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HomeMy WebLinkAboutBy-law 1649/83TIlE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO.1649/83 Being a by-law to authorize the execution of a Lease between Shane Coburn, Walter Thorne and the Corporation of the Town of Pickering respecting Part Lot 19, Conces- sion 3, Picketing, (part Parts 37 and 40, Plan 40R-6934 WHEREAS the Corporation of the Town of Pickering is the owner in fee simple of lands comprising Part Lot 19, Concession 3, Pickering being part of Parts 37 and 40, Plan 40R-6934; and WHEREAS those lands were acquired for future park purposes and are not required by the Town in the interim; NOW THEREFORE, the Council of the Corporation of the Town of Pickering ENACTS AS FOLLOWS: HEREBY The Mayor and Clerk are hereby authorized to execute a Lease, in the form attached hereto as Schedule "A", between Shane Coburn, Walter Thorne and the Corporation of the Town of Pickering respecting Part Lot 19, Concession 3, Pickering, being part of Parts 37 and 40, Plan 40R-6934. BY-LAW read a first, second and third time and finally passed this 25th day of April, 1983. PICKERING DRIVING RANGE LEASE AGREEMENT CONTENTS LEASE (1) Lease & Term (2) Overholding (3) Renewal (5) RENTAL (1) (a) Minimum Rent (First 5 Years) 2 (b) Percentage Rent (First 5 Years) 2 (2) (a) Minimum Rent (Second 5 Years) 2 (b) Percentage Rent (Second 5 Years) 2 (3) Place of Payment 2 (4) Minimum Rent Installments & Adjustments Percentage Rent Installments & Adjustments 2 (6) Application of Rent Payments, Etc. 2 (7) Records & Audit, Etc. 3 (8) Estimating & Determining Gross Sales, Etc. 3 (9) Confidentiality 3 (10) Definitions 3 3. GENERAL COVENANTS 4 4. USE & OCCUPANCY OF PREMISES (a) Required & Prohibited Uses 4 (b) Active Conduct of Business 5 (c) Hours of Operation & Illumination 5 (d) Business Name 5 (e) Appearance, Etc. of Premises 5 (f) By-Laws 5 5. REPAIR & DAMAGE (1) Tenant's Repairs 5 6. TAXES (1) Payment by Tenant 6 LICENCES, ASSIGNMENT & SUB-LETTING (1) Licences (2) Assignment & Subletting 6 6 8. SIGNS 6 LEASEHOLD IMPROVEMENTS & TRADE FIXTURES (1) Definition of Leasehold Improvements 6 (2) Installation of Improvements & Fixtures 7 (3) Liens & Encumbrances on Improvements & Fixtures 7 (4) Removal of Improvements & Fixtures 7 10. INSURANCE & LIABILITY (1) Tenant's Insurance (2) Limitation of Landlord's Liability (3) Indemnity of Landlord 11. ACCESS OF LANDLORD (1) Inspection & Access (2) Exhibiting Premises 12. DELAY & NON-WAIVER (1) Unavoidable Delay ( 2 ) Waiv er 9 10 13. REMEDIES OF LANDLORD (4) (5) Remedies of Landlord Remedies Cumulative Right of Re-Entry on Default or Termination Termination & Re-Entry Payment of Rent, Etc. on Termination 10 10 l0 ll ll 14. IMPROPER USE OF PREMISES, BANKRUPTCY (1) Bankruptcy, Etc. ll 15. MISCELLANEOUS PROVISIONS (1) Registration of Lease (2) Lease Constitutes Entire Agreement (3) Notices (4) In terpretation (5) Extent of Lease Obligations 11 11 12 12 12 ii THIS LEASE made the 25th day of April, 1983. IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT BETWEEN: THE CORPORATION OF THE TOWN OF PICKERING hereinafter called the "Landlord" OF THE FIRST PART, - and - SHANE COBURN -and - WALTER THORNE hereinafter collectively called the "Tenant" OF THE SECOND PART. WITNESSETH THAT in consideration of the rents, covenants and agreements herein contained the Landlord and the Tenant agree as follows: 1. LEASE (1) Lease & Term The Landlord does demise and lease to the Tenant the premises (the "Premises") consisting of 50,167.64 square metres of rentable area located in Lot 19, Concession 3, Picketing, and comprising that part of Parts 37 and 40, Plan 40R-6934, outlined in red on the sketch attached hereto as Schedule A. TO HAVE AND TO HOLD for a term (the "Term") ing on the 1st day of April, 1983 and fully to be the 3]st day of March, 1993. of ten years commenc- comp]ete and ended on (2) Overholdin~ If the Tenant shall continue to occupy the Premises after the expiration of the Term without any further written agreement and without objection by the Landlord, the Tenant shall be a monthly tenant at the rent and (except as to length of tenancy) on the terms and conditions herein set out and the period of such monthly tenancy shall be considered to form part of the Term. (3) Renewal If the Landlord, at the end of the Term hereof, determines that a golf-driving range or a miniature golf-putting facility, or both, should continue to be operated from the Premises, then the Landlord shall grant to the Tenant the first right of refusal to lease the Premises, or part thereof, from the Landlord for such purpose, subject to whatever terms and conditions the Landlord may, in its discretion, deem to be appropri- ate. RENTAL (1) YIELDING AND PAYING THEREFOR yearly and every year during the first five years of the Term as rental: (a) Minimum Rent