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Exhibit 10.4
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BUILDING : BRENTWOOD OFFICE CENTRE
LANDLORD : RIOCAN HOLDINGS INC.
TENANT : INFOWAVE WIRELESS MESSAGING INC.
TENANT'S ADDRESS : #000, 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, X.X.
V5C 6B7
INDEMNIFIER : n/a
SUITE NO. : 101
AREA : 14,281 square feet
TERM OF LEASE : 5 years
FROM : April 1, 1998
TO : March 31, 2003
RENTAL/SQ.FT.RATE : $9.00
OPTION : 1x54 R.T.B.A. (SEE RIDER #1)
ALLOWANCE : $8.00 payable to Tenant towards leasehold
improvements (SEE RIDER #1)
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INDEX
OFFICE LEASE
TABLE OF CONTENTS
ARTICLE 1
SPECIAL PROVISIONS
ARTICLE 2
LEASED PREMISES, TERM AND ACCEPTANCE
OF THE LEASED PREMISES
Section 2.1 Leased Premises.................................................
Section 2.2 Use of Additional Areas.........................................
Section 2.3 Xxxxx and Term..................................................
Section 2.4 Construction of Leased Premises.................................
ARTICLE 3
RENT
Section 3.1 Covenant to Pay.................................................
Section 3.2 Basic Rent......................................................
Section 3.3 Pre-Authorized Payments/Postdated Cheques.......................
Section 3.4 Advance Rent....................................................
Section 3.5 Rent Past Due...................................................
ARTICLE 4
TAXES AND OPERATING COSTS
Section 4.1 Taxes Payable by Landlord.......................................
Section 4.2 Taxes Payable by Tenant.........................................
Section 4.3 Business Taxes and Other Taxes of the Tenant....................
Section 4.4 Tenant's Proportionate Share of Operating Costs.................
Section 4.5 Payment of Taxes and Operating Costs............................
ARTICLE 5
BUILDING -- CONTROL AND SERVICES
Section 5.1 Control of the Building.........................................
Section 5.2 Landlord's Services.............................................
Section 5.3 Tenant's Responsibilities.......................................
Section 5.4 Relocation of the Leased Premises...............................
Section 5.5 Additional Services.............................................
ARTICLE 6
UTILITIES
Section 6.1 Charges for Utilities...........................................
ARTICLE 7
USE OF THE LEASED PREMISES
Section 7.1 Use of the Leased Premises......................................
Section 7.2 Conduct of Business.............................................
Section 7.3 Observance of Law...............................................
Section 7.4 Hazardous Substances............................................
ARTICLE 8
INSURANCE AND INDEMNITY
Section 8.1 Tenant's Insurance..............................................
Section 8.2 Increase in Insurance Premiums..................................
Section 8.3 Cancellation of Insurance.......................................
Section 8.4 Loss or Damage..................................................
Section 8.5 Landlord's Insurance............................................
Section 8.6 Indemnification.................................................
ARTICLE 9
MAINTENANCE, REPAIRS AND ALTERATIONS
Section 9.1 Maintenance and Repairs by the Landlord.........................
Section 9.2 Maintenance and Repairs by the Tenant...........................
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Section 9.3 Landlord's Approval of the Tenant's Repairs.....................
Section 9.4 Removal and Restoration by the Tenant...........................
Section 9.5 Tenant to Discharge all Liens...................................
Section 9.6 Signs and Advertising...........................................
Section 9.7 Tenant Not to Overload Facilities...............................
Section 9.8 Tenant Not to Overload Floors...................................
ARTICLE 10
DAMAGE AND DESTRUCTION
Section 10.1 Destruction of the Leased Premises..............................
Section 10.2 Destruction of the Building.....................................
Section 10.3 Expropriation...................................................
Section 10.4 Architect.......................................................
ARTICLE 11
ASSIGNMENT AND SUBLETTING
Section 11.1 Assignment and Subletting.......................................
Section 11.2 Assignment by the Landlord......................................
ARTICLE 12
ACCESS AND ALTERATIONS
Section 12.1 Right of Entry..................................................
ARTICLE 13
STATUS STATEMENT, SUBORDINATION AND ATTORNMENT
Section 13.1 Status Statement................................................
Section 13.2 Subordination and Attornment....................................
Section 13.3 Attorney........................................................
Section 13.4 Financial Information...........................................
ARTICLE 14
DEFAULT
Section 14.1 Right to Re-enter...............................................
Section 14.2 Right to Relet..................................................
Section 14.3 Expenses........................................................
Section 14.4 Waiver of Exemption from Distress...............................
Section 14.5 Landlord's Rights...............................................
Section 14.6 Remedies Generally..............................................
ARTICLE 15
MISCELLANEOUS
Section 15.1 Rules and Regulations...........................................
Section 15.2 Intent and Interpretation.......................................
Section 15.3 Overholding -- No Tacit Renewal.................................
Section 15.4 Tenant Partnership or Group.....................................
Section 15.5 Waiver..........................................................
Section 15.6 Accord and Satisfaction.........................................
Section 15.7 Force Majeure...................................................
Section 15.8 Notices.........................................................
Section 15.9 Registration....................................................
Section 15.10 Accrual of Basic Rent and Additional Rent.......................
Section 15.11 Compliance with the Planning Act................................
Section 15.12 Quiet Enjoyment.................................................
Section 15.13 Consent and Approval............................................
Section 15.14 Non-Liability...................................................
ARTICLE 16
DEFINITIONS
RIDER #1 SPECIAL PROVISIONS
SCHEDULE "A" LEGAL DESCRIPTION...............................................
SCHEDULE "B" FLOOR PLAN......................................................
SCHEDULE "C" CONSTRUCTION OF THE LEASED PREMISES.............................
SCHEDULE "D" METHOD OF FLOOR MEASUREMENT.....................................
SCHEDULE "E" RULES AND REGULATIONS...........................................
SCHEDULE "F" PRE-AUTHORIZED PAYMENT-PLAN.....................................
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THIS LEASE is dated February 12, 1998.
B E T W E E N:
RIOCAN HOLDINGS INC.
("LANDLORD")
OF THE FIRST PART;
- AND -
INFOWAVE WIRELESS MESSAGING INC.
("TENANT")
OF THE SECOND PART.
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:
SECTION 1.1 LEASED PREMISES - SEE RIDER #1, CLAUSES #3 & 5
Containing a Rentable Area of approximately 14,281 square feet, located on the
1ST floor of the Building as shown outlined in red on the plan(s) attached as
Schedule "B" and designated as Unit No. 101 (Section 2.1).
SECTION 1.2 FIXTURING PERIOD
The period commencing February 1, 1998 and expiring March 31, 1998.
(Section 2.4).
SECTION 1.3 COMMENCEMENT DATE AND TERM - SEE RIDER #1, CLAUSE #2
The period of five (5) years commencing on the 1st day of April, 1998 (the
"Commencement Date") and fully to be completed and ended on the 31st day of
March, 2003, save as hereinafter provided for earlier termination.
(Section 2.3).
SECTION 1.4 BASIC RENT - SEE RIDER #1, CLAUSE #1
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; (Section 3.2).
From April 1, 1998 to March 31, 2003
$128,529.00 per annum, ($10,710.75 per month), based on annual rate of $9.00 per
square foot.
SECTION 1.5 ADVANCE RENT - INTENTIONALLY DELETED
SECTION 1.6 ADDRESS OF LANDLORD (SECTION 15.8)
c/o O&Y Properties Inc.
Exchange Tower, Suite 0000
#0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
SECTION 1.7 ADDRESS OF TENANT (SECTION 15.8)
#188, 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, X.X.
V5C 6B7
SECTION 1.8 INDEMNIFIER (APPENDIX "A") - INTENTIONALLY DELETED
SECTION 1.9 ADDRESS OF INDEMNIFIER (APPENDIX "A") - INTENTIONALLY DELETED
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SECTION 1.10 USE OF THE LEASED PREMISES (Section 7.1)
The Tenant will use the Leased Premises solely for the purpose of general
office use.
SECTION 1.11 ADDITIONAL PROVISIONS (Rider #1)
1. RENT-FREE PERIOD
2. RENEWAL OPTION
3. STORAGE AREA
4. PARKING
5. RIGHT OF FIRST REFUSAL
6. COMMUNICATION TOWER
7. LEASEHOLD IMPROVEMENT ALLOWANCE
ARTICLE 2.
LEASED PREMISES, TERM AND ACCEPTANCE
OF THE LEASED PREMISES
SECTION 2.1 LEASED PREMISES
The Landlord leases to the Tenant, and the Tenant leases from the Landlord, the
Leased Premises. The Architect shall determine the actual Usable Area of the
Leased Premises and shall calculate the actual Rentable Area of the Leased
Premises in accordance with Schedule "D" hereof and, if necessary, thereafter
the Basic Rent and Additional Rent shall be adjusted retroactively to the
Commencement Date in accordance with the terms of this Lease.
SECTION 2.2 USE OF ADDITIONAL AREAS
The Tenant's use of the Leased Premises includes the non-exclusive right of the
Tenant and persons having business with the Tenant in common with the Landlord
and all others entitled, to the use of the Common Areas and Facilities.
SECTION 2.3 GRANT AND TERM
The Tenant shall, subject to the terms of this Lease, have and hold the Leased
Premises during the Term (being the period referred to in Section 1.3 of the
Special Provisions) subject to the payment of Basic Rent and Additional Rent
and the observance and performance of the terms, covenants and conditions
contained in this Lease.
SECTION 2.4 CONSTRUCTION OF 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 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. The Tenant shall, during the Fixturing Period (being the period referred
to in Section 1.2 of the Special Provisions), enter upon and take possession of
the Leased Premises for the purpose of completing the Tenant's Work, in common
with the Landlord and the Landlord's contractors and employees. 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 insurance premiums,
electricity, water, temporary heat, security, refuse removal and other
Utilities and services furnished to the Tenant or its contractors by the
Landlord or others and all other Additional Rent, all as estimated by the
Landlord, acting reasonably) except those requiring payment of Basic Rent.
Upon the expiration of the Fixturing Period, Basic Rent and Additional Rent
shall be payable in accordance with the terms of this Lease. SEE RIDER #1,
CLAUSE #1
(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 Usable Area or the Rentable Area of the Leased Premises, the opinion
of the 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, if any, has been satisfactorily
completed. There is no promise, representation or undertaking by
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or binding upon the Landlord with respect to an alteration, remodelling or
redecorating of, or installation of equipment or fixtures in, the Leased
Premises, unless expressly set forth in this Lease.
(f) The Tenant acknowledges that if there is a delay which results in the
Building or the Landlord's Work not being completed on schedule, 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.
ARTICLE 3.
RENT
SECTION 3.1 COVENANT TO PAY
The Tenant will pay Basic Rent and Additional Rent when due and payable as set
out in this Lease from and after the Commencement Date unless otherwise
specified in this Lease.
SECTION 3.2 BASIC RENT -- SEE RIDER #1, CLAUSE #1
The Tenant will, from and after the Commencement Date and thereafter throughout
the Term, pay the Landlord as Basic Rent, in equal consecutive monthly
instalments, in advance on the first day of each calendar month of each Lease
Year, the annual sum based upon the annual rate specified in Section 1.4 of the
Special Provisions. Basic Rent will be prorated on a daily basis for any
fractional month period at the beginning or end of the Term. When the Rentable
Area of the Leased Premises is determined the Basic Rent and Additional Rent
shall, if necessary, be adjusted retroactively to the Commencement Date.
SECTION 3.3 PRE-AUTHORIZED PAYMENT/POSTDATED CHEQUES
At the Landlord's request, the Tenant will participate in a pre-authorized
payment plan whereby the Landlord will be authorized to debit the Tenant's bank
account each month or from time to time during each Lease Year in an amount
equal to the Basic Rent and Additional Rent payable on a monthly basis, and, if
applicable, generally any amount payable provisionally pursuant to the
provisions of this Lease on an estimated basis. The Tenant hereby undertakes to
sign a form of application which is the same or similar to Schedule "F" to give
full force and effect to the foregoing within five (5) days of presentation.
In lieu of the pre-authorized payment plan referred to above, the Landlord shall
be entitled to require the Tenant to present at the beginning of each Lease Year
a series of monthly postdated cheques for each such Lease Year for the aggregate
of the monthly payments of Basic Rent and Additional Rent payable on a monthly
basis, and, if applicable, generally any amount payable provisionally pursuant
to the provisions of this Lease on an estimated basis.
SECTION 3.4 ADVANCE RENT -- INTENTIONALLY DELETED
SECTION 3.5 RENT PAST DUE
If the Tenant fails to pay any Rent when due, then, in addition to all other
rights and remedies available to the Landlord, the unpaid amounts will bear
interest from the due date to the date of payment at an annual rate of four (4)
percentage points above the Prime Rate, calculated and compounded monthly or, at
the Landlord's option, at the maximum annual rate permitted by law.
ARTICLE 4.
TAXES AND OPERATING COSTS
SECTION 4.1 TAXES PAYABLE BY LANDLORD
The Landlord will, subject to Sections 4.2 and 4.4 pay directly to the taxing
authority all Taxes. The Landlord may, nevertheless, defer payment of Taxes to
the fullest extent permitted by law, so long as it diligently prosecutes any
contest or appeal of Taxes.
SECTION 4.2 TAXES PAYABLE BY TENANT
(a) (i) If separate tax bills for the portion of Taxes relating to the
Leased Premises (the "Leased Premises Taxes") are available, then
the Tenant shall pay to the Landlord, or the taxing authorities if
the Landlord so directs, the Leased Premises Taxes for each Lease
Year. The Tenant shall promptly deliver to the Landlord receipts
evidencing the payment of all such Leased Premises Taxes and such
other information in connection therewith as the Landlord
reasonably requires.
(ii) If there are no separate tax bills for Leased Premises Taxes, but
there are separate assessments for Leased Premises Taxes, then the
Landlord shall allocate to the Leased Premises for such Lease
Year, a portion of the Taxes determined by reference to such
separate assessments, and the Tenant shall pay to the Landlord,
the portion of such Taxes so allocated by the Landlord.
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(iii) If there are no separate tax bills for Leased Premises Taxes and
there are no separate assessments for Leased Premises Taxes, then
Landlord shall allocate to the Office Area a portion of the Taxes
applicable to the Property on such basis as the Landlord may from
time to time determine equitable. The Tenant will pay to the
Landlord for each Lease Year, the Tenant's Share of those Taxes
so allocated to the Office Area.
(iv) The Tenant will pay to the Landlord for each Lease Year, the
Tenant's Share of those Taxes allocated by the Landlord to the
Office Area which are not otherwise included in the Taxes payable
by the Tenant and other tenants pursuant to clauses in their
leases similar to Sections 4.2(a)(i), 4.2(a)(ii), and
4.2(a)(iii).
(b) If the Landlord, acting equitably, determines that as a result of the
construction or installation of any Leasehold Improvements or Fixtures in
the Leased Premises, the use of the Leased Premises or the particular
location of the Leased Premises within the Building, the Tenant's Share of
Taxes payable in accordance with subparagraph (a)(iii) or (a)(iv) above
does not accurately reflect the proper share of the Taxes which should in
the Landlord's opinion be payable by the Tenant, the Landlord may increase
or decrease the Tenant's Share of Taxes and the Tenant will pay such
adjusted amount rather than the Tenant's Share as set out in subparagraph
(a) above.
(c) If (i) the Tenant or permitted Transferee or other occupant of the Leased
Premises shall elect to have the Leased Premises or any part thereof
assessed for separate school taxes and (ii) there are no separate tax bills
or separate assessments relating to the Leased Premises, then the Tenant
shall pay to the Landlord as Additional Rent, as soon as the amount of such
separate school taxes is ascertained, any amount by which the amount of
separate school taxes exceeds the amount which would otherwise have been
payable for school taxes had such election not been made by the Tenant or
the Transferee or other occupant of the Leased Premises.
(d) 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 Landlord
or 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 is payable by the Tenant
whether characterized as a goods and services tax, sales tax, value-added
tax, multi-stage tax, business transfer tax, or otherwise. 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.
SECTION 4.3 BUSINESS TAXES AND OTHER TAXES OF THE TENANT
(a) The Tenant will pay to the lawful taxing authorities or to the Landlord, as
the Landlord directs, all business taxes, personal property taxes, licence
fees or other similar rates and assessments levied or assessed against or
in relation to the Tenant's business, assets, Leasehold Improvements and
Fixtures in the Leased Premises and shall promptly deliver to the Landlord
receipts evidencing payment of all such taxes and furnish such other
information in connection therewith as the Landlord reasonably requires.
(b) The Tenant will Indemnify and hold the Landlord harmless from and against
payment of all loss, costs, charges and expenses occasioned by or arising
from all Taxes and the amounts payable pursuant to Section 4.3(a) and any
taxes which may in future be levied in lieu of or in addition to such
amounts or which may be assessed against any rentals payable pursuant to
this Lease in lieu of such amounts, whether against the Landlord or the
Tenant, including, without limitation, any increase in Taxes and the
amounts payable pursuant to Section 4.3(a) arising directly or indirectly
out of any appeal or contestation by the Tenant. The Tenant will deliver to
the Landlord such security for any increase in Taxes or other amounts
payable hereunder as the Landlord deems advisable.
