EXHIBIT 10.9(c)
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE is made as of __________, 2001 between PLAZACORP
RETAIL PROPERTIES LTD. ("Landlord") and SPIEGEL GROUP TELESERVICES-CANADA, INC.
("Tenant").
WITNESSETH
WHEREAS, by the Lease dated January 23, 2001, between the parties hereto (the
"Lease"), Landlord demised and leased to Tenant and Tenant leased and took from
Landlord for the Lease Term and upon the terms and conditions set forth therein
certain Premises containing approximately 37,815 square feet situated in
Lansdowne Place in Saint Xxxx, New Brunswick Canada, said Premises being more
particularly designated in the lease; and
WHEREAS, the Lease was amended by a First Amendment To Lease dated June 18,
2001; and
WHEREAS, Landlord and Tenant desire to amend Section 1.16 of the Lease "Special
Clauses"; and
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meanings designated
for such terms and words of art in the Lease.
2. Under "Special Clauses" - Parking Clause shall be amended as follows:
Upper level parking field to be for exclusive use of the Tenant. Tenant
may, at its sole discretion, subject to providing access to the Landlord
for purpose of fulfilling Landlord's responsibilities herein, control
access to the upper level parking field. Landlord shall guarantee Tenant's
use of a minimum of 350 parking spaces. Said spaces shall be located both
in the rear of the building and along the south side of the building which
is closest to Tenant's proposed entrance. Site lighting shall be a minimum
of 2.50 foot candles average in the parking lot. Landlord and Tenant
approved plan showing the proposed configuration of Tenant's spaces as
specified in Schedule "A" outlined in Blue.
3. Under "Special Clauses" - Antennae/Satellite Dish shall be amended as
follows:
Tenant shall have the right to install equipment or antenna for data and
telecommunications on the roof at Tenant's expense. Tenant shall also have
the right to install cameras, monitoring devices, and such other security
equipment as it considers appropriate, both on the premises and outside
the premises, as it considers appropriate, and as its expense.
4. Under "Special Clauses" - Tenant Access shall be amended as follows:
Tenant shall have access to the building and its respective parking areas
seven (7) days per week, twenty-four (24) hours per day. Subject to the
Landlord's rights of entry and Landlord's rights for purposes of
fulfilling Landlord's responsibilities herein, Tenant shall have exclusive
rights of ingress and egress to and from the Premises and appurtenant
areas, including, but not limited to, the right to control access to exits
and entrances to the Premises and access to and use of sidewalks
appurtenant to those exits and entrances and sidewalks appurtenant to the
upper level parking field.
5. This Second Amendment may not be changed orally, but only by an agreement
in writing signed by the party whom enforcement of any waiver, change,
modification or discharge is sought.
6. This Second Amendment shall be binding upon, and inure to the benefit of
the parties hereto, their legal representatives, successors and assigns.
7. In the event of any conflict between the Lease and the terms of this
Second Amendment, the terms of this Second Amendment to Lease shall
prevail.
8. Except as modified by this Second Amendment, the Lease and all the terms,
covenants, conditions, provisions, and agreements thereof are hereby in
all respects ratified, confirmed and approved.
9. The Second Amendment contains the entire understanding between the parties
with respect to the matter contained herein. No representations,
warranties, covenants or agreements have been made concerning or affecting
the subject matter of this Second Amendment except as are contained
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Lease as of the day and year first written above.
LANDLORD: TENANT:
PLAZACORP RETAIL PROPERTIES LTD. SPIEGEL GROUP
TELESERVICES-CANADA, INC.
By: ______________________________ By: _________________________________
Its:______________________________ Its: ________________________________
CONSENT BY GUARANTOR
The undersigned as Guarantor under the Lease hereby consents to the
foregoing Second Amendment of Lease.
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GUARANTOR:
SPIEGEL, INC.
By: __________________________
Its: _________________________
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made as of __________, 2001 between
PLAZACORP RETAIL PROPERTIES LTD. ("Landlord") and SPIEGEL GROUP
TELESERVICES-CANADA, INC. ("Tenant").
WITNESSETH
WHEREAS, by Lease dated January 23, 2001, between the parties hereto (the
"Lease"), Landlord demised and leased to Tenant and Tenant leased and took from
Landlord for the Lease Term and upon the terms and conditions set forth therein
certain Premises containing approximately 37,815 square feet situated in
Lansdowne Place in Saint Xxxx, New Brunswick Canada, said Premises being more
particularly designated in the Lease; and
WHEREAS, the parties hereto wish to confirm and memorialize the
commencement and expiration dates of the ten (10) year Lease Term and certain
other matters as set forth herein.
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. All terms and words of art used herein, as indicated by the initial
capitalization thereof, shall have the same respective meanings
designated for such terms and words of art in the Lease.
