not be unreasonably withheld so long as the
Tenant and the purchaser are able to provide the Landlord with assurances, in a
form satisfactory to the Landlord, that the Tenant's obligations hereunder will
continue to be performed and respected, in the manner satisfactory to the
Landlord, after completion of the sale.
14.3 Subordination and Attornment
----------------------------
(a) This Lease and the Tenant's rights hereunder shall automatically be
subordinate to any mortgage or encumbrance resulting from any method
of financing or refinancing, now or hereafter in force against the
Premises or any part thereof, as now or hereafter constituted, and to
all advances made
14
or hereafter to be made upon the security hereof; and, upon the
request of the Landlord, the Tenant shall execute such documentation
as may be required by the Landlord in order to confirm and evidence
such subordination.
(b) The Tenant shall, in the event any proceedings are brought, whether in
foreclosure or by way of the exercise of the power of sale or
otherwise, under any mortgage or other method of financing or
refinancing made by the Landlord in respect of the Premises, attorn to
the encumbrancee upon any such foreclosure or sale and recognize such
encumbrancee as the Landlord under this Lease, should such
encumbrancee so elect and require.
(c) The Landlord shall use its best efforts to ensure that no
subordination or attornment as required by this Article shall have the
effect of disturbing the Tenant's occupation and possession of the
Premises, provided that the Tenant is not in default hereunder and
complies with all of the covenants, terms and conditions hereof.
14.4 Estoppel Certificate, Acknowledgment
------------------------------------
(a) Whenever requested by the Landlord, a mortgagee, an encumbrance holder
or other third party having any interest in the Premises, the Tenant
shall within ten (10) days of the request execute and deliver an
estoppel certificate or other form of certified acknowledgment as to
the Commencement Date, the status and the validity of this Lease, the
state of the rental account hereunder, any incurred defaults on the
part of the Landlord alleged by the Tenant, and such other information
as may reasonably be required, including, if requested, a copy of the
Tenant's most recent audited financial statements.
(b) Tenant's failure to deliver such certificate or acknowledgment within
the time provided shall constitute default hereunder and shall be
conclusive against the Tenant that the information set out in the
certificate or acknowledgment which the Tenant was requested to
execute is as set out in such certificate or acknowledgment.
14.5 Sale by Landlord
----------------
In the event of a sale by the Landlord of any portion or all its
interest in the Premises, the Landlord shall thereafter be entirely relieved of
the performance of all terms, covenants and obligations thereafter to be
performed by the Landlord under this Lease, to the extent of the interest or
portion so sold or transferred and it shall be deemed and construed without
further agreement between the parties that the purchaser or transferee, as the
case may be, has assumed and agreed to carry out any and all covenants of the
Landlord hereunder.
14.6 Financial Information
---------------------
The Tenant shall, upon request, provide the Landlord with such
information as to the financial standing and corporate organization of the
Tenant or any indemnifier or guarantor of this Lease, as the Landlord or any
mortgagee of the Premises may require.
ARTICLE 15 - INDEMNITY, LIENS
-----------------------------
15.1 Tenant's Indemnify
------------------
The Tenant shall at all times during the Term, indemnify and save
harmless the Landlord of and from all loss and damage and all actions, claims,
costs, demands, expenses, fines, liabilities and suits of any nature whatsoever
for which the Landlord shall or may become liable, incur or suffer by reason of
a breach, violation or non-performance by the Tenant of any covenant, term or
provision hereof or by reason of any builders' or other liens for any work done
or materials provided or services rendered for alterations, improvements or
repairs to the
15
Premises, made by or on behalf of the Tenant, or by reason of any injury
occasioned to or suffered by any person or damage to any property, by reason of
any wrongful act or omission, default or negligence on the part of the Tenant or
any of its agents, concessionaires, contractors, customers, employees, invitees
or licensees in or about the Premises.
15.2 Personal Injury and Property Damage
-----------------------------------
The Landlord shall not be liable or responsible for:
(a) any personal injury or consequential damage of any nature whatsoever,
however caused, that may be suffered or sustained by the Tenant or by
any other person who may be upon the Premises; or
(b) any loss or damage of any nature whatsoever, howsoever caused, to the
Premises, any property belonging to the Tenant or to any other person
while such property is in or about the Premises.