SECTION 4.4 TENANT'S PROPORTIONATE SHARE OF OPERATING COSTS
The Tenant will pay, in accordance with Section 4.5. the Tenant's Proportionate
Share or the Tenant's Share, as the case may be, of Operating Costs.
SECTION 4.5 PAYMENT OF TAXES AND OPERATING COSTS
(a) The Tenant will pay the amounts payable under Section 4.2 (if applicable),
4.3 (if applicable) and 4.4 according to estimates or revised estimates
made by the Landlord from time to time in respect of periods determined by
the Landlord. The Tenant's payments will be made in monthly instalments in
advance, together with Basic Rent, for the periods in respect of which the
estimates are made. When a bill for an estimated amount is received by the
Landlord, the Landlord may bill the Tenant for the amount the Tenant is
obligated to pay under this Lease and the Tenant will immediately pay the
Landlord the billed amount (less amounts previously paid by the Tenant with
respect to such billed amount on the basis of the Landlord's estimate and
which amounts are to be credited to such billed amounts.)
(b) Within one hundred and twenty (120) days after the end of the period for
which the estimated payments have been made, or so soon thereafter as is
reasonably possible, the Landlord will determine and advise the Tenant of
the exact amount of the Tenant's obligations under Sections 4.2(a)(ii),
4.2(a)(iii), 4.2(a)(iv), 4.3 (if applicable) and 4.4 and provide the Tenant
with an audited statement setting out such amounts. If necessary, an
adjustment will be made between the parties within fifteen (15) days after
the Tenant receives such statement. This provision shall survive the
expiration or earlier termination of the Term of this Lease.
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ARTICLE 5.
BUILDING -- CONTROL AND SERVICES
SECTION 5.1 CONTROL OF THE BUILDING
(a) The Landlord will operate and maintain the Building as would a prudent
landlord of a similar office building having regard to size, age and location.
(b) The Building is at all times subject to the exclusive control, management
and operation of the Landlord. The Landlord has the right with respect to such
control, management and operation to:
(i) obstruct or close off all or any part of the Property for the purpose
of maintenance, repair or construction;
(ii) employ all personnel necessary for the operation and management of
the Building, either directly or through a third party property management
company;
(iii) construct other improvements and make alterations, additions,
subtractions or re-arrangement, build additional storeys and construct
facilities adjoining or proximate to the Building, including underground
tunnels and pedestrian walkways and overpasses;
(iv) do and perform such other acts in and to the Building, as, in the use
of good business judgment, the Landlord determines to be advisable for the
more efficient and proper operation of the Building; and
(v) control, supervise and regulate the Parking Areas in such manner as
the Landlord determines from time to time, including, without limitation,
imposing charges or rates as may from time to time be determined by the
Landlord for the use of the Parking Areas.
(c) The Landlord is not subject to any liability, nor is the Tenant entitled
to any compensation or abatement of Rent as a result of the Landlord's exercise
of its rights conferred under Section 5.1 so long as the Landlord proceeds as
expeditiously as reasonably possible to minimize interference with the Tenant's
business.
SECTION 5.2 LANDLORD'S SERVICES
(a) During the Term, the Landlord shall provide the following services and
utilities upon the terms and subject to the conditions set out in Section
5.2(b) hereof:
(i) except during the completion of repairs, alterations or Leasehold
Improvements, climate control for the Leased Premises shall be provided
during Normal Business Hours in order to maintain a temperature adequate
for normal occupancy in accordance with the provisions hereof. If the
Tenant requires the provision of climate control services to the Leased
Premises outside Normal Business Hours it shall provide the Landlord with
not less than two (2) banking days prior notice thereof and the Landlord
will provide such services to the Tenant, at the Tenant's expense, at the
rate determined by the Landlord in its sole discretion, which shall be
payable by the Tenant within five (5) days after written demand as
Additional Rent;
(ii) when reasonably necessary from time to time, the Landlord shall cause
the floors in the Leased Premises to be cleaned or vacuumed, the windows to
be cleaned and the desks, tables and other furniture of the Tenant to be
dusted, all in keeping with the standards of a first-class office building;
(iii) water and electricity in such quantities as the Landlord, in its sole
discretion, determines to be reasonable, shall be made available to the
tenants of the Building. If the Tenant's equipment requires such utilities
in excess of the quantities normally supplied by the Landlord and the
Tenant requests the Landlord to supply such excess quantities, facilities
to supply such excess quantities may be provided by the Landlord at the
sole expense of the Tenant, if such excess facilities are available,
subject to the following conditions:
(A) the Landlord will have the right to refuse to supply such excess
utilities if the supplying of additional facilities or excess
utilities shall in any way affect the operation, the aesthetics or
the Structure of the Building, or in any way reduce the efficiency of
existing electricity, water or other utilities supplied to the
Building; and
(B) the actual cost of supplying such additional facilities or
excess utilities shall be paid by the Tenant to the Landlord upon
demand and in accordance with Section 6.1 hereof, together with an
amount equal to fifteen percent (15%) of the total cost thereof
representing the Landlord's overhead and administrative costs; and
(iv) elevator service shall be provided by the Landlord during Normal
Business Hours, for use by the Tenant in common with others and subject to
the conditions set out in section 5.2(b) and any other rules or regulations
required for the safe and efficient operation of the elevator servicing the
Building.
(b) The provision by the Landlord of the services and utilities referred to in
Section 5.2(a) shall be subject to the following terms and conditions:
(i) the Landlord shall have no responsibility or liability for failure to
supply climate control services when stopped or prevented from so doing by
strikes or other causes beyond the Landlord's reasonable control;
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(ii) any use of the Leased Premises not in accordance with the design
standards of the Building or any arrangement of partitions which
interferes with the normal operation of the climate control
system for the Building may require changes or alterations in the
system or the ducts. Any changes or alterations so required, if
such changes can be accommodated by the Landlord's equipment,
shall be made by the Landlord, at the Tenant's expense, and only
after such changes or alterations have received the Landlord's
prior written consent. If installation of partitions, equipment
or fixtures by or on behalf of the Tenant (other than the
partitions installed pursuant to the Landlord's Work as set out
in Schedule "C") necessitates the rebalancing of the portion of
the climate control equipment serving the Leased Premises, such
work will be performed by the Landlord at the Tenant's expense,
together with an amount equal to fifteen percent (15%) of the
total expense thereof representing the Landlord's overhead and
administrative costs, and shall be payable by the Tenant within
five (5) days are written demand as Additional Rent;
(iii) the Landlord shall use reasonable efforts to adjust and balance
the climate control systems as soon as reasonably possible after
the Commencement Date;
(iv) the Landlord will not be responsible for any inadequacy of
performance of the climate control system serving the Leased
Premises if (1) the occupancy of the Leased Premises exceeds one
(1) person for every one hundred (100) square feet of the
Rentable Area of the Leased Premises, or (2) the electrical
power consumed in the Leased Premises for all purposes, exclusive
of the heating, ventilating and air-conditioning system, exceeds
nine (9) xxxxx per square foot of the Rentable Area of the Leased
Premises (or such other level of wattage determined by the
Landlord from time to time) or (3) the window coverings or
exterior windows are not kept fully closed while the windows are
exposed to direct sunlight. If the use of the Leased Premises
does not accord with the aforementioned requirements and changes
in the climate control system are desirable or necessary to
accommodate such use, the Landlord may make such changes and the
entire cost thereof shall be paid by the Tenant to the landlord
as Additional Rent as set out in subparagraph (ii) hereof. If, in
the opinion of the Landlord, such changes result in Operating
Costs in excess of those which would have occurred had such
changes not been made, the Landlord may estimate the amount of
such excess on a reasonable basis and such amount shall be
payable by the Tenant as Additional Rent in accordance with the
terms of this Lease;
(v) the elevator services provided by the Landlord shall be subject
to the Rules and Regulations attached hereto as Schedule "E".
Temporary interruption of elevator service may be required during
periods when repairs, alterations or Leasehold Improvements are
being made; and
(vi) the Landlord shall not be liable and the Tenant hereby releases
and holds harmless the Landlord from any claim, loss or damage
resulting from (1) any interruption or disruption of elevator
service caused or continued to by mechanical failure; (2) any
failure by the Landlord to provide elevator service during any
period of power interruption; (3) any cause beyond the control of
the Landlord; or (4) the carrying out of any repairs, maintenance
or replacements of the elevators.
SECTION 5.3 TENANTS'S RESPONSIBILITIES
The Tenant will regulate those portions of the climate control equipment within
and exclusively serving the Leased Premises so as to maintain such reasonable
conditions of temperature and humidity within the Leased Premises as are
determined by the Landlord and its Architect and engineers so that no direct or
indirect appropriation of the heating, ventilating and air-conditioning from the
Common Areas and Facilities occurs. The Tenant shall comply with such
stipulations and with all Rules and Regulations of the Landlord pertaining to
the operation and regulation of such equipment. If the Tenant fails to comply
with such stipulations and the Rules and Regulations, the Landlord shall be
entitled to take such steps as it deems advisable to correct such defaults
(including, without limitation, entering upon the Leased Premises and assuming
control of such equipment) without liability to the Tenant, and the Tenant will
pay to the Landlord forthwith upon demand as Additional Rent all costs and
expenses incurred by the Landlord in so doing, together with an amount equal to
fifteen percent (15%) of such costs and expenses representing the Landlord's
overhead and administrative costs.
SECTION 5.4 RELOCATION OF THE LEASED PREMISES
At any time and from time to time during the Term, the Landlord shall be
entitled to relocate or rearrange the Leased Premises from the location shown on
Schedule "B" or to make alterations, additions or reductions to the Leased
Premises provided that:
(i) the Rentable Area of the Leased Premises is not increased or
decreased by more than ten percent (10%); and
(ii) the Landlord effects such alterations, additions, reductions,
relocation or rearrangement at its expense, including all
Leasehold improvements in the Leased Premises, all moving costs
and all other reasonable direct out-of-pocket costs incurred by
the Tenant as evidenced by paid invoices delivered by the Tenant
to the Landlord, provided that there shall not be any payment
required of the Landlord on account of goodwill, loss of profits
or loss of business.
SECTION 5.5 ADDITIONAL SERVICES
(a) If the Tenant requires any Additional Services to be performed in or
relating to the Leased Premises, it shall so advise the Landlord in writing, and
the Landlord shall have the right, but shall not be obligated, to perform any
such Additional Services.
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If the Landlord performs any such Additional Services, the Tenant shall pay
all costs and expenses incurred by the Landlord or on the Landlord's behalf in
performing or completing such Additional Services forthwith upon receipt of the
invoice therefore from the Landlord, together with an amount equal to fifteen
percent (15%) of such costs and expenses representing the Landlord's overhead
and administrative costs. If the Landlord does not wish to exercise its right to
perform any Additional Services, the Tenant shall not cause any such Additional
Services to be performed by any other Person unless and until it has obtained
the consent of the Landlord in writing to (i) the performance of such Additional
Services; and (ii) the Person to be performing such Additional Services, such
consent not to be unreasonably withheld.
(b) If the Tenant disputes or contests the calculation of any costs or expenses
incurred by the Landlord or on the Landlord's behalf in performing or completing
such Additional Services as set out in the Landlord's invoice therefor, it shall
notify the Landlord in writing, and the Landlord shall, upon receipt of such
notice, request its senior financial officer to prepare a statement of
calculation with respect to such Additional Services which shall be conclusive
of such costs and expenses and shall be binding upon the Landlord and the
Tenant. The cost of preparation of such statement shall be paid by the Tenant
and shall be added to the cost of such Additional Services. Notwithstanding any
such objection or contestation by the Tenant to the Landlord's calculation of
the cost or expense of such Additional Services, the full amount as calculated
by the Landlord in its invoice shall be due and payable on receipt, and shall be
readjusted, if necessary, upon receipt of the statement from the Landlord's
senior financial officer.
ARTICLE 6.
UTILITIES
SECTION 6.1 CHARGES FOR UTILITIES
(a) If there are separate meters (other than check meters) installed pursuant
to Section 6.1(d) for the Leased Premises, the Tenant will pay Utilities
directly to the Utility suppliers on the basis of the separate meters.
(b) If there are no separate meters for the Leased Premises, the Tenant will
pay to the Landlord, or as the Landlord otherwise directs, as Additional Rent,
the aggregate, without duplication, of:
(i) the cost of all Utilities applicable or attributable to the Leased
Premises, as determined by the Landlord;
(ii) the costs of any other charges levied or assessed in lieu of or in
addition to such Utilities as determined by the Landlord;
(iii) all costs incurred by the Landlord in determining or allocating the
charge for Utilities including, without limitation, professional
engineering and consulting fees; and
(iv) an administration fee of fifteen percent (15%) of the costs and
charges referred to in subparagraphs (i) to (iii) hereof.
Charges for Utilities will be paid in equal monthly instalments in advance on
the basis of an initial rate determined by the Landlord or its engineers. Such
initial rate shall be based upon the Tenant's Proportionate Share of the
Utilities. If the Landlord or its engineers determine that the Tenant is
obligated to pay an additional charge for the supply and usage of Utilities to
the Leased Premises in excess of the standard usage of general office premises
in the Building, the additional charge for Utilities shall be calculated on the
basis determined by the Landlord or its engineers, together with all costs
incurred by the Landlord in determining or allocating the additional charge for
Utilities. If the public utility rate is increased or decreased during the Term,
the charges will be equitably adjusted and the decision of the Landlord, acting
reasonably, will be final.
(c) The Landlord will have the exclusive right to attend to the replacement of
standard electric light bulbs, tubes and ballasts in the Leased Premises
throughout the Term on the basis determined by the Landlord in accordance with
good commercial practice. The Landlord, at its option, may either include the
cost of replacement in Operating Costs or require the Tenant to pay a monthly
charge for such replacement (subject to adjustment based on actual costs) per
bulb, tube and ballast. If the Landlord elects not to relamp and reballast on a
scheduled basis, then the replacement of these standard electric light bulbs,
tubes and ballasts in the Leased Premises will be undertaken by the Landlord at
such time as they actually burn out and after notice from the Tenant that,
replacement is required. In that event, the cost of replacement and installation
will be paid by the Tenant with the next monthly payment of Additional Rent,
together with an amount equal to fifteen percent (15%) of such cost representing
the Landlord's overhead and administrative costs.
(d) The Tenant shall pay for the cost of any metering which the Tenant requests
the Landlord to install in the Leased Premises, or which the Landlord wishes to
install in the Building, for the purpose of assisting in determining the
consumption of any Utility in the Leased Premises.
(e) In no event shall the Landlord be liable for, nor shall the Landlord have
any obligation with respect to any interruption or cessation of, or failure in
the supply of, any Utilities, services or systems in, to or serving the Building
or the Leased Premises, whether or not supplied by the Landlord or otherwise.
ARTICLE 7.
USE OF THE LEASED PREMISES
SECTION 7.1 USE OF THE LEASED PREMISES
The Leased Premises will be used solely for the purpose specified in Section
1.10 of the Special Provisions and the
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Tenant will not use or permit or suffer the use of, the Leased Premises or
any part thereof for any other business or purpose.
SECTION 7.2 CONDUCT OF BUSINESS
The Tenant will occupy the Leased Premises and commence its business operations
in the Leased Premises from and after the Commencement Date and will thereafter
throughout the Term use the whole of the Leased Premises in a reputable and
first-class manner. The Tenant will not commit or permit to be committed any
waste or injury to the Leased Premises, the Leasehold Improvements or Fixtures
or any other part of the Property or any nuisance therein or any use of manner
of use causing annoyance to other tenants and occupants of the Building. Any
business conducted by the Tenant, whether through advertising or selling
procedures or otherwise, which in the opinion of the Landlord may harm or tend
to harm the business or reputation of the Landlord or reflect unfavourably on
the whole or any part of the Property, the Landlord or other tenants in the
Building, will be immediately discontinued by the Tenant at the request of the
Landlord. The Tenant agrees not to refer to the Building by any name other than
that designated from time to time by the Landlord and the Tenant will use the
name of the Building for the business address of the Tenant but for no other
purpose. Upon at least thirty (30) days prior to written notice to the Tenant,
the Landlord may change the name of the Building and the Landlord shall not be
responsible for any costs or expenses incurred by the Tenant as a result of such
change of name.