2. The Term of the Lease commenced upon the Rent Commencement Date
which for all purposes under the Lease shall be deemed to be June
15, 2001. The first Lease Year shall be June 15, 2001 through June
30, 2002. The initial ten (10) year Lease Term shall expire at
midnight on June 30, 2011, unless sooner terminated or extended as
provided in the Lease.
3. Due to the Primary Delivery Date of March 13, 2001, Minimum Rent,
Additional Rent and all other charges payable by Tenant under the
Lease shall be abated for the period June 15, 2001 through June 26,
2001.
4. Tenant's first Option to Renew shall, if exercised, commence on July
1, 2011 and shall expire on June 30, 2016. Tenant shall give notice
of Tenant's first Option to Renew no later than September 30, 2010.
Minimum Rent payable during the first Option to Renew shall be at a
Base Rental Rate of $13.50 p.s.f. per annum (payable in Canadian
Funds). Tenant's second Option to Renew shall, if exercised commence
on July 1, 2016 and shall expire on June 30, 2021. Tenant shall give
notice of Tenant's second Option to Renew no later than September
30, 2015. Minimum Rent payable during the second Option to Renew
shall be at a Base Rental Rate of $14.50 p.s.f. per annum (payable
in Canadian Funds).
5. In the event of any conflict between the Lease and the terms of this
First Amendment, the terms of this First Amendment to Lease shall
prevail.
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6. Except as modified by this First Amendment, the Lease and all the
terms, covenants, conditions, provisions, and agreements thereof are
hereby in all respects ratified, confirmed and approved.
7. This First Amendment contains the entire understanding between the
parties with respect to the matter contained herein. No
representations, warranties, covenants or agreements have been made
concerning or affecting the subject matter of this First Amendment
except as are contained herein.
8. This First Amendment may not be changed orally, but only by an
agreement in writing signed by the party whom enforcement of any
waiver, change, modification or discharge is sought.
9. This First Amendment shall be binding upon, and inure to the benefit
of the parties hereto, their legal representatives, successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Lease as of the day and year first above written.
LANDLORD: TENANT:
PLAZACORP RETAIL PROPERTIES LTD. SPIEGEL GROUP
TELESERVICES-CANADA, INC.
By: ______________________________ By: _________________________________
Its:______________________________ Its: ________________________________
CONSENT BY GUARANTOR
The undersigned as Guarantor under the Lease hereby consents to the
foregoing First Amendment to Lease.
GUARANTOR:
SPIEGEL, INC.
By: ______________________________
Its:______________________________
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COVER PAGE
1.01 LANDLORD
PLAZACORP RETAIL PROPERTIES LTD.
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX
X0X 0X0
Xxxxxx
1.02 TENANT
SPIELGEL GROUP TELESERVICES-CANADA, INC.
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX
00000
XXX
1.02(a) GUARANTOR
SPIEGEL, INC.
Attn: Real Estate Dept.
0000 Xxxxx Xxxx
Xxxxxxx Xxxxx, XX
00000-0000
XXX
1.03 BUILDING
00 Xxxxxxxxx Xxxxxx (Xxxxxxxxx Xxxxx)
Xxxxx Xxxx, XX
1.04 PREMISES OR LEASED PREMISES
Unit 202
1.05 RENTABLE AREA
Approximately 37,815 square feet of rentable area
1.06 TERM
Ten (10) Years
In the event Landlord fails, for any reason, to deliver possession of the
Premises as required by this Lease on or before March 1st, 2001 (the "Primary
Delivery Date"), then Tenant shall receive, commencing on the Rent Commencement
Date, one (1) day's abatement of Minimum Rent,
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Additional Rent and all other charges payable by Tenant under this Lease for
each day that such delivery is delayed beyond the Primary Delivery Date. In the
event Landlord fails, for any reasons, to deliver possession of the Premises as
required by this Lease on or before April 1st, 2001, then Tenant may elect, upon
notice to Landlord, given any time prior to the date of such delivery, to
terminate this Lease effective upon notice to Landlord, whereupon in addition to
the amounts payable by Landlord as provided above, Landlord shall reimburse
Tenant for all costs and expenses incurred by Tenant in connection with the
Premises and this Lease (not to exceed $30,000.00 Canadian) within ten (10) days
of Tenant's written demand therefor.
1.07 RENT COMMENCEMENT DATE
Rent shall commence on the earlier to occur (i) ninety (90) days after the date
Landlord delivers the Premises to Tenant with Landlord's Work substantially
complete or (ii) the date Tenant commences business from the Premises, but in no
event prior to April 1, 2001.
1.08 MINIMUM RENT
Year(s) 1-5
$11.50 per sq. ft. (Payable in Canadian Funds)
$434,872.50 per annum (Payable in Canadian Funds)
$36,239.37 per month (Payable in Canadian Funds)
Year(s) 6-10
$12.50 per sq. ft. (Payable in Canadian Funds)
$472,687.50 per annum (Payable in Canadian Funds)
$39,390.62 per month (Payable in Canadian Funds)
1.09 TAXES
The Tenant shall pay to the Landlord proportionate share of the building's real
estate taxes estimated at $1.00 per square foot (Payable in Canadian Funds) for
current year with review annually.