15.3 Liens
-----
The Tenant shall, immediately upon demand by the Landlord, remove or
cause to be removed, and thereafter institute and diligently prosecute any
action pertinent thereto, any builders' or other lien or claim of lien noted or
filed against or otherwise constituting an encumbrance on any title of the
Landlord. Without limiting the foregoing obligations of the Tenant, the Landlord
may cause the same to be removed, in which case the Tenant shall pay to the
Landlord as Additional Rent the cost thereof, including the Landlord's complete
legal costs.
15.4 Granting of Security Interest
-----------------------------
(a) The Tenant shall not grant a Security Interest in any goods that have
become affixed to the Premises, and the Tenant shall not affix to the
Premises any goods which are subject to a Security Interest.
(b) The Tenant shall not permit any notice claiming a Security Interest in
any fixture to be registered against title to the Premises and shall,
immediately upon demand by the Landlord, remove or cause to be removed
any such notice and institute and diligently prosecute any proceedings
pertinent thereto.
ARTICLE 16 - DEFAULT, REMEDIES, TERMINATION
-------------------------------------------
16.1 Default
-------
If and whenever:
(a) the Tenant shall be in default in the payment of any money, whether
hereby expressly reserved or deemed as rent, or any part thereof, and
such default shall continue for seven (7) days following any specific
due date on which the Tenant is to make such payment or, in the
absence of such specific due date, for the seven (7) days following
written notice by the Landlord requiring the Tenant to pay the same;
or
(b) the Tenant's leasehold interest hereunder, or any goods, chattels or
equipment of the Tenant located in the Premises shall be taken or
seized in execution or attachment, or if any writ of execution shall
issue against the Tenant and not be discharged within fourteen (14)
days of its issuance, or the Tenant shall become insolvent or commit
an act of bankruptcy or become bankrupt or take the benefit of any Act
that may be in force for bankrupt or insolvent debtors or become
involved in voluntary or involuntary winding up, dissolution or
liquidation proceedings, or if a receiver or receiver and manager
shall be appointed for the affairs, business, property or revenues of
the
16
Tenant; or
(c) the Tenant shall fail to commence, diligently pursue and complete the
Tenant's work to be performed pursuant to any agreement to lease
pertaining to the Premises or other agreement signed by the parties or
fail to open for business when required by the provisions of this
Lease, or vacate or abandon the Premises or fail or cease to operate
pursuant to the provisions of this Lease or otherwise cease to conduct
business from the Premises, or use or permit or suffer the use of the
Premises for any purposes other than as allowed pursuant to this
Lease, or fail to remedy or rectify any act or omission hereunder, or
if the Tenant should make a bulk sale of its goods and assets which
has not been consented to by the Landlord, or move or commence,
attempt or threaten to move its goods, chattels and equipment out of
the Premises other than in the routine and ordinary course of its
business; or
(d) the Tenant or any agent of the Tenant falsifies any report or
statement required to be furnished to the Landlord or anyone else
pursuant to this Lease; or
(e) the Tenant makes a sale in bulk out of the ordinary course of business
of any of its assets, wherever situated (other than a bulk sale made
to an Assignee or Sublessee pursuant to a permitted assignment or
subletting hereunder); or
(f) the Tenant abandons or attempts to abandon the Premises, or sells or
disposes of the trade fixtures, goods or chattels of the Tenant or
removes them from the Premises so that there would not in the event of
such sale or disposal be sufficient trade fixtures, goods or chattels
of the Tenant on the Premises subject to distress to satisfy all rent
due or accruing hereunder for a period of at least twelve (12) months;
or
(g) the Premises become and remain vacant for a period of five (5)
consecutive days or are used by any persons other than such as are
entitled to use them hereunder; or
(h) ownership or control of the Tenant changes or the Tenant assigns,
transfers, encumbers, sublets or permits the occupation or use or the
parting with or sharing possession of all or any part of the Premises
by anyone except in a manner permitted by this Lease; or
(i) re-entry is permitted under any other term of this Lease; or
(j) the Tenant fails to observe, perform or keep each and every of the
covenants, agreements, stipulations, obligations, conditions and other
provisions of this Lease to be observed, performed and kept by the
Tenant and persists in such default, in the case of monetary payments,
beyond the seven (7) day period stipulated in paragraph (a) aforesaid