SECTION 7.3 OBSERVANCE OF LAW
The Tenant will, at its expense, and subject to Section 9.3:
(i) comply with all provisions or changes of law and other
requirements of all governmental bodies which pertain to or
affect the Leased Premises or require or govern the making of
any repairs, alterations or other changes of or to the Leased
Premises or the Tenant's use of it:
(ii) obtain all necessary permits, licences and approvals relating
to the use of the Leased Premises and the conduct of business
therein; and
(iii) comply with all reasonable directions given or regulations
introduced by the Landlord or measures introduced by any
governmental or quasi-governmental authority form time to time
in the interest of energy conservation and to control Operating
Costs whereby the Landlord may by the use of a pulse or other
system turn out or reduce all lighting in the Leased Premises
by local switching for the Leased Premises and reduce energy
consumption in the Leased Premises or in the Building. However,
if the Tenant does not participate in such measures with respect
to the Leased Premises, the Tenant may be required to pay, as
Additional Rent, for the additional energy consumed in the
Leased Premises as a result of its not participating in such
measures. In addition, it is understood and agreed that any and
all costs and expenses paid or incurred by the Landlord in
installing energy conservation equipment and systems and safety
or life support systems shall be included in Operating Costs.
SECTION 7.4 HAZARDOUS SUBSTANCES
The Tenant covenants and agrees to utilize the Leased Premises and operate its
business in a manner so that no part of the Leased Premises are used to
generate, manufacture, refine, treat, transport, store, handle, dispose of,
transfer, produce or process any Hazardous Substances. Further the Tenant
hereby covenants and agrees to indemnify and save harmless the Landlord and
those for whom the Landlord is in law responsible for any and all losses,
costs, claims, damages, liabilities, expenses or injuries caused or contributed
to by any Hazardous Substances which are at any time located, stored or
incorporated in any part of the Leased Premises. The Tenant hereby agrees that
the Landlord or its authorized representatives shall have the right at the
Tenant's expense, payable as Additional Rent within five (5) days of receipt of
an invoice therefore, to conduct such environmental site reviews and
investigations as if may deem necessary for the purposes of ensuring compliance
with this Section 7.4. The Tenant's obligations pursuant to this Section 7.4
shall survive the expiration of earlier termination of the Term.
ARTICLE 8.
INSURANCE AND INDEMNITY
SECTION 8.1 TENANT'S INSURANCE
(a) The Tenant shall, throughout the period that the Tenant is given
possession of the Leased Premises and during the entire Term at its sole cost
and expense, take out and keep in full force and effect and in the names of the
Tenant, the Landlord, the Owners and the Mortgagee as their respective
interests may appear, the following insurance:
(i) "All Risks" (including flood and earthquake) insurance in an
amount of at least ninety percent (90%) of the full replacement
cost, insuring all property owned by the Tenant, or for which the
Tenant is legally liable or installed by or on behalf of the
Tenant, and located within the Building including, but not
limited to, furniture, fixtures, installations, alterations,
additions, partitions and all other Leasehold Improvements. Such
insurance shall include a standard joint loss agreement;
(ii) Broad Form Boiler and Machinery insurance on a blanket repair
and replacement basis with limits for each accident in an amount
of at least the replacement cost of all Leasehold Improvements,
contents and of all boilers, pressure vessels, air-conditioning
equipment and miscellaneous electrical apparatus owned or
operated by the Tenant or by others (except for the Landlord) on
behalf of the Tenant in the Leased Premises. Such insurance shall
include a joint loss agreement:
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(iii) Business interruption insurance in an amount sufficient to reimburse
the Tenant for loss of earnings attributable to perils insured
against under Sections 8.1(a)i) and 8.1(a)(ii);
(iv) Comprehensive General Liability Insurance including personal
injury, broad form contractual liability, owners' and contractors'
protective, contingent employers' liability, employers' liability,
medical payments, products liability, completed operations,
non-owned automobile liability, all coverages with respect to the
Leased Premises, the Tenant's use of the Common Areas, AND THE
COMMUNICATION TOWER REFERRED TO IN RIDER #1, CLAUSE #6. Such
policies shall be written on a comprehensive basis with inclusive
limits of not less the Five Million Dollars ($5,000,000.00) or such
higher limits as the Landlord or the Mortgagee may require from time
to time. Such insurance shall contain severability of interests and
cross-liability clauses;
(v) All Risks Tenant's Legal Liability insurance for the replacement
cost value of the Leased Premises including loss of use thereof;
(vi) insurance covering the cost of repair and replacement of glass
broken on the Leased Premises including outside windows and doors
on the perimeter of the Leased Premises; and
(vii) any other forms of insurance as the Landlord, acting reasonably, or
the Mortgagee requires from time to time, in forms and amounts and
for risks against which a prudent tenant would insure.
(b) The following terms and conditions are applicable to the insurance
policies specified under Section 8.1(a):
(i) the policies specified under Sections 8.1(a)(i), (ii) and (iii)
shall contain the Mortgagee's standard mortgage clause and may have
reasonable deductibles. If there is a dispute as to the full
replacement cost, the Landlord's evaluation will prevail;
(ii) the policies specified under Sections 8.1(a)(i), (ii) and (iii)
shall contain a waiver of any subrogation rights which the Tenant's
insurers may have against the Landlord, the Owners and the Mortgagee
and those for whom they are in law responsible, whether the damage
is caused or contributed to by their act, omission or negligence;
(iii) all of the policies shall be taken out with insurers reasonably
acceptable to the Landlord and in a form reasonably satisfactory to
the Landlord;
(iv) all of the policies shall be non-contributing with and only apply as
primary and not as excess to any other insurance available to the
Landlord, the Owners and the Mortgagee;
(v) none of the policies shall be invalidated as respects the
interests of the Landlord, the Owners and the Mortgagee by reason of
any breach or violation of any warranties, representations,
declarations or conditions contained in the policies; and
(vi) all of the policies shall contain an undertaking by the insurers to
notify the Landlord, the Owners and the Mortgagee in writing not
less than thirty (30) days prior to any material change,
cancellation or termination.
The Tenant agrees to deliver certificates of insurance or, if requested by the
Landlord, complete certified copies of policies, to the Landlord within thirty
(30) days after the placing of the required insurance. No review or approval of
such insurance documentation by the Landlord shall derogate from or diminish the
Landlord's rights or the Tenant's obligations contained in this Lease including,
without limitation, those contained in Article 8.
(c) If there is damage or destruction to the Leasehold Improvements in the
Leased Premises, the Tenant will use the full insurance proceeds received in
respect of such damage or destruction for the sole purpose of repairing or
restoring them. If there is damage to or destruction of the Building and as a
consequence thereof this Lease is terminated under Section 10.1 or 10.2, then,
if the Leased Premises have also been damaged or destroyed, the Tenant will pay
the Landlord all of its insurance proceeds relating to the Leasehold
Improvements.
SECTION 8.2 INCREASE IN INSURANCE PREMIUMS
If (a) the occupancy of the Leased Premises; (b) the conduct of business in the
Leased Premises; or (c) any acts or omissions of the Tenant in the Leased
Premises or in any other part of the Building results in any increase in
premiums to the Insurance carried by the Landlord with respect to any part of
the Building, the Tenant will pay the increase in premiums within five (5) days
after invoices for additional premiums are rendered by the Landlord. In
determining whether the Tenant is liable for increased premiums and the amount
for which the Tenant is responsible, a schedule issued by the organization that
computes the insurance rate on the Property showing the components of the rate
will be conclusive evidence of the items that make up the rate.
SECTION 8.3 CANCELLATION OF INSURANCE
If any insurance policy in respect of any part of the Building is cancelled or
threatened by the insurer to be cancelled, or the coverage reduced by the
insurer by reason of the use and occupation of the Leased Premises and if the
Tenant fails to remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within forty-eight (48) hours after
notice by the Landlord, the Landlord may, at its option, either (a) exercise its
rights of re-entry including termination under Article 14, or (b) at the
Tenant's expense, enter upon the Leased Premises and remedy the condition giving
rise to the cancellation, threatened cancellation or reduction.
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SECTION 8.4 LOSS OR DAMAGE
The Landlord and the Owners are not liable for any death or injury arising from
or out of any occurrence in, upon, at, or relating to the Building or damage to
property of the Tenant or of others wherever located, whether or not resulting
from (a) the negligence of the Landlord or the Owners or those for whom they may
in law be responsible; (b) the Landlord's failure to supply any services or
utilities required by this Lease where the failure is beyond the Landlord's
reasonable control; (c) the existence of any Hazardous Substances which are or
have been located, stored or incorporated in or on any part of the Building; or
(d) the exercise by the Landlord of any of its rights under this Lease. Without
limiting the generality of the foregoing, the Landlord and the Owners shall not
be liable for any injury or damage to Persons or property resulting from fire,
explosion, falling plaster, falling ceiling tile, falling ceiling fixtures and
diffuser coverings, steam, gas, electricity, water, rain, flood, snow or leaks
from any part of the Building, including pipes, sprinklers, appliances,
plumbing works, roof, windows or the surface of any floor or ceiling of the
Building or from any Lands adjoining the Building. In addition, the Landlord
and the Owners shall not be liable for any damage to or destruction of any
negotiable instruments, cash or other valuable property belonging to the Tenant
or others and stored or otherwise contained in the Leased Premises. All
property of the Tenant kept or stored on the Leased Premises will be so kept or
stored at the risk of the Tenant only and the Tenant shall indemnify the
Landlord and the Owners and save them harmless from any claims arising out of
any damages to the same including, without limitation, any subrogation claims
by the Tenant's insurers. The intent of this Section is that the Tenant (and
all other Persons having business with the Tenant) is to look solely to its
insurers to satisfy any claim which may arise on account of death, injury, loss
or damage, irrespective of its cause.
SECTION 8.5 LANDLORD'S INSURANCE
The Landlord shall at all times throughout the Term carry:
(i) broad form boiler and machinery insurance on items owned by the
Landlord and the Owners (except property that the Tenant and
other tenants of the Building are required to insure);
(ii) insurance on the Building (excluding the foundations and
excavations) and the equipment contained in or servicing the
Building against damage by fire and extended perils;
(iii) public liability and property damage insurance with respect to
the Landlord's operations in the Building; and
(iv) other forms of insurance as would be carried by a prudent owner
of a similar office building or considered advisable by the
Owners, the Landlord or any Mortgagee.
Notwithstanding the Landlord's obligation to insure as set out above and the
Tenant's contribution to the cost of the Landlord's insurance premiums, (i) the
Tenant is not relieved of any liability arising from or contributed to by its
negligence or its wilful acts or omissions, (ii) no incurable interest is
conferred upon the Tenant under the Landlord's insurance policies, and (iii)
the Tenant has no right to receive proceeds from the Landlord's insurance
policies. Notwithstanding anything to the contrary contained herein, the
Landlord shall be entitled to self insure with respect to any of the insurance
required to be maintained by the Landlord pursuant to this Section 8.5 and the
premiums and all other costs that would otherwise have been incurred with
respect to such insurance may be included in Operating Costs.
SECTION 8.6 INDEMNIFICATION
The Tenant will indemnify the Landlord and the Owners and save them harmless
from and against all loss, claims, actions, damages, costs, liability and
expense in connection with loss of life, personal injury, damage to property
(including any portion of the Building and its equipment, machinery, services
and Leasehold Improvements) or any other loss or injury arising from or out of
this Lease, or any occurrence on the Property or any part thereof, or the
Tenant's occupancy of the Leased Premises, or occasioned wholly or in part by
any act or omission of the Tenant or by anyone permitted to be in the Leased
Premises or the Building by the Tenant. If the Landlord or the Owners are,
without fault on their part, made a party to any litigation commenced by or
against the Tenant, then the Tenant will protect, indemnify and hold the
Landlord and the Owners harmless and pay all expenses and reasonable legal fees
incurred or paid by the Landlord or the Owners in connection with the
litigation. The Tenant will also pay all costs and legal fees (on a solicitor
and his client basis) that may be incurred or paid by the Landlord in enforcing
the terms, covenants and conditions in this Lease. The indemnity contained in
this Section 8.6 shall survive the expiration or earlier termination of the
Term of this Lease.
ARTICLE 9.
MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 9.1 MAINTENANCE AND REPAIRS BY THE LANDLORD
The Landlord will maintain and repair the Structure of the Building and the
mechanical, electrical, heating, ventilating, air-conditioning and other base
building systems of the Building, as would a prudent owner of a similar office
building. The cost of such maintenance and repairs will be included in
Operating Costs. However, if the Landlord is required, due to the business
carried on by the Tenant, to make repairs or replacements to the Structure or
any other part of the Building by reason of the application of laws, ordinances
or other regulations of any governmental body, or by reason of any act,
omission or default of the Tenant or those for whom the Tenant is in law
responsible, then the Tenant will be liable for the total cost of those repairs
or replacements plus fifteen percent (15%) of the total cost representing the
Landlord's overhead and administrative costs.
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SECTION 9.2 MAINTENANCE AND REPAIRS BY THE TENANT
(a) The Tenant will at all times, at its expense, maintain the whole of the
Leased Premises including without limitation, all interior partitions, doors,
electrical, lighting, wiring, plumbing, fixtures and equipment and the heating,
ventilating and air-conditioning systems and equipment within and exclusively
serving the Leased Premises in good order, first-class condition and repair, so
determined by the Landlord. The Tenant will make all needed repairs and
replacements with due diligence and dispatch. If required by the Landlord or any
governmental authority, the Tenant will, at its expense, remove from the Leased
Premises any Hazardous Substances which are or have been located, stored or
incorporated in any part of the Leased Premises. The foregoing obligation to
remove such Hazardous Substances shall survive the expiration or earlier
termination of the Term of this Lease. Notwithstanding anything contained in
this Lease, if any such repairs or replacements to the Leased Premises or to any
Leasehold Improvements installed by or on behalf of the Tenant in the Leased
Premises, affect the Structure of the Building, or any part of the electrical,
mechanical, plumbing, heating, ventilating, air-conditioning, lighting or other
base building systems of the Building, such work shall be performed only by the
Landlord at the Tenant's sole cost and expense. Upon completion thereof, the
Tenant shall pay to the Landlord, as Additional Rent within five (5) days after
demand, both the Landlord's costs relating to such repairs or replacements
including the fees of any architectural and engineering consultants plus a sum
equal to fifteen percent (15%) of the total cost thereof representing the
Landlord's overhead and administrative costs.
(b) The Tenant will leave the Leased Premises in a reasonably neat and tidy
condition at the end of each day in order that the Landlord's cleaning services
can be performed.
(c) The Tenant will advise the Landlord of any damage to or breakage of the
glass in or forming part of the Leased Premises (including outside windows and
doors on or at the perimeter of the Leased Premises) and the Landlord will
complete all needed repairs and replacements to such glass with due diligence.
The cost of completing such repairs and replacement shall be payable by the
Tenant as part of Operating Costs except in the event that the repairs or
replacements to the glass are required as a result of the negligence or wilful
acts or omissions of the Tenant or those for whom it is at law responsible, in
which event the cost thereof shall be payable by the Tenant to the Landlord,
upon demand as Additional Rent.
(d) At the expiration or earlier termination of the Term, the Tenant will
surrender the Leased Premises to the Landlord in as good a condition as the
Tenant is required to maintain them throughout the Term.
(e) Notwithstanding any other provisions of this Lease, if the Building or any
part thereof, or any equipment, machinery, facilities or Leasehold Improvements
contained therein or made thereto, or the Structure thereof requires repair or
replacement or becomes damaged or destroyed through the negligence, carelessness
or misuse of the Tenant or those for whom it is in law responsible or by any
Person having business with the Tenant or by the Tenant or those for whom it is
in law responsible in any way stopping up or damaging the climate control,
heating and air-conditioning apparatus, water pipes, drainage pipes or other
equipment or facilities or parts of the Building, the cost of the resulting
repairs, replacements or alterations plus a sum equal to fifteen percent (15%)
of the cost thereof representing the Landlord's overhead and administrative
costs will be paid by the Tenant to the Landlord as Additional Rent within five
(5) days after presentation of an account of such expenses incurred by the
Landlord.
(f) The Tenant shall, when it becomes aware of it, notify the Landlord of
damage to, or deficiency or defect in any part of the Building, including the
Leased Premises, any equipment or utility systems, or any installations located
in the terms of this Lease.
SECTION 9.3 LANDLORD'S APPROVAL OF THE TENANT'S REPAIRS
The Tenant will not make any Alterations to any part of the Leased Premises
without first obtaining the Landlord's written approval. The Landlord will not
be required to consider any request for its approval until the Tenant has
submitted to it details of the proposed work, including professionally prepared
drawings if requested by the Landlord, and specifications conforming to good
engineering practices. Any approval shall be conditional upon the Tenant
delivering to the Landlord prior to the commencement of any such Alterations:
(i) evidence satisfactory to the Landlord that the Tenant has obtained,
at its expense, all necessary consents, permits, licences and
inspections from all governmental and regulatory authorities having
jurisdiction; and
(ii) security in an amount and form required by the Landlord, as an
indemnification against construction liens, cost, damages and expenses
resulting from such Alterations.
All Alterations will be performed by competent workmen: (i) at the Tenant's
expenses; (ii) in a good and workmanlike manner; (iii) in accordance with the
drawings and specifications approved by the Landlord; and (iv) subject to the
reasonable regulations, controls and inspection of the Landlord.