1.10 CAM
Tenant's proportionate share of any and all common area maintenance charges for
the building and entire shopping center is included in the above referenced base
rental rate.
1.11 HARMONIZED SALES TAX
Except as otherwise provided herein, all costs quoted in this Agreement are
exclusive of sales tax. The Harmonized Sales Tax (HST) is applicable to
commercial rents and payment is the responsibility of the Tenant. Any future
revisions to the HST or any other municipal, provincial or federal sales taxes
that are applicable to commercial rents shall be paid by the Tenant.
1.12 PREPAID RENT
Intentionally Deleted
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1.13 LANDLORD'S WORK
Details described in Schedule "C".
1.14 TENANT'S WORK
Details described in Schedule "D".
1.15 USE OF PREMISES
The Tenant will use the Premises for no other purpose than the operation of
"Call Center" including without limitation telemarketing, teleservice, customer
support, call processing, call distribution, credit collection and all other
uses normally associated with a "Call Center" and related general office uses
and for no other purpose without Landlord's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed, provided that
notwithstanding the foregoing, Tenant may at any time convert all or any part of
the Premises to any lawful retail use without seeking or obtaining the consent
of Landlord, provided that such retail use would not conflict with any
exclusivity rights granted to other tenants of the property.
1.16 SPECIAL CLAUSES
UTILITIES
Tenant shall be solely responsible for and promptly pay all charges for heat,
water, gas, electricity and any other utility used or consumed in the Leased
Premises.
If not already separately metered, Landlord shall separately meter the Premises
as a part of the Landlord's Work.
Landlord agrees to cause the necessary mains, conduits and other facilities to
be provided to make water, sewer, gas, phone and electricity available to the
Premises prior to the Commencement Date at Landlord's expense.
Landlord covenants and agrees to exercise all reasonable efforts not to
interfere with the conduct of Tenant's business in the Premises and to exercise
due diligence in repairing, replacing or restoring any interruption in service
or utilities. If any service or utility to the Premises should become
unavailable for a period in excess of twenty-four (24) consecutive hours and if
any such interruption or diminution of utilities or services is caused by
Landlord and Tenant, in its reasonable business judgment, elects to close the
Premises as a result thereof, all Minimum Rent and other charges shall xxxxx
from the commencement of said unavailability of such service or utility until
such time as said service or utility is restored to the Premises and Tenant is
reasonably able to operate its business within the Premises.
Landlord agrees that it shall not discontinue supplying electrical energy to
Tenant until Tenant has had a reasonable opportunity (not less than ninety (90)
days) to connect to another supply source.
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RIGHT OF FIRST OFFER
Should the remaining 6,000 square feet of space on the second level of the
building become vacant, the Landlord will provide the Tenant with a first right
of offer to lease such space thereof (space being referred to herein as the
"Offered Space"), on the following terms and conditions. Once the Landlord
notifies the Tenant in writing the Tenant has fifteen (15) days to exercise its
option.
The Offered Space shall be leased upon the same terms and conditions contained
in this Lease including rental rate for the remainder of the Lease Term,
determination of the Rent Commencement Date for the Offered Space and
construction of Landlord's Work therein, provided that the tenant allowance per
rentable square foot of the Offered Space to be provided by Landlord to Tenant
shall be prorated in proportion to the remainder of the Lease Term from and
after the Rent Commencement Date for the Offered Space and there is a minimum
five (5) years remaining until the termination of the Lease Term.
Should the space be required by the Tenant and there is less than five (5) years
remaining on the original lease and the Tenant requires the additional space the
Tenant would have to exercise their renewal option on the whole space.
TENANT IMPROVEMENT/DESIGN ALLOWANCE
Except for such work that can not be reasonably completed due to weather
conditions, Landlord, at Landlord's expense, shall complete the work outlined on
Exhibit A attached hereto "Landlord's Work" on or before March 1st, 2001.
Landlord shall also provide Tenant a $11.50 (Payable in Canadian Funds) per
rentable square foot allowance. The tenant allowance shall be paid to Tenant
within thirty (30) days after Tenant opens for business. In the event the
allowance has not been paid within that time, rent plus interest on the unpaid
amount from time to time outstanding at the Stipulated Rate shall xxxxx to the
amount remaining unpaid. Landlord shall assume responsibility for ensuring that
all Landlord's Work is in compliance with all codes, legal requirements and
insurance requirements. Landlord shall be responsible and/or rectify any defects
in the core and shell of the building. Tenant shall have the right to hire its
own architectural/design firm for the interiors at Tenants expense. Tenant shall
also have the right to select the interior contractor to complete the interior
improvements. Landlord will not be entitled to a construction management fee.
