Sana's Lease
LEASE SUMMARY
.01 Lease Summary
The following is a summary of some of the basic tenns of this Lease. For details of the tenus referred to below, recourse should be had to the balance of this Lease. This Section 1.01 is for convenience only and if a conflict occurs between the provisions of this Section 1.01 and any other provisions of this Lease, the other provisions of this Lease shall govern.
Outdoor Signage: included in par.(f)
Pylon Signage Included in par. (f)
Use: Retail sales of deli products,store known
as Krakow Deli.
.01 Definitions:
Where used in this Lease, the following words or phrases shall have the meanings as set forth in the balance of this Article.
2.01.08 “Goods and Services Tax” means any and all goods and services taxes, sales taxes, value added taxes, business transfer taxes, or any other taxes imposed on the Landlord with respect to the Basic Rent or Additional Rent payable by the Tenant to the Landlord under this Lease pursuant to the Excise Tax Act, or in respect of the rental of space under this Lease, whether characterized as a goods and services tax, sales tax, value added tax, business transfer tax or otherwise.
2.01.09 “Laws” means all statutes, regulations, by-law, orders, rules, requirements and directions of all federal, provincial, municipal and other governmental authorities having jurisdiction.
2.01.10 “Lease” means this lease including all of the schedules attached hereto.
2.01.11 “Leaseable Areas” means all areas and spaces of the Project to the extent
designated or intended from time to time by Landlord to be leased to tenants, whether leased or not, but excluding the following: Storage Areas, parking areas and facilities, and other service areas and facilities which may be leased or licensed from time to time.
2.01.12 “Operating Costs” means the aggregate of all expenses and costs of every kind determined for each fiscal period, designated by Landlord on an accrual basis in accordance with generally accepted accounting principles and without duplication, incurred by or on behalf of Landlord with respect to and for the operation, maintenance, repairs, replacements, and management of the Project and all insurance relating to the Project provided that if the Project is less than 100% completed or occupied during the whole of any fiscal period. Operating Costs shall be adjusted to mean the amount obtained by adding to the actual Operating Costs during such fiscal period such additional costs as would have been incurred if the Project had been 100% completed and occupied as determined by Landlord acting reasonably.
Without in any way limiting the generality of the foregoing. Operating Costs shall include all costs in respect of the following:
all remuneration, including wages and fringe benefits of employees directly employed or engaged in the operation, maintenance, repair, replacement, and management of the Project;
heating, ventilating, air-conditioning and humidity control of the Project;
cleaning, janitorial services, window cleaning, and garbage and waste removal;
operation, maintenance, repair and replacements in respect of any elevators, escalators and other transportation equipment, if any;
V. all utilities supplied to the Project including, without limitation hot and cold water, gas, electricity, sewer charges and any other utilities or forms of energy;
landscaping, line painting and repaving, maintenance and repair and replacement of all outside areas, including snow and ice removal;
depreciation or amortization of all structures, improvements, furnishings, fixtures, equipment, machinery, facilities, systems and property which is part of or installed in or used in connection with the Project which by their nature require periodic or substantial repair or replacement, or which are installed or used primarily to reduce the cost or consumption of other items included in Operating Costs (whether or not such costs in respect of the same are in fact reduced), and the amount of all capital costs amortized over Landlord’s reasonable estimate of the economic life thereof (but not to exceed fifteen (15) years), and interest on the undepreciated cost of all items in respect of which depreciation or amortization is included herein at two (2) percent in excess of the prime rate of interest charged by Landlord’s bank at Toronto from time to time;
machinery, equipment, facilities, systems and property installed in or used in connection with the Project if the principal purpose or intent of the same or such use or installation was to reduce the cost of consumption of other items included in Operating Costs, whether or not such other costs are in fact reduced;
all insurance which Landlord is obliged to obtain and/or which Landlord otherwise obtains and the cost of any deductible amounts payable by Landlord in respect of any insured risk or claim;
X. policing, supervision, security and traffic control;
maintenance, repairs and replacements in respect of the Project including structural maintenance, repairs and replacements;
Landlord’s office expenses including telephones, stationary and supplies;
engineering, accounting, legal and other consulting and professional services related to the Project including the cost of preparing statements respecting Operating Costs;
signs including without limitation, the cost of all repair maintenance and rental charges in respect thereof;
XV. communications, sound, visual lighting, alarm, smoke detection and monitoring systems and any other systems;
business taxes, if any, on Common Facilities,
decoration of Common Facilities;
contribution, as determined by Landlord acting reasonably and bona fide but in Landlord’s sole discretion, on account of all costs in the nature of those included in Operating Costs in respect of all shared facilities and services including, without limitation, loading areas and docks, parking ramps, driveways and exterior areas, which will be shared by users of the Project;
all costs in the nature of the Operating Costs incurred by Landlord in consequence of its interest in the Project such as maintaining, cleaning, and clearing of ice and snow from municipal sidewalks, adjacent property and the like;
. capital tax(es), if any, payable by Landlord in respect of or resulting from Landlord’s ownership of or other interest in the Project or any part thereof and any tax in lieu of such tax(es), which capital tax(es) shall be calculated and determined as if Landlord had no ownership or interest in any other real or personal property other than the Project and all furnishings, fixtures, equipment and improvements therein, all of which shall be as determined by Landlord’s auditor or accountant whose determination shall be final and binding;
capital costs incurred up to ten thousand dollars ($10,000.00) for any one item;
the fair rental value (having regard to rentals prevailing from time to time for similar space) of space occupied by Landlord for management, supervising or administrative purposes relating to the Project;
all Goods and Services Taxes relating to Operating Costs; all Commercial Concentration Taxes attributable to the Project.
An administrative fee of fifteen percent (15%) of such total annual costs including without limitation those referred in subparagraphs (i) to (xxiv) with the exception of subparagraph (vii).
operating Costs, however, shall be reduced to the extent actually received by Landlord by the net proceeds of insurance and damages paid by parties in respect of and to the extent of costs included in Operating Costs as set forth above.
Operating Costs, however, shall exclude the following;
expenses incurred by Landlord in respect of other tenants’ leasehold improvements;
capital costs except to the extent included as set forth above;
depreciation, except to the extent included as set forth above;
repairs or replacement to the extent that the cost of the same is recovered by Landlord pursuant to original construction warranties;
To the extent that it is feasible to do so, Operating Costs shall be allocated by Landlord acting reasonably among the Centre or the Storage areas, if any.
2.01.13 ‘‘Premises” shall have the meaning ascribed to it in Section 4.01.
2.01.14 “Project” means those lands described in Schedule “A” hereto as such lands may be expanded, reduced or otherwise altered by Landlord in its sole discretion from time to time, and all buildings, structures, systems, improvements, equipment and facilities of any kind erected or located thereon from time to time.
2.01.15 “Proportionate Share” means a fraction which has as its numerator the Rentable Area of the Premises and which has as its denominator the aggregate Rentable Area of Leasable Areas within the Centre excluding the area of moveable retail units, such as push carts and the like.
2.01.16 “Pylon” means the pylon located at the entranceway to the Project and which contains signage advertising the tenants of the Project.
2.01.17 “Realty Taxes” means all taxes, rates, duties, levies, fees, charges, local improvement rates, levies and assessments whatever (including school taxes, water and sewer taxes, and special assessments and all rates, charges, excises or levies, whether or not of the foregoing nature), and whether municipal, provincial, federal or otherwise, which may be levied, imposed, assessed, charged or rated against the Project or any part thereof or any furniture, fixtures, equipment or improvements therein, or against Landlord in respect of any of the same or in respect of any rental or other compensation receivable by Landlord in respect of the same, excluding only Landlord’s income taxes thereon, but including all of such taxes which may be incurred by or imposed upon Landlord in lieu of or in addition to the foregoing.
2.01.18 “Rent” shall have the meaning ascribed to it in Section 5.01.
2.01.19 “Rentable Area” when applied to the Premises or any Leaseable Areas means
the area measured from the exterior face of all exterior walls and windows unless the same shall be greater than one (T) foot in thickness in which case the measurement shall be from one (1 ’) foot toward the exterior from the interior face of such walls or windows, from the exterior face of all interior walls and windows dividing any Leasable Area from Common Facilities, and from the centre line of all interior walls and windows separating any Leasable Areas from other Leasable Areas, all without allowance for any space occupied by structures, columns, beams, conduits, ducts or projections of any kind, and all without deduction for the recessing of any entrance way or boundary wall from the lease line, in such case the lease line to be the point to which the appropriate measurement is to be made. Every Rentable Area shall be as determined by Landlord from time to time and each such determination shall be binding upon the parties hereto. It is understood and accepted by the parties to this agreement that there can be deviations in actual size of the unit up to 5(five) percent which deviation doesn’t affect the payable rental charges. Excess deviation of 5% will cause recalculation of rental charges accordingly.
2.01.20 “Rental Year” means a period of twelve (12) consecutive calendar months except:
the first Rental Year in the Term shall commence on the Commencement Date and on the next succeeding December 31;
the last Rental Year in the Term shall terminate upon the expiration or earlier termination of this Lease; and
Landlord shall have the right at any time or times, by written notice to Tenant, to change the expiry date of any Rental Year and, in such case, such Rental Year shall terminate on the thus determined by Landlord and any appropriate adjustments resulting from any Rental Year being shorter or longer shall be made.
.01.21 “Storage Area” means all areas, if any, as designated by Landlord from time to time outside the Project to be used by tenants exclusively or primarily for storage purposes.
.01.22 “Term” shall have the meaning ascribed to it in Section 4.02.
INTENT OF LEASE
3.01 “Net Lease”
It is the intent of the parties hereto that this Lease be a lease that is absolutely net to Landlord, and that, except as expressly herein set out, Landlord shall not be responsible for any expenses or obligations of any kind whatsoever in respect of or attributable to the Premises or the Project, Common Areas, or Storage Area.
LEASE OF PREMISES
4.01 Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord:
those certain premises (“Premises”) now or hereafter to be constructed as part of the Project which Premises are identified and shown outlined in red on the plan attached hereto as Schedule “B”. The purpose of Schedule “B” is to show the approximate location of the Premises and the contents thereof are not intended as a representation of any kind as to the precise size or dimensions of the Premises or any other aspects of the Project.
The Premises shall extend from the upper surface of the structural sub floor to the lower surface of the structural ceiling within the boundaries of the Premises determined pursuant to subsection 2.21 above.
4.02 Term
The term of this Lease (the “Term”) shall be for the period described as the Term in Section 1.01 hereof, commencing on the Commencement Date and to be fully completed and ended on the date described as the expiry date in Section 1.01 hereof.
4.03 License to Use Common Facilities
Landlord grants to Tenant the non-exclusive licence during the Term to use in common with all others entitled thereto and for their intended purposes such portions of the Common Facilities as are reasonably required for the use and occupancy of the Premises for their intended purposes during such hours as such Common Facilities shall be open for use, as detennined by Landlord from time to time acting reasonably.
4.04 Quiet Enjoyment
Subject to all of the terms of this Lease and subject to Tenant’s paying all Rent and performing all obligations whatsoever as and when the same are due to be paid and performed by Tenant, Tenant may peaceably possess and enjoy the Premises for the Term without interruption by Landlord or any person claiming by, from or under Landlord.
4.05 Fixturing of Premises
Within sixty (60) days after the Commencement Date Tenant shall fully finish, furnish, fixture, and staff the whole of the Premises and shall commence the conduct of its business in the whole of the Premises as permitted and required pursuant to the terms of this Lease.
5- RENT
5.01 Tenant to Pay
Tenant shall pay in lawful money of Canada at par at such address as shall be designated from time to time by Landlord, Basic Rent and Additional Rent (all of which are collectively herein sometimes referred to as “Rent”) as herein provided without any deduction, set-off or abatement whatsoever.
On the Commencement Date and the first day of each Rental Year thereafter and at any time during any Rental Year when required by Landlord, Tenant shall deliver to Landlord as requested by Landlord post-dated cheques for all payments of Basic Rent, Storage Rent, and estimates by Landlord of Additional Rent or any portions thereof payable during the balance of such Rental Year.
5.02 Basic Rent
Commencing on the earlier of (i) the Commencement Date, and (ii) the date upon which Tenant opens for business in any part of the Premises, Tenant shall pay to Landlord a fixed minimum annual rent (“Basic Rent”) in the amount ascribed as Basic Rent in Section 1.01 hereof, to be paid in equal monthly instalments in advance on the first day of each month during the Tenn.