Notwithstanding the foregoing, the Landlord shall be entitled to withhold its
consent or approval to any proposed Alterations if, in its sole opinion, such
Alterations decrease the Market Rental value of the Leased Premises or are
inconsistent or incompatible with the general design or quality of the Building.
Any Alterations made by the Tenant without the prior consent of the Landlord or
not made in accordance with the drawings and specifications approved by the
Landlord will, if requested by the Landlord, be promptly removed by the Tenant
and the Leased Premises restored to their previous condition at the Tenant's
expense.
If however, all or any portion of the proposed Alterations affect the Structure
or any of the electrical, mechanical or other base building systems of any part
of the Building, such Alterations (or the appropriate portion of them), if
approved by the Landlord, will be performed only by the Landlord, and the Tenant
shall pay to the Landlord, upon demand, the cost
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of completing such Alterations together with an amount equal to fifteen percent
(15%) of such cost representing the Landlord's overhead and administrative
costs.
SECTION 9.4 REMOVAL AND RESTORATION BY THE TENANT
(a) All Leasehold Improvements made by the Tenant, or made by the Landlord on
the Tenant's behalf immediately become the property of the Landlord upon
affixation or installation and will not be removed from the Leased Premises
at any times unless permitted or required by the Landlord. The Landlord is
under no obligation to repair, maintain or insure these Leasehold
Improvements. The Tenant will, prior to the end of the Term, at its cost,
remove all of its Fixtures and those Leasehold Improvements which the
Landlord requires the Tenant to remove and shall forthwith repair any
damage to the Leased Premises caused by their installation or removal. In
addition, the Tenant will, prior to the end of the Term, at its cost,
remove from the Leased Premises any Hazardous Substances which are located,
stored on incorporated in any part of the Leased Premises. The Tenant's
obligation to observe and perform this covenant shall survive the
expiration of the Term or earlier termination of this Lease.
(b) If the Tenant does not remove all of its Fixtures and those Leasehold
Improvements which the Landlord requires the Tenant to remove at the end of
the Term, all of such Leasehold Improvements and Fixtures may, without
further notice to the Tenant, be immediately removed from the Leased
Premises and may be disposed of, sold or stored, at the option of the
Landlord, and as the Landlord sees fit. Any costs or expenses incurred by
the Landlord in removing, disposing, selling or storing such Leasehold
Improvements or Fixtures shall be paid by the Tenant to the Landlord, upon
demand, together with an amount equal to fifteen percent (15%) of such
costs and expenses representing the Landlord's overhead and administrative
costs. Any Fixtures not removed from the Leased Premises at the end of the
Term, will at the Landlord's option, become the property of the Landlord
(and, in such event, this paragraph shall have the effect of assigning the
Tenant's right and title in such Fixtures to the Landlord) and may be
removed from the Leased Premises and sold or disposed of by the Landlord in
such manner as it deems advisable.
(c) If the Tenant does not remove any Hazardous Substances from the Leased
Premises at the end of the Term, such Hazardous Substances or materials
may, without further notice to the Tenant, be immediately removed from the
Leased Premises and may be disposed of or stored, at the option of the
Landlord, and as the Landlord sees fit. Any costs or expenses incurred or
damages suffered by the Landlord in removing, disposing or storing such
Hazardous Substances shall be paid by the Tenant to the Landlord, upon
demand, together with an amount equal to fifteen percent (15%) of such
costs and expenses representing the Landlord's overhead and administrative
costs.
(d) The Tenant shall, in the case of every installation or removal of Leasehold
Improvements or Fixtures either during or at the expiration of the Term,
effect the same at times prescribed by the Landlord and utilizing only
those elevators designated by the Landlord and shall promptly make good any
damage caused to the Leased Premises or the Building or any part thereof by
the installation or removal of such Fixtures and Leasehold Improvements,
all at its sole expense.
SECTION 9.5 TENANT TO DISCHARGE ALL LIENS
(a) The Tenant shall ensure that no construction liens or other liens or
encumbrances in respect of materials supplied or work done or to be done by
the Tenant or on behalf of the Tenant or related to the Tenant's Work shall
be registered against or shall otherwise affect the Building, the Lands or
the Leased Premises or any part thereof or the Landlord's, the Owners' or
the Tenant's interest in the Leased Premises.
(b) If a lien or other encumbrance is registered against or otherwise affects
the Building or the Leased Premises or the Landlord's, the Owners' or the
Tenant's interest therein, and the Tenant fails to discharge or vacate or
cause any such lien or encumbrance to be discharged or vacated within five
(5) days after it is filed or registered, then, in addition to any other
rights or remedies of the Landlord, the Landlord may (but shall not be
obligated to) discharge or vacate the lien or encumbrance by paying the
amount claimed into court or directly to the lien claimant and the amount
so paid, a sum equal to fifteen percent (15%) thereof representing the
Landlord's overhead and administrative costs, together with all costs and
expenses (including legal costs and expenses) plus interest at the Prime
Rate shall be immediately due and payable by the Tenant to the Landlord as
Additional Rent forthwith on demand.
SECTION 9.6 SIGNS AND ADVERTISING
The Tenant will not place or permit any notice, lettering or other signage on
any part of the outside of the Building or on the exterior or in the interior of
the Leased Premises which is visible from the outside of the Leased Premises.
The Landlord may prescribe a uniform pattern of identification signs for tenants
to be placed in a location designated by the Landlord. The Landlord shall
install, at the Tenant's sole cost, the Landlord's standard tenant
identification signs in accordance with the Landlord's design criteria, on or
near the main door to the Leased Premises and, at the Landlord's option, at
other locations on the floor on which the Leased Premises are located. At the
expiration of the Term of this Lease, the Tenant will remove all signs,
pictures, advertisements, notices, letterings or decorations from the Leased
Premises at the Tenant's expense and will promptly repair all damages caused by
its installation and removal. The Landlord may provide a directory board in the
main lobby of the Building in a location designated by the Landlord in which
event the Tenant's name may be displayed therein and, if so displayed, the
Tenant shall pay to the Landlord as Additional Rent the cost of such display and
the ongoing cost thereof.
SECTION 9.7 TENANT NOT TO OVERLOAD FACILITIES
The Tenant will not install any equipment which will exceed or overload the
capacity of any utility, electrical or mechanical facilities in the Leased
Premises and the Tenant will not bring into the Leased Premises or install any
utility, electrical or mechanical facility or service which the Landlord does
not approve. The Tenant agrees that if any equipment installed by the Tenant
requires additional utility, electrical or mechanical facilities, the Landlord
may, in its sole discretion, if they are available, elect to install them at the
Tenant's expense and in accordance with plans and
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specifications to be approved in advance in writing by the Landlord.
SECTION 9.8 TENANT NOT TO OVERLOAD FLOORS
The Tenant will not bring upon the Building or the Leased Premises any
machinery, equipment, article or thing that by reason of its weight, size or
use, might in the opinion of the Landlord damage the Building or the Leased
Premises and will not at any time overload the floors of the Leased Premises. If
any damage is caused to the Building or the Leased Premises by any machinery,
equipment, object or thing or by overloading, the Tenant will forthwith repair
such damage, or, at the option of the Landlord, pay the Landlord within five (5)
days after demand as Additional Rent the cost of repairing such damage plus a
sum equal to fifteen percent (15%) of such cost representing the Landlord's
overhead and administrative costs.
ARTICLE 10.
DAMAGE AND DESTRUCTION
SECTION 10.1 DESTRUCTION OF THE LEASED PREMISES
(a) If the Leased Premises are destroyed or damaged as a result of fire or
any other peril which is insured against by the Landlord, the if:
(i) the Leased Premises are rendered wholly or partially untenantable,
this Lease will continue in effect and the Landlord will commence
diligently to restore the Leased Premises to the extent only of
insurance proceeds actually received by the Landlord and only to
the extent of the Landlord's obligations set out in Section 9.1.
To the extent of insurance proceeds actually received by the
Landlord, Basic Rent will xxxxx entirely or proportionately, as
the case may be, to the portion of the Leased Premises rendered
untenantable from the date of the destruction or damage until the
Landlord has completed its restoration work; or
(ii) the Leased Premises are not rendered untenantable in whole or in
part, this Lease will continue in effect, the Rent and other
amounts payable by the Tenant will not xxxxx and the Landlord will
commence diligently to restore the Leased Premises to the extent
required by this Section 10.1(a).
(b) Once the Landlord has substantially completed its restoration work the
Tenant will complete all work required to fully restore the Leased Premises for
business. Nothing in this Section 10.1 requires the Landlord to rebuild the
Leased Premises in the condition and state that existed before the damage, but
the Leased Premises, as rebuilt, will have reasonably similar facilities and
services to those in the Leased Premises prior to the damage.
(c) Notwithstanding Section 10.1(a), if the Leased Premises are damaged or
destroyed by any cause whatsoever, and if, in the opinion of the Architect
reasonably arrived at, the Leased Premises cannot be rebuilt to the extent of
the Landlord's obligations set out in Section 9.1, within one hundred and eighty
(180) days of the damage or destruction (assuming normal working days without
overtime), the Landlord, instead of rebuilding or making the Leased Premises fit
for the Tenant in accordance with Section 10.1(a) may, at its option, elect to
terminate this Lease by giving the Tenant, within thirty (30) days after the
damage or destruction, written notice of termination, and thereupon Rent will be
apportioned and paid to the date of damage or destruction.
SECTION 10.2 DESTRUCTION OF THE BUILDING
(a) Notwithstanding Section 10.1, if twenty-five percent (25%) or more of the
Rentable Area of the Building is damaged or destroyed (irrespective of whether
the Leased Premises are damaged or destroyed) and if, in the opinion of the
Architect reasonably arrived at, the damaged or destroyed parts of the Building
cannot be rebuilt to the extent of the Landlord's obligations set out in Section
9.1, or made fit for the purposes of the respective tenants of the space within
one hundred and twenty (120) days of the damage or destruction, then, the
Landlord may, at its option (to be exercised by written notice to the Tenant
within sixty (60) days following the occurrence), elect to terminate this Lease.
In the case of such election, the Term and the tenancy hereby created will
expire upon the thirtieth day after such notice is given, without indemnity or
penalty payable by, or any other recourse against, the Landlord. The Tenant
shall, within such thirty (30) day period, vacate and surrender the Leased
Premises to the Landlord. All Rent will be payable without reduction or
abatement subsequent to the destruction or damage and until the date of
termination, unless the Leased Premises has been destroyed or damaged as well,
in which event Section 10.1 will apply.
(b) If any part of the Building is destroyed or damaged and the Landlord does
not elect to terminate this Lease, the Landlord will commence diligently to
restore the Building, but only to the extent of the Landlord's obligations as
set out pursuant to the terms of the various leases for the premises in the
Building, and exclusive of any tenant's responsibilities set out therein. If the
Landlord elects to restore the Building, the Landlord may restore according to
plans and specifications and working drawings other than those used in the
original construction of the Building.
SECTION 10.3 EXPROPRIATION
Both the Landlord and Tenant agree to co-operate with the other regarding an
expropriation of the Leased Premises or the Property or any part thereof, so
that each may receive the maximum award to which they are respectively entitled
at law. To the extent that any portion of the Property other than the Leased
Premises is expropriated, then, the full proceeds accruing or awarded as a
result will belong to the Landlord and the Tenant will abandon or assign to the
Landlord any rights which the Tenant may have or acquire by operation of law to
those proceeds or awards and will execute all such documents as in the opinion
of the Landlord are necessary to give effect to this intention.
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SECTION 10.4 ARCHITECT
The opinion, decision or certificate of the Architect will bind the parties as
to (a) the percentage of the Rentable Area of the Building damaged or destroyed;
(b) the period of time required to restore the Leased Premises or the Building;
(c) whether or not the Leased Premises are rendered untenantable and the extent
of such untenantability; (d) the date upon which the Landlord's or Tenant's
obligations restoration obligations are completed or substantially completed and
the date when the Leased Premises are rendered tenantable; and (e) the state of
completion of any work of either the Landlord or the Tenant or the Tenant under
this Lease.
ARTICLE 11.
ASSIGNMENT AND SUBLETTING
SECTION 11.1 ASSIGNMENT AND SUBLETTING
(a) The Tenant will not: (i) assign this Lease; (ii) sublet, share or part with
possession of all or any part of the Leased Premises; nor (iii) mortgage or
encumber this Lease, its Leasehold Improvements and Fixtures, or the Leased
Premises (collectively, a "Transfer"), by or in favour of any Person (a
"Transferee") without the prior written consent of the Landlord which consent
may be unreasonably withheld, notwithstanding any statutory provision to the
contrary, in the event of any request for consent to a Transfer within
twenty-four (24) months of the Commencement Date or if the length of time since
the previous Transfer is less than twenty-four (24) months, and in all other
instances may not be unreasonably withheld. However, notwithstanding any
statutory provisions to the contrary, the Landlord will be deemed to be
reasonable if it bases its decision whether or not to consent on any or all of
the following factors:
(i) whether the Transfer is contrary to any covenants or restrictions
granted by the Landlord to other existing or prospective tenants or
occupants of the Building, or to the Mortgagee or any other
parties;
(ii) whether in the Landlord's opinion the financial background,
business history and capability of the Transferee is satisfactory;
(iii) whether in the Landlord's opinion the Transferee will be able to
pay the Rent in full when due and payable;
(iv) whether the Landlord at that time has or will have in the next
ensuing three month period, other premises elsewhere in the
Building which might be suitable for the needs of the Transferee;
(v) whether the proposed Transfer is in favour of any existing occupant
of the Building; and
(vi) whether in the opinion of the Landlord, the nature or character of
the proposed business of the Transferee is unethical, immoral,
illegal or such that it might harm or tend to harm the business or
reputation of the Landlord or reflect unfavourably on the whole or
any part of the Building, the Landlord or the other tenants of the
Building.
The consent by the Landlord to any Transfer will not constitute a waiver of the
necessity for consent to any subsequent Transfer.
This prohibition against a Transfer without first obtaining the Landlord's
consent applies to a change in the direct or indirect effective voting control
of the Tenant from the Person(s) holding voting control at the date of this
Lease (or if the Tenant is not a corporation, at the date of the assignment of
this Lease to a corporation), unless (A) the Tenant is a public corporation
whose shares are listed and traded on any recognized stock exchange in Canada or
the United States, and (B) the Landlord receives assurances satisfactory to the
Landlord that there will be a continuity of the management of the Tenant, and of
its business practices and policies. If the Tenant is a partnership or is
controlled by a partnership (either directly or indirectly), this prohibition
against a Transfer also includes a change in the constitution of the partnership
resulting from the withdrawal of any of the partners existing as of the
Commencement Date (or if the Tenant is not a partnership, at the date of the
assignment of this Lease to a partnership) or the addition of any partners to
the partnership subsequent thereto. This prohibition against a Transfer also
includes an assignment by operation of law. No Transfer may be made where any
portion of Rent is lower than that provided for in this Lease or otherwise on
terms more favourable to the Transferee than the terms set forth in this Lease.
(b) If the Tenant intends to effect a Transfer, then the Tenant will give prior
written notice to the Landlord of such intent, specifying the proposed
Transferee and providing additional information including, without limitation, a
copy of a bona fide written offer with respect to the proposed Transfer which
the Tenant is prepared to accept subject to compliance with the provisions of
this Lease and which must disclose any and all monetary payments or other
consideration made or to be made by the proposed Transferee as consideration for
such Transfer and any other information concerning the financial or business
status of the Transferee that the Landlord requires. The Landlord will, within
thirty (30) days after having received notice and all necessary information,
notify the Tenant in writing either that (i) it consents or does not consent to
the Transfer, or (ii) it elects to cancel this Lease in preference to giving
consent. If the Landlord elects to cancel this Lease, the Tenant will notify the
Landlord in writing within fifteen (15) days thereafter of the Tenant's
intention either to refrain from the Transfer or to accept the cancellation of
this Lease. If the Tenant fails to deliver its notice within the fifteen (15)
day period, this Lease will be terminated upon the date stipulated by the
Landlord in its notice of cancellation. If the Tenant advises the Landlord it
intends to refrain from the Transfer, then the Landlord's election to cancel
this Lease will be void.
(c) If there is a Transfer, the Landlord may collection Rent from the
Transferee, and apply the net amount collected to the Rent required to be paid
pursuant to this Lease, but no acceptance by the Landlord of any payments by a
Transferee will be a waiver of the requirement for the Landlord's consent to
such Transfer, or the acceptance of the Transferee as the Tenant, or a release
of the Tenant from the further performance by the Tenant of its covenants or
obligations. Any documents evidencing the consent to the Transfer will be
prepared by the Landlord or its solicitors,
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and all legal costs incurred by the Landlord and the Landlord's then-standard
fee with respect thereto will be paid by the Tenant to the Landlord or its
solicitors as Additional Rent. Notwithstanding a Transfer, the Tenant will be
jointly and severally liable with the Transferee on this Lease and will not be
released from performing any of its obligations.
