INDEX IS DONE MANUALLY--TWO TABS GIVE THE DOTS. TYPE THE PAGE NUMBER AT THE RIGHT MARGIN. ON SOME PAGES LAWYER SPECIFICALLY ASKED TO START A NEW PAGE, THEREFORE HAD TO USE HARD-PAGE BREAKS.
THIS LEASE is dated the ____ day of ______, 19__.
B E T W E E N:
______,
(the "Landlord")
and
______,
(the "Tenant")
ARTICLE 1
Special Provisions
The following are certain special provisions, which are part of, and are referred to in subsequent provisions of this Lease. Any conflict or inconsistency between these special provisions and the provisions contained elsewhere in this Lease will be resolved in favour of the provisions contained elsewhere in this Lease:
(a)Leased Premises
Those premises containing a Rentable Area of approximately ______square feet, located on the ______level of the Shopping Centre municipally known as ______and shown cross-hatched in red on the plan attached as Schedule "B" and designated as Unit No.____ (Section2.1).
(b)Fixturing Period and Term
(i)The Fixturing Period shall be the period commencing on the date which is at least five (5) days after delivery to the Tenant of the Landlord's notice of the date of availability of the Leased Premises in accordance with Section2.4(c) and expiring on the date which is the earlier of (A)the date which is ______days after the commencement of the Fixturing Period; and (B)the date that the Tenant commences operating its business in any part of the Leased Premises (Section2.4).
(ii)The Term shall be the period commencing on the date (the "Commencement Date") which is the earlier to occur of (A)the ____ day of ______, 19__; or (B)the expiration of the Fixturing Period, and expiring ______years following the Commencement Date (or the last day of the calendar month in which the Commencement Date occurs if the Commencement Date is not the first day of a calendar month) (Section2.3).
(c)Minimum Rent (Section 3.2)
Annual payments during the Term based upon the following annual rates per square foot of the Rentable Area of the Leased Premises and payable in accordance with the terms of this Lease:
Annual Rate
perAnnualMonthly
Yearssquare footMinimum RentInstalments
(d)Percentage Rent
A sum equal to the amount, if any, by which ______percent (___%) of Gross Revenue for each Rental Year exceeds the Minimum Rent payable for that Rental Year (Section3.3).
(e)Security Deposit
The sum of ______Dollars ($______) (Section 14.7).
(f)Address of Landlord (Section 15.11)
c/o Condor Properties Inc.
1500 Highway 7
Concord, ON
L4K 5y4
(g)Address of Tenant (Section 15.11)
______
______
______
(h)Indemnifier (Appendix "A")
______
(i)Address of Indemnifier (Appendix "A")
______
______
______
(j)Use of the Leased Premises (Section 7.1)
The Tenant will use the Leased Premises solely for the purpose of conducting the business of the sale, at retail of:
______
______
(k)Business Name
The Tenant will only use the advertised name ______(Section7.1).
ARTICLE 2
Grant and Term
Section 2.1Leased Premises
In consideration of the rents, covenants and agreements herein contained on the part of the Tenant to be paid, observed and performed, the Landlord leases to the Tenant, and the Tenant leases from the Landlord, the Leased Premises which shall be measured by the Architect in accordance with this Lease. The boundaries of the Leased Premises extend (a)(i) to the exterior face of all exterior walls, doors and windows; and (ii) to the centre line of all interior walls separating the Leased Premises from adjoining premises; and (b) from the top surface of the structural subfloor to the bottom surface of the structural ceiling.
Section 2.2Use of Additional Areas
The use and occupation by the Tenant of the Leased Premises includes the non-exclusive and non-transferable right or license to use the Common Areas and Facilities in common with others entitled thereto, subject, however, to the terms and conditions of this Lease and to the Rules and Regulations.
Section 2.3Commencement and Ending Date of the Term
(a)The Tenant shall, subject to the terms of this Lease, have and hold the Leased Premises during the Term subject to the payment of Minimum Rent, Percentage Rent and Additional Rent and the observance and performance of the terms, covenants and conditions contained in this Lease.
(b)The Tenant acknowledges that if there is a delay which results in the Shopping Centre or the Leased Premises not being completed on schedule and which is not the fault of the Tenant or its authorized representatives or workmen: (i)the Tenant shall and does hereby release the Landlord from all costs, expenses, claims, losses or damages suffered or incurred as a result of such delay whether or not caused, or to the extent contributed to, by the acts, omissions or negligence of the Landlord or those for whom it is at law responsible; and (ii)the Commencement Date referred to in Paragraph (b) of the Special Provisions shall be postponed for the period of such delay as determined by the Landlord.
Section 2.4Construction of the Leased Premises
(a)The Landlord will complete the work designated as "Landlord's Work" in accordance with the provisions of Schedule "C".