If the first day upon which Basic Rent is payable is other than the first day of a calendar month, then Tenant shall pay upon such date Basic Rent from such date to the end of such month calculated at a daily rate of l/365th of the annual Basic Rent.
5.03 Signage Rent
Commencing on the earlier of (i) the Commencement Date, and (ii) the date upon which Tenant opens for business in any part of the Premises, Tenant shall pay to Landlord a fixed minimum annual rent for signage (“Signage Rent”) for:
signage on the immediate exterior of the Premises in the amount ascribed in Section 1.01 (t) (a); and
signage on the Pylon in the amount ascribed in Section 1.01 (f) (b)
hereof, to be paid in equal monthly instalments in advance on the first day of each month during the Term.
5.04 Additional Rent
In addition to the Basic Rent, Tenant shall pay to Landlord (i) all other amounts as and when the same shall be due and payable pursuant to the provisions of this Lease, all of which shall be deemed to accme on a per diem basis; and (ii) all other amounts as and when the same shall be due and payable pursuant to any agreement or other obligation, whether or not related to the Premises between Landlord and Tenant; all of such amounts whether originally payable pursuant to this Lease or otherwise, being herein sometimes referred to as “Additional Rent”.
5.05 Monthly Payments of Additional Rent
Landlord may from time to time estimate any amount(s) payable by Tenant pursuant to any provisions of this Lease. The amounts so estimated shall be payable by Tenant in advance in equal monthly instalments over the fiscal period or broken portion thereof, such monthly instalments being payable on the same day as the monthly payments of Basic Rent. Landlord may, from time to time, designate or alter the fiscal period selected in each case. As soon as
practicable after the expiration of each fiscal period, Landlord shall furnish to Tenant a statement of the actual Operating Costs and Realty Taxes for such fiscal period and shall make a final determination of the amounts payable by Tenant pursuant to the provisions hereof for such fiscal period. If the amount determined to be payable by Tenant as aforesaid shall be greater or less than the payments on account thereof made by Tenant prior to the date of such determination, then the appropriate adjustments will be made and Tenant shall pay any deficiency to Landlord within thirty (30) days after delivery of such statement and final determination and if Tenant is not in default under the term of the Lease, the amount of any overpayment shall be paid to or credited to the account of Tenant within thirty (30) days after the delivery of such statement.
5.06 Additional Rent Rate
The Tenant shall pay to the Landlord in and for each Lease Year, Additional Rent as set out in section 1.01 (g) for such Lease Year by monthly payments with an annual adjustment pursuant to Section 5.07.
5.07 Annual Adjustment of Additional Rent
On or before the anniversary of a Lease Year, the Landlord will advise the Tenant of the difference between the Additional Rent Rate and the actual amount of Additional Rent that was payable for the previous Lease Year (the “Additional Rent Adjustment”) and of the adjustment that is to be made to the Additional Rent Rate on account of any changes to the actual Additional Rent of the previous Lease Year (the “Revised Additional Rent Rate”). Upon the receipt by the Tenant of the Notice by the Landlord identifying the Revised Additional Rent Rate, the Tenant shall, from the date of the receipt of the said Notice, make payments on account of Additional Rent according to the Revised Additional Rent Rate.
6. TAXES
.01 Payment of Taxes
Landlord shall have the right to require Tenant to pay such Realty Taxes and any other taxes which are Tenant’s responsibility as set out herein to the relevant taxing authority or Landlord shall have the right to pay any such Realty Taxes or other taxes directly to such taxing authority without thereby affecting Tenant’s obligation to pay or contribute to such Realty Taxes or other taxes. To the extent of Realty Taxes received by Landlord from Tenant, Landlord shall pay same to the relevant taxing authority.
.02 Taxes Payable by Tenant
Commencing on the earlier of (i) the Commencement Date and (ii) the date on which Tenant first uses any part of the Premises for the conduct of business, and thereafter at all times throughout the Term, Tenant shall pay to Landlord or the relevant taxing authority, as required by Landlord, not later than the time when they fail due, all Realty Taxes and other taxes, if any, levied, confirmed, imposed, assessed or charged (herein collectively or, individually referred to as “charged”) against or in respect of the Premises and all buildings, furnishings, fixtures, equipment, improvements and alterations in or forming part of the Premises, and including, without limiting the generality of the foregoing, any such Realty Taxes and other taxes charged against the Premises, if any, in respect of:
the land on which the Premises is situate; and
any Common Facilities.
In addition. Tenant shall pay, in the same manner as it is required to pay or contribute to Operating Costs pursuant to Section 7.02 hereof, the Proportionate Share of Realty Taxes charged against or in respect of Common Facilities, and the amount, if any, of Realty Taxes charged against the Project in excess of the amount of Realty Taxes in the aggregate, charged against Leaseable Areas.
6.03 Determination of Tenant’s Taxes
Tenant’s obligation to pay Realty Taxes charged against the Premises shall be determined on the basis of separate bills respecting the Premises, where available. If the relevant taxing authority does not issue a separate bill respecting the Premises, then Tenant’s obligation in respect thereof shall be computed by applying the relevant tax rate to the applicable assessment of the Premises if the Premises have been separately assessed by the relevant assessing authority. If there is neither a separate bill for Realty Taxes charged against the Premises nor a separate assessment of the Premises for any period of time, then for such period of time, the Realty Taxes charged against the Premises shall be determined by Landlord acting reasonably, the cost of making such determination to be included in Operating Costs.
6.04 Business Taxes
Tenant shall pay as and when the same are due and payable all business taxes including all taxes charged in respect of any business conducted on the Premises or in respect of any use or occupancy of the Premises, whether or not charged against Landlord or the Premises.
6.05 Tax Bills and Assessment Notices
Tenant shall promptly deliver to Landlord forthwith upon Tenant receiving same:
copies of all assessment notices, tax bills and any other documents received by Tenant related to Realty Taxes chargeable against or in respect of the Premises or the Project; and
receipts for payment of Realty Taxes and business taxes payable by Tenant.
On or before the expiry of each calendar year or such sooner time as Landlord shall request Tenant shall provide to Landlord evidence satisfactory to Landlord that all Realty Taxes and business taxes payable by Tenant pursuant to the terms hereof up to the expiry of such calendar year, including all penalties and interest resulting from late payment of Realty Taxes and business taxes, have been duly paid.
6,06 Contest of Realty Taxes
Realty Taxes, or the assessments in respect of Realty Taxes, which are the subject of any contest by Landlord or Tenant shall nonetheless be payable in accordance with the foregoing provisions hereof provided, however, that in the event Tenant shall have paid any amount in respect of Realty Taxes in excess of the amount ultimately found payable as a result of the disposition of any such contest, and Landlord receives a refund in respect thereof, if Tenant is not in default hereunder, the appropriate amount of such refund shall be refunded to or, at the option of Landlord, credited to the account of Tenant.
Landlord may contest any Realty Taxes and appeal any assessments related thereto and may withdraw any such contest or appeal or may agree with the relevant authorities on any settlement, compromise or conclusion in respect thereof and Tenant consents to Landlord’s so doing. Tenant will cooperate with Landlord in respect of any such contest and appeal and shall make available to Landlord such information in respect thereof as Landlord requests. Tenant will execute forthwith on request all consents, authorizations or other documents as Landlord requests to give full effect to the foregoing.
Tenant will not contest any Realty Taxes or appeal any assessments related thereto without first notifying Landlord in writing.
Tenant shall pay to Landlord forthwith upon demand the Proportionate Share or such reasonable share as allocated by Landlord in its sole discretion of all costs and expenses of any kind incurred by Landlord bona fide and acting reasonably in obtaining or attempting to obtain infonnation in respect of reduction of or a reallocation in respect of Realty Taxes and any assessments related thereto including, without limitation, legal, appraisal, administration and overhead costs.
.07 Adjustments
Any amounts payable by Tenant on account of Realty Taxes shall be adjusted on a per diem basis in respect of any period not falling wholly within the Term, for which Realty Taxes are payable.
.08 Goods and Services Taxes
The Tenant shall pay to the Landlord an amount equal to the Landlord’s liability (pursuant to the applicable legislation) for any and all Goods and Services Taxes, levied, rated, charged or assessed in connection with this Lease, it being the intention of the parties that the Landlord shall be fully reimbursed by the Tenant with respect to the Tenant’s liability for any and all Goods and Services Taxes payable by the Landlord. The amount of Goods and Services Taxes so payable by the Tenant shall be calculated by the Landlord in accordance with the applicable legislation and shall be paid to the Landlord at the same time as the amounts, to which the Goods and Services Taxes or taxes apply, are payable to the Landlord under the terms of this Lease or upon demand at such other time or times as the Landlord from time to time determines. Despite any other paragraph or clause of this Lease, the amount payable by the Tenant under this paragraph shall be deemed to be a tax and not Rent but the Landlord shall have all of the same remedies for and rights of recovery of such amount as it has for recovery of Rent under this Lease and may require it to be paid in the same manner as Additional Rent for purposes of collection.
OPERATION OF PROJECT
7.01 Operation of Project by Landlord
Landlord shall repair, maintain and operate the Project in a reasonable manner having regard to the size, age, location and character of the Project.
7.02 Tenant’s Payment of Operating Costs
7.02.01 Commencing on the earlier of (i) the Commencement Date and (ii) the date on which Tenant first uses any part of the Premises for the conduct of business, and thereafter at all times throughout the Term Tenant shall pay to Landlord the Proportionate Share of Operating Costs respecting or allocated to the Centre.
7.02.02 The amounts payable by Tenant pursuant to this Section 7.02 may be computed on the basis of such periods of time as Landlord shall determine from time to time and shall be paid by Tenant to Landlord without deduction, abatement or set-off whatsoever within ten (10) days after the receipt of a statement submitted to Tenant showing the amount payable by Tenant from time to time.
7.03 Adjustments
All amounts payable under this Article 7.00 in respect of any period not falling entirely within the Term shall be adjusted between Landlord and Tenant on a per diem basis.
USE OF PREMISES
8.01 Use of Premises
The Premises shall not be used or occupied for any purpose other than as set out in Section l.Ol(k). The Tenant shall not carry on or pennit to be carried on therein any other use without the prior consent of the Landlord and only under such name or style as may be reasonably approved by Landlord.
8.02 Tenant’s Fixtures
Tenant may not remove any trade fixtures or other contents of the Premises therefrom other than in the ordinary course of business except that, with the prior written consent of Landlord, Tenant may remove such trade fixtures provided that Tenant provides evidence satisfactory to Landlord that it is substituting therefore trade fixtures at least equal in value and function to those being removed.
8.03 Signs
Tenant shall not erect, install or display any sign or display on or visible from the exterior of the Premises or the Building without first obtaining the Landlord’s consent thereto.
8.04 Waste and Nuisance
The Tenant shall not cany on any business or do or suffer any act or thing which may constitute a nuisance or which shall be offensive or an annoyance to the Landlord or other occupants of the Project, not do or suffer any waste or damage, disfiguration or injury to the Premises or permit or suffer any overloading of the floors thereof.
8.05 Conduct of Business
The Tenant shall occupy the Premises from and after the commencement of the term hereof and shall, thereafter, conduct continuously the business set out in Section 8.01 hereof, in the whole of the Premises. In the conduct of the Tenant’s business pursuant to the tenns of this Lease, the Tenant shall:
operate its business with due diligence and efficiency and maintain an adequate sales face to properly serve all customers and have fixtures and equipment of first-class quality;
conduct its business in the Premises during such hours and on such days and evenings as the Landlord may from time to time require or permit, and at no other time. Provided that nothing shall require the Tenant to carry on its business during any period prohibited by any law or by law regulating the hours when such business may be carried on. The Tenant agrees not support the enacting or the renewal of any such law or by law;
install and maintain at all times displays of merchandise in the display windows, if any, of the Premises. Then Tenant shall keep the display windows and signs, if any, in the Premises well lit during such hours as are designated by the Landlord from time to time;
store and/or stock in the Premises only such goods, wares and merchandise as the Tenant intends to offer for sale at retail in at, in, from or on the Premises and the Tenant shall not use any portion of the Premises for office, clerical or other non-selling purposes other than such minor parts as are reasonably required for the Tenant’s business in the Premises;
not perform any acts or carry on any practices which may damage the building or buildings and improvement forming the Project or be a nuisance or menace to the Landlord or to other tenants or customers of or in the Project;
not do, nor suffer or permit to be done, any act in or about the Common Facilities or the Project which hinder or interrupt the flow of traffic to, in and from the Project and not do, nor suffer or permit anything to be done which will in any way obstruct the free movements of persons doing business in the Project with any tenant or occupant of the Project;
not, nor shall it suffer or permit its employees or agents to solicit business in any of the Common Facilities, nor display any merchandise outside the Premises at any time without the prior express written consent of the Landlord;
not commit or suffer or pennit to be committed any waste upon the Premises or any nuisance or other thing which may disturb the quiet enjoyment of any other tenant in the project, or which may unreasonably disturb, interfere with or annoy any person within five hundred (500) feet of the boundaries of the Project;
use the name King Shepard Square and all insignias and other identifying names and/or marks which the Landlord instructs the Tenants to use in connection with such name in the advertising of its business conducted in the Premises. Notwithstanding the foregoing, the Tenant shall not acquire any right in any such name, marks or insignias;
not install or allow on the Premises any radio, television or other transmitting device and not erect any aerial on the roof of any building forming apart of the Project or on any exterior walls of the Premises or in any of the Common Facilities without in each instance, first obtaining the written consent of the Landlord. Any such installation without such written consent shall be subject to removal without notice at any time and at the cost of the Tenant; and
not use any loudspeakers, televisions, phonographs, radios or other devices in a manner so that they can be heard or seen outside of the Premises without the prior written consent of the Landlord.