(d) If the Tenant receives consent under Section 11.1, it will be subject to
the following conditions that:
(i) the Basic Rent payable by the Transferee will not be less than the
greater of:
(A) the Landlord's current posted rental rate for premises in the
Building similar to the Leased Premises at the time of the
Landlord's consent;
(B) the Basic Rent payable under Section 3.2 immediately prior to
the Transfer; or
(C) the Market Rental at the time the Landlord gives its consent, as
determined by the Landlord in accordance with the provisions
hereof;
If the annual Basic Rent is to increase at specified times in accordance
with this Lease, such increases will be added to the Basic Rent as
determined above.
(ii) any money or other value (including, without limitation, any amount
payable by the Transferee to the Tenant in excess of the Basic Rent
payable by the Tenant in accordance with Section 3.2 hereof for the
portion of the Leased Premises so Transferred) which is paid,
directly or indirectly, by any Transferee to the Tenant in connection
with a Transfer, shall be paid by the Tenant to the Landlord as
Additional Rent forthwith upon receipt of same;
(iii) at the Landlord's option, the Transferee shall enter into a written
agreement directly with the Landlord to be bound by all of the terms
contained in this Lease; and
(iv) if this Lease is disaffirmed, disclaimed, repudiated or terminated by
any trustee in bankruptcy of a Transferee, the original Tenant named
in this Lease or any Transferee (except the bankrupt Transferee) will
be considered, upon notice from the Landlord given within thirty (30)
days after the disaffirmation, disclaimer, repudiation or
termination, to have entered into a lease (the "Remainder Period
Lease") with the Landlord, on the same terms and conditions as are
contained in this Lease, mutatis mutandis, except that (A) the Term
of the Remainder Period Lease shall commence on the date of the
disaffirmation, disclaimer, repudiation or termination and shall
expire on the date this Lease would have expired had it not been so
disaffirmed, disclaimed, repudiated or terminated, and (B) the Basic
Rent shall be increased based on the formula set out in Section
11.1(d)(i).
(e) The Tenant acknowledges and agrees that the Landlord will not be liable
for any claims, actions, damages, liabilities or expenses of the Tenant or
any proposed Transferee arising our of the Landlord unreasonably
withholding its consent to any Transfer and the Tenant's only recourse will
be to bring an application for a declaration that the Landlord must grant
its consent to the Transfer.
SECTION 11.2 ASSIGNMENT BY THE LANDLORD
If there is a sale, lease or other disposition by the Landlord of the
Property or any part thereof, or the assignment by the Landlord of this Lease or
any Interest of the Landlord hereunder, and to the extent that the purchaser or
assignee assumes the covenants and obligations of the Landlord hereunder, the
Landlord will, thereupon and without further agreement, be relieved of all
further liability with respect to its covenants and obligations.
ARTICLE 12.
ACCESS AND ALTERATIONS
SECTION 12.1 RIGHT OF ENTRY
The Landlord and its agents have the right to enter the Leased Premises at
all reasonable times (except in the event of an emergency, when the Landlord can
enter at any time) to show them to prospective purchasers, lessees or
mortgagees, and to examine them and make repairs, alterations or changes to the
Leased Premises or the Building as the Landlord considers necessary including,
without limitation, repairs, alterations or changes to the pipes, conduits,
wiring, ducts and other installations in the Leased Premises where necessary to
serve another part of the Building. For that purpose, the Landlord may take all
required material into the Leased Premises and may have access to all ducts
located under the floor or above the ceiling and access panels to mechanical
shafts and the Landlord has the right to check, calibrate, adjust and balance
controls and other parts of the heating, ventilating and air-conditioning. The
Rent will not xxxxx while any repairs, alterations or changes are being made due
to loss or interruption of the business of the Tenant or otherwise, and the
Landlord will not be liable for any damage, injury or death caused to any
Person, or to the property of the Tenant or of others located on the Leased
Premises as a result of the entry.
ARTICLE 13.
STATUS STATEMENT, SUBORDINATION AND ATTORNMENT
SECTION 13.1 STATUS STATEMENT
Within ten (10) days after written request by the Landlord, the Tenant will
deliver in a form supplied by the Landlord, a status statement or a certificate
to any proposed purchaser, assignee, lessor or mortgagee, or to the Landlord,
which will contain such statements, acknowledgments and information as is
customarily called for in status
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statements and estoppel certificates delivered in conjunction with commercial
tenancies.
SECTION 13.2 SUBORDINATION AND ATTORNMENT
(a) This Lease and the Tenant's rights hereunder are, and will at all
times be, subordinate to all ground or underlying leases, mortgages, trust deeds
or the charge or lien resulting from, or any instruments of, any financing,
refinancing or collateral financing (collectively, an "Encumbrance") or any
renewals or extensions thereof from time to time in existence against the
Property or any part thereof, and the Tenant will, upon request, execute any
document requested by the Landlord to confirm the subordination of this Lease to
any Encumbrance and to the advances made or to be made on the security of the
Encumbrance. The Tenant will also, if requested, (i) attorn to the Owners, the
holder of any Encumbrance or any representative, receiver or receiver-manager
appointed or designated by the Owner or the holder of any Encumbrance, and (ii)
attorn to the purchaser of transferee of the Property (or any part of it) or of
any ownership or equity interest in the Property (or any part of it).
(b) The Tenant will, if possession is taken under, or any proceedings are
brought for possession under or the foreclosure of, or in the event of the
exercise of the power of sale under, any Encumbrance, attorn to the
Encumbrancer or the purchaser upon any such foreclosure, sale or other
proceeding and recognize the Encumbrancer or the purchaser as the Landlord
under this Lease.
(c) The form and content of any document confirming or effecting the
subordination and attornment provided for in this Section 13.2 will be that
required by the Landlord or the holder of any Encumbrance or the purchaser or
transferee in each case, and each such document will be executed and delivered
by the Tenant to the Landlord within ten (10) days after the Landlord requests
it.
(d) Upon written request of the Tenant, the Landlord shall submit to any
long-term encumbrancer of the Property for its consideration, the Tenant's form
of agreement to the effect that so long as the Tenant performs and observes all
of its covenants, obligations and agreements under this Lease and attorns to
such encumbrancer, it shall be permitted to remain in quiet possession of the
Leased Premises without interruption or disturbance from such encumbrancer,
subject to the terms of this Lease. The Tenant shall pay to the Landlord on
demand the Landlord's legal and administrative charges in connection with such
agreement. The Tenant shall indemnify the Landlord from and against all costs
including legal and administrative costs incurred by the Landlord in connection
with obtaining and preparing any such agreement.
SECTION 13.3 ATTORNEY
The Tenant will, upon request of the Landlord, execute and deliver
promptly any statements, instruments and certificates required to carry out the
intent of Sections 13.1 or 13.2. Failure by the Tenant to deliver any of the
foregoing within ten (10) days after the date of a request by the Landlord
shall constitute a default under this Lease and the Landlord shall be entitled
to exercise all of its remedies pursuant to Article 14 hereof.
SECTION 13.4 FINANCIAL INFORMATION
The Tenant will, upon request, provide the Landlord with such information
as to the Tenant's financial standing and corporate organization as the
Landlord or the Mortgagee requires.
ARTICLE 14.
DEFAULT
SECTION 14.1 RIGHT TO RE-ENTER
If and whenever:
(i) the Tenant fails to pay any Rent on the day or dates appointed
for payment and such default shall continue for a period of five
(5) consecutive days; or
(ii) the Tenant fails to observe or perform any other of the terms,
covenants or conditions of this Lease to be observed or performed
by the Tenant (other than the terms, covenants or conditions set
out below in subparagraph (iii) for which no notice shall be
required), provided the Landlord first gives the Tenant ten (10)
days' written notice of the Tenant's failure, or such shorter
period of time as is otherwise provided in this Lease, and the
Tenant within the ten (10) day or shorter period fails to
commence diligently and thereafter to proceed diligently to cure
its failure; or
(iii) the Tenant or any Indemnifier becomes bankrupt or insolvent or
takes the benefit of any act now or hereafter in force for
bankrupt or insolvent debtors or files any proposal or makes any
assignment for the benefit of creditors or any arrangement or
compromise; a receiver or a receiver-manager is appointed for all
or a portion of the Tenant's property; any steps are taken or any
action or proceedings are instituted by the Tenant or by any
other party to dissolve, wind-up or liquidate the Tenant or its
assets; the Tenant abandons the Leased Premises, or sells or
disposes of the trade fixtures, goods or chattels of the Tenant
or removes them from the Leased Premises so that there would not
in the event of such sale or disposal be sufficient trade
fixtures, goods or chattels of the Tenant on the Leased Premises
subject to distress to satisfy all Rent due or accruing hereunder
for a period of at least three (3) months; the Leased Premises
become and remain vacant for a period of five (5) consecutive
days; the Tenant effects or permits a Transfer without the
Landlord's consent where required; this Lease or any of the
Tenant's assets are taken under any writ of execution; or
re-entry is permitted under any other terms of this Lease.
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then the Landlord, in addition to any other rights or remedies do it, has the
immediate right of re-entry upon the Leased Premises and it may repossess the
Leased Premises and enjoy them as of its former estate and may expel all Persons
and remove all property from the Leased Premises and such property may be
removed and sold or disposed of by the Landlord as it deems advisable or may be
stored in a public warehouse or elsewhere at the cost and for the account of
the Tenant, all without service of notice or resort to legal process and
without the Landlord being considered guilty of trespass or becoming liable for
any loss or damage which may be occasioned.
SECTION 14.2 RIGHT TO RELET
(a) If the Landlord elects to re-enter the Leased Premises, or if it takes
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, it may either terminate this Lease or it may without terminating this
Lease make any alterations and repairs as are necessary in order to relet the
Leased Premises. Upon each reletting (which reletting the Landlord may do at
such rental and upon such other terms and conditions as the Landlord in its
sole discretion may deem advisable) all rent received by the Landlord will be
applied, first to the payment of any indebtedness other than Basic Rent or
Additional Rent due hereunder; second, to the payment of any costs and expenses
or reletting including brokerage fees and solicitor's fees and the costs of
alterations and repairs; third, to the payment of Basic Rent and Additional
Rent due and unpaid hereunder; and the residue, if any, will be held by the
Landlord and applied in payment of future Rent as it becomes payable hereunder.
No re-entry or taking possession of the Leased Premises will be construed as an
election on its part to terminate this Lease unless a written notice of that
intention is given to the Tenant. Notwithstanding any such reletting without
termination, the Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
(b) If the Landlord terminates this Lease, in addition to other remedies
available, it may recover from the Tenant all damages the Landlord incurs by
reason of the Tenant's breach, including the cost of recovering the Leased
Premises, all legal costs incurred by the Landlord and the Basic Rent,
Additional Rent and GST which would have been payable for the remainder of the
Term had the Lease not otherwise have been terminated, all of which shall be
immediately due and payable by the Tenant to the Landlord. In any of the events
referred to in Section 14.1. In addition to all other rights, the full amount of
the current month's instalment of Basic Rent and Additional Rent, together with
the next three months' instalments of Basic Rent and Additional Rent, all of
which will be deemed to be accruing due on a day-to-day basis, will immediately
become due and payable as accelerated rent, and the Landlord may immediately
distrain for the same, together with any arrears then unpaid.
SECTION 14.3 EXPENSES
If legal action is brought for recovery of possession of the Leased Premises,
for the recovery of Basic Rent, Additional Rent and GST or any other amount due
under this Lease, or because of the breach of any other of the Tenant's
obligations, the Tenant will pay to the Landlord all expenses incurred therefor
including a solicitor's fee (on a solicitor and his client basis), unless a
court otherwise awards, plus fifteen percent (15%) of such expenses to cover
the Landlord's overhead and administrative costs.
SECTION 14.4 WAIVER OF EXEMPTION FROM DISTRESS
Despite the Landlord and Tenant Act, or any other applicable Act, legislation,
or any legal or equitable rule of law, non of the goods and chattels of the
Tenant which are on or have at any time been on the Leased Premises will be
exempt from levy by distress for Basic Rent or Additional Rent in arrears by
the Tenant.
SECTION 14.5 LANDLORD'S RIGHTS
If the Tenant fails to pay any Additional Rent payable to a third party when
due, the Landlord may, but will not be obligated to, pay all or part of the
amount payable. If the Tenant is in default in the performance of any of its
other covenants or obligations under the Lease, the Landlord may, but will not
be obligated to, after giving reasonable notice (it being agreed that
forty-eight (48) hours is a reasonable notice of default of Section 8.1), or,
without notice in the case of an emergency, perform or cause to be performed
all or part of what the Tenant failed to perform and may enter upon the Leased
Premises and do those things that the Landlord considers necessary for that
purpose. The Tenant will pay to the Landlord on demand, the Landlord's expenses
incurred under this Section 14.5 plus an amount equal to fifteen percent (15%)
of those expenses for the Landlord's overhead and administrative costs. The
Landlord will have no liability to the Tenant for loss or damages resulting
from its action or entry upon the Leased Premises.
SECTION 14.6 REMEDIES GENERALLY
Mention in this Lease of any particular remedy of the Landlord in respect of
the default by the Tenant does not preclude the Landlord from any other remedy
in respect thereof, whether available at law or in equity or by statute or
expressly provided for in this Lease. No remedy shall be exclusive or dependent
upon any other remedy, but the Landlord may from time to time exercise any one
or more of such remedies generally or in combination, such remedies being
cumulative and not alternative. Subject to Section 11.1(e), whenever the Tenant
seeks a remedy in Court to enforce the observance or performance of one of the
terms, covenants and conditions contained in this Lease on the part of the
Landlord to be observed or performed, the Tenant's only remedy shall be for
damages the Tenant shall be able to prove in a Court of competent jurisdiction
that it has suffered as a result of a breach (if established) by the Landlord
in the observance or performance of any of the terms, covenants and conditions
contained in this Lease on the part of the Landlord to be observed or performed.
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ARTICLE 15.
MISCELLANEOUS
SECTION 15.1 RULES AND REGULATIONS
The Rules and Regulations adopted by the Landlord including, without
limitation, those set out in Schedule "E", are made a part of this Lease, and
the Tenant will observe them. The Landlord reserves the right to amend or
supplement the Rules and Regulations applicable to the Leased Premises or the
Property or any part thereof as in the Landlord's judgment are needed for the
safety, care, cleanliness and efficient operation of the Building. Notice of
the Rules and Regulations and amendments and supplements, if any, will be given
to the Tenant and the Tenant, its invitees or those for whom the Tenant is at
law responsible, will thereupon observe them provided that they do not
contradict any terms, covenants and conditions of this Lease. Any breach of
any of the Rules and Regulations by the Tenant, its invitees or those for whom
the Tenant is at law responsible, shall constitute a breach under this Lease
and all remedies and rights generally available to the Landlord for a breach by
the Tenant under this Lease shall be available and may be applied against the
Tenant.
SECTION 15.2 INTENT AND INTERPRETATION
(a) NET LEASE
The Tenant acknowledges that it is intended that this Lease is a completely
carefree net lease to the Landlord, except as expressly herein set out, that
the Landlord is not responsible during the Term for any costs, charges,
expenses and outlays of any nature whatsoever arising from or relating to the
Leased Premises, or the use and occupancy thereof and the Tenant will pay all
charges, impositions, costs and expenses of every nature and kind relating to
the Leased Premises except as expressly herein set out.
(b) OBLIGATIONS AS COVENANTS AND SEVERABILITY
Each obligations or agreement of the Landlord or the Tenant expressed in this
Lease, even though not expressed as a covenant, is considered to be a covenant
for all purposes. If any provision of this Lease is or becomes invalid, void,
illegal or unenforceable, it shall be considered separate and severable from
the Lease and the remaining provisions shall remain in force and be binding
upon the parties as though such provision had not been included.
(c) ENTIRE AGREEMENT AND AMENDMENT OR MODIFICATION
This Lease and the Schedules, and Riders, if any, attached together with the
Rules and Regulations set forth all covenants, promises, agreements, conditions
or understandings, either oral or written, between the Landlord and the Tenant.
No alteration or amendment to this Lease will be binding upon the Landlord or
the Tenant unless in writing and signed by the Tenant and the Landlord.
(d) GOVERNING LAW
This Lease will be construed in accordance with and governed by the laws of the
Province in which the Building is located.
(e) TIME OF THE ESSENCE
Time is of the essence of this Lease and of every part of it.
SECTION 15.3 OVERHOLDING - NO TACIT RENEWAL
If the Tenant remains in possession of the Leased Premises after the end of the
Term without having signed a new lease or an extension of Term agreement, there
is no tacit renewal of this Lease or the Term, notwithstanding any statutory
provisions or legal presumptions to the contrary, and the Tenant will be deemed
to be occupying the Leased Premises as a tenant from month-to-month at a
monthly Basic Rent equal to twice the monthly amount of Basic Rent payable
during the last month of the Term, and otherwise, upon the same terms, covenants
and conditions as are set forth in this Lease (including the payment of
Additional Rent) so far as these are applicable to a monthly tenancy.