ALTERATIONS
Tenant will have the right to repair, renovate, paint, decorate, re-carpet or do
construction with contractors of Tenant's choice as long as it does not
materially adversely affect the HVAC, structural or electrical systems of the
building without Landlord approval or payment of supervisory fees. As to all
other alterations, Landlord not to unreasonably withhold, condition or delay its
consent.
PRIOR OCCUPANCY
Tenant and its contractors, subcontractors, agents, etc. shall be permitted to
enter the Premises prior to the Lease Commencement Date with no obligation to
pay base rent for the purpose of
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installing furniture, fixtures, equipment, and leasehold improvements including,
but not limited to, wall and floor coverings, computer equipment and telephones
provided such occupancy by Tenant does not interfere in Landlord's reasonable
judgment with the construction of Landlord's Work.
ENVIRONMENTAL CODE COMPLIANCE
Landlord will deliver the building with no asbestos, hazardous waste, PCB
transformers, or underground storage tanks on the property. Landlord will
deliver the building in compliance with all municipal and federal codes.
A. To the best of its knowledge the Landlord represents and warrants
that all handling, transportation, storage, treatment and usage of
asbestos, PCB transformers and any contaminant, pollutant, dangerous
or potentially dangerous substance, noxious substance, toxic
substance, hazardous waste or material, flammable or explosive
substance, radioactive material, or any other waste, substance or
material whatsoever, covered by or regulated under any statutes,
laws, ordinances, codes, rules, regulations, orders, notices and
directives now or hereafter in effect, made or issued by any
municipal, provincial or federal government (collectively,
"Hazardous Materials") that have occurred or will occur on the
Shopping Center have been and shall throughout the Term be in
compliance with all applicable federal, provincial and local laws,
rules, regulations and ordinances. Landlord further represents and
warrants that no leak, spill, discharge, emission or disposal of
Hazardous Material has occurred or will occur during the Term on the
Shopping Center, and all improvements located thereon, are and will
continue during the Term to be free of Hazardous Materials. Landlord
agrees to indemnify, defend and hold Tenant and its officers,
partners, employees and agents harmless from any claims, judgments,
damages, fines, penalties, costs, liabilities (including sums paid
in settlement of claims) or loss including attorneys' fees through
the trial, appellate and administrative levels, consultants' fees,
and expert fees which arise during or after the Term in connection
with the presence or suspected presence of Hazardous Materials in
the soil, groundwater, or soil vapor on or under the Shopping
Center, and/or in any improvements located thereon, unless such
Hazardous Materials are present solely as the result of the
negligence or willful misconduct of Tenant, its officers, partners,
employees or agents. Without limiting the generality of the
foregoing, this indemnification does specifically cover costs
incurred in connection with any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by a
federal, provincial or local governmental agency or political
subdivision because of the presence or suspected presence of
Hazardous Materials in the soil, groundwater or soil vapor on or
under the Shopping Center, and any improvements located thereon,
unless the Hazardous Materials are present solely as the result of
the negligence or willful misconduct of Tenant, its officers,
partners, agents or employees. Without limiting the generality of
the foregoing, this indemnification shall also specifically cover
costs in connection with:
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(1) Hazardous Materials present or suspected to be present in the soil,
ground water or soil vapor on or under the Shopping Center before
the date hereof; or
(2) Hazardous Materials that migrate, flow, percolate, diffuse or in any
way move onto or under the Shopping Center after the date hereof; or
(3) Hazardous Materials present on or under the Shopping Center as a
result of any discharge, dumping or spilling (accidental or
otherwise) onto the Shopping Center during or after the Term by any
person or entity.
(4) Any violation of any federal, provincial or local law, ordinance or
regulation now or hereafter enacted, related to environmental
conditions on or under the Shopping Center, unless said violation is
the result of the negligence or willful misconduct of Tenant, its
officers, partners, agents or employees.
The foregoing representations, warranties and indemnifications shall survive any
assignment, transfer, expiration or termination of this Lease.
B. Notwithstanding anything contained herein to the contrary, Landlord shall
remove and remediate any Hazardous Materials in, on, under or about the
Premises prior to the delivery date and the Rent Commencement Date shall
be extended by one (1) day for each day of delay caused by Landlord which
prevents Tenant from completing Tenant's Work or opening the Premises for
business. In addition, in the event that any Hazardous Material is
discovered by Tenant within the Premises after the date of this Lease,
Tenant shall promptly notify Landlord, and shall consult with Landlord
concerning appropriate procedures to be followed. If the Hazardous
Material was not introduced into the Premises by Tenant or its employees,
agents or contractors, then Landlord shall, to the extent required by law,
at Landlord's sole cost and expense, perform any necessary remedial work.