Minimum rent in the amount of $2,000, by monthly installments as provided in subsection 2(4), and (b) Percentage Rent Percentage Rent in the amount if any by which 5% of the Tenant's Gross Sales exceed Minimum Rent, by monthly installments and subject to periodic adjustments as provided in subsection 2(5). (2) YIELDING AND PAYING THEREFOR yearly and every year during the second five years of the Term, and during any period of overholding, as ten t al: (a) Minimum Rent Minimum rent in the amount of $5,000, by monthly installments as provided in subsection 2(4), and (b) Percentage Rent Percentage Rent in the amount if any by which 7% of the Tenant's Gross Sales exceed Minimum Rent, by monthly installments and subject to periodic adjustments as provided for in subsection 2(5). (3) Place of Payment All rent shall be paid by the Tenant to the Landlord in lawful money of Canada at the address of the Landlord set out in section 21 or at such other place as the Landlord shall from time to time designate. (4) Minimum Rent Installments & Adiustments Minimum Rent shall be an annual rent but shall be payable by the Tenant without any prior demand of the Landlord in equal monthly installments in advance on the first day of each and every calendar month during the Term. (5) Percenta~;e Rent Installments & Adiustments Percentage Rent shall be payable by the Tenant without any prior demand of the Landlord in monthly installments in arrears, computed with refer- ence to the Tenant's Gross Sales in each calendar month and the amount of Minimum Rent attributable to such calendar month, within ten (10) days after the end of each such calendar month. Each payment of a monthly installment by the Tenant shall be accompanied by a written statement from the Tenant setting out the Tenant's Gross Sales for the calendar month with reference to which the installment of Percentage Rent is computed and the particulars of the calculation of the installment of Percentage Rent payable. Percentage Rent shall be subject to periodic adjustment after the end of each calendar year as follows: (a) within sixty (60) days after the end of each calendar year the Tenant shall cause an audit of its Gross Sales to be made by a practising chartered or other licensed public accountant accept- able to the Landlord and deliver to the Landlord a written state- ment as to the amount of its Gross Sales for and the amount of Minimum Rent attributable to such calendar year and the amount of Percentage Rent payable with respect to such calendar year, revised if necessary, and certified by such accountant as having been audited and found correct, and if the amount of Percentage Rent paid with respect to such calendar year is less than the amount of Percentage Rent payable therefor as shown by such statement, the Tenant shall with such statement pay to the Land- lord the deficiency, and if greater the Landlord shall after receipt of such statement and the Tenant's claim for adjustment and if the Tenant is not then in default under this Lease refund to the Tenant any overpayment (but may defer such refund until completion of any examination or audit pursuant to clause 2(7) then in progress or which the Landlord shall make or cause to be made within a reasonable time thereafter). (6) Application of Rent Payments, Etc. (7) (8) (9) All Minimum Rent, Percentage Rent and other sums payable under this Lease by the Tenant shall be payable without any deduction, set-off or abatement whatsoever except as expressly herein provided. Any rent or other sum received by the Landlord from or for the account of the Tenant while the Tenant is in default under this Lease may be applied at the Landlord's option to the satisfaction in whole or in part of any of the obligations of the Tenant then due under this Lease in such manner as the Landlord sees fit regardless of any designation or instruction of the Tenant to the contrary. The Landlord's rights under subsections 2(7) and (8) of examination and audit and in certain circumstances to estimate Gross Sales are in addition to any other remedies it may have under this Lease for defaults of the Tenant. The provisions of subsections (1) and (2) with regard to the payment of a Percentage Rent based upon Gross Sales is a reservation of rent only and does not create any joint venture or partnership or any relationship between the Landlord and Tenant other than one of tenancy. Records & Audit, Etc. The Tenant shall keep or cause to be kept full, true and accurate records of all business from which its Gross Sales may be readily and accurately determined, and to which the Landlord shall have access at any time during regular business hours for the purpose of examination or audit, and the Tenant shall furnish to the Landlord all supporting data and other information relating to its Gross Sales as may be requested. Ail records and