(b)Notwithstanding anything contained in this Section 2.4, the Landlord may upon reasonable notice to the Tenant require the Tenant to perform parts of the Tenant's Work prior to the completion of the Landlord's Work in any case where the nature or state of all work is such that the Landlord considers it necessary or desirable to do so. The Landlord may require that all mechanical and electrical work to be done with respect to the Leased Premises by or on behalf of the Tenant shall be carried out by the Landlord's contractors and employees at the Tenant's cost and expense which is repayable by the Tenant to the Landlord upon demand as Additional Rent.
(c)The Landlord shall give the Tenant at least five (5) days prior written notice of the date upon which possession of the Leased Premises will be available to the Tenant with the Landlord's Work substantially completed or completed to the extent that the Tenant's Work can be performed by the Tenant in conjunction with the Landlord's Work. During the Fixturing Period, the Tenant shall: (i) perform the Tenant's Work and cause its employees and contractors to do their work so as not to interfere with the Landlord's contractors and employees in the completion of the Landlord's Work; and (ii) be bound by all of the terms, covenants and conditions of this Lease (including, without limitation, the payment of all sums due hereunder as Additional Rent, all as estimated by the Landlord, acting reasonably) except those requiring payment of Minimum Rent. Upon the expiration of the Fixturing Period, Minimum Rent shall be payable in accordance with the terms of this Lease.
(d)If there is a dispute as to (i)completion of the Landlord's Work, or (ii)the availability of the Leased Premises for possession by the Tenant, or (iii)the Rentable Area of the Leased Premises or the Shopping Centre, the opinion of the Landlord's Architect will be final and binding.
(e)The Tenant will examine the Leased Premises before taking possession and unless the Tenant serves the Landlord with written notice specifying any deficiencies or defects within ten (10) days after taking possession, the Tenant will be deemed to have examined the Leased Premises and to have agreed that they are in good order and that the Landlord's Work has been satisfactorily completed.
ARTICLE 3
Rent
Section 3.1Covenant to Pay
The Tenant shall pay Minimum Rent, Percentage Rent and Additional Rent to the Landlord at the office of the Landlord as herein provided.
Section 3.2Minimum Rent
(a)The Tenant shall pay from and after the Commencement Date to the Landlord, without any prior demand therefor and without any deduction, abatement, set-off or compensation whatsoever, as Minimum Rent, in equal consecutive monthly instalments in advance on the first day of each calendar month of each Rental Year the sums specified in Paragraph(c) of the Special Provisions. When the Rentable Area of the Leased Premises is certified by the Architect, the Minimum Rent shall, if necessary, be adjusted accordingly.
(b)The Tenant shall deliver to the Landlord at the beginning of each Rental Year throughout the Term, a series of monthly postdated cheques for such Rental Year for the aggregate of the monthly payments of Minimum Rent and of any payments of Additional Rent estimated by the Landlord in advance and any other payments required by this Lease to be paid monthly in advance.
(c)At the Landlord's request, the Tenant will participate in a pre-authorized payment plan under which the Landlord will be authorized to debit the Tenant's bank account each month or from time to time during each Rental Year for the Minimum Rent and Additional Rent payable on a monthly basis, and if applicable, any other amount payable hereunder on an estimated basis. The Tenant will sign a form of application and all other required documentation in order to give full force and effect to the foregoing within five (5) days of presentation.
Section 3.3Percentage Rent
(a)In addition to the Minimum Rent, the Tenant shall pay to the Landlord, in the manner and upon the conditions and at the times hereinafter set forth during each Rental Year, as Percentage Rent, a sum equivalent to the amount, if any, by which the percentage rate specified in Paragraph(d) of the Special Provisions, of Gross Revenue for the Rental Year exceeds the Minimum Rent payable for that Rental Year.
(b)Percentage Rent is payable on a cumulative basis, monthly without any prior demand therefor and without any deduction, abatement, set-off or compensation whatsoever. Payment of Percentage Rent shall be made on or before the tenth day after the end of each calendar month of the Term, including the tenth day of the month following the end of the Term. The amount of each payment of Percentage Rent shall be equal to the excess, if any, obtained by applying the percentage rate referred to in Paragraph (d) of the Special Provisions to the aggregate of the stated Gross Revenue for the immediately preceding month and the stated Gross Revenue for all preceding months of that Rental Year, and deducting therefrom the total monthly payments of Minimum Rent and any payments on account of Percentage Rent previously made by the Tenant for such Rental Year. If necessary, an adjustment will be made between the parties within fifteen (15) days after delivery by the Tenant of the statement to be furnished by the Tenant at the end of any Rental Year.
Section 3.4Gross Revenue Reports
(a)On or before the tenth day of each calendar month of the Term, the Tenant will deliver to the Landlord, together with its payment of monthly Percentage Rent, a statement (the "Monthly Statement") signed by the Tenant which, (i)states that Gross Revenue as reported in the Monthly Statement is in accordance with the definition of Gross Revenue contained herein; (ii)contains a certification by the Tenant that the Monthly Statement is correct; (iii)is in the detail and form that the Landlord requires; and (iv)without limiting the requirements stated above, shows (1)the amount of Gross Revenue for the preceding month, (and fractional months, if any, at the commencement or end of the Term); (2)the amount of Gross Revenue for all preceding months of the Rental Year, (and fractional months, if any, at the commencement or end of the Term); and (3)the monthly payments made on account of Minimum Rent and Percentage Rent for the Rental Year.