or, in the case of any other default, after seven (7) days following
written notice from the Landlord requiring that the Tenant remedy,
correct or comply or, in the case of any such default which would
reasonably require more than seven (7) days to rectify, unless the
Tenant shall commence rectification within the said seven (7) day
notice period and thereafter promptly and diligently and continuously
proceed with the rectification of any such default;
then, and in each of such cases, and at the option of the Landlord and in
addition to any other rights or remedies the Landlord may have pursuant to this
Lease or at law, the Landlord may, immediately re-enter upon the Premises and
may expel all occupants thereof and remove all property from the Premises and
such property may be removed and sold or disposed of by the Landlord in such
manner as it deems advisable, including by private sale, or may be stored in a
public warehouse or elsewhere at the cost and for the account of the Tenant, all
without service of notice or resort to legal process and without the Landlord
being considered guilty of trespass or becoming liable for any loss or damage
which may be occasioned thereby. If the Landlord elects to re-enter the Premises
as herein provided, or if it takes possession pursuant to legal proceedings or
pursuant to any notice provided for by law, it may either terminate this Lease
or it may from time to time without terminating this Lease, make such
alterations and repairs
17
as are necessary in order to relet the Premises, or any part thereof, for such
term or terms (which may be for a term extending beyond the Term) and at such
rent and upon such other terms, covenants and conditions as the Landlord in its
sole discretion considers advisable.
16.2 Landlord may Perform
--------------------
If the Tenant shall fail to observe, perform or keep any of the
provisions of this Lease to be observed, performed and kept by the Tenant, the
Landlord may, but shall not be obliged to, at its discretion and without
prejudice to any other right, claim or action it may have, rectify the default
of the Tenant, whether or not performance by the Landlord on behalf of the
Tenant is otherwise expressly referred to in the applicable Section of this
Lease. For such purpose the Landlord may make any payment or do or cause to be
done such things as may be required including, without limiting the generality
of the foregoing, entry upon the Premises. Any such performance by or at the
behest of the Landlord shall be at the expense of the Tenant and the Tenant
shall pay to the Landlord as Additional Rent the cost thereof.
16.3 Distress
--------
If and whenever the Tenant shall be in default in the payment of any
money, whether hereby expressly reserved or deemed as rent, or any part thereof,
the Landlord may, without notice or any form of legal process whatever, enter
upon the Premises and seize, remove and sell by judicial or formal process or by
private sale the Tenant's goods, chattels and equipment therefrom or seize,
remove and sell, by judicial or formal process or by private sale, any goods,
chattels and equipment at any place to which the Tenant or any other person may
have removed them, in the same manner as if they had remained and been
distrained upon the Premises, all notwithstanding any rule of law or equity to
the contrary, and the Tenant hereby waives and renounces the benefit of any
present or future statute or law limiting or eliminating the Landlord's right of
distress or sale.
16.4 Costs and Interest
------------------
All costs, expenses and expenditures of the Landlord, incurred upon
any default by the Tenant hereunder, including, without limitation, the legal
costs incurred by the Landlord on an indemnification basis as between solicitor
and his own client shall, forthwith on demand, be paid by the Tenant to the
Landlord as Additional Rent. All rent and other sums due to the Landlord
pursuant to the terms of this Lease shall be paid by the Tenant promptly when
due, and if not so paid, shall bear interest from their respective due dates at
the rate of five (5%) per cent per annum above the then existing Bank of Canada
Prime Rate, both before and after default, demand and judgment.
16.5 Vacate Upon Termination Survival
--------------------------------
At the termination of this Lease, whether by affluxion of time or
otherwise, the Tenant shall vacate and deliver up possession of the Premises in
the same state and condition as they where in upon delivery of possession to the
Tenant, subject to the exceptions from the Tenant's obligation to repair and
subject to the Tenant's rights and obligations in respect of removal and the
Tenant shall thereupon surrender all keys to the Premises to the Landlord at the
place then fixed for payment of rent and shall inform the Landlord of all
combinations on locks, safes and vaults, if any, in the Premises. The indemnity
agreements contained in this Lease shall survive the termination of this Lease.