data shall be prepared and kept and accounting proce- dures and controls adopted in accordance with good accounting practice and all reasonable requirements of the Landlord from time to time, and such records and data shall be retained for at least twelve (12) months after the expiration of the fiscal period to which they re]ate. Estimatin~ & Determining Gross Sales, Etc. If the Tenant fails to keep and retain records and data and adopt accounting procedures and controls in accordance with the requirements of subsection 2(7) or to report its Gross Sales as required by subsection 2(5), or if the Landlord determines that in its opinion the Tenant's records and data and accounting procedures and controls are deficient and do not permit an accurate or reliable determination of Gross Sales to be made, the Landlord may estimate the Tenant's Gross Sales for any fiscal period affected by the failure or deficiency on the basis of such information as is accessible to the Landlord and such estimate shah be binding upon the Tenant except to the extent that the Tenant proves it inaccurate. Confidentiality The Landlord shall treat as confidential all information concerning the Tenant and its business that it may receive pursuant to this Lease, except for any information that is available to the public from other sources and except to the extent that it shall be reasonably necessary for the Landlord to disclose the information to carry out the intent of this Lease or to enforce its rights hereunder. The Landlord shall use reason- able efforts to cause its agents and employees to comply with the (lO) preceding sentence but shall in no event be responsible or accountable for any instance in which an agent or employee fails so to comply. Definitions For the purpose of this section, the following terms shall have the follow- ing meanings: (a) "Gross Sales" means the sum (without deduction) of the selling prices of all merchandise sold and services rendered or furnished by the tenant to a purchaser on or from the Premises or by personnel based on the Premises, whether £or cash, credit, exchange of merchandise or other consideration. For purposes of the preceding sentence, there shall be included as selling prices of merchandise and services all receipts and receivables and gross revenue whatsoever of all business of every kind and nature conducted on or from the Premises including (but without limiting the generality of the foregoing) all deposits not refunded to customers, the selling price of gift certificates, revenue from vending and other machines, revenue from equipment rentals, all sums and credits received and settlement of claims for the loss of or damage to merchandise and amounts recovered under policies or other contracts of insurance or indemnity in respect of loss of business, sales or profits arising from any fire or other peril or occurrence, and without any deduction for the deferred portion of any installment sale or any uncollected or uncollectible accounts (the full consideration for every sale being deemed to be received when the sale is made irrespective of when it is paid or to be paid); but there may be deducted the amount of credits or refunds made upon merchandise purchased from the Premises and returned, and direct sales taxes and like sums collected by the Tenant and shown separately from the price of merchandise or services and actually remitted to any taxing authorities; (b) "Minimum Rent" means the rent which is a fixed annual amount and is payable pursuant to subsections (1) and (2); (c) "Percentage Rent" means the rent which is computed with refer- ence to Gross Sales and is payable pursuant to subsections (1) and (2). GENERAL COVENANTS (1) The Landlord covenants with the Tenant: (a) for quiet enjoyment; and (b) to observe and perform all covenants Landlord herein; and (2) The Tenant covenants with the Landlord: (a) to pay rent; and (b) to observe and perform all covenants Tenant herein. and obligations of the and obligations of the USE & OCCUPANCY OF PREMISES The Tenant covenants with the Landlord: (a) Required & Prohibited Uses To use the Premises only for the purpose of carrying on the business of, (i) a golf-driving range located at least 85 metres west of Brock Road and at least 6.1 metres south of the northerly boundary of the premises, 4 (ii) a miniature golf-putting facility located at least 6.1 metres from the northerly boundary of the premises, and (iii) an accessory parking area located between the golf-driving range and Brock Road and south of the minature golf-putting facility. (b) Active Conduct of Business To continuously, actively and diligently carry on the business described in subclause (a) on the whole of the Premises in a reputable manner and in compliance with all the provisions of this Lease. (c) Hours of Operation & Illumination To operate the business only