The Tenant shall, at its sole cost and expense, comply with all provisions of law, including, without limiting the generality of the foregoing, all requirements of all federal and provincial legislative enactments, by-laws and other governmental or municipal regulations now or hereafter in force which relate to the Premises, or to the making of any repairs, replacements, alterations, additions, changes substitutions or improvement of or to the Premises subject to the provisions of Article 10 hereof; and the Tenant will comply with all police, fire and sanitary regulations imposed by any governmental, provincial and municipal authorities, or made by fire insurance underwriters, and the Tenant will observe and obey governmental and municipal regulations and all other regulations and requirement governing the conduct of any business in the Premises.
8.07 Licences and Concessions
The Tenant shall not permit any business to be operated in or fi-om the Premises by any concessionaire, franchisee, licensee or others without the prior written consent of the Landlord in each instance first had and obtained, which consent may, notwithstanding any statutory provision or provisions to the contrary, be arbitrarily withheld. The consent by the Landlord to any concession, franchise or license shall not constitute a waiver of the necessity for such consent to any subsequent concession, franchise or license. In the event the Landlord does grant its consent to any such concession, franchise or license, each such concession, franchise or licence shall only be granted upon an subject to the following conditions:
that such concession, franchise or license shall be subject to the terms and conditions contained in this Lease;
that the aggregate area of all such concession, franchises or licenses shall not at any time exceed such percentage of the Rentable Area of the Leased Premises that the Landlord shall in its sole discretion, deem advisable;
that each such concessionaire, franchisee or licensee shall carry on business under the trade name and style of the Tenant and in such manner so that to all intents and purposes, same shall appear as an integral part of the Tenant’s business operations.
8.08 Character of Business and Prohibited Activities
8.08.01 The Tenant shall operate and conduct its business upon the whole of the Premises in an up-to-date, first class and reputable manner befitting the character of the Project.
8.08.02 Any business conduct or practice promulgated, carried on or maintained by the Tenant, whether through advertising or selling procedures or otherwise, which in the reasonable opinion of the Landlord any harm or tend to harm the business or reputation of the Landlord or reflect or tend to reflect unfavourably on the Project, the Landlord or any other tenant of the Project or which might tend to confuse, mislead, deceive or be fraudulent to the public, shall be immediately discontinued by the Tenant at the request of the Landlord.
8.08.03 Without limiting the generality of the provisions of Article 8 hereof, the Tenant shall not use or pennit or suffer the use of the Premises, or any or parts thereof, for any of the following businesses or activities:
the sale of second-hand goods or surplus articles, insurance salvage stock, fire sale stock or bankruptcy stock;
an auction, bulk sale, liquidation sale, “going out of business” or bankruptcy sale, warehouse sale, or any special sale or sales other than such as are incidental to the normal routine of the Tenant’s business with its regular customers and other than bulk sale made to an assignee or sub-lessee pursuant to a permitted assignment or subletting hereunder;
any other business which, because of the merchandising methods likely to be used, would tend to lower the character of the Project;
any operation in any line of merchandise which makes a practice of unethical or deceptive advertising and/or selling procedures;
catalogue sales in or from the Premises except of merchandise which the Tenant is permitted to sell “over the counter” in or at the Premises pursuant to the provisions of Section 8.01.
8.08.04 Landlord shall have the right to cause Tenant to discontinue and Tenant shall thereupon forthwith discontinue the sale of any item, merchandise and/or commodity, the supply of any service and/or the carrying on of any business, not in the sole and absolute opinion of the Landlord to be directly related to the business set out in Section 8.01 hereof or which is specifically prohibited under this Section.
8.09 Environmental Practices
8.09.01 In this Lease:
“Environmental Audit” shall mean a complete review of the Premises and the environmental practices of the Tenant thereon by the Landlord, its employees or agents and shall include such visual inspections, interviews with the Tenant, its employees, servants, or agents, and such soil, air, or other tests as the Landlord shall in its sole discretion deem to be necessary.
“Hazardous Substance” means any contaminant, pollutant or hazardous substance that is likely to cause immediately or at some future time, harm or degradation to the environment or risk to human health or safety, and without restricting the generality of the foregoing, includes without limitation any pollutant, contaminant, waste, hazardous waste, toxic substance or dangerous good which is defined or identified in any municipal, provincial or federal environmental legislation.
8.09.02 The Tenant shall at all times use the Premises so as to comply with all municipal, provincial and federal environmental legislation in keeping with first class environmental protection practices and so as not to allow Hazardous Substance to be on the Premises.
8.09.03 The Landlord shall have the right to conduct an Environmental Audit of the Premises at any time and from time to time throughout the term and any renewal thereof.
8.09.04 In the event that the Environmental Audit reveals that the Tenant is storing, handling, transporting, manufacturing, processing or otherwise dealing with any Hazardous Substances in the Premises, Building or Centre, the Landlord shall give the Tenant ninety (90) days within which to amend its manner of storing, handling, transporting, manufacturing, processing or otherwise dealing with such Hazardous Substances to comply with first class environmental protection practices and the manner in which the Landlord indicates such Hazardous Substances must be stored, handled, transported, manufactured, processed or otherwise dealt with. The Tenant shall, at its expense, further forthwith carry out such procedures including a total clean up of any Hazardous Substances as are, in the sole opinion of the Landlord, necessary to correct any damage which may have been done to the Premises, Building or Centre and to forestall any damage to the Premises, Building or Centre which in the opinion of the Landlord may be created by the unsatisfactory storing, handling, transporting, manufacturing, processing or otherwise dealing with any Hazardous Substances.
8.09.05 In the event that the Tenant shall be in default of the provisions hereof and shall fail to amend its practices or take such corrective measures as are required pursuant to subparagraph (8.09.04) hereof within the aforesaid ninety (90) day period the Landlord shall have the right to enter upon the Premises and carry out such procedures as are, in the sole opinion of the Landlord, necessary to correct any damage which may have been done to the Premises, Building or Centre, or to forestall any damage to the Premises, Building or Centre which in the opinion of the Landlord may be created by the unsatisfactory storing, handling, transporting, manufacturing, processing or otherwise dealing with such Hazardous Substances and the Tenant shall pay to the Landlord on demand, as Additional Rent, all costs and expenses of carrying out such procedures. Further, and in addition, to any other remedies available to the Landlord, the Landlord may, on seven (7) days’ notice, terminate the Lease.
8.09.06 Any entry on the Premises of the Tenant by the Landlord pursuant to this Paragraph 8.05 shall not constitute a breach of the Landlord’s covenant of Quiet Enjoyment.
9. SERVICES AND UTILITIES
9.01 Utilities
9.01.01 Subject to Landlord’s ability to do so, and to Landlord’s obligations under the Agreement to Lease the Premises, if any. Landlord shall supply or cause to be supplied to the Premises reasonable utilities and reasonable heating and air- conditioning for the reasonable and comfortable uses of the Premises for their intended purposes, the cost to Landlord of which shall be included in Operating Costs. Tenant shall be solely responsible for and shall promptly pay for, as and when they fall due, all costs of supplying water, electricity, gas, steam and other utilities including heating and air-conditioning to or in respect of the Premises including, without limitation, the cost of such utilities consumed in or with respect to the Premises, and shall provide the Landlord with evidence of said payment, if requested.
9.01.02 Tenant’s use of any such utilities shall not exceed the available capacity of the existing systems from time to time. If Tenant desires at any time to obtain any such utilities in excess of such available capacity, Tenant may supply and install at its expense any special wires, conduits or other equipment necessary to provide such additional capacity subject to the prior written consent of Landlord.
9.01.03 Should individual meters or apparatus for the measurement of the consumption of any or all utilities supplied to the Premises not be installed at any time Landlord, acting reasonably, shall allocate the cost of such utilities including heat and air- conditioning among the various users thereof and such allocation by Landlord shall be final and binding upon Tenant. If required by Landlord, Tenant shall install at its expense, a separate meter or meters to measure the consumption of any or all utilities in the Premises, the type of meter and location to be as determined by Landlord.
9.01.04 Tenant shall promptly pay as and when the same shall be payable all costs for all fittings, connections, and meters and all work or services performed in connection with any services or utilities provided to or in respect of the Premises.
9.02 Heating and Air-Conditioning
9.02.01 Landlord shall heat the Premises during the appropriate heating season and shall cool the Premises during the appropriate air-conditioning season by means of such heating and cooling equipment as shall be maintained from time to time, for the nonnal use of the Premises.
9.02.02 If the heating or cooling equipment shall require maintenance, repair or replacement. Landlord shall attend to the same with reasonable promptness having regard to the then existing climatic conditions but Landlord shall not be liable for any losses or damages arising from the resulting lack of heating or cooling, so long as Landlord completes any maintenance, repair or replacement reasonably promptly and, in any event. Landlord shall not be liable for any indirect or consequential losses or damages or any damages for personal discomfort arising from any lack of heating or cooling, whether caused by Landlord’s negligence or otherwise. It is understood that all expenses incurred with regards to the maintenance, repairs and/or replacement of heating and air- conditioning equipment are borne solely by the Tenant;
9.02.03 Landlord shall not be responsible for the inadequacy of any heating or cooling of the Premises if (i) the use or occupancy of the Premises, or (ii) the electrical or other power consumed on the Premises, or (iii) the configuration of partitions or other items on the Premises, or (iv) the failure of Tenant to shade windows interferes with or impairs the functioning of equipment or heating or cooling of the Premises.
9.02,04
9.03 Non-Liability of Landlord
Landlord shall not be liable for any damages, direct or indirect, resulting from or contributed to by any interruption or cessation of or failure in supply of any utilities or any heating, ventilating, air-conditioning and humidity control. Without limiting the generality of the foregoing, Landlord shall not be liable for and Tenant shall indemnify Landlord and save Landlord harmless from and against any and all indirect or consequential damage or damages for personal discomfort or illness of Tenant or any persons permitted by it to be on the Premises by reason of the suspension, non-operation, or failure for any period of time of any utilities, heating, ventilating, air-conditioning or humidity control.
9.04 Landlord’s Suspension of Utilities, Etc.
In order to effect any maintenance, repairs, replacements, alterations or improvements to any of such utilities, heating, ventilating, air-conditioning or humidity control systems, Landlord shall have the right, without any liability and without thereby constituting an interference with Tenant’s rights under this Lease or a breach by Landlord of this Lease, and without thereby entitling Tenant to any rights in respect thereof, to discontinue, suspend or modify any utilities, heating, ventilating, air-conditioning and humidity control systems at such time or times and from time to time as Landlord shall deem desirable.
9.05 Landlord’s Services
9.05.01 Tenant shall pay Landlord forthwith on demand all charges as detennined and allocated by Landlord acting reasonably in respect of all special services provided to or for the benefit of Tenant beyond building standard services the costs for which are included in Operating Costs, such special services including, without limitation, charges for security, hoisting, supervision, waste removal, and receiving, storing and handling materials and articles.
9.05.02 Landlord shall have the right, to be exercised by written notice to Tenant, to require that Landlord be the exclusive supplier, at Tenant’s expense, of such materials or services for Tenant in respect of the Premises and the Project not otherwise expressly provided for in this Lease as Landlord may designate from time to time including, without limitation, replacement of tubes, bulbs and ballasts; cleaning of carpeting, drapes and curtains; waste removal, and services requiring drilling or otherwise penetrating floors, walls and ceilings; and locksmithing and security arrangements.