16.6 Additional Rights on Default or Re-Entry
----------------------------------------
If the Tenant shall be in default under this Lease beyond any period
given herein to rectify such default, or if the Landlord shall re-enter the
Premises or terminate this Lease when entitled to do so pursuant to default of
the Tenant hereunder, then:
(a) notwithstanding any such re-entry, termination, or the Term thereby
becoming forfeited and void, the provisions of this Lease relating to
the consequences of termination shall survive;
18
(b) the Landlord may use such force as it may deem necessary for the
purpose of gaining admittance to and retaking possession of the
Premises and the Tenant hereby releases the Landlord from all actions,
proceedings, claims and demands whatsoever for or in respect of any
such forcible entry or any loss or damage in connection therewith or
consequential thereupon;
(c) the Landlord may relet the Premises or any part thereof for a term or
terms which may be less or greater than the balance of the Term and
may grant reasonable concessions in connection therewith; and
(d) the Tenant shall pay to the Landlord on demand:
(i) rent and all other amounts payable hereunder up to the time of
re-entry or to termination, whichever shall be the later; and
(ii) such reasonable expenses as the Landlord may incur or has
incurred in connection with the re-entering, terminating,
reletting, collecting sums due or payable by the Tenant,
realizing upon assets seized, including without limitation
brokerage, legal fees and disbursements on an indemnification
basis as between a solicitor and his own client, and the
expenses of keeping the Premises in good order, repairing the
same and preparing them for reletting; and
(iii) at the Landlord's option, either of the following:
(A) as liquidated damages for the loss of rent and other income
of the Landlord expected to be derived from the Lease
during the period which would have constituted the
unexpired portion of the Term had it not been terminated,
the greater of:
(I) an amount determined by reducing to present worth at
an assumed interest rate of ten (10%) per cent per
annum all Minimum Rent and Additional Rent to become
payable during the period which would have constituted
the unexpired portion of the Term, such determination
to be made by the Landlord, who may make reasonable
estimates of when any such other amounts would have
become payable and may make such other assumptions of
fact as may be reasonable in the circumstances; and
(II) an amount equal to accelerated Minimum Rent and
Additional Rent for a period of six (6) months; or
(B) damages on the footing of a present recovery of damages for
loss of the benefit of the Lease over its unexpired Term,
without any requirement in law or in equity imposed upon
the Landlord to notify the Tenant prior to, concurrently
with, or at any time following the exercise of the option
of the Landlord to terminate this Lease that the Landlord
intends to claim such damages from the Tenant.
16.7 No Waiver
---------
No provision of this Lease shall be deemed to have been waived by the
Landlord unless a written waiver from the Landlord has first been obtained and,
without limiting the generality of the foregoing, no acceptance of rent
subsequent to any default and no condoning, excusing or overlooking by the
Landlord on previous occasions of any default nor any earlier written waiver
shall be taken to operate as a waiver by the Landlord or in any way to defeat or
affect the rights and remedies of the Landlord.
19
16.8 Remedies Cummulative
--------------------
No reference to or exercise of any specific right or remedy by the
Landlord shall prejudice or preclude the Landlord from any other remedy, whether
allowed at law or in equity or expressly provided for herein. No such remedy
shall be exclusive or dependent upon any other such remedy, but the Landlord may
from time to time exercise any one (1) or more of such remedies independently or
in combination. Without limiting the generality of the foregoing, the Landlord
shall be entitled to commence and maintain an action against the Tenant to
collect any rent not paid when due, without exercising the option to terminate
this Lease.
16.9 For Lease Signs
---------------
The Landlord shall have the right within six (6) months prior to the
expiration of the Term to place upon the Premises a notice, of reasonable
dimensions and reasonably placed so as not to interfere with the business of the
Tenant, stating that the Premises are to let and the Tenant shall not remove or
obscure such notice or permit the same to be removed or obscured.