If the Hazardous Material was introduced into the Premises by Tenant or
its employees, agents or contractors, then Tenant shall, to the extent
required by law, at Tenant's sole cost and expense, perform any necessary
remedial work. If the Hazardous Material was not introduced into the
Premises by Tenant or its employees, agents or contractors, then during
the period of the performance of such remedial work if Tenant is not, on a
reasonable economic basis, able to, and does not, conduct its business at
the Premises, then Tenant shall be allowed an abatement of all rent for
the period commencing on the date that Tenant is not so able to, and does
not so, conduct its business until Tenant's resumption of its business at
the Premises.
C. In the event Tenant should desire to make any alterations or improvements
to the Premises and is forced to incur any identifiable charges or
expenses arising as a result of hazardous Materials in or at the Premises,
other than those Hazardous Materials brought onto the Premises by Tenant
and which would not have otherwise been incurred with respect to such
measures, Landlord shall be fully
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responsible for and shall reimburse Tenant for such expenses, and rent and
all other charges payable by Tenant hereunder shall xxxxx for a period
equal to the period of the delay caused by the existence of said Hazardous
Materials.
SECURITY
Tenant shall be responsible for installing separate security system as
determined by Tenant in its sole discretion to secure the Premises.
SIGNAGE
Tenant shall be entitled to exterior building signage, subject to review and
approval by the Landlord and governing authorities, Tenant shall pay for signage
and all construction permits, installation and maintenance of its signage.
NON-DISTURBANCE
Landlord shall, within thirty (30) days of execution of the Lease by both
parties, to provide Tenant with a Non-Disturbance Agreement in a form reasonably
acceptable to Tenant from any mortgage holders or lien holders of Landlord then
in existence. Landlord shall use its best efforts to provide Tenant with
Non-Disturbance Agreements in a form reasonably acceptable to Tenant from any
ground lessors, mortgage holders or lien holders of Landlord who come into
existence at any time after lease execution, during the initial term or the
renewal option periods, if exercised.
So long as Tenant is not in default hereunder beyond any applicable notice and
cure period provided herein, Landlord and Tenant agree that Tenant's covenant to
subordinate this Lease to any future mortgage or ground lease shall be
conditioned upon the mortgagee's or ground lessor's agreement to recognize
Tenant's rights and obligations under this Lease upon an attornment to such
mortgagee or ground lessor by Tenant.
PARKING
Upper level parking field to be for exclusive use of Tenant's employees.
Landlord shall guarantee Tenant's use of a minimum of 350 parking spaces. Said
spaces shall be located both in the rear of the building and along the south
side of the building which is closest to Tenant's proposed entrance. Site
lighting shall be a minimum of 2.50 foot candles average in the parking lot.
Landlord and Tenant approved plan showing the proposed configuration of Tenant's
spaces as specified in Schedule "A" outlined in Blue.
JANITORIAL
Tenant will be responsible for the interior cleaning of the Premises.
ANTENNAE/SATELLITE DISH
Tenant shall have the right to install equipment or antennae for data and
telecommunications on the roof at Tenant's expense.
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TENANT ACCESS
Tenant shall have access to the building and its respective parking areas seven
(7) days per week, twenty-four (24) hours per day.
BROKER
The Tenant and Landlord each represent and warrant to the other that no broker
or leasing agent has been retained by representing party and the representing
party has no obligation to pay any brokerage or leasing fees. Landlord and
Tenant each indemnify and hold the other harmless from any cost, damage,
liability or claim for brokerage commission or finder's fee due or alleged to be
due as a result of such party's breach of the foregoing representation and
warranty.
ESTOPPEL CERTIFICATE
The Tenant and Landlord shall complete Estoppel Certificates as required by the
Landlord and Tenant or its Lenders, without charge and in a timely fashion.
LANDLORD RESPONSIBILITIES
Landlord will be responsible for the repair, maintenance and replacement of all
structural parts and common areas of the building, including underground
plumbing not exclusively serving the Premises, capital repairs to the parking
lot, exterior lighting, roof serving the Premises, and all HVAC system repairs
and replacements and pursuant to Section 11.09, maintenance thereof.
Tenant shall have the right of self-help to cure Landlord default or inability
to provide essential building services. Rent shall xxxxx two (2) days after
written notice to the Landlord of any default if the use of the space has been
impaired until the problem is cured.
Landlord shall be responsible for the repair, replacement and maintenance of all
common areas.
Tenant shall maintain, at Tenant's expense the floor covering, interior
lighting, interior finish, plumbing fixtures, sprinkler systems and alarms
located within the Premises as well as electrical from the point of connection
to the Premises, storefront and plate glass, and other equipment or appliances
used for exclusive benefit of the Tenant (other than the HVAC system which shall
be the responsibility of Landlord as provided above).
DEFAULT BY LANDLORD
Each of the following events shall be a "Default by Landlord" under this Lease:
A. Landlord shall fail or refuse to pay any sum of money payable
hereunder when due and the failure or refusal continues for ten (10)
days after written notice thereof is given by Tenant to Landlord; or
B. Landlord shall fail or refuse to comply with any term, provision, or
covenant of this Lease, other than provisions for the payment of
money, and does not cure the failure or refusal within thirty (30)
days after notice thereof is given by Tenant to
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Landlord (provided that if such default cannot reasonably be cured
within thirty (30) days, then Landlord shall have an additional
reasonable period of time within which to cure such default).