SECTION 15.4 TENANT PARTNERSHIP OR GROUP
(a) If the Tenant is a partnership ("Tenant Partnership") each Person who
is presently a member of the Tenant Partnership, and each Person who
subsequently becomes a member of any successor Tenant Partnership will be and
continue to be liable jointly and severally for the full performance of, and
will be and continue to be subject to, the terms, covenants and conditions of
this Lease, whether or not the Person ceases to be a member of the Tenant
Partnership or successor Tenant Partnership.
(b) If the Tenant is comprised of more than (1) Person, each such Person
will be and continue to be liable jointly and severally for the full
performance of, and will be and continue to be subject to, the terms,
covenants and conditions of this Lease, whether or not the Person ceases to be
actively involved in the business operations conducted from the Leased Premises.
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SECTION 15.5 WAIVER
The waiver by either party of any breach of the other of any term, covenant or
condition herein contained, is not deemed to be a waiver of such term, covenant
or condition or of any subsequent breach of the same or of any other term,
covenant or condition herein contained. The subsequent acceptance of Rent by
the Landlord is not deemed to be a waiver of any preceding breach by the Tenant
regardless of the Landlord's knowledge of the preceding breach at the time of
acceptance of the Rent. No term, covenant or condition of this Lease is deemed
to have been waived by the Landlord unless the waiver is in writing by the
Landlord.
All Basic Rent and Additional Rent to be paid by the Tenant to the Landlord
will be paid without any deduction, abatement, set-off or compensation
whatsoever (except for the Basic Rent to the extent it may be abated pursuant
to Section 10.1), and the Tenant hereby waives the benefit of any statutory or
other rights in respect of abatement, set-off or compensation in its favour at
the time hereof or at any future time.
SECTION 15.6 ACCORD AND SATISFACTION
No payment by the Tenant or receipt by the Landlord of a lesser amount than the
monthly payment of Rent stipulated is deemed to be other than on account of the
earliest stipulated Rent, nor is any endorsement or statement on any cheque or
any letter accompanying any cheque or payment as Rent deemed an acknowledgment
of full payment of accord and satisfaction. The Landlord may accept and cash any
cheque or payment without prejudice to the Landlord's right to recover the
balance of the Rent due or to pursue any other remedy provided in this Lease.
SECTION 15.7 FORCE MAJEURE
Notwithstanding anything in this Lease, if either party is bona fide delayed or
hindered in or prevented from the performance of any term, covenant or act
required hereunder by reason of strikes or labour troubles; inability to procure
materials or services; power failure; restrictive governmental laws or
regulations; riots; insurrection; sabotage; rebellion; war; act of God; climatic
conditions; or other reason whether of a like nature or not which is not the
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then the performance of that term, covenant or act is
excused for the period of the delay and the party delayed will be entitled to
perform that term, covenant or act within the appropriate time period after the
expiration of the period of the delay. However, the provisions of this Section
do not operate to excuse the Tenant from the prompt payment of Rent.
SECTION 15.8 NOTICES
Any notice, demand, request or other instrument which may be or is required to
be given under this Lease will be personally delivered or sent by telecopy, fax
or registered mail postage prepaid and will be addressed (a) if to the
Landlord, to the address specified in Section 1.6 of the Special Provisions,
and (b) if to the Tenant, at the Leased Premises or, at the Landlord's option
to the Tenant's office at the address specified in Section 1.7 of the Special
Provisions. Any notice, demand, request or consent is conclusively deemed to
have been given or made on the day upon which it is personally delivered or sent
by telecopy or fax, or, if mailed, then four (4) business days (excluding
Saturdays, Sundays and statutory holidays) following the day of mailing, as the
case may be. Either party may give written notice of any change of its address
and thereafter the new address is deemed to be the address of that party for
the giving of notices. If the postal service is interrupted or is substantially
delayed, any notice, demand, request or other instrument must be personally
delivered.
SECTION 15.9 REGISTRATION
Neither the Tenant nor any one on the Tenant's behalf or claiming under the
Tenant will register this Lease. If either party intends to register a document
for the purpose only of giving notice of this Lease or of any assignment or
sublease of this Lease, then, upon request, both parties will join in the
execution of a short form or notice of this Lease which will (a) be prepared by
the Landlord or its solicitors at the Tenant's expense, and (b) only describe
the parties, the Leased Premises and the Commencement Date and the expiration
date of the Term, and any options to extend the Term.
SECTION 15.10 ACCRUAL OF BASIC RENT AND ADDITIONAL RENT
Rent will be considered as annual and accruing from day-to-day based upon a
three hundred and sixty-five (365) day calendar year and where it becomes
necessary for any reason to calculate Rent for an irregular period of less than
one (1) year, an appropriate apportionment and adjustment will be made.
SECTION 15.11 COMPLIANCE WITH THE PLANNING ACT - INTENTIONALLY DELETED
SECTION 15.12 QUIET ENJOYMENT
If the Tenant pays the Rent and observes and performs all its terms, covenants
and conditions, the Tenant will quietly hold and enjoy the Leased Premises for
the Term without interruption by the Landlord, unless otherwise permitted under
the terms of this Lease.
SECTION 15.13 CONSENT AND APPROVAL
The Landlord and each Person acting for or on behalf of the Landlord, making a
determination, designation, calculation,
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estimate, conversion or allocation under this Lease, will act reasonably and in
good faith and each accountant, architect, engineer or surveyor, or other
professional Person employed or retained by the Landlord will act in accordance
with the applicable principles and standards of that Persons' profession.
SECTION 15.14 NON-LIABILITY
The Tenant acknowledges, covenants and agrees:
(i) that the Landlord named in this Lease is the nominee on behalf of
RioCan Real Estate Investment Trust (the "Trust"); and
(ii) the obligations being created by this Lease and any liabilities
arising in any manner whatsoever out of or in connection with
this Lease are not personally binding upon, and that resort shall
not be had to, nor shall recourse or satisfaction be sought from,
the private property of any of;
(A) the unitholders of the Trust;
(B) annuitants under a plan of which a unitholder of the Trust
acts as trustee or carrier; and
(C) the officers, trustees, employees or agents of the Trust.
ARTICLE 16.
DEFINITIONS
In this Lease and in the Schedules to this Lease the following definitions are
applicable:
Section 16.1 "Additional Rent" means all sums of money or charges required
to be paid by the Tenant under this Lease (except Basic Rent) whether or not
designated "Additional Rent" or payable to the Landlord.
Section 16.2 "Additional Services" means the services and supervision thereof
by the Landlord referred to in Section 5.5 hereof, and all other services of
any nature or kind supplied by the Landlord in addition to those required to be
supplied by the Landlord to the Tenant pursuant to this Lease, except for any
services which the Landlord elects to supply to all of the tenants of the
Building the cost of which is included in Operating Costs.
Section 16.3 "Alterations" means any repairs, replacements, decorations,
Leasehold Improvements or other alterations made by the Tenant or its
representatives to any part of the Leased Premises, or made by any other tenant
to any other leased premises in the Building.
Section 16.4 "Architect" means the architect, surveyor or space planner from
time to time named by the Landlord. The decision of the Architect whenever
required by this Lease (or requested by the Landlord) and any certificate
prepared or approved by the Architect will be final and binding.
Section 16.5 "Basic Rent" means the sums payable by the Tenant to the
Landlord as set out in Section 3.2 of this Lease.
Section 16.6 "Building" means the multi-storey office building erected or to
be erected on the Lands and located in the City of Burnaby, Province of British
Columbia, known municipally as 0000 Xxxxxxxx Xxxxxxx, and forming a part of the
project known generally as Brentwood Office Centre, from and including the
lowest floor or level of the Building to and including the roof thereon, the
Common Areas and Facilities, the Parking Areas, and the areas and facilities
serving the Building, as determined by the Landlord, which areas and facilities
may include, without limitation, lobbies, foyers and vestibules, sidewalks,
storage and mechanical areas, janitor rooms, mail rooms, telephone, mechanical
and electrical rooms, stairways, escalators, elevators, truck and receiving
areas, driveways, loading docks and corridors and shall also include the Retail
Area, the Office Area, the Storage Areas and those areas designated or intended
by the Landlord to be leased or used for service, administration, management,
safety and operational purposes.
Section 16.7 "Common Areas and Facilities" means (a) those areas, facilities,
utilities, improvements, equipment and installations in the Building which,
from time to time, are not designated or intended by the Landlord to be leased
to tenants of the Building, and (b) those areas, facilities, utilities,
improvements, equipment and installations which serve or are for the benefit of
the Property, whether or not located within, adjacent to, or near the Building
and which are designated from time to time by the Landlord as part of the
Common Areas and Facilities, including, without limitation, all areas,
facilities, utilities, improvements, equipment and installations which are
provided or designated (and which may be changed from time to time) by the
Landlord for the use or benefit of the tenants, their employees, customers and
other invitees in common with others entitled to the use and benefit thereof in
the manner and for the purposes permitted by this Lease.
Section 16.8 "Concourse Level" means the areas of the Building, if any,
located below the ground floor and forming part of the Retail Area, together
with all other facilities and areas located on such level(s).
Section 16.9 "Fixtures" means all furniture, trade fixtures and equipment
installed by the Tenant in the Leased Premises and not affixed in any manner
thereto.
Section 16.10 "Fixturing Period" means the period referred to in Section 1.2
of the Special Provisions during which the Tenant is required to complete the
Tenant's Work.
Section 16.11 "Hazardous Substances" means any contaminant, pollutant,
dangerous substance, potentially dangerous substance, noxious substance, toxic
substance, hazardous waste, flammable, explosive or radioactive material, urea
formaldehyde foam insulation, asbestos, PCB's or any other substances or
materials that are declared or defined to be hazardous, toxic, contaminants or
pollutants in or pursuant to any applicable federal, provincial or municipal
statute, by-law or regulation.
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Section 16.13 "Landlord" means the party of the First Part and includes the
Landlord and its duly authorized representatives.
Section 16.14 "Landlord's Work" means all construction and other work referred
to as "Landlord's Work" in Schedule "C" attached hereto.
Section 16.15 "Lands" means the lands underneath, adjacent and appurtenant to
the Building, as more particularly described in Schedule "A" attached to this
Lease or as such Lands may be altered, expanded or reduced from time to time.
Section 16.16 "Lease" means this agreement and all the terms, covenants and
conditions set out herein, as amended from time to time in accordance with
Section 15.2(c) hereof.
Section 16.17 "Leased Premises" means the premises demised by this Lease as set
out in Section 2.1 hereof.
Section 16.18 "Leasehold Improvements" means all items generally considered as
leasehold improvements, including without limitation all installations,
alterations and additions from time to time made, erected or installed in the
Leased Premises by or on behalf of the Tenant, or any previous occupant of the
Leased Premises or by or on behalf of tenants in other premises in the Building
including, without limitation, all partitions however affixed and whether or not
moveable, heating, ventilating and air-conditioning systems, facilities and
equipment, light fixtures, internal stairways and doors, floor, wall and ceiling
coverings, and any and all fixtures, facilities, equipment or installations
installed by or on behalf of the Landlord in accordance with Schedule "C".
Section 16.19 "Market Rental" means, at any given time, the then current market
net rental rate for net leases with similar terms (including, without
limitation, the length of the term and the frequency of adjustments in rent, if
any) entered into at arm's length for premises of similar size, age, quality and
use, similarly improved and fixtured in similar office buildings in the City in
which the Building is located.
Section 16.20 "Mortgagee" means any mortgagee or chargee (including any trustee
for bondholders), from time to time, of the Property or any part thereof, or of
the Landlord's or the Owners' interest in the Property.
Section 16.21 "Normal Business Hours" means the hours from 8:00 a.m. to 6:00
p.m. on Mondays to Fridays unless such a day is a statutory holiday.
Section 16.22 "Office Area" means the portion of the Building designated by the
Landlord from time to time for office purposes located on all floors of the
building and such changes, alterations and improvements as may be made thereto
from time to time in the sole discretion of the Landlord.
Section 16.23
(a) "Operating Costs" means the total amounts incurred, paid or payable
whether by the Landlord or by others on behalf of the Landlord which are
applicable or attributable to the Property, as determined by the Landlord in the
manner set forth in the following sentence, for the maintenance, operation,
repair, replacement, management and administration of the Property, calculated
as if the Building were fully occupied and operational during each Lease Year of
the Term. The Tenant acknowledges and agrees that Operating Costs may be
attributed by the Landlord to the Office Area, Retail Area and other components
of the Building in accordance with current practices relevant to multi-use
commercial developments on a basis consistent with the nature of the particular
costs and expenses being attributed and the costs and expenses so attributed may
be allocated to the tenants of such components separately in which event the
Tenant shall pay the Tenant's Share of such costs and expenses so allocated.
(b) Operating Costs include, without limitation and without duplication,
the aggregate of:
(i) the total annual costs of insuring the Building and equipment and
other property servicing the Building from time to time as the
Landlord, or the Mortgagee, from time to time determines, provided
that if the Landlord self insures with respect to any of the insurance
required to be maintained by it in accordance with the terms of this
Lease, reasonable reserves not to exceed insurance premiums that
otherwise would be payable or attributable by the Landlord to such
insurance may be included hereunder;
(ii) the cost of cleaning (including carpet cleaning in the Common Areas
and Facilities and window cleaning), snow removal, garbage and waste
collection and disposal, including the cost of performing the work
referred to in Section 5.2(a), and the cost of security, supervision
and traffic control;
(iii) the aggregate of the costs and amounts paid by the Landlord, to the
extent such costs are not separately metered and paid for directly by
individual tenants, for Utilities used in the maintenance, operation,
heating, ventilating and air-conditioning of the Building;
(iv) salaries, wages and other amounts paid or payable for all management,
supervisory, and operational personnel including the Building manager,
engineers, janitors, caretakers, security staff, management personnel
(in each case whether employed by the Landlord or pursuant to a third
party management contract) and all other related staff and the total
charges (including contributions and premiums for fringe benefits,
unemployment insurance, and Workers' Compensation, pension plan
contributions and similar premiums and contributions) of any
independent contractors or managers, engaged in the repair, care,
maintenance, security, management and cleaning of the Property;
(v) the cost of the rental of any equipment and signs, and the cost of
supplies, used by the Landlord
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in the maintenance and operation of the Property;
(vi) audit fees and the cost of accounting services incurred in the
preparation of the statements referred to in this Lease and the
financial statements related thereto, and in the computation of the
Rent and other charges payable by tenants of the Building;
(vii) subject to (viii) below, the cost of all repairs and replacements
to and maintenance (including, without limitation, landscaping
maintenance) and operation of the Property and the systems,
facilities and equipment serving the Building (including without
limitation, the components of the heating, ventilating and
air-conditioning systems serving portions of the Building which are
maintained and repaired by the Landlord) and all repairs and
replacements undertaken by the Landlord for the general safety and
benefit of the tenants of the Building or to reduce Operating
Costs;
(viii) depreciation or amortization over the economic life, (not to exceed
fifteen (15) years), together with interest calculated at two (2)
percentage points above the Prime Rate, of the costs, including
repairs and replacements of the maintenance, cleaning, operating,
heating, ventilating and air-conditioning equipment, master
utility meters and all other fixtures, equipment and facilities
that are part of the Building and not intended to be leased to
tenants, which, in accordance with generally accepted accounting
principles, are not fully expended or deducted in the Lease Year in
which they are incurred;
(ix) all business taxes and other Taxes, if any, from time to time
payable by the Landlord with respect to the Common Areas and
Facilities and Capital Taxes as defined herein;
(x) the Market Rental, business taxes and other Taxes, if any,
attributable to space in the Building occupied by the Landlord or
the Building manager for management, supervisory or administrative
purposes including, without limitation, space leased or used for
service, administration, management, safety and operational
purposes;
(xi) the costs and expenses of environmental site reviews and
investigations, and removal and/or clean-up of Hazardous Substances
from the Common Areas and Facilities; and
(xii) an administration and management fee of at least five percent (5%)
of the Rent (including Basic Rent, Percentage Rent and Additional
Rent) received or receivable by the Landlord from the tenants of
the Building; the actual amount of the administration fee referred
to herein shall be determined by the Landlord and may be increased
from time to time by the Landlord in accordance with the then
current rate for such fees in comparable buildings in the vicinity.
From the total of the above costs, there shall be deducted or excluded, as
the case may be:
(A) all net recoveries which reduce Operating Costs received by the
Landlord from tenants as a result of any act, omission, default or
negligence of such tenants or by reason of a breach by such tenants
of provisions in their respective leases (other than recoveries
from such tenants under clauses in their respective leases
requiring their contribution to Operating Costs);
(B) net proceeds received by the Landlord from insurance policies taken
out by the Landlord to the extent that the proceeds relate to
Operating Costs;
(C) ground rent payable to any ground lessor if the Landlord is not the
owner of the Lands and principal and interest payments on any
mortgages, charges or other encumbrances registered against the
title of the Property;
(D) costs and expenses relating to the leasing of space or premises in
the Building including leasing commissions and advertising costs;
and
(E) the cost of Alterations to specific leased premises in the Building
which are completed at the request of the tenant of such premises
and which are not specifically referred to as costs or expenses
which are the responsibility of the Tenant pursuant to the
provisions of this Lease.