between the hours of 6:30 a.m. and 12:00 midnight, local time, and not to illuminate any sign or any part of the Premises not contained within a building or structure, except for security purposes, between 12:01 a.m. and 6:30 a.m., local time. (d) Business Name To carry on business in the Premises under the name and style of Picker- ing Driving Range and under no other name or style unless approved in writing by the Landlord. (e) Appearance, etc. of Premises (f) To maintain and operate the Premises so that it shall always be of good appearance and suitable for the proper operation of the business required to be carried on therein and comparable with the standards of the best such business and in so doing, (i) to erect screens, suitable to the Landlord and prior to commencement of operation of the business, along the northerly boundary of the Premises where that boundary abuts the golf driving range tees, and between all tees intended for the driving of golf balls in a direction perpendicular to Brock Road, at the Tenant's expense, (ii) to keep, renew, replace and decorate as may from time to time be necessary for the purpose, all buildings, structures, screens, fences and signs on the Premises and all fixtures, furnishings, chattels and decorations therein, (iii) to keep the Premises orderly and tidy, and (iv) to store all refuse on the Premises in receptacles such as to provide proper storage and facilitate its removal, and to arrange for the regular removal of all refuse. By-Laws To comply at its own expense with all municipal, federal and provincial, sanitary, fire and safety laws, regulations and requirements pertaining to the occupation and use of the Premises, the condition of the Leasehold Improvements, trade fixtures, furniture and equipment installed by or on behalf of the Tenant therein and the making by the Tenant of any re- pairs, changes or improvements therein. REPAIR & DAMAGE (1) Tenant's Repairs The Tenant covenants with the Landlord to repair at the Tenant's own cost the Premises, including Leasehold Improvements and trade fixtures, reasonable wear and tear excepted. The Landlord may enter and view the state of repairs and the Tenant will repair according to notice in writing, reasonable wear and tear excepted. If the Tenant shall fail to repair after notice to do so, the Landlord may effect the repairs and collect the cost thereof from the Tenant as additional rent pursuant to section i3 hereof. TAXES (1) Payment by Tenant The Tenant covenants with the Landlord to pay promptly when due to the taxing authority or authorities having jurisdiction all taxes, rates, duties, levies and assessments whatsoever, whether municipal, parliamentary or otherwise, levied, imposed or assessed in respect of the Premises and any and every business carried on in the Premises by the Tenant, or in respect of the use or occupancy thereof (including licence fees). LICENCES, ASSIGNMENT AND SUB-LETTING (I) Licences The Tenant shall not permit any part of the Premises to be used or occupied by any persons other than the Tenant and the employees of the Tenant, or permit any part of the Premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the Premises other than the Tenant, its employees, customers and others having lawful business with them. (2) Assignment & Subletting The Tenant shall not assign this Lease or sublet all or any part of the Premises. SIGNS The Tenant shall be permitted, and shall maintain, an identification sign at or near the frontage of the Premises on Brock Road. Such signs shah contain only the name or style under which the Tenant is required to carry on business under the provisions of this Lease unless the Landlord shall otherwise approve in writing, and the sign including the size, location, arrangement and type of lettering, its co]our, illumination and all its other appearance and design fea- tures shall be subject to the prior written approval of the Landlord. Other- wise, except with the prior written consent of the Landlord, the Tenant shall not paint, display, inscribe, place or affix any sign, symbol, notice, lettering or display of any kind anywhere outside the Premises or within the Premises so as to be visible from the outside of the Premises with the exception of merchan- dise displayed in show windows in the ordinary course of its business. Should the Landlord at any time object to any sign, symbol, notice, lettering or dis- play either affixed to or visible from the outside of the Premises, the Tenant shall remove the same forthwith upon request. LEASEHOLD IMPROVEMENTS & TRADE FIXTURES (I) Definition of Leasehold Improvements For purposes of this Lease, the term "Leasehold Improvements" includes without limitation all fixtures, improvements, installations, alterations and additions from time to time made, erected or installed by or on behalf of the Tenant in or on