16.10 Holding Over
------------
If the Tenant continues to occupy the Premises with the written
consent of the Landlord after the expiration or other termination of the Term,
then, without any further written agreement, the Tenant shall be a tenant from
month to month at the aggregate of:
(a) a minimum monthly rent equal to one hundred and twenty (120%) per cent
of the monthly Minimum Rent prevailing immediately prior to expiration
or termination;
(b) Additional Rent as herein provided.
and subject always to all of the other provisions in this Lease insofar as the
same are applicable to a month to month tenancy and a tenancy from year to year
shall not be created by implication of law; provided that if the Tenant
continues to occupy the Premises without the written consent of the Landlord at
the expiration or other termination of the Term, then the Tenant shall be a
tenant at will and shall pay to the Landlord, as liquidated damages and not as
rent, an amount equal to the aggregate set forth above during the period of such
occupancy, accruing from day to day and adjusted pro rata accordingly and
subject always to all of the other provisions of this Lease insofar as they are
applicable to a tenancy at sufferance and a tenancy from month to month or from
year to year shall not be created by implication of law; provided that nothing
herein contained shall preclude the Landlord from taking action for recovery of
possession of the Premises.
16.11 Failure to Pay
--------------
Should the Tenant fail to make any payment required by the Tenant
pursuant to this Lease, the Landlord may, without prejudice to any other right
or remedy of the Landlord, pay all or part of such required payment without
prior notice to the Tenant and recover such payment from the Tenant as
Additional Rent.
16.12 Charge on Personal Property
---------------------------
As security for the payment and performance of all debts, dues and
obligations of the Tenant under this Lease the Tenant hereby grants in favour of
the Landlord a fixed and paramount mortgage and charge and grants to the
Landlord a Security Interest in all present and after-acquired goods,
stock-in-trade, inventory, fixtures, equipment, chattels and facilities of the
Tenant now or hereafter located on the Premises and the said goods,
stock-in-trade, inventory, fixtures, equipment, chattels or facilities shall not
be removed by the Tenant other than in the ordinary course of business unless
permitted in writing by the Landlord. The provisions of this Article and the
mortgage and charge hereby conferred shall survive expiration of the Term or
earlier termination of this Lease.
20
ARTICLE 17 - GENERAL PROVISIONS
-------------------------------
17.1 Approvals
---------
No provision in this Lease requiring the Landlord's consent or
approval shall be deemed to have been fulfilled or waived unless the written
consent or approval of the Landlord relating to the particular matter or
instance has first been obtained and, without limiting the generality of the
foregoing, no prior consent or approval and no condoning, excusing or
overlooking by the Landlord on previous occasions when such a consent or
approval was required shall be taken to operate as a waiver of the necessity of
such consent or approval whenever required under this Lease.
17.2 Landlord's Performance
----------------------
Notwithstanding anything in this Lease to the contrary, the Landlord
shall not be deemed to be in default in respect of the performance of any of the
terms, covenants and conditions of this Lease if any failure or delay in such
performance is due to any strike, lockout, civil commotion, war-like operation,
invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, act of God, or other cause beyond the
control of the Landlord.
17.3 Relationship of Parties
-----------------------
Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent nor any
other provision contained herein, nor any acts of the parties herein, shall be
deemed to create any relationship between the parties other than the
relationship of landlord and tenant.
17.4 Sole Agreement and Survival of Agreement to Lease
-------------------------------------------------
This Lease and any agreement to lease pertaining to the Premises
executed and delivered by or on behalf of the Landlord and the Tenant set forth
all of the warranties, representations, covenants, promises, agreements,
conditions and understandings between the parties concerning the Premises and
there are no warranties, representations, covenants, promises, agreements,
conditions or understandings, either oral or written, express or implied,
between them other than as set forth in this Lease, or the said agreement to
lease. The provisions of the said agreement to lease shall survive the execution
and delivery of this Lease, provided that such provisions shall be deemed to be,
and survive only as, covenants and not conditions and provided further that in
the event of any conflict or contradiction between this Lease and the said
agreement to lease, the provisions of this Lease shall prevail.