(C) "Capital Tax" means the amount imputed by the Landlord to the
Building for taxes, rates, duties and assessments imposed from time to time upon
the Landlord or the Owners and payable by the Landlord or the Owners on account
of the capital that it or they have invested in the Building or any part of it.
Capital Tax will be imputed (i) as if the Building were the only property of the
Landlord or the Owner; and (ii) on the basis of the Landlord's determination of
the amount of capital attributable to the Building. The Landlord's determination
of the capital attributable to the Building will be based solely on the costs of
acquiring, developing and constructing the Building and any expansions or
additions to it. Capital Tax will not be increased by any mortgage or other
financing or refinancing of the Building or any part of it.
Section 16.24 "Owners" means the registered owners and holders of the freehold
or leasehold title of the Property or any part thereof from time to time. In
sections that contain a release or other exculpatory language in favour of the
Owners. "Owners" includes the officers, directors, employees (while in the
ordinary course of their employment) and agents of the Owners.
Section 16.25 "Parking Areas" means the improvements constructed, or which may
be constructed, in or as part of the Building for use as parking facilities and
the areas and facilities that are appurtenant solely to those improvements.
Section 16.26 "Percentage Rent" means the sums payable by the tenants of the
Retail Area based upon a percentage of the gross revenues received by such
tenants.
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Section 16.27 "Person", if the context allows, includes any person, firm,
partnership or corporation, or any group of persons, firms, partnerships or
corporations or any combination thereof.
Section 16.28 "Prime Rate" means the annual rate of interest from time to time
publicly quoted by any Canadian chartered bank designated by the Landlord as its
reference rate of interest for determining rates of interest chargeable in
Toronto on Canadian dollar demand loans to commercial customers.
Section 16.29 "Property" means the Building and the Lands as herein defined.
Section 16.30 "Proportionate Share" means a fraction to be calculated by the
Landlord, in each case being a fraction which has as its numerator the Rentable
Are of the Leased Premises and as is denominator the Rentable area of the
Building. The Landlord may recalculate or adjust the Tenant's Proportionate
Share from time to time due to changes, additions or improvements to the
Building.
Section 16.31 "Rent" means all Basic Rent and Additional Rent payable hereunder
(together with Percentage Rent, where applicable).
Section 16.32 "Lease Year" means a period of time, the first Lease Year
commencing on the first day of the Term hereof, and ending on the 31st day of
December next following; thereafter Lease Years shall consist of consecutive
period of twelve (12) calendar months. If, however, the Landlord considers it
necessary or convenient for the Landlord's accounting purposes, the Landlord may
at any time and from time to time, by written notice to the Tenant, specify an
annual day from which each subsequent Lease Year is to commence, and, in such
event, the then current Lease Year shall terminate on the date preceding the
commencement of such new Lease Year. The last Lease Year of the Term shall
terminate upon the expiration or earlier termination of this Lease, as the case
may be.
Section 16.33 "Retail Area" means those portions of the Building designated by
the Landlord from time to time for retail and commercial purposes located on the
ground floor and the Concourse Level, if any, and such changes, alterations and
improvements as may be made thereto from time to time in the sole discretion of
the Landlord.
Section 16.34 "Storage Areas" means all those areas (which in all cases are
separate and apart from leasable premises) to be used by tenants for storage in
conjunction with use of leasable premises.
Section 16.35 "Structure" means the foundations, roof (excluding the roof
membrane), exterior wall assemblies including weather walls and bearing walls,
subfloor and structural columns and beams of the Building and any other portions
of the Building designated by the Landlord from time to time as Structure.
Section 16.36 "Taxes" means all real property taxes, rates, duties and
assessments (including local improvement taxes), imposts, charges or levies,
whether general or special, that are levied, rated, charged or assessed against
the Property or any part thereof or Rent therefrom from time to time by any
lawful taxing authority, whether federal, provincial, municipal, school or
otherwise, and any taxes or other amounts which are imposed in lieu of, or in
addition to, any such real property taxes whether of the foregoing character or
not and whether in existence at the Commencement Date or not, including, without
limitation, any excise tax, business transfer tax or any tax levied, rated,
charged or assessed in respect of the rental of space by the Tenant under this
Lease, and any real property taxes or other taxes levied or assessed against the
Landlord or the Owners on account of their respective interest in the Property
or any part thereof, or their ownership thereof, as the case may be, calculated
on the basis of the Building being assessed as a fully leased and operational
building, and the costs and expenses incurred for consulting, appraisal, legal
and other services to the extent they are incurred in an attempt to minimize or
reduce any of the foregoing real property taxes or other taxes referred to
above.
Section 16.37 "Tenant" means the party of the Second Part. If there is more than
one Tenant, any notice required or permitted by this Lease may be given by or to
any one of them and has the same force and effect as if given by or to all of
them. Any reference to "Tenant" includes, where the context allows, the
servants, employees, agents, invitees and licensees of the Tenant and all others
over whom the Tenant may reasonably by expected to exercise control.
Section 16.38 "Tenant's Share" means a fraction to be calculated by the
Landlord, in each case being a fraction which has as its numerator the Rentable
Are of the Leased Premises and as its denominator the Rentable Area of each
floor of the Office Area calculated on the basis that each such floor is a
single tenancy floor. The Landlord may recalculate or adjust the Tenant's Share
from time to time due to changes, additions, or improvements to the Building.
Section 16.39 "Tenant's Share" means all construction and other work required to
be provided or performed in order to render the Leased Premises complete and
suitable to open for business, including without limitation, all work designated
as Tenant's Work in Schedule "C" attached hereto but excluding those items
specifically referred to as "Landlord's Work".
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27
Section 16.40 "Utilities" means all gas, electricity, water, steam, fuel, power,
telephone and other utilities used in or for the Building or the Leased
Premises, as the case may be, or allocated to the Leased Premises by the
Landlord in accordance with the terms of this Lease.
IN WITNESS WHEREOF, the Landlord and the Tenant have signed and sealed this
Lease.
SIGNED, SEALED AND DELIVERED ) LANDLORD: RIOCAN HOLDINGS INC.
in the presence of: )
)
)
) Per:
) --------------------------------------
) c/s
)
)
) Per:
) --------------------------------------
) c/s
)
)
) TENANT: INFOWAVE WIRELESS MESSAGING INC.
)
)
)
) Per:
) --------------------------------------
) c/s
)
)
) Per:
) --------------------------------------
) (I/We have authority to bind
) the corporation)
)
)
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28
RIDER NO. 1 TO A LEASE MADE BETWEEN
INFOWAVE WIRELESS MESSAGING INC. AS TENANT AND RIOCAN HOLDINGS INC. AS LANDLORD,
IN RESPECT OF THE BRENTWOOD OFFICE CENTRE.
1. RENT FREE PERIOD
The Landlord and Tenant acknowledge and agree that notwithstanding any other
provision contained herein to the contrary, the Tenant shall be entitled to
occupy the Leased Premises for the period from April 1, 1998 to and including
June 30, 1998, without obligation to pay the Basic Rent provided for in Section
3.2 hereof (the "Rent Free Period") and shall during such period be a Tenant in
the Leased Premises subject to the same covenants and agreements as are
contained in this Lease, mutatis mutandis. Nothwithstanding the foregoing, it is
understood and agreed that the Tenant shall be required to pay all Additional
Rent provided for in this Lease during the Rent Free Period.
2. RENEWAL OPTION
As long as the Tenant continues to comply with all the requirements of this
Lease, the Tenant shall be granted one (1) option to renew the Lease for a
further five (5) year term (the "Renewal Term") commencing on the 1st day
following the expiration of the Term of the Lease, provided that the Tenant
shall give to the Landlord not more than twelve (12) months, and not less than
six (6) months prior to the expiration of the Term of the Lease, written notice
of the Tenant's exercise of its right to renew for such Renewal Term.
The Renewal Term shall be on the same terms, covenants and conditions as
contained in this Lease (as amended from time to time), except for the right to
any further renewal beyond the Renewal Term, except for such provisions of the
Lease as are pertinent only to the original Term, and except for the Basis Rent.
The Basic Rent for the Renewal Term will be as agreed between the Landlord and
the Tenant, but shall not be less than the prevailing market rates at a date
which is six (6) months prior to the commencement of the Renewal Term for
comparable fully improved space, used for the same or similar use, with the same
or similar sales volumes, in the same or similar area of the City and in any
event the Basic Rent shall not be less than the Basic Rent actually payable by
the Tenant pursuant to the provisions of this Lease during the last year of the
Term of this Lease.
In the event that the Landlord and the Tenant are unable to agree on the Basic
Rent to be paid by the Tenant during the Renewal Term by a day which is three
(3) months prior to the expiry of the Term, then this option to renew shall be
null and void and of no further force or effect, and the Tenant shall surrender
the Leased Premises to the Landlord upon the expiry of the Term of this Lease.
3. STORAGE AREA
(a) In conjunction with the Lease to the Tenant of the Leased Premises, the
Landlord hereby leases to the Tenant, throughout the Term, additional premises
(the "Storage Space") consisting of approximately 500 square feet of storage
space located on the warehouse level of the Building. The actual area of the
Storage Space shall be certified measured to BOMA standards, and the location
shall be agreed upon between the Landlord and Tenant, acting reasonably. The
annual rent payable by the Tenant for the Storage Space during the term of this
Lease shall be calculated based on six dollars ($6.00) per square foot of the
actual area of the Storage Space (measured as Retail Area).
The aforesaid rent shall be on a gross basis, meaning that there shall be no
additional charge to the Tenant for Operating Costs, Taxes or utilities.
(b) The storage Space shall not be used for any purpose other than for storage
incidental and ancillary to the Tenant's business conducted on the Leased
Premises.
(c) All of the terms of this Lease shall apply to the Storage Space, mutatis
mutandis, except where they appear pursuant to the terms hereof to be
inapplicable or in conflict with the express provisions of this clause in which
case the provisions of this clause shall prevail.
(d) The Tenant agrees to accept the Storage Space in "as is" condition as at
the Commencement Date, and the Landlord is not obliged to perform any leasehold
improvements thereto. No leasehold improvement allowance or tenant inducement
whatsoever is applicable to the lease of the Storage Space.
4. PARKING
The Tenant shall have the right to the use of up to thirty-five (35)
non-reserved random parking spaces in the parking facility serving the Building.
The Tenant shall pay to the operator of the parking garage or to the Landlord,
as directed by the Landlord, throughout the Term of this Lease a monthly parking
fee for the use of each parking space based upon the then prevailing rate being
charged in the Building, as may be adjusted from time to time. Such monthly
payment of the parking fee, if paid to the Landlord, shall be recoverable by the
Landlord in the same manner as Additional Rent in arrears. In addition, the
Tenant hereby agrees to use and occupy the parking spaces referred to above in
accordance with all rules and regulations relating to the use and occupation of
the parking garage by the Tenant, its employees and invitees.
5. RIGHT OF FIRST REFUSAL
The Landlord agrees to grant to the Tenant a one time Right of First Refusal on
any contiguous space adjacent to the Leased Premises coming vacant in the
Building. Should the Landlord, at any time throughout the Term, receive a bona
fide third party offer to lease the said premises, the Landlord shall advise the
Tenant in writing, and the Tenant shall have the right to exercise its Right of
First Refusal to rent the said premises on the same terms and conditions as the
25
29
bona fide third party offer. The Tenant shall have a period of five (5)
business days from the date of written notice from the Landlord to exercise
this Right of First Refusal. In the event the Tenant does not exercise this
right within the five (5) business day period, the Landlord shall be free to
lease the said premises and this Right of First Refusal shall be null and void.
6. COMMUNICATION TOWER
The Tenant shall have the right to erect a communication tower on the roof of
the Building, subject to the Tenant obtaining at its sole cost and expense all
requisite governmental approvals and permits, and subject to the Landlord's
prior written approval, acting reasonably, on the size, style, and location of
the tower. All costs associated with the installation of such tower shall be
the sole expense of the Tenant, and the Tenant acknowledges that it must
provide engineering drawings and specifications of such tower, including
details outlining the installation of such tower for Landlord's approval, and a
report from its structural engineer approving the load capacity for said tower
prior to installation.
The Tenant shall throughout the Term of the Lease and any extensions or
renewals thereof, maintain such communication tower in a first class and
reputable manner and upon the expiration or earlier termination of this Lease
shall remove the said tower and shall restore the area upon which same has been
erected to its original condition. The Tenant's obligations hereunder shall
survive the expiration or earlier termination of the Term of this Lease.
7. FIXTURING ALLOWANCE
The Landlord shall pay to the Tenant a fixturing allowance (the "Fixturing
Allowance") in the amount of eight dollars ($8.00) per square foot of the
Rentable Area of the Leased Premises, which shall be paid to the Tenant once
the following conditions have been met:
(i) the Landlord has received and approved the Tenant's architectural,
structural, mechanical and electrical plans and specifications.
(ii) the Tenant's Work has been completed to the satisfaction of the
Landlord in accordance with the plans and specifications approved by the
Landlord, and the Tenant has provided evidence satisfactory to the Landlord that
all accounts for such work have been paid, and all lien periods have expired;
(iii) the Lease has been executed by the Tenant and delivered to the
Landlord; and
(iv) the Tenant has taken occupancy of the Leased Premises and has opened
the Leased Premises for business.
26
30
SCHEDULE "A"
LEGAL DESCRIPTION
BRENTWOOD OFFICE CENTRE, BURNABY, BRITISH COLUMBIA
Block 81 "A" of District Lot 124
Group 1
Plan 3348
Except the West 150 Feet New Westminister District
31
SCHEDULE "B"
[MAP]
1st FLOOR NOT TO SCALE OCT. /94
[LOGO]
Counsel Management
Services Inc.
#224-0000 Xxxxxxxx Xx. BRENTWOOD OFFICE CENTER
Burnaby, B.C. 0000 XXXXXXXX XXX. BURNABY, B.C.
PH: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Shinkewski Design Group Ltd. 000 - 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx,
X.X. V6C 1T2 Phone 000-0000 Fax 000-0000
32
SCHEDULE "C"
XXXXXXXX'S AND TENANT'S WORK
CONSTRUCTION OF LEASED PREMISES
LANDLORD'S OBLIGATION
The Landlord shall at its cost and expense complete all items of work listed
herein as "Landlord's Work" with all such work to be done in accordance with
building code, and the Tenant's plans and specifications approved by the
Landlord. Any work in addition to any of the items specifically enumerated as
Landlord's Work shall be performed by the Tenant at its own cost and expense.
Any equipment or work other than those items specifically enumerated as
Landlord's Work which the Landlord installs or constructs in the Leased
Premises on the Tenant's behalf shall be paid for by the Tenant as Additional
Rent within fifteen (15) days after receipt of a bill therefore, at cost plus
fifteen percent (15%) for overhead and supervision.
XXXXXXXX'S WORK
1. SITE WORK, PARKING AND LANDSCAPING
As existing.
2. STRUCTURAL FRAME, EXTERNAL WALLS AND ROOF
As existing.
3. DEMISING WALLS
As existing.
4. FLOORS
As existing.
5. CEILING
As existing.
6. PLUMBING
As existing.
7. ELECTRICAL
As existing.
8. TELEPHONE
As existing.
9. HEATING AND AIR CONDITIONING
As existing.
33
Schedule "C" Continued
Page 2
TENANT'S OBLIGATION
The Tenant shall at its cost and expense complete or cause the completion of all
items of work described as Xxxxxx's Work herein prior to the Commencement Date
in accordance with the plans and specifications which have been submitted to
and approved by the Landlord. All work performed by the Tenant with respect to
the Leased Premises shall:
(a) be done in accordance with the design criteria set down by the
Landlord or its authorized representatives with respect to the
external and internal appearance of the Leased Premises;
(b) be done as expeditiously as reasonably possible;
(c) be done in such a manner as will not interfere unreasonably with work
being done by the Landlord upon the Leased Premises or any other
portion of the Shopping Centre;
(d) be done in compliance with such reasonable rules and regulations as
the Landlord or its agents or contractors may make;
(e) be carried out by competent workers under the supervision of one or
more professional contractor(s) and designer(s), who shall be subject
to prior written approval of the Landlord (such approval not to be
unreasonably withheld or delayed), and be subject to the reasonable
supervision of the Landlord or its agents or contractors;
(f) be done at the risk of the Tenant.
TENANT'S WORK
1. INTERIOR FINISHING
The Landlord will be responsible for all interior partitions, ceilings,
interior painting, and decorating. The Tenant will install at its own
expense all floor coverings. The Tenant shall be responsible for all store
fixtures and furnishings.
2. LIGHTING AND ELECTRICAL
The landlord will provide at its own cost all lighting receptacles,
telephone outlets, lighting and electrical fixtures including exit signs,
appliances, and any other equipment. The Tenant will also provide hookups
for any special equipment (if any) including reheat coils, exhaust fans,
makeup units, hot water tank, electrical heater motor, compressors,
communication and computer equipment, etc. The Tenant will also be
responsible for all necessary wiring for the aforementioned work from the
electrical panel supplied by the Landlord.