the Premises, and whether or not moveable, with the exception of trade fixtures and furniture and equipment not of the nature of fixtures. (2) Installation of Improvements & Fixtures The Tenant shall not make, erect, install or alter any Leasehold Improve- ments or trade fixtures, including lighting, in or on the Premises without having first obtained the Landlord's written approval. The Tenant's request for any approval hereunder shall be in writing and accompanied by an adequate description of the contemplated work and, where appro- priate, working drawings and specifications thereof. All work to be performed in the Premises shall be performed by competent contractors and subcontractors of whom the Landlord shall have approved, such approval not to be unreasonably withheld. All such work shall be subject to inspection by and the reasonable supervision of the Landlord, and shall be performed in accordance with any reasonable conditions or regu- lations imposed by the Landlord and completed in a good and workmanlike manner in accordance with the description of work approved by the Landlord. (3) Liens & Encumbrances on Improvements & Fixtures In connection with the making, erection, installation or alteration of Leasehold Improvements and trade fixtures and all other work or instal- lations made by or for the Tenant in or on the Premises, the Tenant shall comply with all the provisions of the Mechanics' Lien Act, the Con- struction Lien Act, and other statutes from time to time applicable there- to, including any provision requiring or enabling the retention by way of hold-back of portions of any sums payable, and except as to any such hold-back shall promptly pay all accounts relating thereto. The Tenant shall not create any mortgage, conditional sale agreement or other encum- brance in respect of its Leasehold Improvements or, without the consent of the Landlord, with respect to its trade fixtures nor shall the Tenant take any action as a consequence of which any such mortgage, conditional sale agreement or other encumbrance would attach to the Premises or any part thereof. If and whenever any mechanics' or other lien for work, labour, services or materials supplied to or for the Tenant or for the cost of which the Tenant may be in any way liable or claims therefor shall arise or be filed or any such mortgage, conditional sale agreement or other encumbrance shall attach, the Tenant shall within twenty (20) days after receipt of notice thereof procure the discharge thereof, including any certificate of action registered in respect of any lien, by payment or giving security or in such ether manner as may be required or permitted by law, and failing xvhich the Landlord may in addition to all other rem- edies hereunder avail itself of its remedy under section 13 hereof and may make any payments required to procure the discharge of any such liens or encumbrances, shall be entitled to be reimbursed by the Tenant as provided in section 13, and its right to reimbursement shall not be affect- ed or impaired if the Tenant shall then or subsequently establish or claim that any lien or encumbrance so discharged was without merit or exces- sive or subject to any abatement, set-off or defence. This subsection shall not prevent the Tenant from mortgaging or encumbering its chattels, furniture or equipment not of the nature of fixtures. (4) Removal of Improvements & Fixtures All Leasehold Improvements, trade fixtures, furniture and equipment shall be removed by the Tenant from the Premises either during or at the expiration or sooner termination of the Term. The Tenant shall, in the case of every removal either during or at the end of the Term, make good at the expense of the Tenant any damage caused to the Premises by the installation and removal. 10. INSURANCE & LIABILITY (1) The Tenant shall take out and keep in force during the Term: (a) comprehensive insurance of the type commonly called general public liability, which shall include coverage for personal liability, (h) (c) contractual liability, tenants' legal liability~ non-owned automobile liability, bodily injury, death and property damage, all on an occurrence basis with respect to the business carried on in or from the Premises and the Tenant's use and occupancy of the Premises, with coverage for any one occurrence or claim of not less than One Million Dollars ($1,000,000), or such other amount as the Landlord may reasonably require upon not less than six months notice at any time during the Term, which insurance shall include the Landlord as a named insured and shall protect the Landlord in respect of claims by the Tenant as if the Landlord were separately insured; and insurance in respect of fire and such other perils as are from time to time defined in the usual extended coverage endorsement covering the Leasehold Improvements, trade fixtures, and