17.5 Modifications
-------------
Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon the parties
unless reduced to writing and signed by the parties. At the request of the
Landlord, the Tenant shall execute and deliver a modification agreement
reflecting the changes in this Lease resulting from an adjustment in Floor Area
or reflecting any other alteration, amendment, change or addition agreed to
between the parties, provided that, notwithstanding the failure of the Tenant to
do so, the Tenant shall be bound thereby.
17.6 No Brokerage Commission
-----------------------
As part of the consideration for the granting of this Lease, the
Tenant represents and warrants to the Landlord that no broker or agent (other
than any broker or agent authorized in writing by the Landlord) negotiated or
was instrumental in negotiating or consummating this Lease. Notwithstanding the
foregoing, any broker or agent of the Tenant shall be paid by the Tenant to the
exoneration of the Landlord.
21
17.7 Registration
------------
Neither the Tenant nor anyone on the Tenant's behalf or claiming under
the Tenant shall register this Lease or any permitted assignment or permitted
sublease of this Lease against the Lands or any part thereof comprising the
Premises.
17.8 Construed Covenant, Severability
--------------------------------
All of the provisions of this Lease are to be construed as covenants
and agreements. Should any provision of this Lease be or become illegal, invalid
or not enforceable, it shall be considered separate and severable from this
Lease and the remaining provisions shall remain in force and be binding upon the
parties hereto and be enforceable to the fullest extent of the law.
17.9 Further Assurances
------------------
The parties hereto and each of them do hereby covenant and agree to do
such things and execute such further documents, agreements and assurances as may
be necessary or advisable from time to time in order to carry out the terms and
conditions of this Agreement in accordance with their true intent.
17.10 Governing Law
-------------
This Agreement shall be governed in accordance with the laws of the
Province of Alberta and the parties hereto submit to such jurisdiction.
17.11 Time
----
Time shall be of the essence hereof.
17.12 Notices
-------
Any notice required to be given hereunder by any party shall be deemed
to have been well and sufficiently given if:
(a) personally delivered to the party to whom it is intended or if such
party is a corporation to an officer of that corporation; or
(b) mailed by prepaid registered mail, transmitted by facsimile or
delivered, to the address or facsimile number of the party to whom it
is intended as follows:
(i) if to the Landlord, at the address or number set forth in
Section 1.l(a)(ii);
(ii) if to the Tenant, to the Premises or to the address or number
set forth in Section 1.1(b)(ii);
or to such other address or number as a party may from time to time
direct in writing.
Any notice delivered before 4:30 p.m. local time on a Business Day shall be
deemed to have been received on the date of delivery and any notice delivered
after 4:30 p.m. local time on a Business Day or delivered on a day other than a
Business Day, shall be deemed to have been received on the next Business Day.
Any notice mailed shall be deemed to have been received seventy two (72) hours
after the date it is postmarked. Any notice sent by facsimile before 4:30 p.m.
local time on a Business Day shall be deemed to have been received when the
sender receives the answer back confirming receipt by the recipient; provided,
however, that any facsimile received after 4:30 p.m. local time on a Business
Day or received on a day other than a Business Day shall be deemed to have been
received on the next Business Day. If normal mail or communications service is
interrupted by strike, slow-down, force majeure or other cause after the notice
has been sent the notice will not be deemed to have been received until actually
22
received. In the event normal mail service is impaired at the time of sending
the notice, then personal delivery or facsimile transmission only shall be
effective.
17.13 Extended Meanings
-----------------
"Hereof", "herein", "hereunder" and similar expressions used anywhere
in this Lease relate to the whole of this Lease and not to any particular
section or subsection, unless otherwise expressly provided. The use of the
neuter singular pronoun to refer to the Landlord or the Tenant is deemed a
proper reference even though the Landlord or the Tenant is an individual,
partnership, corporation or a group of two (2) or more individuals, partnerships
or corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one
(1) landlord or tenant and to either corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
17.14 No Transfer on Bankruptcy
-------------------------
Neither this Lease nor any interest of the Tenant herein nor any
estate hereby created will pass or enure to the benefit of any trustee in
bankruptcy or any receiver or any assignee for the benefit of creditors of the
Tenant or otherwise by operation of law.