9.06 Caretaking and Cleaning
9.06.01 The Landlord shall provide janitorial and cleaning services to the Project to a standard comparable to that of like buildings at the date of this Lease. The Landlord shall not be responsible for any omission or act of commission on the part of the person or persons employed or retained to perform such work, or for any loss thereby sustained by the Tenant, the Tenant’s servants, agents, invitees or others.
9.06.02 The Tenant shall leave the Premises in a reasonably tidy condition at the end of each day.
9.06.03 The Tenant and the Landlord may arrange for any additional caretaking or cleaning service by the Landlord which Tenant may reasonably require provided such additional caretaking or cleaning services are at the sole cost and expense of the Tenant.
Tenant’s Work
The Tenant shall complete the work as outlined in Schedule “C” to this Lease.
Landlord’s Work
The Landlord shall complete the work outlined in Schedule “D” to this Lease.
MAINTENANCE, REPAIRS AND ALTERATIONS
12.01 Maintenance and Repairs of Premises
At all times throughout the Tenn, Tenant at its sole expense shall perform or cause to be performed as required hereby such maintenance, decoration, repairs and replacements to keep the Premises and all the contents thereof and all services, equipment and systems located in or primarily serving the Premises, at all times in first-class appearance and condition, and in accordance with all Laws, and Landlord’s reasonable requirements, but excluding only the obligations of Landlord expressly provided in Section 12.06 hereof. For the purposes of this Article, Premises shall include, without limitation, all leasehold improvements, perimeter walls and doors.
12.02 Approval of Repairs and Alterations
12.02.01 Tenant shall not make any repairs, replacements, changes, additions, improvements or alterations (hereinafter in this Article 12.00 referred to as “Alterations”) to the Premises without Landlord’s prior written consent, which consent shall not be unreasonably withheld, unless such proposed Alterations might (i) in any way affect the demising walls or entrances of the Premises or the structure of the Premises or the Project or the coverage of the Project for zoning purposes or (ii) in the opinion of Landlord, detrimentally affect the appearance or quality of the Premises or the portion of the Project in which the Premises are located, or impair the value or usefulness of the Premises or the Project, in either of which events such consent may be unreasonably withheld in Landlord’s sole discretion.
12.02.02 With its request for Landlord’s consent. Tenant shall submit to Landlord details of the proposed Alterations including plans and specifications in respect thereof prepared by qualified architects or engineers, and such alterations shall be completed in accordance with the plans and specifications approved in writing by Landlord.
Unless expressly authorized in writing by Landlord to the contrary, all alterations which might cost in excess of Five Thousand Dollars ($5,000.00) to complete or which might effect the structure or mechanical or electrical systems of the Project or the Premises, shall be conducted under the supervision of a qualified architect or engineer approved by Landlord, such approval not to be unreasonably withheld.
12.02.03 All alterations shall be planned and completed in compliance with all Laws and Tenant shall, prior to commencing any Alterations, obtain, at its expense, all necessary permits and licences and provide evidence thereof satisfactory to Landlord.
12.02.04 All alterations shall be performed promptly and in a good and workmanlike manner and in compliance with Landlord’s rules and regulations by competent contractors or workmen who shall be designated or approved by Landlord.
All Alterations, the making of which, in Landlord’s opinion might disrupt other tenants or occupants of the Project or the public, shall be performed outside normal business hours.
12.02.05 If Tenant performs any such Alterations without compliance with all of the foregoing provisions of this Article 12.00, Landlord, without prejudice to and without limiting Landlord’s other rights pursuant to this Lease and at law, shall have the right to require Tenant to remove such Alterations forthwith.
12.03 Repair according to Landlord’s Notice
Landlord or any persons designated by it shall have the right to enter the Premises at reasonable times to view the state of repair, condition and use thereof and Tenant shall pron^tly perform any maintenance, decoration, repairs, replacements or alterations according to written notice from Landlord.
12.04 Notices by Tenant
Tenant shall give immediate written notice to Landlord of any accident, defect, damage or deficiency in any part of the Premises or the Project, which comes to the attention of Tenant or any of its employees or contractors.
12.05 Ownership of Leasehold Improvements
All leasehold improvements installed in the Premises shall forthwith upon the installation thereof become the absolute property of Landlord without compensation therefore but without Landlord having or thereby accepting any responsibility in respect of the maintenance, repair or replacement thereof, all of which shall be Tenant’s responsibility. The expression “leasehold improvements” where used in this Lease includes, without limitation, all fixtures, improvements, installations, alterations and additions from time to time made, erected or installed in or about the Premises, and includes all the following whether or not easily disconnected and moveable: doors, partitions and hardware; mechanical, electrical and utility installations; heating, ventilating, air- conditioning and humidity control equipment; lighting fixtures; built-in furniture and furnishings; all counters in any way connected to the Premises or to any utility services located therein. The only exclusions from “leasehold improvements” are free-standing furniture, trade fixtures and equipment not in any way connected to the Premises or to any utility systems located therein.
12.06 Landlord’s Repairs
12.06.01 Subject to the provisions of Article 12.00 herein, and subject to Tenant’s obligations hereunder. Landlord, to the extent that the failure to do so would materially detrimentally affect use of the Premises, shall throughout the Term maintain and repair the Common Facilities as would a prudent owner of a reasonably similar Project. The cost of such maintenance and repairs shall be included in Operating Costs, unless the Landlord is required, due to the business carried on by the Tenant or the use of the Premises by the Tenant, to perform such maintenance or make such repairs by reason of the application of law, regulations, by-laws or ordinances or the direction, rules or regulations of any duly constituted regulatory body, in which case the Tenant is solely liable and responsible for the total cost of all such repairs plus a sum equal to fifteen (15%) per cent of the total cost of the repairs, which shall become due and payable to the Landlord as Additional Rent within fifteen (15) days after receipt of an invoice from the Landlord setting out reasonable particulars of the charges. Furthermore, despite the foregoing, the Landlord is not obligated to make any repairs or replacements necessitated by any casualty except to the extent that proceeds of insurance are received by the Landlord from insurance required be maintaining pursuant to this Lease or otherwise maintaining by the Landlord.
12.06.02 If the Tenant refuses or neglects to caay out any maintenance, decoration, repairs and replacements properly, as required pursuant to Section 12.01 hereof to the reasonable satisfaction of the Landlord, the Landlord may, but shall not be obliged to, perform such maintenance, decoration, repairs and replacements without being liable for any loss or damage that may result 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 to the Landlord on demand, both the Landlord’s costs in connection with any such maintenance, decoration, repairs, and replacements plus a sum equal to fifteen (15%) percent thereof, representing the Landlord’s overhead. The Tenant agrees that the making of any maintenance, decoration, repairs or replacements by the Landlord pursuant to this Section 12.06 is not a re-entry or a breach of any covenant for quiet enjoyment contained in this Lease.
END OF TERM
13.01 Vacating of Possession
Forthwith upon the expiry or earlier termination of the Term, Tenant shall peaceably deliver to Landlord vacant possession of the Premises in such condition in which Tenant is required to maintain and keep the Premises during the Term pursuant hereto and shall leave the Premises in a neat, clean and broom swept condition and Tenant shall deliver all keys for the Premises and all keys or combinations to locks on doors, safes or vaults within the Premises.
13.02 Removal of Trade Fixtures
Provided that Tenant has paid all Rent to the date of expiry or earlier termination of the Term and any and all damages and other amounts payable by Tenant to Landlord for any reason whatever and provided Tenant is not otherwise in default hereunder, or if otherwise authorized or requested by Landlord, Tenant shall at the expiry or earlier termination of the Term remove its trade fixtures and shall repair all damage or injury caused to the Premises resulting from the installation or removal of such trade fixtures. Other than as provided above, Tenant shall not remove trade fixtures from the Premises.
If at the expiry or earlier termination of the Term, Tenant does not remove its trade fixtures or any of its other property on the Premises Landlord shall have no obligation in respect of any such trade fixtures or property and may sell or destroy the same or have them removed or stored at the expense of Tenant or dispose of them in any other manner whatsoever as may be determined by Landlord in its sole discretion; at the option of Landlord, such trade fixtures or property not removed at the expiry or earlier termination of the Term shall become the absolute property of Landlord without payment of any compensation therefore to Tenant and may be dealt with by Landlord in such manner as it determines.
13.03 Removal of Leasehold Improvements
Notwithstanding that the leasehold improvements become the absolute property of Landlord upon installation, at the expiry or earlier termination of the Term, Tenant shall remove any or all of all leasehold improvements as required by Landlord and in so doing shall repair any damage caused as a result of the installation or removal of the same.
13.04 Over holding by Tenant
If Tenant remains in possession of all or any part of the Premises after the expiry of the Term with the consent of Landlord and without any further written agreement, this Lease shall not be deemed thereby to have been renewed and Tenant shall be deemed conclusively to be occupying the Premises as a monthly tenant on the same basis as set forth in this Lease so far as they are applicable to a monthly tenancy except the monthly Basic Rent shall be 200% of an amount determined by taking 1/12 of the Rent payable for the period of the last twelve months of the Term.
DAMAGE AND DESTRUCTION
14.01 Termination of Lease
If either:
the Premises; or
twenty-five (25%) percent or more of the Leaseable Areas of the Project, whether or not there is any damage to the Premises, are damaged or destroyed and either:
in the opinion of Landlord acting reasonably the damage or destruction cannot be repaired or rebuilt within one hundred and eighty (180) days after the damage or destruction; or
such damage or destruction is caused by an occurrence against which Landlord is not insured or required to insure or the cost of repairs of which would be in excess of the amount which Landlord is required to insure pursuant hereto or is otherwise insured; or
such damage or destruction occurs within two (2) years prior to the expiry of the Term and either there are no remaining rights in Landlord or Tenant to extend or renew this Lease or Landlord or Tenant, having the right to renew or extend this Lease, fails to do so within fifteen (15) days after such occurrence:
the Landlord may, at its option to be exercised by written notice given to Tenant within sixty (60) days after such occurrence, terminate this Lease whereupon Tenant will immediately surrender the Premises and all its interest therein to Landlord and Basic Rent and all other payments for which Tenant is liable pursuant to this Lease shall be apportioned to the effective date of termination (but subject to any abatement to which the Tenant may be entitled under Section 14.03 of this Lease by reason of the Premises having been rendered in whole or in part not reasonably capable of use or occupancy). Tenant will remain liable to Landlord for all sums accrued due under this Lease to the date of tennination, and Landlord may re-enter and repossess the Premises discharged of this Lease.
14.02 Repair and Rebuilding
If this Lease is not tenninated pursuant to this Article 14.01:
Landlord, to the extent of insurance proceeds which Landlord receives or would have received if it had maintained such insurance as is required to be maintained by the Landlord hereunder, and to the extent that any mortgagee entitled to be paid such insurance proceeds consents to the use of same for repair of such damage or destruction, shall diligently proceed to perform such repairs to the Premises and Common Facilities to the extent of insurance proceeds being available. Within thirty (30) days after Landlord has completed its repairs, Tenant shall complete any necessary repairs to the Premises to render the Premises usable for Tenant’s purposes and shall fully fixture, stock and staff the Premises and recommence the operation of Tenant’s business.
Except to the extent of insurance proceeds received by the Landlord for the repair of the Premises, Tenant acknowledges that its obligations to repair the Premises after damage or destruction as aforesaid or otherwise shall be performed at Tenant’s sole cost whether or not the damage or destruction was caused by Landlord’s fault or negligence and whether or not Landlord had at any time made any contribution to the cost of supply, installation or construction of any leasehold improvements in the Premises.
Landlord, in performing its repairs to the Premises or the Common Facilities as required hereby shall not be obliged to repair or rebuild in accordance with plans or specifications for the Premises or the Common Facilities as they existed prior to such damage or destruction, but Landlord may repair or rebuild the same in accordance with any plans and specifications chosen by Landlord in its sole and absolute discretion provided that Tenant’s use and occupancy of and access to the Premises and the general overall quality of the Project are not materially detrimentally affected by any difference in plans, specifications, or form of the Premises or the Project from such plans, specifications and fonn as the same existed immediately prior to the occurrence of such damage or destruction.
14.03 Abatement
14.03.01 If the damage or destruction is such as to render the whole or any part of the Premises unusable for the purpose of Tenant’s use as pennitted hereby, then Basic Rent shall only abate from the date of the damage or destruction until the Premises are again usable by Tenant for the purpose intended. Basic Rent shall abate to the extent that Tenant’s use and occupancy of the Premises is in fact diminished, which determination shall be made by Landlord in its sole discretion acting reasonably. The abatement will diminish proportionately as repairs are made and more of the Premises is returned to a usable state.