the furniture and equipment in the Premises for not less than 80% of the full replacement cost thereof, and which insurance shatl include the Landlord as a named insured as the Landlord's inter- est may appear with respect to insured Leasehold Improvements and provide that any proceeds recoverable in the event of loss to Leasehold Improvements shall be payable to the Landlord (but the Landlord agrees to make available such proceeds towards the repair or replacement of the insured property if this Lease is not terminated pursuant to any other provision hereof); and insurance against such other perils and in such amounts as the Landlord may from time to time reasonably require upon not less than 90 days written notice, such requirement to be made on the basis that the required insurance is customary at the time for prudent tenants of similar properties. All insurance required to be maintained by the Tenant hereunder shall be on terms and with insurers to which the Landlord has no reasonable objection. Each policy shall contain a waiver by the insurer of any rights of subrogation or indemnity or any other claim over to which the insurer might otherwise be entitled against the Landlord or the agents or employees of the Landlord, and shall also contain an undertaking by the insurer that no material change adverse to the Landlord or the Tenant will be made, and the policy wil/ not lapse or be cancelled, except after not less than thirty days written notice to the Landlord of the intended change, lapse or cancelIation. The Tenant shall furnish to the Landlord, if and whenever requested by it, certificates or other evidences acceptable to the Landlord as to the insurance from time to time effected by the Tenant and its renewal or continuation in force, together with evidence as to the method of determination of full replacement cost of the Tenant's Leasehold Improvements, trade fixtures, furniture and equipment, and if the Landlord reasonably concludes that the full replacement cost has been underestimated, the Tenant shall forthwith arrange for any consequent increase in coverage required hereunder. If the Tenant shall fail to take out, renew and keep in force such insurance, or if the evidences submitted to the Landlord pursuant to the preceding sentence are unacceptable to the Landlord or no such evidences are submitted within a reasonable period after request therefor by the Landlord, then the Landlord may give to the Tenant written notice requiring compliance with this section and specifying the respects in which the Tenant is not then in compliance with this section. If the Tenant does not within 72 hours or such lesser period as the Landlord may reasonably require having regard to the urgency of the situation, provide appropriate evidence of compliance with this section, the Landlord may, but shall not be obligated to, obtain some or all of the additional coverage or other insurance which the Tenant shall have failed to obtain, without prejudice to any other rights of the Landlord under this Lease or otherwise, and the Tenant shall pay all premiums and other expenses incurred by the Landlord in that connection as additional rent pursuant to section 13 hereof. (2) Limitation of Landlord's Liability (3) The Tenant agrees that the Landlord shall not be liable for any bodily injury or death of, or loss or damage to any property belonging to the Tenant or its employees, invitees or licensees or any other person in, on or about the Premises. Indemnity of Landlord The Tenant agrees to indemnify and save harmless the Landlord in re- spect of: (a) all claims for bodily injury or death, property damage or other loss or damage arising from the conduct of any work by or any act or omission of the Tenant or any agent, employee, contractor, invitee or licensee of the Tenant, and in respect of all costs, expenses and liabilities incurred by the Landlord in connection with or arising out of all such claims, including the expenses of any action or proceeding pertaining thereto; (b) any loss, cost, expense or damage suffered or incurred by the Landlord arising from any breach by the Tenant of any of its covenants and obligations under this Lease; and (c) all costs, expenses and reasonable legal fees that may be incurred or paid by the Landlord in enforcing against the Tenant the covenants, agreements and representations of the Tenant set out in this Lease. 11. ACCESS OF LANDLORD (I) Inspection & Access The Landlord shall be permitted at any time and from time to time to enter and to have its authorized agents, employees and contractors enter the Premises for the purposes of inspection, maintenance or making repairs, and the Tenant shall provide free and unhampered access for the purpose, and shall not be entitled to compensation for any inconvenience, nuisance or discomfort caused thereby, but the Landlord in exercising its rights hereunder shall proceed to the extent reasonably possible so as to minimize interference with the Tenant's use and enjoyment of the Prem- ises. (2) Exhibitin8 Premises The Landlord and its authorized agents and employees shall be permitted entry to the Premises during the last six (6) months of the Term for the purpose of exhibiting them to prospective tenants. 