3. PLUMBING
The Tenant shall be responsible for installation of all plumbing equipment,
fixtures and lines required for the Premises and installation of the
Tenant's kitchen equipment (if any) within the Leased Premises connecting
to the plumbing and drainage systems provided by the Landlord. All
installations of water closets, wash basins, miscellaneous equipment and
plumbing pertaining thereto and all furnishings of the said kitchen
equipment will be carried out by the Tenant in accordance with building
code at the Tenant's cost. Additional water and drainage lines as may be
required for such installations will be brought by the Landlord to the
Leased Premises at the Tenant's expense.
4. HEATING, VENTILATION AND AIR-CONDITIONING
34
5. FIRE PROTECTION
6. TELEPHONE
The Tenant will be responsible for the installation of the telephone system
as required by the Tenant, distributed from the terminal outlet supplied by
the Landlord.
7. ADDITIONAL REQUIREMENTS
Any requirements by the Tenant in addition to those specified as the
Landlord's Work shall be provided at the Tenant's own cost.
8. DRAWINGS AND SPECIFICATIONS
The Tenant shall prepare and submit to the Landlord or its Architect or
Engineer for approval, complete drawings and specifications prepared by
qualified designers and conforming to good engineering and construction
practice, including ceiling finishes, floor coverings and any special
equipment or installations, all water, sewage, electrical, heating,
ventilation, and air-conditioning ducting (except to the extent provided
by the Landlord), and such other items of the Tenant's Work as the Landlord
may request. The Landlord shall notify the Tenant of its approval thereof
or of all the specific changes required by it and the Tenant shall then
promptly prepare and submit to the Landlord or its Architect or Engineer
within ten (10) days next following, complete drawings and specifications
within the times hereinbefore provided.
No work for which drawings and specifications are required shall be
commenced until such drawings and specifications have been approved in
advance in writing by the Landlord. No items of the Tenant's Work shall be
commenced until the Tenant has secured approval thereof from all
governmental authorities having jurisdiction and submitted proof of such
approval to the Landlord.
9. PERMITS AND APPROVALS
The Tenant shall obtain all permits and approvals for the Tenant's Work and
also all permits and approvals required for the business use for which the
Tenant proposes to utilize the Leased Premises, and any other permits,
licenses and permissions needed to lawfully conduct the Tenant's business.
All fees and other expenses associated with the obtaining of any necessary
approvals, permits and licenses hereunder shall be borne by the Tenant.
Upon completion of the Tenant's Work, the Tenant shall also secure all
applicable certificates of completion and occupancy.
10. TENANT'S INSURANCE
Tenant shall obtain and provide the Landlord or its General Contractor with
proof of insurance coverage in amounts satisfactory to the Landlord of
Tenant's legal liability insurance, comprehensive general liability
insurance and insurance for Tenant's improvements prior to commencing any
work in the Leased Premises. The Tenant shall ensure fire protection
devices are available during the carrying out of the Tenant's Work.
35
Schedule "C" Continued
Page 4
11. TENANT'S CONTRACTORS
The Tenant shall retain competent interior designers (as may be
appropriate), who shall be duly licensed in the Province of Alberta where
required, in connection with the design of the Tenant's Work and the
preparation of the plans required to be submitted by the Tenant herein.
The Tenant may elect to use any contractor of his choice to perform his
work providing prior approval is received from the Landlord. In any case,
the Tenant will enter into his own contractual agreement with the
contractor of his choice and indemnifies the Landlord that the contractor
carries the necessary insurance and has taken out the necessary permits.
It is the Tenant's sole responsibility to pay its contractors for their
work, and to ensure payment of all sub-contractors and suppliers. Upon
demand by the Landlord, the Tenant shall produce proof of such payment
satisfactory to the Landlord (which may be in the form of a Statutory
Declaration endorsed by all contractors and sub-contractors).
12. GENERAL PROVISIONS
The following provisions are in addition to, and do not waive the
provisions of any general covenants between the Tenant and the Landlord as
may be contained in the Lease:
(a) All work by the Tenant within the Leased Premises shall be completed
in new or like new materials. Materials and workmanship shall be of a
uniformly high quality and used and/or performed in accordance with
the very best standards of practice and shall not be in contravention
of any governing codes or regulations and shall be subject to the
approval of the Landlord and/or its Architect.
(b) Under no circumstances will the Tenant, its employees, its contractors
or its contractors' employees enter onto any roof of the Centre or
make any opening in the roof.
(c) The Tenant and his contractor(s) shall not impose a greater load on
any concrete floor than the design live load of 100 pounds per square
foot uniformly distributed. No unusual loads may be suspended from the
underside of roof structure, without the Landlord's written approval.
(d) During the Tenant's Fixturing Period the Tenant shall maintain the
Leased Premises in a reasonably clean and orderly manner and shall be
responsible for the cost of removing from the Centre all excess
materials, trash and cartons resulting from Xxxxxx's Work and stocking
of the Leased Premises. Should the Tenant fail to regularly clean up
construction material, trash and cartons, the Landlord may remove such
materials and charge the costs to the Tenant. Final clean up shall
include the cleaning of the light fixtures, millwork units, store
front and public spaces affected by the work.
(e) The Tenant shall not allow any liens or notices thereof to be placed
against the Leased Premises or the Centre. Failure to discharge any
liens or notices thereof within five (5) days of notice by the
Landlord to do so, shall constitute a default under the Lease.
(f) The Landlord will not allow the Tenant's contractor to jackhammer
floors, tie into main electrical or mechanical services, cut holes in
the roof or do any other structural work and, therefore, some of the
work shown on the Tenant's plans may be required to be completed by
the Landlord's contractor even though the Tenant has arranged to use
his own contractors for the majority of the work. Any work done by the
Landlord's contractor will be backcharged to the Tenant.
(g) All floor slabs for the Leased Premises have been poured prior to the
commencement of Tenant's Work. The Landlord shall have no
responsibility to the Tenant for the cost of installation of
under-floor requirements, all of which shall in any event be completed
on a basis satisfactory to the Landlord. All coring to be done after
regular Centre hours so as not to disturb existing tenants.
36
Schedule "C" Continued
Page 5
(h) Any damage caused by the Tenant or any of its employees, contractors,
or its subtrades to any work of the Landlord's contractor or any
property of the Landlord or other tenants will be repaired to the
satisfaction of the Landlord at the Tenant's expense.
(i) The Tenant will be entirely responsible for the security of the Leased
Premises during construction of the Tenant's Work and shall take all
necessary steps to secure the Leased Premises, and the Landlord shall
have no liability for any loss or damage to or theft of the Tenant's
building materials, equipment or supplies, or tools, supplies and
equipment of the Tenant's contractor.
(j) The Tenant's contractors shall be subject to and comply with all
rules, regulations and direction which may be imposed by the
Landlord's contractors or the Landlord with respect to construction
related matters from time to time.
(k) The opinion in writing of the Landlord's Architect or Engineer shall
be binding on both the Landlord and the Tenant respecting all matters
of dispute regarding the Landlord's Work and the Tenant's Work
including the state of completion and whether or not such work is
completed in a good and workmanlike manner.
37
SCHEDULE "D"
METHOD OF FLOOR MEASUREMENT
The following sets out the various methods of measuring areas in the
Building.
(A) Office Area -- Single Tenancy Floors
The Rentable Area of a floor in the Building occupied by a single tenant
shall be calculated by measuring the area within the inside face of the glass
(whether or not the glass extends to the floor) in the permanent exterior
building walls. It shall include all space within the said area except the
Atrium (if any), stairwells (unless installed for the exclusive benefit of a
tenant occupying leased premises on more than one floor of the Building),
elevator shafts, flues, stacks, pipe shafts,vertical ducts, other vertical
risers which penetrate the floor and the walls enclosing such excepted areas. No
deduction shall be made for washrooms, janitor closets, air-conditioning rooms,
fan rooms, electrical, telephone or other rooms and closets within and servicing
only that floor or servicing a single tenant on more than one floor, corridors,
elevator lobbies, service elevator lobbies, any enclosures on the perimeter of
the Building used for the purposes of cooling, heating or ventilating or for any
columns or projections forming part of the Structure of the Building.
(B) Office Area -- Multiple Tenancy Floors
The Rentable Area of leasable premises on a multiple tenancy floor shall
be the Usable Area of such leasable premises multiplied by a fraction, the
numerator of which shall be the Rentable Area of that floor calculated on the
basis of a single tenancy, and the denominator of which shall be the sum of the
Usable Areas of all leased premises on that floor.
The Usable Area of leasable premises on a multiple tenancy floor shall be
calculated by measuring the area within the inside face of the glass (whether
or not the glass extends to the floor) in the permanent exterior building
walls, the interior face of permanent interior building walls, the corridor
face of walls separating the leasable premises from common corridors and the
centre of partitions separating the leasable premises from adjoining leasable
premises, excluding the Atrium (if any) but including any enclosures on the
perimeter of the Building used for the purposes of cooling, heating or
ventilating and all columns or projections forming part of the Structure of the
Building.
(C) Retail Area
The Rentable Area of leasable premises in the Retail Area shall be
calculated by measuring the area enclosed by the inside face of the glass
(whether or not the glass extends to the floor (in the permanent exterior
buildings walls, the interior face of permanent interior building walls, the
centre of partitions separating the leasable premises from adjoining leasable
premises and the predetermined lease line where the leasable premises face onto
an interior public corridor or lobby area. No deduction shall be made for
vestibules inside the permanent exterior building walls or the predetermined
lease line, enclosures on the perimeter of the leasable premises used for the
purpose of cooling, heating or ventilating and columns or projections forming
part of the Structure of the Building. Furthermore, if the store front is
recessed from the lease line, the area of such recess shall for all purposes lie
within the Rentable Area of such premises.
(D) Atrium
Where it is necessary to deduct the area of the Atrium on any floor within
the Building, the area to be deducted shall be the area of the void measured to
the edge of the surrounding floor slab.
(E) Multi-floor Leased Premises
If a particular tenant's leasable premises include the whole or part of
more than one floor of the Building then that part of the leasable premises on
each floor shall be measured separately in accordance with the above provisions
and the Rentable Area of the tenant's leasable premises shall be the aggregate
of the Rentable Area of its premises on each floor of the Building.
(F) Rentable Area of the Building
The Rentable Area of the Building shall be the aggregate of the Rentable
Area of each floor of the Office Area calculated on the basis that each such
floor is a single tenancy floor together with the Rentable Area of each of the
premises in the Retail Area which are designated or intended by the Landlord to
be leased from time to time.
The Rentable Area of the Building shall:
(a) exclude the main telephone, mechanical, electrical and other utility
rooms and enclosures, the management office for the Building, public
lobbies and walkways in the Retail Area, all Storage Areas and Parking
Areas; and
(b) be adjusted from time to time to reflect any changes, additions or
improvements to the Building.
38
SCHEDULE "E"
RULES AND REGULATIONS
(a) The Tenant will not place or permit any debris, garbage, trash or refuse to
be placed or left in or upon any part of the Building outside of the Leased
Premises.
(b) The Landlord will permit the Tenant and the Tenant's employees and all
Persons lawfully requiring communication with them to have the use during Normal
Business Hours of the main entrance and the stairways, corridors, elevators, if
any, or other mechanical means of access leading to the Leased Premises. At time
other than during Normal Business Hours the Tenant and its employees will have
access to the Building and to the Leased Premises only in accordance with the
Rules and Regulations and will be required to identify themselves satisfactorily
and to register in any book which may at the Landlord's option be kept by the
Landlord for that purpose. In no event will the Tenant be permitted to move in
or out of the Leased Premises during Normal Business Hours.
(c) The Landlord will permit the Tenant and its employees to use the washrooms
on the Tenant's floor of the Building.
(d) The Tenant will permit access to the Leased Premises for window cleaners to
clean the windows of the Leased Premises during Normal Business Hours.
(e) The sidewalks, entrances, passages, elevators and staircases will not be
obstructed or used by the Tenant, its agents, servants, contractors, invitees or
employees for any purpose other than ingress to and egress from the Leased
Premises or the Building.
(f) The Tenant, its agent, servants, contractors, invitees or employees, will
not bring in or take out, position, construct, install or move any safe or other
heavy machinery or equipment or anything liable to injure or destroy any part of
the Building without first obtaining the written consent of the Landlord. The
Landlord will have the right to prescribe the weight permitted and the position
thereof, and the use and design of planks, skids or platforms, to distribute
weight. All damage done to the Building by moving or using any heavy equipment
or other office equipment or furniture will be repaired at the expense of the
Tenant. The moving of all heavy equipment or other office equipment or furniture
will occur only by prior arrangement with the Landlord. No Tenant will employ
anyone to do its moving in the Building other than stafff of the Building,
unless permission to employ anyone else is given by the Landlord and the
reasonable cost of such moving will be paid by the Tenant. Safes and other heavy
office equipment and machinery will be moved through the halls and corridors
only upon steel bearing plates. No freight or bulky matter of any description
will be received into the Building or carried in the elevators except during
hours approved by the Landlord.
(g) The Tenant will not place or cause to be placed any additional locks upon
any doors of the Leased Premises without the approval of the Landlord and
subject to any conditions imposed by the Landlord.
(h) The Tenant will not permit any cooking or any heating of any food or
liquids in the Leased Premises without the written consent of the Landlord.
(i) Canvassing, soliciting and peddling in or about the Building are
prohibited.
(j) The Tenant will not place or maintain any supplies, merchandise or other
articles in any vestibule or entry of the Leased Premises, on the footwalks
adjacent thereto or elsewhere on the exterior of the Leased Premises or
elsewhere in the Building.
(k) The Tenant will not permit or allow any odours, vapours, steam, water,
vibrations, noises or other undesirable effects to emanate from the Leased
Premises or any equipment or installation therein, which in the Landlord's
opinion, are objectionable or cause any interference with the safety, comfort or
convenience of the Building by the Landlord or the occupants and tenants thereof
or their agents, servants, invitees or employees.
(l) The Tenant will use only the Building standard window blinds as determined
by the Landlord and will not install or permit to be installed on or adjacent to
the windows in the Leased Premises any other window coverings or shades of any
type whatsoever whether or not visible from the outside of the Building,
including, without limitation, drapes, curtains, blinds or shades.
(m) The Tenant shall not receive or ship fixtures, equipment or articles of any
kind whatsoever except through facilities, doors and elevators designated by the
Landlord and at hours prescribed by the Landlord and under the supervision of
the Landlord, its agents or employees.
(n) The Tenant will, at its expense, comply with any waste management, disposal
and recycling requirements of both the Landlord and any applicable governmental
authorities.
39
SCHEDULE "F"
APPLICATION FOR AGREEMENT
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HEAD OFFICE OR PROPRIETOR'S NAME ACCOUNT RECEIVABLE NUMBER
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STORE NAME AND NUMBER DATE OF LEASE MONTHLY CHARGES
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STORE ADDRESS DATE OF LAST PAYMENT
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HEAD OFFICE ADDRESS BANK ACCOUNT NUMBER
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TRANSIT NUMBER BANK AND BRANCH
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NAME IN WHICH ACCOUNT STANDS IN BANK RECORDS
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SIGNING OFFICER SIGNATURE
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REQUEST FOR PRE-AUTHORIZED PAYMENTS
I authorize _________________________________________ (hereinafter referred to
as the "Company") and/or ______________________________to debit the account of
the undersigned maintained with the financial institution indicated above,
monthly, in accordance with the PAYMENT AUTHORIZATION below, for the purpose of
paying monthly rentals as noted above.
"PLEASE ENCLOSE AN UNSIGNED SAMPLE CHEQUE FROM YOUR BANK OR TRUST COMPANY"
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AUTHORIZATION TO HONOUR PAYMENTS
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NAME OF BANK_______________________________________________________________
ADDRESS____________________________________________________________________
You are hereby requested and authorized to pay and debit my/our account at your
office, or at another branch of your institution if it is transferred there;
all cheques drawn on you on my behalf and made payable to the Company or drawn
on you by _____________________________________; and all amounts specified on
any magnetic or computer produced paper tapes requesting you to pay the Company
or ___________________________________.
In consideration of your acting as aforesaid, it is agreed that your treatment
of each cheque and/or tape and your rights with respect to it shall be the same
as if it were signed by the undersigned personally, authorizing and requesting
you to pay and credit such amount to the said Company or _____________________,
debiting my account and failure to pay shall give no liability on your part,
regardless of the loss or damage.
If the financial institution indicated above is not a bank in which THE BANK
ACT OF CANADA applies, "cheque" as used in this authorization shall include an
"Order" that would be a cheque within the meaning of section 165 if THE BILLS
OF EXCHANGE ACT (CANADA).
Any delivery of this authorization to you will constitute delivery by the
undersigned.
(The signature appearing below must be the same as the signature appearing in
the signature file of the financial institution identified above.)
DATE: ______________________________ 19_______ ___________________________
AUTHORIZED SIGNATURE(S)