In the event of a Default by Landlord, in addition to all other rights and
remedies available to Tenant, Tenant may, at its option, cure the same on behalf
of Landlord, whereupon the cost of such curing shall be immediately due and
payable to Tenant from Landlord upon written demand therefor by Tenant. Failure
of Landlord to reimburse Tenant shall entitle Tenant to deduct the costs thereof
from the next subsequent installments of Rent and all other charges due
hereunder (plus interest thereon at the Stipulate Rate).
No reference to any specific right or remedy shall preclude Tenant from
exercising any other rights or from having any other remedy or from maintaining
any action to which it may otherwise be entitled at law or in equity. No failure
by Tenant to insist upon the strict performance of any agreement, term, covenant
or condition hereof, or to exercise any right or remedy consequent upon a breach
thereof, shall constitute a waiver of any such breach, agreement, terms covenant
or condition. No waiver by Tenant of any breach by Landlord under this Lease
shall affect this Lease in any way whatsoever.
Notwithstanding anything to the contrary contained herein, in the event the
Landlord's interest in the Shopping Center is insufficient to satisfy any
judgment that Tenant may have or obtain against Landlord, then in such event
Tenant shall have the right to xxxxx payment of Rent and all other charges
payable by Tenant hereunder to the extent of such judgment.
ATTORNEY FEES
In the event the parties hereto become involved in any action or proceeding
arising out of or in connection with this Lease, the Premises or the Shopping
Center (including, without limitation, the enforcement or interpretation of this
Lease or either party's rights, duties or obligations hereunder), the prevailing
party shall, subject to the provisions of local law, be entitled to recover from
the non-prevailing party all reasonable expenses of attorney's fees, paralegal
fees and costs, expenses and disbursements incurred by the prevailing party in
such action or proceeding, without the necessity for a cross-action by the
prevailing party. Such reimbursement shall include all such expenses incurred
prior to and at any such trial or proceeding and at all levels of appeal and
post judgment proceedings.
LANDLORD WARRANTIES
Landlord agrees, at its sole cost and expense: (i) to comply with and execute
all present and future laws, ordinances, orders and regulations concerning
Landlord's construction, maintenance and operation of the Shopping Center; (ii)
to comply with and execute all present and future rules, regulations and
recommendations of the Board of Fire Underwriters concerning Landlord's
construction, maintenance and operation of the Shopping Center; and (iii) not to
commit any act or action which would prohibit Tenant from conducting its
business within the Premises under the Permitted Use. Landlord represents and
warrants to Tenant that Landlord is both the legal and beneficial owner of the
Shopping Center.
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1.17 SCHEDULES
Schedules "A", "B", "C", "D" and "E" shall form part of this Lease.
1.18 CONFIDENTIALITY AGREEMENT
The Tenant and Landlord shall keep the terms and conditions of this Lease
Agreement confidential and will not disclose any of its contents without the
prior written consent of the Landlord or Tenant.
1.19 OPTION TO RENEW
The Tenant shall have the Option to Renew this Agreement for Two (2) five-year
options commencing upon the expiry of the initial Lease Term provided that the
Tenant is not in default of any terms of the Lease beyond any applicable notice
and cure period and that the Landlord has been served nine (9) months written
notice of the intent to renew by the Tenant. Rent for the Renewal Terms shall be
1st Renewal Option - Base Rental Rate of $13.50 p.s.f. (payable in Canadian
Funds), 2nd Renewal Option - Base Rental Rate of $14.50 p.s.f. (payable in
Canadian Funds). All other terms and conditions of the Lease shall apply save
rent, leasehold improvements, tenant allowance and options to renew.
1.20 RELOCATION CLAUSE
Intentionally Deleted.
This Lease contains the covenants and conditions, which are set out in the
Standard Form of Lease as attached hereto.
WITNESSETH that in consideration of the rents reserved, and the covenants
herein contained, the Landlord hereby agrees to lease to the Tenant, and the
Tenant hereby agrees to lease from the Landlord, the Premises identified on the
Cover Page of this Lease, according to the terms, conditions and covenants of
the Articles and Schedules hereinafter contained in Schedules "A", "B", "C", "D"
and "E".
EXECUTED at ______________, this _______ day of ______________, 2001.
SIGNED, SEALED AND DELIVERED PLAZACORP RETAIL PROPERTIES
in the presence of LTD.
("LANDLORD")
______________________________
______________________________
15
SPIEGEL GROUP TELESERVICES-
CANADA, INC.
("TENANT")
______________________________
______________________________
Executed solely for the purposes of Schedule "B", Section 21.14 hereinbelow:
SPIEGEL, INC.