12. DELAY & NON-WAIVER (1) Unavoidable Delay Except as herein otherwise expressly provided, if and whenever and to the extent that either the Landlord or the Tenant shall be prevented, delayed or restricted in the fulfilment of any obligation hereunder in respect of the making of any repair, the doing of any work or any other thing, other than the payment of rent or other monies due, by reason of: (i) strikes or work stoppages; (ii) being able to obtain any material, service, utility or labour required to fulfil such obligation; (iii) any statute, law or regulation of, or inability to obtain any permission from, any government authority having lawful jurisdic- tion preventing, delaying or restricting such fulfilment; or 9 (iv) other unavoidable occurrence, the tithe for fulfilment of such obligation shall be extended during the period in which such circumstance operates to prevent, delay or restrict the fulfilment thereof, and the other party shall not be entitled to com- pensation for any inconvenience, nuisance or discomfort thereby occa- sioned. Waiver If either the Landlord or the Tenant shall overlook, excuse, condone or suffer any default, breach or non-observance by the other of any obligation hereunder, this shall not operate as a waiver of such obligation in respect of any continuing or subsequent default, breach or non-observance, and no such waiver shall be implied but shall only be effective if expressed in writing. 13. REMEDIES OF LANDLORD (1) In addition to all rights and remedies of the Landlord available to it in the event of any default hereunder by the Tenant through improper compliance or non-compliance with any obligation arising either under this or any other provision of this Lease or under statute or the general law the Landlord: (a) shall have the right at all times to remedy or attempt to remedy any default of the Tenant, and in so doing may make any pay- ments due or alleged to be due by the Tenant to third parties and may enter upon the Premises to do any work or other things therein, and in such event all expenses of the Landlord in reme- dying or attempting to remedy such default shall be payable by the Tenant to the Landlord as additional rent forthwith upon demand. (b) shall have the same rights and remedies in the event of any non-payment by the Tenant of any amounts payable by the Ten- ant under any provision of this Lease as in the case of a non-payment of rent; and (c) if the Tenant shall fail to pay any rent or other amount from time to time payable by it to the Landlord hereunder promptly when due, shall be entitled, if it shall demand it,to interest thereon at a rate of three per cent (3%) per annum in excess of the minimum lending rate to prime commercial borrowers from time to time current at chartered banks in Ontario from the date upon which the same was due until actual payment thereof. (2) Remedies Cumulative The Landlord may from time to time resort to any or all of the rights and remedies available to it in the event of any default hereunder by the Tenant, through improper compliance or non-compliance with any obligation arising either under any provision of this Lease or under statute or the general law, all of which rights and remedies are intended to be cumulative and not alternative, and the express provisions here- under as to certain rights and remedies are not to be interpreted as excluding any other or additional rights and remedies available to the Landlord by statute or the general law. (3) Right of Re-Entry on Default or Termination If and whenever the rent hereby reserved or other monies payable by the Tenant or any part thereof shall not be paid on the day appointed for payment thereof, whether lawfully demanded or not, and the Tenant shall have failed to pay such rent or other monies within five (5) business days after the Landlord shall have given to the Tenant notice requiring such payment, or if the Tenant shall breach or fail to observe and per- form any of the covenants, agreements, provisos, conditions and other obligations on the part of the Tenant to be kept, observed or performed I0 hereunder, or if this Lease shall have become terminated pursuant to any provision hereof, or if the Landlord shall have become entitled to termi- nate this Lease and shall have given notice terminating it pursuant to any provision hereof, then and in every such case it shall be lawful for the Landlord thereafter to enter into and upon the Premises or any part thereof in