14.03.02 Notwithstanding any other provision of this Section 14.03:
if the necessary repairs have been made within fifteen (15) days after the date of the damage or destruction, there will be no abatement of Basic Rent.
to the extent that any part of the Premises remains unusable because Tenant’s repairs have not been completed, no abatement of Basic Rent will extend beyond the date by which, in the opinion of Landlord arrived at on a reasonable basis, Tenant’s repairs would have been completed had Tenant exercised reasonable diligence.
Basic Rent shall abate only to the extent that such rent is recovered by Landlord under any policies of insurance against rental loss which Landlord may have obtained.
.04 Determination of Matters
For the purposes of this Article 14, all matters requiring detennination such as, without limitation, the extent to which any area(s) of the Premises or the Common Facilities are damaged, or are not capable of being used, or the times within which repairs may be made shall be determined by Landlord acting reasonably, such determination to be final and binding on the parties.
. INSURANCE AND INDEMNITY
15.01 Landlord’s Insurance
Landlord shall maintain in full force and effect during the Term with respect to the Project insurance against such occurrences and in such amounts and on such terms and conditions and with such deductible(s) as Landlord may determine from time to time, it being agreed that Landlord need not communicate any determination to Tenant. Unless and until otherwise determined by Landlord, such insurance shall include, without limitation:
insurance on the Building of which the Premises forms part and improvements and equipment contained therein owned or leased by Landlord or which Landlord desires to insure, against damage by fire and other risks contained in fire insurance policies with endorsements generally known as extended coverage and riot, vandalism and malicious acts endorsements or, at Landlord’s option, all risks insurance;
boiler and machinery insurance on such insurable objects as Landlord may elect to insure;
rental income insurance covering such occurrences, in such form, and with such period of indemnity as Landlord may determine;
public liability insurance; and
such other insurance coverage on the Project in such amounts and with such deductibles as are carried by prudent owners of similar projects in the City of Toronto, or may be required by Landlord’s mortgagees from time to time having regard to the age, nature, location and character of the Project.
Notwithstanding that Tenant shall be contributing to Landlord’s costs and premiums respecting such insurance pursuant to the terms of this Lease, Tenant shall not have any insurable or other interest in any of Landlord’s insurance other than the rights, if any, expressly set forth in this Lease or in any policy of insurance obtained by Landlord, and, in any event, Tenant shall not have any interest in or any right to recover any proceeds under any of Landlord’s insurance policies.
15.02 Tenant’s Effect on Other Insurance
15.02.01 Tenant shall not do and shall not cause, suffer or permit to be done or omitted to be done by any of its servants, agents, contractors, or persons for whom Tenant is in law responsible anywhere on the Project or by any person in, on or about the Premises and shall not permit there to be on the Premises anything which might: (i) result in any increase in the cost of any insurance policies of Landlord or any others on or related to the Project or any part or contents thereof; (ii) result in an actual or threatened cancellation of or adverse change in any policy of insurance of Landlord or others on or related to the Project or any part or contents thereof; or (iii) be prohibited by any policy or insurance of Landlord or any others in force from time to time in respect of the Project or any part of contents thereof.
15.02.02 If the cost of any insurance policies of Landlord or any others on or related to the Project or any part of contents thereof shall be increased as a result of (i) the use or occupancy of the Premises by Tenant or any other person on the Premises or (ii) anything kept or permitted to be kept by Tenant or by any person anywhere in the Premises or by Tenant or any of its employees, customers, contractors. suppliers, or persons for whom it is in law responsible, or any part of the Project, or (iii) any act or omission of Tenant or any person in the Premises or by Tenant or any of its employees, customers, contractors, suppliers or persons for whom Tenant is in law responsible on any part of the Project, Tenant shall pay the full amount of such increase in cost to Landlord forthwith upon demand, whether the increase is an increase in insurance cost payable by Landlord or by any other Tenant or occupant of the Project or any part thereof. In determining Tenant’s responsibility for any increased cost of insurance as aforesaid, a statement issued by the organization, company or insurer establishing the insurance premiums or rates for the relevant policy shall be conclusive evidence of the various components of such premiums or rates, and the factors giving rise to any increase therein.
15.02.03 In the event of any actual or threatened cancellation of or adverse change in any policy of insurance of Landlord or any others on or related to the Project or any part of contents thereof by reason of: (i) the use or occupancy of the Premises by Tenant or any other person permitted by Tenant on the Premises; or (ii) anything placed on or permitted by Tenant or any person in the Premises or by Tenant or any of its employees, customers, contractors, suppliers, or persons for whom Tenant is in law responsible on any part of the Project and if Tenant fails to remedy the situation, condition, use, occupancy or other factor giving rise to such actual or threatened cancellation or change within twenty-four (24) hours after written notice thereof by Landlord, Landlord may, at its option, either:
terminate this Lease forthwith by written notice; or
remedy the situation, condition, use, occupancy or other factor giving rise to such actual or threatened cancellation or change, all at the cost of Tenant to be paid to Landlord forthwith upon demand, for any or all of such purposes as set forth in this subsection (ii) Landlord shall have the right to enter upon the Premises without further notice.
15.03 Tenant’s Insurance
The Tenant shall maintain during the Term (i) all risks insurance upon property owned by the Tenant or for which it is liable (including glass) and which is located in the Project including, without limitation, furniture, fittings, installations, alterations, additions, partitions and fixtures or anything in the nature of a leasehold improvement made or installed by or on behalf of the Tenant in an amount equal to the full replacement cost thereof; (ii) comprehensive general liability insurance against claims for death, personal injury and property damage in or about the Premises in amounts satisfactory fi-om time to time to the Landlord acting reasonably but in any event in an amount not less than $5,000,000.00 per occurrence for personal injury and property damage; and (iii) tenant’s legal liability insurance for limits satisfactory from time to time to the Landlord acting reasonably, and (iv) Tenant’s business interruption insurance for limits satisfactory from time to time to the Landlord acting reasonably. Each such policy shall be in form and with insurers acceptable to the Landlord. The insurance described in parts (i) and (iv) shall name the Landlord and anyone designated in writing by the Landlord who is either a Mortgagee or a manager of the Project as additional insureds as their interest may appear. All property damage and public liability insurance shall contain a provision for cross-liability or severability of interest as between the Landlord and the Tenant. The Tenant hereby releases the Landlord from any liability for loss to the extent of all insurance proceeds paid under policies of insurance earned by the Tenant or which would have been paid if the Tenant had maintained the insurance it is required to maintain under this Lease. Such policies shall contain an endorsement requiring the insurers under such policies to notify the Landlord in writing at least thirty (30) days prior to any material change or cancellation thereof. The Tenant shall furnish to the Landlord certified copies of all such policies for its acceptance, as aforesaid, and shall provide written evidence of the continuation of such policies not less than ten (10) days prior to their respective expiry dates. The cost or premium for each and every such policy shall be paid by the Tenant. If the Tenant fails to maintain such insurance, the Landlord shall have the right, but not the obligation or any liability to do so, to pay the cost or premium therefore, and in such event the Tenant shall repay to the Landlord, as Additional Rent forthwith bn demand the amounts paid, and (v) Tenant’s business interruption insurance for limits satisfactory from time to time to the Landlord acting reasonably.
15.04 Insurance Risks
The Tenant shall not do, omit to do or permit to be done or omitted to be done upon the Premises anything which would cause the cost to the Landlord of any insurance placed in respect of the Project to be increased (and, without waiving the foregoing prohibition, the Landlord may demand, and the Tenant shall pay to the Landlord upon demand, the amount of any such increase of cost caused by anything so done or omitted to be done) or which shall cause any policy of insurance of the Project to be subject to cancellation.
Tenant hereby releases Landlord and its servants, agents, employees, contractors and those for whom Landlord is in law responsible from all losses, damages and claims of any kind in respect of which Tenant is required to maintain insurance or is otherwise insured.
15.05 Landlord’s Non-Liability
Tenant agrees that Landlord shall not be liable or responsible in any way for any injury or death to any person or for any loss or damage to any property at any time in, on or about the Premises or any property owned by or being the responsibility of Tenant or any of its servants, agents, employees, contractors or persons for whom Tenant is in law responsible elsewhere in, on or about the Project, no matter how the same shall be caused and whether or not any such death, injury, loss or damage is caused or contributed to the negligence of Landlord, its servants, agents, employees, contractors or persons for whom Landlord is in law responsible. Without limiting the generality of the foregoing. Landlord shall not be liable or responsible for any injury, death, loss or damage to any persons or property caused or contributed to by any of the following: fire, explosion, steam, water, rain, snow, ice, electricity, gas, or falling plaster, or by dampness or leakage from my pipes, appliances, plumbing works, roof, exterior walls or any other source whatsoever, and Landlord shall not be liable or responsible in any way for any injury, death, loss or damage to any person or property caused by any other tenants or occupants of the Project or by any occupants of any adjoining property or by the public or by the construction of any public, quasi public, or private work or utilities. All property kept or stored in or about the Premises or kept or stored by Tenant or any of its servants, agents, customers contractors or persons for whom Tenant is in law responsible elsewhere in the Project shall be at the sole risk of Tenant and Tenant shall indemnify Landlord and save it harmless in respect of the same.
Without in anyway limiting or affecting the generality or interpretation of the foregoing provisions of this Section, it is agreed that Landlord shall in no event be liable for any indirect or consequential damages suffered by Tenant.
15.06 Indemnity of Landlord
Tenant shall indemnify Landlord and all of its servants, agents, employees, contractors and persons for whom Landlord is in law responsible and all other tenants and occupants of the Project and shall hold them and each of them harmless from and against any and all liabilities, claims, damages, losses and expenses, including all legal fees and disbursements, due to, arising from or to the extent contributed to by:
any breach by Tenant of any of the provisions of this Lease;
any act or omission of any person on the Premises or any use or occupancy of or any articles in the Premises;
any act or omission of Tenant or any of its servants, agents, employees, invitees, licensees, sub-tenants, concessionaires, contractors or persons for whom Tenant is in law responsible on the Premises or elsewhere on or about the Project;
any injury, death or damage to persons or property of Tenant of its servants, agents, employees, customers, contractors or any other persons on the Project by or with the invitation, licence or consent of Tenant;
any damage, destruction or need of repair to any pail of the Project caused by any act or omission of Tenant or its servants, agents, employees, customers, contractors, or persons for whom Tenant is in law responsible, notwithstanding any other provisions of this Lease including Landlord’s repair obligations under Section 12.06 above.
.07 Landlord’s Employees
It is agreed that every indemnity, exclusion or release of liability and waiver of subrogation herein contained for the benefit of Landlord shall extend to and benefit all of Landlord’s servants, agents, employees, and those for whom Landlord is in law responsible collectively referred to in this Section 15.07 as “Employees” solely for such purpose, and to the extent that Landlord expressly chooses to enforce the benefits of this Section for its Employees, it is agreed that Landlord is the agent or trustee for its Employees.
. ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
.01 Persons Entitled to Use and Occupy Premises
The Tenant shall not permit any part of the Premises to be used or occupied by any person other than the Tenant, any subtenants permitted under Section 16.02 and the employees of the Tenant and of any such permitted subtenant, or permit any part of the Premises to be used or occupied by a licensee or concessionaire, or permit any persons to be upon the Premises other than the Tenant, such permitted subtenants and their respective employees, customers and others having lawful business with them without the prior written consent of the Landlord which consent may be arbitrarily withheld.
.02 Other Assignment or Subletting
If the Tenant wishes to assign this Lease or to sublet the whole or any part of the Premises, the Tenant shall first offer to surrender this Lease in respect of the whole or any part of the Premises which the Tenant wishes so to assign or sublet. Notice of such offer to surrender shall be given to the Landlord not less than ninety (90) days prior to the date on which the Tenant proposes that the surrender be effective. The Landlord shall have a period of seven (7) business days from the date on which such notice is given to accept or to decline such offer by notice to the Tenant. If the Landlord so accepts such offer, then this Lease shall terminate with respect to the whole or that part of the area of the Premises which the Tenant wishes to assign or to sublet, as the case may be, on the date proposed in such offer. If the Landlord gives notice to the Tenant within such period of seven (7) business days that cancellation and termination of the Lease is not acceptable to the Landlord, or the Landlord does not so accept or decline such offer within such seven (7) business day period, then the Tenant shall be free to assign this Lease or sublet the whole or such part of the Premises as the Tenant shall have specified in such notice to the Landlord provided that:
the Tenant shall have received or procured a bona fide written offer therefore to take an assignment or sublease which is not inconsistent with, and the acceptance of which would not breach any provisions of this Lease if this Section is complied with and which the Tenant has determined to accept subject to this Section being complied with; and
the Tenant shall have first requested and obtained the consent of the Landlord.