("GUARANTOR")
______________________________
______________________________
16
SCHEDULE "B"
STANDARD FORM OF LEASE
2. DEMISE AND TERM
2.01 DEMISE
In consideration of the covenants and agreements hereinafter set out, the
Landlord hereby leases the Leased Premises to the Tenant, to have and to
hold during the Term upon the conditions contained in this Lease. The
Tenants covenants to pay rent and to observe and perform all the covenants
and provisions to be observed and performed by the Tenant pursuant to this
Lease.
2.02 TERM
The Tenant shall have and hold the Premises for the term of the Lease
(herein called the "Term") from and including the period as shown on the
Cover Page of this Lease.
2.03 COMMENCEMENT DATE
The period commencing on the Commencement Date as shown on the Cover Page
of this Lease.
3. QUALITY AND USE OF THE PREMISES
3.01 POSSESSION AND USE OF PREMISES
The Tenant will take possession of the Premises on or before the
Commencement Date. The Tenant will not use or permit the Premises or any
part thereof to be used for any purpose other than shown on the Cover Page
of this Lease without the prior written consent of the Landlord not to be
unreasonably withheld or delayed.
3.02 CONTINUED OCCUPANCY BY TENANT
Intentionally Deleted.
3.03 EXAMINATION OF PREMISES
The Tenant shall examine the Leased Premises before taking possession, and
the opening for business by the Tenant shall be conclusive evidence
against the Tenant that at that time the Leased Premises were in good
order and satisfactory condition.
Tenant's acceptance of the Premises shall be conditioned upon completion
and correction of punch list items and latent defects. Landlord shall
complete the items on the punch list with reasonable diligence, but in any
event within thirty (30) days after the preparation of the punch list.
Landlord agrees to repair any latent defects in the Premises of which it
receives notice, so long as said notice is received within twelve (12)
months of delivery
17
of possession of the Premises to Tenant. All necessary utilities shall be
stubbed to the Premises to the points of connection shown of the approved
final drawings for Tenant's Work at Landlord's expense and on the date
Landlord delivers possession of the Premises to Tenant, the Premises
(including Landlord's Work therein) shall be free of Hazardous Materials
(as hereinabove defined in Section 1.16 of the Cover Page). Tenant shall
not be required to pay for any plan review charges, engineering review
charges, engineering review charges, barricade fees, signage fees or other
construction-related charges.
3.04 EARLY POSSESSION
If the Tenant should take possession of the premises prior to the
execution of this lease or prior to the Commencement Date then such
possession or occupation shall be subject to the same covenants, terms and
conditions as set out herein except that Tenant shall have no obligation
to pay rent or other charges prior to the Rent Commencement date.
3.05 PROHIBITED USES
(a) Intentionally Deleted
(b) The Tenant will not, at any time during the Term, carry on or permit
to be carried on, in the Premises or elsewhere in the Shopping
Centre anything which is noxious and will not do or permit to be
done anything whatsoever at any time during the Term upon the
Premises or elsewhere in the Shopping Centre which would or cause or
damage to the occupiers or owners of lands and premises adjoining or
in the vicinity of the Premises. The Tenant will not permit any
overloading of the floor of the Premises or elsewhere in the
Shopping Centre. The Tenant will not cause any waste or damage to
the Premises.
(c) Intentionally Deleted
3.06 SIGNS
The Tenant shall comply with the Landlord as stipulated on the Cover Page
of this Lease.
3.07 DELIVERIES AND LOADING
The Tenant will permit deliveries to the Premises and loading and
unloading to be done only through the designated loading facilities and
only in accordance with such rules as the Landlord may from time to time
reasonably prescribe.
3.08 NOT TO AFFECT LANDLORD'S INSURANCE
The Tenant will not do or permit to be done, or omit to do, on the
Premises or elsewhere in the Shopping Centre anything which will directly
or indirectly cause the rate of insurance upon the Building or any part
thereof or the Landlord's liability insurance to be increased. If any
insurance rate is thereby increased the Tenant will pay to the Landlord
the amount by which the insurance premiums are so increased. The Tenant
will not store or permit to be stored upon the Premises, or elsewhere in
the Shopping Centre, anything
18
of a dangerous, inflammable or explosive nature or anything which would
have the effect of increasing the Landlord's insurance costs or of leading
to the cancellation of insurance. Landlord represents and warrants to
Tenant that Tenant's use of the Premises as contemplated by this Lease
will not cause an increase in the rate of Landlord's insurance or cause a
cancellation thereof.
3.09 PREVENTING CANCELLATION
Subject to Section 20.02 below, the Landlord, its employees or agents, may
at any time enter upon the Premises to remove any article or remedy any
condition, which in the opinion of the Landlord reasonably arrived at,
would be likely to lead to cancellation of any policy of insurance Such
entry by the Landlord will not be deemed to be a re-entry nor a trespass.