17.15 Successors Bound
----------------
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several respective heirs,
executors, administrators, successors and assigns of the said parties and if
there is more than one (1) party described in Section l.l(b), they shall all be
bound jointly and severally by the terms, covenants and agreements herein on the
part of the Tenant. No rights, however shall enure to the benefit of any
assignee of the Tenant unless the assignment to such assignee has been first
approved by the Landlord. All covenants, agreements, stipulations, obligations
and other provisions of this Lease to be observed, performed and kept by the
Tenant shall run with the land and therefore be enforceable by all the
successors of the Landlord.
17.16 Index and Headings
------------------
The index and headings in this Lease have been inserted for reference
and as a matter of convenience only and in no way define, limit or enlarge the
scope or meaning of this Lease or any provisions hereof.
17.17 Tenant's Acceptance
-------------------
The Tenant hereby accepts this Lease of the Premises, to be held by
the Tenant, subject to the
23
conditions, restrictions and covenants set forth herein.
IN WITNESS WHEREOF the parties hereto have executed this Lease as of
the day and year first above written.
NAR GROUP HOLDINGS LTD.
Per: /s/
------------------------------------
Per: /s/
------------------------------------
NORTH AMERICAN CONSTRUCTION GROUP INC.
Per: /s/
------------------------------------
Per: /s/
------------------------------------
SCHEDULE "A"
------------
DEFINITIONS
-----------
In this Lease, the following words, phrases and expressions are used
with the meanings defined as follows:
1. Additional Rent means any sum or sums other than Minimum Rent payable
by the Tenant to the Landlord pursuant to any provision of the Lease, all of
which are recoverable by the Landlord as rent.
2. Business Day means a day that is not a Saturday, Sunday or statutory
holiday in Alberta.
3. Commencement Date means the date set out in Section l.l(e)(ii).
4. Environmental Laws mean all international, federal, provincial or
municipal laws, by-laws, statutes, regulations, orders, permits, approvals or
judgments having jurisdiction over the Landlord, the Tenant or the Premises and
relating in any way to the environment or health matters including without
limitation matters relating to the use, storage and disposal of Hazardous
Substances or the release of any substance into the environment.
5. Hazardous Substance means any substance, product, material or good
which may be detrimental to the environment, plant or animal life, or human
health or which may adversely affect the condition, use or enjoyment of any real
or personal property and includes, but is not limited to any substance, product,
material or good declared to be hazardous or toxic pursuant to any Environmental
Law.
6. Landlord means the party or parties described in Section l.l(a) and
the heirs, executors, administrators, successors and assignees thereof.
7. Lease Year means, in the case of the first Lease Year, the period
beginning on the Commencement Date and terminating twelve (12) months from the
last day of the calendar month in which the Commencement Date occurs (except
that if the Commencement Date occurs on the first day of a calendar month, the
first Lease Year shall terminate on the day prior to the first anniversary of
the Commencement Date) and, in the case of each subsequent Lease Year, means
each twelve (12) month period after the first Lease Year.
8. Minimum Rent means the rent set out in Section 1.l(f).
9. Parking Areas means the paved portions of the Premises which have been
or are to be allocated- for the parking of motor vehicles, as from time to time
altered, reconstructed or expanded, and includes entrances, roads and other
means of access thereto and any parking structures or other parking facilities
from time to time constructed.
10. Premises means the lands described in Section l.l(d) and all
structures and improvements from time to time erected thereon and their
appurtenances, all as the same may be expanded or altered in accordance with
this Lease from time to time.