Any request for such consent shall be accompanied by a true copy of such offer, and the Tenant shall furnish to the Landlord all information available to the Tenant or any additional information requested by the Landlord, as to the responsibility, reputation, financial standing and business of the proposed assignee or subtenant. The consent of the Landlord shall not be unreasonably withheld and if such consent is given, the Tenant shall assign or sublet, as the case may be, only upon the terms set out in the offer submitted to the Landlord. Any such consent shall be prepared by the Landlord or its solicitors and all costs with respect thereto shall be paid by the Tenant forthwith upon demand by the Landlord as Additional Rent. The Landlord will require as a condition of its consent that the proposed assignee or subtenant agree in writing with the Landlord to observe and to perfonn all the obligations of the Tenant under this Lease, and shall further require that any consideration or amount paid or payable to the Tenant by the assignee or subtenant in addition to Rent that might otherwise be payable hereunder shall be paid to the Landlord, the Tenant hereby acknowledging that it is not permitted to profit in any way from assigning the Lease or subletting the Premises. Whether or not the Landlord consents to any request as aforesaid, the Tenant shall pay to the Landlord all reasonable costs incurred by the Landlord in considering any consent and in completing any of the documentation involved in implementing any such assignment or sublease.
16.03 Corporate Ownership
If after the date of execution of this Lease shares not listed for sale on a recognized stock exchange in Canada either of the Tenant or of an Eligible Corporation which controls the Tenant are transferred by sale, assignment, bequest, inheritance, operation of law or other disposition, or issued by subscription or allotment, or cancelled or redeemed, so as to result in a change in the effective voting or other control of the Tenant or of an Eligible Corporation which controls the Tenant by the person or persons holding control on the date of execution of this Lease or on the date when the Tenant becomes a corporation, if later, or if other steps are taken to accomplish a change of the control, the Tenant promptly will notify the Landlord of the change, which will be considered to be an assignment of this Lease to which Section 16.02 applies; and whether or not the Tenant notifies the Landlord, the Landlord may terminate this Lease within sixty (60) days after the Landlord learns of the change unless the Landlord previously had consented to the change. The Tenant will make available to the Landlord or its lawful representatives all corporate books and records of the Tenant and of any Eligible Corporation which controls the Tenant for inspection at all reasonable times, to ascertain to the extent possible whether there has been a change of control.
16.04 Tenant Not Released on Assignment, Etc.
In no event shall any assignment or sublease to which the Landlord may have consented release the Tenant from its obligations fully to perform all the terms, covenants and conditions of this Lease on its part to be performed. No consent by the Landlord to any assignment or sublease shall be construed to mean that the Landlord has consented or will consent to any further assignment or any other sublease.
16.05 Mortgage of Lease
The restrictions on Transfer as aforesaid shall apply, mutatis mutandis, to any assigning, subletting, mortgaging, charging or other transferring of the Premises or this Lease for the purpose of securing any loan or the repayment thereof by Tenant.
16.06 Assignment by Landlord
Landlord shall have the right to sell, lease, convey or otherwise dispose of the Project or any art thereof and to assign this Lease and any interest of Landlord pursuant to this Lease without restriction. If Landlord shall sell, lease, convey or otherwise dispose of the Project or any part thereof or shall assign this Lease or any interest of Landlord pursuant to this Lease, then, to the extent that the purchaser or assignee agrees with Landlord to assume the covenants and obligations of Landlord hereunder. Landlord shall thereupon and without further agreement be released of all liability pursuant to the teim of this Lease.
STATUS CERTIFICATES, ATTORNMENT, SUBORDINATION, LIENS AND REGISTRATION
17.01 Status Certificates
The Tenant shall at any time and from time to time upon not less than ten (10) days prior notice, execute and deliver to the Landlord or as the Landlord may direct, a statement in writing certifying that this Lease is umnodified and in full force and effect (or if modified, stating the modification and stating that the same is in full force and effect as modified) the amount of the annual rent and any other amounts then being paid hereunder, the dates to which by instalment or otherwise such rent and amounts and other charges payable hereunder have been paid, the particulars and amounts of insurance policies on the Premises in which the interest of the Tenant is noted and whether or not there is any existing default on the part of the Landlord of which the Tenant has notice. Any such statement may be conclusively relied upon by any prospective purchaser or any Mortgagee or any prospective Mortgagee.
17.02 Subordination and Attornment
This Lease and the rights of the Tenant hereunder shall be subject and subordinate to all existing or future Mortgages and to all renewals, modifications, consolidations, replacements and extensions thereof and, whenever requested by the Landlord, the Tenant will promptly subordinate this Lease and the rights of the Tenant hereunder in such fonn as the Landlord may require. Whenever requested by a Mortgagee, the Tenant will agree in writing with such Mortgagee, if such Mortgagee becomes a mortgagee in possession or realizes on its security, to attorn to such Mortgagee as a tenant upon all the terms of this Lease.
Provided Tenant is not in default hereunder, upon Tenant’s request, Landlord shall request from the holder of any Mortgage, in respect of which Tenant has executed and delivered an instrument of postponement, subordination or attornment as required hereby, its agreement to permit Tenant to continue in occupation of the Premises in accordance with and subject to the terms of this Lease.
17.03 Tenant’s Failure to Comply
If Tenant fails to execute any certificate, agreement, instrument, or other document as required by the foregoing provisions of this Article 15.00 within ten (10) days after request by Landlord, then Landlord shall have the right to:
execute any such certificate, agreement, instrument or document for and on behalf of Tenant and in Tenant’s name, Tenant hereby agreeing to be bound by the same, and for such purpose Tenant hereby irrevocably appoints Landlord as Tenant’s attorney for and an behalf of Tenant pursuant to the Powers of Attorney Act (Ontario) and which appointment shall survive the death or incapacity of Tenant; or
to terminate this Lease; and
in any event, and without being affected by either of the foregoing rights, to exercise all rights against Tenant in respect of Tenant’s default as aforesaid as Landlord might otherwise have pursuant to this Lease or at law.
.04 Registration
Tenant shall not register this Lease or any short form or notice hereof except in Landlord’s form prepared by Landlord on Tenant’s request or in such form as has been approved by Landlord in writing. The cost of preparation, approval, execution and registration of any notice or short form of this Lease or other document to be registered by Tenant shall be borne by Tenant and shall be paid by Tenant forthwith upon demand.
Any lease or notice or short fonn of this Lease registered by or at the request of Tenant shall contain an irrevocable power of attorney by Tenant in favour of Landlord, which power of attorney is also hereby irrevocably granted by Tenant to Landlord under the Powers of Attorney Act (Ontario) and which power of attorney shall survive the death or incapacity of Tenant, authorizing Landlord to execute on behalf of and in the name of Tenant such notices, agreements and documents as shall be required or desired by Landlord to expunge or discharge from the register of the title of the land on which the Project is located any interest of Tenant therein after the expiry or earlier termination of this Lease, or to give full effect to Landlord’s rights under this Article 17.
. DEFAULT AND REMEDIES
18.01 Default and Remedies
If any of the following shall occur:
Tenant shall fail, for any reason, to make any payment of Rent as and when the same is due to be paid hereunder and such default shall continue for five (5) days after such payment was due, whether or not notice is given to Tenant;
Tenant shall fail, for any reason, to perform any other covenant, condition, agreement or other obligation on the part of Tenant to be observed or performed pursuant to this Lease (other than the payment of any Rent) and such default shall continue for fifteen (15)days after written notice thereof or such shorter period as expressly provided herein;
any of Landlord’s policies of insurance on the Project or any part or contents thereof shall be actually or threatened to be cancelled or adversely changed as a result of any use or occupancy of or contents in the Premises;
Tenant shall purport to make an assignment affecting the Premises, or the Premises shall be used by any person or for any purpose, other than in compliance with and as expressly authorized by this Lease;
Tenant or any other person occupying any portion of the Premises shall make an assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or make any proposal, assignment, arrangement or compromise with its creditors or, if any steps are taken or action or proceedings commenced by any person for the dissolution, winding up or other termination of Tenant’s existence or liquidation of its assets;
a trustee, receiver, receiver-manager, manager, agent or other like person shall be appointed in respect of the assets or business of Tenant or any other occupant of the Premises;
Tenant attempts to or does abandon the Premises or remove or dispose of any goods and chattels from the Premises so that there would not, in the event of such removal or disposal, be sufficient goods of Tenant on the Premises subject to distress to satisfy all arrears of Rent payable under this Lease and all Rent payable hereunder for a further period of at least six (6) months, or if the Premises shall be vacant or unoccupied for a period of five (5) consecutive days or more without the prior written consent of Landlord;
Tenant makes any sale in bulk affecting any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all applicable legislation);
this Lease or any goods or other property of Tenant shall at any time be seized or taken in execution or attachment which remains unsatisfied for a period of five (5) days or more; and
termination or re-entry by Landlord is permitted under any provision of this Lease or at law;
then without prejudice to and in addition to any other rights and remedies to which Landlord is entitled pursuant hereto or at law, the then current and the next three (3) months’ rent shall be forthwith due and payable, and Landlord shall have the following rights and remedies, all of which are cumulative and not alternative, to:
terminate this Lease in respect of the whole or any part of the Premises by written notice to Tenant;
enter the Premises as agent of Tenant and as such agent to re-let them for whatever term (which may be for a term extending beyond the Tenn), and on whatever terms and conditions as Landlord in its sole discretion may determine and to receive the rent therefore and, as the agent of Tenant, to take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving written notice to Tenant, to store the same at the expense and risk of Tenant or to sell or otherwise dispose of the same at public or private sale without further notice, and to make such alterations to the Premises in order to facilitate their re-letting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from the re-letting of the Premises, less all expenses incurred by Landlord in taking the Premises on account of the Rent due and to become due under this Lease and Tenant shall be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as aforesaid; no such entry or taking possession of or performing alterations to or re-letting of the Premises by Landlord shall be construed as an election on Landlord’s pail to terminate this Lease unless a written notice of such intention or termination is given by Landlord to Tenant;
remedy or attempt to remedy any default of Tenant in performing any repairs, work or other covenants of Tenant hereunder and, in so doing, to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without any liability to Tenant therefore or for any damages resulting thereby, and without constituting a re-entry of the Premises or termination of this Lease, and without being in breach of any of Landlord’s covenants hereunder and without thereby being deemed to infringe upon any of Tenant’s rights pursuant hereto, and, in such case, Tenant shall pay to Landlord forthwith upon demand all amounts paid by Landlord to third parties in respect of such default and all reasonable costs of Landlord in remedying or attempting to remedy any such default plus ten (10%) percent of the amount of such costs for Landlord’s inspection and supervision plus a further ten (10%) percent for overhead and profit;
obtain damages from Tenant including, without limitation, if this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time,
18.02 Interest
All amounts of Rent shall bear interest from their respective due dates until the actual dates of payment at a rate which shall be the greater of (i) one and three-quarters (1-3/4%) percent per month (21% per annum) compounded annually; (ii) three (3%) per cent per annum in excess of the prime commercial rate of interest charged by Landlord’s bank in Ontario for loans to its most favoured commercial customers from time to time; or (iii) the rate expressly agreed by Tenant in writing to be paid in respect of any amount(s) from time to time.
18.03 Costs
Tenant shall be responsible for and pay to Landlord forthwith upon demand all costs incurred by Landlord, including, without limitation, reasonable compensation for all time expended by Landlord’s own personnel, legal costs on a solicitor and his own client basis, and all other costs of any kind whatsoever, arising from or incurred as a result of any default of Tenant or any enforcement by Landlord of any of Tenant’s obligations under this Lease or any other agreement or obligation of Tenant to Landlord, whether or not related to the Premises.
18.04 Allocation of Payments
Tenant agrees that Landlord may, at its option to be exercised by written notice to Tenant at any time, apply all sums received by Landlord from Tenant or any other persons in respect of any Rent to any amounts whatsoever payable by Tenant and it is further agreed that any allocation made by Landlord, on its books and records or by written notice to Tenant or otherwise, may subsequently be allocated by Landlord as it may determine in its sole discretion, and any such allocation and reallocation from time to time shall be final and binding on Tenant unless and to the extent subsequently, reallocated by Landlord.