(b)On or before the sixtieth day after the end of each Rental Year (including the last Rental Year of the Term), the Tenant will deliver to the Landlord, a statement (the "Annual Statement") signed by the Tenant and certified by an independent chartered accountant which Annual Statement will (i)state that Gross Revenue as shown in the Annual Statement is in accordance with the definition of Gross Revenue contained herein; (ii)contain a certification that the Annual Statement is true and correct; and (iii)without limiting the requirements stated above, show month by month, the amount of Gross Revenue during the preceding Rental Year.
Section 3.5Tenant's Records
The Tenant will keep in the Leased Premises or at its principal office in Canada, for at least three (3) years after the end of each Rental Year, adequate books and records that show receipts from all transactions in or from the Leased Premises and any other sales records that the Landlord reasonably requires and that would normally be examined by an accountant pursuant to accepted auditing standards in performing a detailed audit of Gross Revenue.
Section 3.6Right to Examine
The Landlord may examine the Tenant's books, records and procedures relating to Gross Revenue and the inventories of merchandise at the Leased Premises and at the Tenant's principal office in Canada, for the period covered by any statement issued by the Tenant.
Section 3.7Audit
The Landlord may, at reasonable times, cause a complete audit to be made of the Tenant's business and records relating to the calculation of Gross Revenue. If the Landlord's auditor reports that the Tenant is in default under this Article3 or if the audit discloses that Gross Revenue for the relevant period is understated by three percent (3%) or more, the Tenant will pay to the Landlord on demand, the cost of the audit in addition to the deficiency, together with interest on the latter calculated from the first day of the relevant period at an annual rate which is five (5) percentage points above the Prime Rate in force on that date.
Section 3.8Tenant's Failure
If the Tenant fails to deliver any statement required under this Article3 within the time required, the Landlord may on five (5) days notice to the Tenant, employ an auditor to examine the Tenant's books and records to certify the amount of Gross Revenue for the period related to the statement or the audit opinion and the Tenant will pay to the Landlord, on demand, as Additional Rent the cost of the examination together with the sums shown by the examination to be owing on account of Percentage Rent with interest on those sums calculated from the date the statement or the audit opinion was required, at an annual rate which is five (5) percentage points above the Prime Rate in force on that date.
Section 3.9Additional Rent
Additional Rent, (a)is payable without deduction, abatement, set-off or compensation; (b)is payable (except when this Lease states that it is payable on demand) with the first monthly instalment of Minimum Rent after the Additional Rent begins to accrue; and (c)accrues daily.
Section 3.10Rent Past Due
If the Tenant fails to pay, when the same is due and payable, any Minimum Rent, Percentage Rent, Additional Rent or other amounts payable by the Tenant under this Lease, then, in addition to all other rights and remedies available to the Landlord, such unpaid amounts will bear interest upon demand at an annual rate which is five (5) percentage points above the Prime Rate, pro-rated from the due date thereof to the date of payment, subject to annual compounding.
ARTICLE 4
Taxes and Operating Costs
Section 4.1Taxes Payable by the Landlord
The Landlord shall pay all Taxes which are levied, rated, charged or assessed against the Shopping Centre or any part thereof, subject to Sections 4.2 and 4.3 hereof.
Section 4.2Taxes Payable by the Tenant
(a)The Tenant shall, on or before the due date therefor, pay to the lawful taxing authorities, or to the Landlord, as it may direct, as Additional Rent, all Taxes levied or assessed against the Leased Premises based upon a separate real property tax bill or separate real property assessment notice issued by any taxing authority in respect of the Leased Premises. Payment of Taxes will be made by the Tenant upon demand and in no event later than seven (7) days prior to the date when such Taxes are due to the relevant governmental authority. If separate tax bills or assessment notices are not available, then the Tenant will pay to the Landlord for each Rental Year, its Proportionate Share of those Taxes that are imposed against the Shopping Centre, including without limitation, the Common Areas and Facilities.
(b)In addition to the Rent payable hereunder, the Tenant will pay to the Landlord (acting as agent for the taxing authority if applicable) or directly to the taxing authority (if required by the applicable legislation) in the manner specified by the Landlord, the full amount of all goods and services taxes, sales taxes, value-added taxes, multi-stage taxes, business transfer taxes and any other taxes imposed on the Tenant in respect of the Rent payable by the Tenant under this Lease or in respect of the rental of space by the Tenant under this Lease (collectively and individually, "GST"). GST so payable by the Tenant will: (i) be calculated by the Landlord in accordance with the applicable legislation; (ii) be paid by the Tenant at the same time as the amounts to which the GST applies 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); and (iii) despite anything else in this Lease, be considered not to be Rent, but the Landlord shall have all of the same remedies for and rights of recovery with respect to such amounts as it has for non-payment of Rent under this Lease or at law.