11. Property Taxes means all general, special, local improvement, school
and water taxes, levies, rates and charges from time to time imposed against the
Premises, or any part thereof, by municipal or other governmental authorities
having jurisdiction, together with the costs of contesting or negotiating the
same, but exclusive of income taxes, business taxes, place of business taxes,
estate, inheritance, succession, capital levy or transfer tax. (Should it be
found that due to changes in the method of levying or collection of any tax,
levy, rate or charge to be imposed upon the Premises, or any part thereof, or
should any new tax, levy, rate or charge be levied or imposed in lieu of or in
addition to those contemplated by the above definition, the Landlord and the
Tenant hereby agree to negotiate an amendment or new provision to this Lease as
is necessary to deal with such tax, levy, rate or charge, in an
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upon the Premises, or any part thereof, or should any new tax, levy, rate or
charge be levied or imposed in lieu of or in addition to those contemplated by
the above definition, the Landlord and the Tenant hereby agree to negotiate an
amendment or new provision to this Lease as is necessary to deal with such tax,
levy, rate or charge, in an equitable manner so as to obviate any injustice or
inequity which shall have arisen and should the Landlord and the Tenant fail to
agree on such amendment or new provision the same shall be settled by
arbitration in accordance with the Arbitration Act of the jurisdiction governing
this Lease, and amendments thereto, or any like statute in effect from time to
time).
12. Sales Tax means any Goods and Services Tax, sales tax, business
transfer tax, value added tax or any similar tax imposed against the Landlord or
the Tenant by the Government of Canada, or any provincial or municipal
government, to the extent that such tax is imposed against the Landlord or the
Tenant or is required to be paid or collected by the Landlord by reason of any
payment by the Tenant to the Landlord pursuant to any provision of this Lease.
13. Security Deposit means the sum of money specified in Section 1.l(g),
to be held by the Landlord in accordance with the terms of this Lease.
14. Security Interest means an interest in goods, chattel paper, a
security, a document of title, an instrument, money or an intangible, that
secures payment or performance of an obligation as more specifically defined in
the Personal Property Security Act of Alberta, any amendments there or
replacement thereof.
15. Structural Repairs means only repairs to the foundations, the
structural subfloors, columns, beams and the structural portions of bearing
walls and roofs of the Premises and excludes maintenance of every kind.
16. Substantial Damage or Destruction means such damage as, in the opinion
of the Landlord's architect, requires substantial alteration or reconstruction
of the Premises as cannot be repaired within a period of one hundred and eighty
(180) days from the time of such damage to the state wherein the Tenant could
use substantially all of the Premises for its business.
17. Tenant means the party or parties described in Section 1.1(b) and the
heirs, executors, administrators, successors and permitted assignees thereof.
SCHEDULE "B"
Legal Descriptions:
1. Plan 751620
Lot 3
Excepting thereout all mines and minerals
2. Meridian 4 Range 26 Township 53
Section 4
Quarter North East
All that portion described as follows:
Commencing at a point on the southerly limit of the station
grounds of the Grand Trunk Pacific Railway as shown on
Railway Plan 6267R 396 Feet
West of the east boundary of the said Quarter Section measured
along the said southerly limit thence westerly along the
said southerly limit 451 feet;
Thence southerly and at right angles to the said southerly
limit 89 feet; thence easterly and parallel to
the said southerly limit 451
feet; thence northerly to the point of commencement,
containing .372 hectares (0.95 of an acre) more or less
Excepting thereout all mines and minerals.
3. Meridian 4 Range 26 Township 53
Section 4
Quarter North East
All that portion lying south of the southerly limit of the station
grounds of the Grand Trunk Pacific Railway as shown on Railway Plan
6267R containing 19.32 hectares (47.78 acres) more or less
Excepting thereout: Hectares (Acres) more or less
A) All that portion described as follows:
Commencing at the intersection of the east boundary of the said
Quarater Section with the southerly limit of the said station grounds
thence westerly along the said southerly limit 847 feet,
thence southerly and at right angles to the said southerly limit 89
feet,
thence easterly and parallel to the said southerly limit of the
station
grounds to the easterly boundary of the Quarter, thence
northerly along the said east boundary to the point of commencement
Containing.............. 0.692 1.71
B) Plan 7521459 Road 0.376 0.93
C) Plan 7521620 Subdivision 3.04 7.53
D) Plan 9720886 Railway 0.546 1.35
Excepting thereout all mines and minerals
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4. Plan 7620002
All that portion taken for extra right of way
Containing 6.058 hectares (14.97 acres) more or less
Excepting thereout:
Hectares (Acres) more or less
A) Plan 9720886 Railway 3.135 7.75
Excepting thereout all mines and minerals