18.04.01 Tenant hereby waives and renounces the benefit of any present or future statute taking away or limiting or purporting to limit Landlord’s right of distress, and agrees with Landlord that, notwithstanding any such statute, all goods and chattels from time to time on the Premises shall be subject to distress for Rent and the fulfilment of all of Tenant’s obligations under this Lease in the same manner as if such statute had not been passed.
18.04.02 If any goods or chattels of Tenant shall be removed from the Premises, Landlord shall have the right to follow the same and exert against the same all of its rights as if such goods and chattels had remained on the Premises, such right of Landlord to include, without limitation, the right to follow such goods and chattels for thirty (30) days in the same manner as is provided for in the Landlord and Tenant Act (Ontario).
18.05 Security Deposit
18.05.01 Tenant has deposited or agrees that it is obliged to deposit upon execution of this Lease with Landlord the sum described as Security Deposit in Section 1.01 hereof (“Security Deposit”). The Security Deposit shall be non-interest bearing and shall be held by Landlord as security for the prompt performance by Tenant of all of the terms, covenants, conditions and provisions of this Lease by Tenant.
18.05.02 If at any time any Rent shall be overdue Landlord may, at its option, appropriate and apply all or any portion of the Security Deposit to the payment of the said Rent. Further, if Tenant defaults in the performance of any of the terms, covenants, conditions and provisions of this Lease as and when the same are due to be performed by Tenant then Landlord, at its option, may appropriate and apply all or any part of the Security Deposit an account of any losses or damages sustained by Landlord as a result of such default.
18.05.03 If all or any part of the Security Deposit is appropriated and applied by Landlord on account of the payment of Rent or on account of losses or damages sustained by Landlord, then Tenant shall, within three (3) days after demand from Landlord, remit to Landlord a sufficient amount by certified cheque to restore the Security Deposit to the original sum deposited or required to be deposited as herein set forth.
18.05.04 If Tenant complies with all of the terms, covenants, conditions and provisions under this Lease and promptly pays all Rent herein provided as and when the same shall be due and payable, the Security Deposit shall be returned in full to Tenant within sixty (60) days after the later of (i) the end of the tenn or (ii) Tenant’s vacating the Premises.
18.05.05 Landlord may deliver the Security Deposit, or such portion thereof remaining on hand to the credit of Tenant, to any purchaser, mortgagee or assignee of Landlord’s interest in the Premises or the Project or this Lease and thereupon Landlord shall be and is hereby discharged from any further liability with respect to the Security Deposit.
18.06 Remedies to Subsist
18.06.01 No waiver of any of Tenant’s obligations under this Lease and no waiver of any of Landlord’s rights hereunder in respect of any default of Tenant hereunder shall be deemed to have occurred or be given as a result of any condoning, excusing, overlooking or delay in acting upon by Landlord in respect of any default by Tenant or by any other act or omission of Landlord including, without limitation, the acceptance of any Rent less than the full amount thereof, the acceptance of any Rent after the occurrence of any default by Tenant, or any verbal or written statements or agreements made by any employee of Landlord other than an agreement in writing duly executed an behalf of Landlord by one of its personnel with ostensible authority to do so. No waivers of any of Tenant’s obligations or any of Landlord’s rights hereunder shall be effective except and only to the ex tent of any express waiver in writing duly executed by Landlord. The waiver by Landlord of any default of Tenant or of any rights of Landlord shall not be deemed to be a waiver of any term, covenant or condition in respect of which such default or right has been waived and shall not be deemed to be a waiver of any subsequent default of Tenant or right of Landlord.
18.06.02 All rights and remedies of Landlord under this Lease and at law shall be cumulative and not alternative, and the exercise by Landlord of any of its rights pursuant to this Lease or at law shall at all times be without prejudice to any other rights of Landlord, whether or not they are expressly reserved.
18.07 Impossibility of Performance
If and to the extent that either Landlord or Tenant shall be unable to fulfill or shall be delayed or restricted in the fulfillment of any obligation under this Lease, other than the payment by Tenant of any Rent, by reason of unavailability of material, equipment, utilities, services or labour required to enable it to fulfill such obligation or by reason of any Laws, or by reason of its not being able to obtain any permission or authority required pursuant to any applicable Laws or by reason of any other such cause beyond its control and not the fault of the party being delayed and not avoidable by the exercise of reasonable foresight (excluding the inability to pay for the perfonnance of such obligation), then the party being delayed shall be entitled to extend the time for fulfillment of such obligation by a time equal to the duration of such delay or restriction, and the other party shall not be entitled to any compensation for any loss, inconvenience, nuisance or discomfort occasioned thereby. The party delayed will, however, use its best efforts to fulfil its obligation in question as soon as is reasonably practicable by arranging an alternate method of providing the work, services or materials being delayed subject, in the case of performance by Tenant, to the approval of Landlord in its sole and absolute discretion. In any event, the provisions of this Section shall not apply to permit any delay in any payment by Tenant of any Rent.
19. CONTROL OF PROJECT
19.01 Landlord’s Control
The Project is at all times subject to the exclusive control and management of Landlord. The provisions of this Section and any other provisions of this Lease shall not be interpreted so as to impose any liability or obligation whatsoever on Landlord and Landlord shall have only such obligations as are expressly set forth in this Lease.
Without limiting the generality of the foregoing, Landlord shall have the right to:
police and supervise any or all portions of the Project;
obstruct, lock up or close off all or any part of the Project for purposes of performing any maintenance, repairs or replacements or for security purposes or to prevent the accrual of any rights to any person or the public or any dedication thereof;
grant, modify and terminate any easements or other agreements respecting any use or occupancy, maintenance of or supply of any services to any part of the Project;
use or permit to be used any part of the Common Facilities for any purpose which shall be in accordance with prudent management practice from time to time, including promotional activities, merchandising, display, entertainment or special features.
Tenant agrees that all enclosed Common Facilities including any enclosed areas, malls or walkways in the Centre may be open for access to the Premises during the business hours of the Centre as determined by Landlord from time to time, and during any other hours as Landlord may detennine; at any other times, any or all enclosed areas, malls and walkways may be locked by Landlord, and the public and Tenant may be excluded therefrom, except that tenants of the Project shall be entitled to access to their respective leased premises subject to compliance with an applicable rules and regulations of Landlord, including those related to security
In order to perform any maintenance, repair construction, alterations or improvements in or relating to any part of the Project, Landlord may cause reasonable and temporary obstructions of Common Facilities without thereby constituting or being deemed to constitute an interference with any of Tenant’s rights hereunder or a breach by Landlord of any of Its obligations hereunder.
19.02 Alterations of the Project
19.02.01 Notwithstanding anything contained in this Lease, at any time and from time to time and either prior to or after the Commencement Date Landlord shall have the right to construct on or remove from the Project or adjacent lands such other buildings or extensions of buildings as Landlord may desire. Landlord shall have the right to make any changes in, additions to, deletions from, rearrangements of or relocations of any part or parts of the Project including any of the Common Facilities as Landlord shall consider necessary or desirable (which, or any of which, are referred to in this Section as “Changes”).
19.02.02 Without limiting the generality of the foregoing, but subject to the foregoing qualifications, the Landlord shall have the right, in the control management and operation of the Project and the Common Facilities and Facilities, at all times during the Term to:
from time to time, change the area, level location, arrangement and use of the Common Areas and Facilities;
Construct other buildings, structures or improvements in the Project and the Common Facilities and/or make alterations thereof or •additions thereto, or subtractions therefrom or re-arrangements thereof and/or enclose any open portion of the Common Facilities and/or create any outdoor or indoor malls or any combination thereof, and/or build additional storeys on any building or buildings in the Project and build adjoining same;
Construct multiple deck or elevated or underground parking facilities; and
Re-locate or re-arrange the various buildings, parking areas and all other Common Areas and Facilities from those shown no Schedule “B” and with the consent of the Tenant, which consent shall not be unreasonably withheld, re-locate or re-arrange the Premises from that shown on Schedule “B”. The Tenant hereby acknowledges that the purpose of Schedule “B” is solely to show the approximate location of the Premises.
19.02.03 Landlord shall make any such Changes as expeditiously as is reasonably possible in the circumstances and shall interfere as little as is reasonably possible in the circumstances with Tenant’s business operation in the Premises.
19.02.04 Tenant shall not, directly, indirectly or in any way oppose, object to, interfere with, be involved in or otherwise affect any consideration or application for the rezoning for any purpose of any lands on the Project or any other property abutting the Project lands without the written approval of the Landlord.
19.03 Landlord Not in Breach
The exercise by Landlord of any of its rights under this Article shall not constitute a breach by Landlord of any of its obligations under this Lease nor an infringement nor breach of any of Tenant’s rights under this Lease, or at law, or entitle Tenant to any abatement of rent or damages or any other remedy whatsoever, whether or not damage to or interference with the use of the Premises or their contents shall result.
19.04 Use of Common Facilities
Tenant shall not itself and shall not permit any of its employees, servants, agents, customers or contractors to obstruct any Common Facilities, including driveways, laneways, access routes or other portions of the Project other than as expressly permitted pursuant hereto or as otherwise expressly permitted by Landlord writing, if there shall be a breach of this Section Landlord shall have the right, at the expense of Tenant, to remove such obstruction, the cost thereof to be paid by Tenant forthwith upon demand, and Landlord shall not be responsible for and is hereby released from any liability for any damage caused to the item creating the obstruction. Landlord shall also be entitled to hold such item as security for the payment of the costs of removing the same and any damage caused by the, establishment or removal of such obstruction. If requested by Landlord, Tenant shall supply to Landlord the licence numbers of all vehicles for which access may properly be gained to any part of the project from time to time including employees’ automobiles, delivery trucks of Tenant and frequent suppliers.
19.05 Rules and Regulations
Landlord may, from time to time, make and amend such rules and regulations for the management and operation of the Project as Landlord shall determine and Tenant and all persons under its control shall be bound by and shall comply with all of such lules and regulations of which notice is given to Tenant from time to time and all of such rules and regulations shall be deemed to be incorporated into and form a part of this Lease. Without limiting the generality of the foregoing. Tenant shall comply with all rules and regulations made by Landlord respecting security and respecting shipping, receiving, loading and unloading of merchandise, supplies, materials, garbage and all other things whatsoever, all of which shall be made only at such times and from, over or by means of such access routes, driveways, doors, loading areas, stairs and other areas or passages whatsoever as Landlord shall determine in writing from time to time. Landlord shall not make any rules or regulations which conflict with any express provision of this Lease unless and only to the extent required by any applicable laws or unless Tenant consents thereto. Landlord shall act reasonably in enforcing such rules and regulations but the imposition of any rules and regulations shall not create or imply any obligation of Landlord to enforce them or create any liability of Landlord for their non-enforcement or otherwise.
19.06 Access to Premises
19.06.01 Landlord without limiting any other rights Landlord may have pursuant hereto or at law, shall have the right, but not the obligation, to enter the Premises at all reasonable times and for any of the following purposes:
to examine the Premises and to perform any maintenance, repairs and alterations to the same or any part thereof as may be required or pennitted by this Lease and to perform any maintenance, repairs and alterations to the Project and to any mechanical, electrical, heating, ventilating, air-conditioning and humidity control equipment and services located therein serving the Premises or any other part of the Project, and for all of such purposes, Landlord may take such material and equipment into the Premises as Landlord may require;
to protect the Premises or any part of the Project in respect of any construction or other work being perfonried in premises adjoining or in the vicinity of the Premises or the Project;
for any purposes as determined by Landlord in cases of emergency;
to read any utility or other similar meters located in the Premises;
during the last twelve (12) months of the Term to show the Premises to prospective tenants, and to permit prospective tenants to make inspections, measurements, and plans;
at all reasonable times during the Term to show the Premises to prospective purchasers, mortgagees or lenders; and
to exercise any of the rights available to Landlord pursuant to this Lease.
.06.02 Landlord shall have the right to run through the Premises conduits, wires, pipes, ducts and other elements of any systems for utilities, heating, ventilating, air- conditioning and humidity control, telephone and other communications systems and any other such systems to serve the Premises or the Project or any parts thereof and Landlord shall have access to the Premises for itself and those designated by it for the purpose of inspecting, maintaining, repairing, replacing, altering and any services in respect of any of the same. Notwithstanding the foregoing, the Rentable area of the Premises shall be deemed not to be reduced or otherwise affected as a result of any of such systems being located in or running through the Premises. Landlord shall also have access to the Premises for itself and those designated by it to perform such work in respect of the Project as Landlord shall deem necessary.