the name of the whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding. (4) Termination & Re-Entry If and whenever the Landlord becomes entitled to re-enter upon the Premises under any provision of this Lease the Landlord, in addition to all other rights and remedies, shall have the right to terminate this Lease forthwith by leaving upon the Premises notice in writing of such termina- tion. (5) Payment of Rent, etc. on Termination Upon the giving by the Landlord of a notice in writing terminating this Lease, whether pursuant to this or any other provision of this Lease, this Lease and the Term shall terminate, rent and any other payments for which the Tenant is liable under this Lease shall be computed, appor- tioned and paid in full to the date of such termination, and the Tenant shall immediately deliver up possession of the Premises to the Landlord, and the Landlord may re-enter and take possession of them. I4. IMPROPER USE OF PREMISES; BANKRUPTCY (1) Bankruptcy, etc. In case without the written consent of the Landlord the Premises shall be used by any other persons than the Tenant or for any purpose other than that for which they were leased, or occupied by any persons whose occupancy is prohibited by this Lease, or if the Premises shall be vacated or abandoned, or remain unoccupied for fifteen (15) days or more while capable of being occupied; or if the balance of the Term or any of the goods and chattels of the Tenant shall at any time be seized in execution or attachment, or if the Tenant shall make any assignment for the benefit of creditors or any bulk sale, become bankrupt or insolvent or take the benefit of any statute now or hereafter in force for bankrupt or insolvent debtors, then in any such case the Landlord may at its option terminate this Lease by leaving upon the Premises notice in writing of such ter- mination and thereupon, in addition to the payment by the Tenant of rent and other payments for which the Tenant is liable under this Lease, rent for the current month and the next ensuing three (3) months shall imme- diately become due and paid by the Tenant. 15. MISCELLANEOUS PROVISIONS (1) Registration of Lease The tenant agrees with the Landlord not to register this Lease or a notice of this Lease. (2) Lease Constitutes Entire Agreement The Tenant acknowledges that there are no covenants, representations, warranties, agreements or conditions express or implied, collateral or otherwise forming part of or in any way affecting or relating to this Lease save as expressly set out in this Lease and that this Lease consti- tutes the entire agreement between the Landlord and the Tenant and may not be modified except as herein explicitly provided or except by agree- ment in writing executed by the Landlord and the Tenant. 11 (3) Notices Any notice required or contemplated by any provision hereof shall be given in writing, and (a) if to the Landlord, either delivered to the Town Clerk or mailed by prepaid registered mail addressed to the Town Clerk at 1710 Kingston Road, Picketing, Ontario L1V lC7; and (b) if to the Tenant, either delivered to either Shane Goburn or Walter Thorne personally or mailed by prepaid registered mail addressed to Shane Coburn and Walter Thorne at 790 Krosno Boulevard, Pickering, Ontario L1W 1G6. Every such notice shall be deemed to have been given when delivered or, if mailed as aforesaid, upon the day after the day it is mailed. Either party may from time to time by notice in writing to the other, designate another address in Canada as the address to which notices are to be mailed to it. (4) Interpretation All of the provisions of this Lease are to be construed as covenants and agreements as though words importing such covenants and agreements were used in each separate provision hereof, and the captions appearing for the provisions o£ this Lease have been inserted as a matter of conve- nience and for reference only and in no way define, limit or enlarge the scope or meaning of this Lease or of any provision hereof. (5) Extent of Lease Obligations This Lease and everything herein contained shall enure to the benefit of and be binding upon the respective heirs, executors, administrators and other legal representatives, as the case may be, of each and every of the parties hereto, and every reference herein to any party hereto shall include the heirs, executors, administrators, and other legal representa- tives of such party, and where there is more than one tenant or there is a male or female party, the provisions hereof shall be read with all gram- matical changes thereby rendered necessary and all covenants shall be deemed joint and several. IN WITNESS WHEREOF the parties hereto have executed this Indenture. SIGNED, SEALED & DELIVERED THE CORPORATION OF THE TOWN OF PICKERING Mayor Clerk In the presence of SHANE COBURN WALTER THORNE 12 Schedule A 0 O0 ©