.06.03 Tenant shall permit other tenants of the Project access to the Premises on reasonable notice and on the making of reasonable arrangements, which Tenant agrees to do, and at reasonable times for the performance of any inspection, maintenance, repairs and alteration in respect of the premises occupied by such other tenants and any services thereto. Landlord shall have the right to enforce the provisions of this subsection (c) on behalf of such other tenants but Landlord shall not be responsible for any damage caused as a result of the exercise of the rights of such other tenants pursuant hereto, all of which shall be as determined between Tenant and any such other Tenants.
SALE AND DEMOLITION
In the event of the Landlord desiring at any time to sell the Premises, or any part thereof, or to demolish the Premises, notwithstanding anything herein contained, on receiving one year’s notice in writing, the Tenant shall surrender this Lease and all the remainder of the Term, if any, then yet to come and unexpired, as from the day mentioned in such notice, and will, subject nevertheless to the provisions hereinbefore contained, thereupon vacate the Premises and yield up to the Landlord the peaceable possession thereof. It is understood that the said one year’s notice need not expire at the end of any year or at the end of any month, and in the event of the day fixed for termination of the Lease expiring on some other day than the last day of a month, the rent for such month shall be adjusted accordingly.
EXPROPRIATION
.01 Expropriation
.01.01 If the whole or any part of the Premises shall be expropriated (which term shall for the purposes of this Article include expropriation, condemnation or sale by Landlord to an authority with the power to expropriate, condemn or take) by any competent authority then:
Landlord and Tenant shall cooperate with each other in respect of such expropriation so that Tenant may receive the appropriate award to which it is entitled in law for relocation costs and business interruption and so that Landlord may receive the maximum award to which it may be entitled in law for all other compensation arising from such expropriation, including, without limitation, all compensation for the value of Tenant’s leasehold interest in the Premises, all of which shall be the property of Landlord, and all of such Tenant’s rights in respect of such expropriation, excluding only rights in respect of relocating costs and business interruptions shall be and are hereby assigned to Landlord, to give effect to such assignment to Landlord, Tenant shall execute such further documents as are necessary in Landlord’s opinion and effect such assignment and in default of Tenant’s completing such documents within ten (10) days after demand, Landlord shall be and is hereby appointed the attorney for Tenant to execute such documents for and on behalf of Tenant and in its name, such appointment being hereby made pursuant to the Powers of Attorney Act (Ontario) and shall survive the death or incapacity of Tenant;
Landlord shall have the option, to be exercised by written notice to Tenant, to terminate this Lease, such termination to be effective on the date that the expropriating authority takes possession of the whole or any portion of the Premises; and
this Lease shall continue in full force and effect in accordance with its terms until the date on which this Lease is terminated in accordance with the provisions of this Article, if terminated in accordance with the express provisions hereof and, if terminated. Rent and all other obligations under this Lease shall be adjusted as of the date of such termination.
21.01.02 If the whole or any part of the Project shall be expropriated, then subject to the foregoing provisions respecting expropriation of the Premises:
all compensation resulting from such expropriation shall be the absolute property of Landlord and all of Tenant’s rights, if any, to any such compensation shall be and are hereby assigned to Landlord; Tenant shall execute such further documents as are necessary, in Landlord’s opinion, to effect such assignment, and in default of Tenant’s completing such documents within ten (10) days after demand. Landlord shall be and is hereby appointed the attorney for Tenant to execute such documents for and on behalf of Tenant and in its name, such appointment being, made pursuant to the Powers of Attorney Act (Ontario) and shall survive the death or incapacity of Tenant;
this Lease shall continue in full force end effect in accordance with its terms unless and until terminated as herein provided; and
if the expropriation of part of the Project is such as to render undesirable, in Landlord’s opinion, the continuing operation of the Project in which the Premises are situate, Landlord shall have the right to terminate this Lease as of the date upon which the expropriating authority takes possession of all or any portion of the Project and all of the obligations of the parties pursuant hereto shall be adjusted to the date of such termination.
22. ENVIRONMENTAL PROVISIONS
.01 Tenant’s Acknowledgement
The Tenant hereby acknowledges that:
The Project is located within the Cooksville Creek Watershed;
The City of Mississauga and the Credit Valley Conservation Authority intend to maintain post-development flows from the Cooksville Creek up to and including five (5) year storm intensities to the level of predevelopment flows;
It will be necessary to implement on-site storm management facilities on the Project at the time of development including, but not limited to, roof-top storage and detention ponding in car park and/or landscape areas: and
The Landlord has constructed basements above the one hundred-year storm flood line of the Cooksville Creek;
The Tenant covenants and agrees to and with the Landlord that it shall not alter or remove the said facilities and that it shall pay its proportionate share of the cost to the Landlord of maintaining the same in the same manner and to the same extent as if such cost were included in 5.04 of this Lease.
22.02 Liability of Landlord, City of Mississauga and the Credit Valley Conservation Authority
The Tenant hereby saves the Landlord, the City of Mississauga and the Credit Valley Conservation Authority harmless from any claims for damages resulting from flooding on the site due to the storm water management techniques into the design and construction of the site works and services.
.03 Landlord’s Acknowledgement
The Landlord acknowledges that he will maintain the on-site storm water management facilities and that he will not alter or remove these facilities without the prior written consent of the City of Mississauga.
CONSUMER PRICE ANNUAL RENT INCREASE —DELETED.
It is understood and agreed between the parties that the Rent payable hereunder will remain unchanged for the first year of the term herein, but the rent payable for the balance of the terms, including any renewal or extension hereof, is subject to increase or decrease according to changes, if any, in the cost of living as indicated by changes if any, in the Consumers Price Index, as published by Statistics Canada.
On the anniversary of the Lease, the Rent shall be revised in accordance with the increase or decrease in the Consumers Price Index between such anniversary date and the commencement or anniversary date proceeding, whichever is later, and such revised Rent shall continue until the next anniversary of the Lease.
LEGAL DESCRIPTIONS BYLAW
Firstly:
Those lands and premises located in the following municipality, namely: in the City of Mississauga, in the Regional Municipality of Peel and being composed of those parts of Lot 1. Registered Plan E-19 and Village Lot 20 according to a Plan of the Village of Cooksville by Hugh P Savigney, P.LS. dated February 7,1869 and being a subdivision of part of Lots 14,15 and 16, Concession 1. South of Dundas Street and Concession 1. North of Dundas Street, recorded as Toronto-12 designated as Parts 2 and 6 on a plan of survey deposited in the Land Registry Office for the Land Registry Division of Peel (No. 43) as Plan 43R-1 1667 subject to an easement for sewers and drains upon, over, under along and across all and singular that certain parcel or tract of land and premises situate, lying and being in the City of Mississauga, in the Regional Municipality of Peel and being composed of Part of Lot 1, Registered Plan E-19 and that part of Village Lot 19 according to a plan of the Village of Cooksville by Hugh P Savigney, P.LS. dated February 7, 1869. and being a subdivision of Parts of Lots 14,15 and 16. Concession 1, South of Dundas Street and Concession 1, North of Dundas Street, recorded as Tor. 12 and being part of Lot 15 Concession 1, South of Dundas Street being designated as Part 3 on a Plan of Survey deposited in the Land Registry Office for the Registry Division of Peel (No. 43) as Number 43R-12639.
Secondly:
Those lands and premises located in the following municipality, namely in the City of Mississauga, in the Regional Municipality of Peel and being composed of those parts of Lot 1, Registered Plan E-19 and Village Lot 20 according to a Plan of the Village of Cooksville by Hugh P. Savigney, P.L.S. dated Febniary 7, 1869 and being a subdivision of part Lots 14, 15 and 16, Concession 1, South of Dundas Street and Concession 1, North of Dundas Street, recorded as Toronto-12 designated as Part 1 on a plan of survey deposited in the Land Registry Office for the Land Registry Division of Peel (No. 43) as Plan 43R-1 2599.
MISCELLANEOUS
25.01 Notices
All notices, demands, requests or other instruments (“Notices”) which may be or are required to be given under this Lease shall be in writing and shall be delivered in person or sent by prepaid registered Canadian mail or by facsimile transmission addressed to:
If to the Landlord, two copies, both to Landlord at:
NAM INTERNATIONAL INC.
c/o Baratz Judelman,
4116 Bathurst Street, North York,, Ontario M3H3P2
If to Tenant, at the Premises, or, in the alternative, at:
And if to the Indemnifier, at the Premises, or, in the alternative, at:
Any such Notices shall be conclusively deemed to have been upon the day the same is personally delivered or, if mailed as aforesaid, four (4) business days (excluding Saturdays, Sundays, holidays and days upon which regular postal service is interrupted or unavailable for any reason) after the same is mailed as aforesaid, or if forwarded by facsimile transmission as aforesaid, two (2) business days (excluding Saturdays, Sundays, holidays) after the same is transmitted, as the case may be. Any party may at any time by notice in writing to the other change its address for service of Notices. If two or more persons are named as Tenant or Indemnifier, any Notice given hereunder shall be sufficiently given if delivered or mailed in the foregoing manner, to any one of such persons, or if forwarded by facsimile transmission one (1) business day (excluding Saturdays, Sundays, holidays) after the date of transmission noted on the facsimile transmission.
25.02 Planning Act
This Lease is entered into subject to the provisions of and compliance with the provisions of all applicable legislation dealing with planning restrictions including the Planning Act R.S.O. 1983 and amendments.
25.03 Complete Agreement
It is understood and agreed that other than and to the extent that any other written agreement between Landlord and Tenant respecting the Premises remains in force, this Lease constitutes the complete agreement between the parties and that there are no covenants, representations, agreements, warranties or conditions in any way relating to the subject matter of this Lease, or the tenancy created hereby, expressed or implied, collateral or otherwise, except as expressly set forth herein. Tenant aclmowledges that no representatives of Landlord are authorized to make on Landlord’s behalf any covenants, representations, agreements, warranties or conditions of any kind or in any manner whatsoever other than as expressly set forth in writing in this Lease in the form in which it is executed by Landlord under seal.
No amendment to this Lease shall be binding upon Landlord unless the same is in writing end executed by Landlord under seal.
25.04 Use Prior to Commencement Date
If Tenant uses or occupies the whole or any part of the Premises in any way prior to the Commencement Date without entering into a lease with Landlord in respect of such use or occupancy, then during the period of such use or occupancy, Tenant shall be a tenant of Landlord subject to all the terms and conditions as contained in this Lease which shall apply to such tenancy mutatis mutandis; the inclusion of this paragraph shall not be deemed to authorize or permit Tenant to use or occupy the whole or any part of the Premises in any way prior to the Commencement Date.
25.05 Acceptance of Premises
Tenant accepts the Premises in the state and condition in which they are received from Landlord and, except only to the extent of any deficiency therein expressly and particularly set out in a written deficiency list given by Tenant to Landlord within thirty (30) days after the Commencement Date, Tenant’s entering into possession of all or any part of the Premises shall be conclusive evidence of the acceptance by Tenant of the condition and state of repair of the Premises and Tenant shall have no rights in respect thereof.
25.06 Time of the Essence
Time is of the essence of this Lease and all parts thereof.
25.07 Applicable Law
This Lease shall be governed by and interpreted in accordance with the laws of the Province of Ontario.
25.08 Severability
If any provision of this Lease or any portion thereof or the application of any of the same is illegal, unenforceable or invalid, it shall be considered separate and severable from this Lease and all of the remaining provisions hereof shall remain in full force and effect as though any such prevision of this Lease or any portion thereof had not been included in this Lease but such provision of this Lease or portion hereof shall nonetheless continue to be enforceable to the full extent permitted by law.
Neither party is obliged to enforce this Lease to the extent that by so doing they would be contravening any applicable Laws.
25.09 Interpretation
Whenever a word importing singular or plural is used in this Lease such word shall include the plural and singular respectively. Where any party is comprised of more than one entity, the obligations of each of such entities shall be joint and several. Words importing either gender or firms or corporations shall include persons of the other gender and firms or corporations as applicable. Subject to the express provisions contained in this Lease, words such as “hereof’, “herein”, “hereby”, “hereinafter”, and “hereunder” and all similar words or expressions shall refer to this Lease, as a whole and not to any particular section, or portion thereof being less than the whole.
25.10 Successors
This Lease and all portions hereof shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors, assigns and other legal representatives excepting only that this Lease shall not enure to the benefit of any of such parties unless and only to the extent expressly permitted pursuant to the provisions of this Lease.
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