4. RENT, TAXES AND OTHER CHARGES
4.01 NET LEASE
The Tenant will punctually pay to the Landlord all Minimum Rent, and
Additional Rent required to be paid by the Tenant pursuant to this Lease
without any deduction, defalcation, abatement or set-off whatsoever except
as otherwise provided herein, and the Tenant covenants with the Landlord
accordingly.
4.02 PAYMENT
The Tenant agrees and undertakes to pay to the Landlord: Minimum Rent, and
Additional Rent as shown on the Cover Page of this Lease.
4.03 MINIMUM RENT
As Minimum Rent, the Tenant will, throughout the Term of this Lease,
commencing on the Commencement Date and thereafter, punctually pay to
Landlord, in Canadian funds, without demand and without deduction,
abatement, diminution, set-off or compensation except as otherwise
provided herein an amount equal to that shown on the Cover Page of this
Lease. Minimum Rent payable during a period which is less than twelve (12)
months will be apportioned on a per diem basis. Minimum Rent shall be
payable in equal consecutive monthly installments on the first day of each
and every month in advance.
4.04 PREPAID RENT
Intentionally Deleted.
4.05 PERCENTAGE RENT
Intentionally Deleted.
19
4.06 REPORTS ON GROSS REVENUE
Intentionally Deleted.
4.07 ADDITIONAL RENT
(a) Additional Rent
The Tenant shall pay to the Landlord as Additional Rent, the
Tenant's Share of Taxes determined under Section 4.09 of Schedule
"B" to this Lease in addition to the Minimum Rent hereinbefore
provided.
(b) Tax Costs Partial
Intentionally Deleted.
4.08 RECOVERY OF ADDITIONAL RENT
Additional Rent shall be recoverable by the Landlord from the Tenant in
the same manner as Minimum Rent reserved and in arrears under the terms
hereof.
4.09 TENANT'S TAXES AND OTHER CHARGES
The Tenant will pay, as and when due to the authority to which same are
owing:
(i) Tenant shall be responsible for its proportionate share of all real
property taxes and general assessments (but not special assessments)
(hereinafter, "Real Property Taxes") which may be levied or assessed
against the Building by any lawful authority for each calendar year
or portion thereof commencing on the Rent Commencement Date.
Tenant's proportionate share shall be equal to the product obtained
by multiplying such Real Property Taxes and Landlord's expenses in
obtaining or attempting to obtain any refund or reduction thereof,
by a fraction, the numerator of which shall be the number of square
feet of leasable floor area in the Premises and the denominator of
which shall be the number of square feet of leasable floor area in
the Building including the Premises (whether leased or not) as of
the day of assessment but in no event shall Tenant's proportionate
share exceed 40%. Said Real Property Taxes are to be prorated for
any partial year. Tenant's proportionate share of estimated Real
Property Taxes for the first Lease Year is $1.00 per square foot per
annum of the rentable area of the Premises.
Tenant's proportionate share of all Real Property Taxes during the
Term hereof shall be paid in equal monthly installments as
reasonably estimated by Landlord (which estimate shall not exceed
the previous year's actual Real Property Taxes plus any subsequently
enacted taxes which will be assessed during the then current
calendar year), together with the monthly installments of Minimum
Rent payable by Tenant hereunder. Upon receipt of tax xxxx and
assessment xxxx attributed to any calendar year during the Term
hereof, Landlord shall furnish Tenant with a written statement of
the actual amount of Tenant's proportionate
20
share of the Real Property Taxes for such year or part thereof
together with a copy of such tax bills, and Tenant shall pay to
Landlord any shortfall between the estimated installments paid by
Tenant with respect to Real Property Taxes for such calendar year
and such actual amount within thirty (30) days of Tenant's receipt
of such statement from Landlord. In the event Tenant's estimated
payments with respect to Real Property Taxes for any calendar year
exceeds the actual amount thereof, such excess shall be credited
against future installments thereof due from Tenant (or if after the
end of the Term, promptly refunded to Tenant). A copy of a tax xxxx
or assessment xxxx submitted by Landlord to Tenant shall at all
times be sufficient evidence of the amount of Real Property Taxes
levied or assessed against the property to which such xxxx relates.
(ii) There shall be excluded from the tax xxxx to which Tenant
contributes, for the purposes of computing Tenant's proportionate
share of real estate taxes, any increase in real estate taxes caused
by a "change of ownership," as defined in the law under which
reassessment or tax increase results from a transfer of all of a
portion of Landlord's interest in the Shopping Center. Additionally,
nothing contained herein shall be construed to include as a tax or
assessment which shall be the basis of real estate taxes, (i) any
inheritance, estate, succession, transfer, gift, franchise,
corporation, income or profit tax or capital levy that is or may be
imposed upon Landlord, (ii) any "rollback taxes" or other
retroactive taxes based on a change in use of the property of which
the Premises is a part or (iii) any taxes or assessments which
constitute interest and/or principal payments with respect to any
bond or other or quasi-governmental agency, entity or authority to
acquire, finance, refinance, construct, modify, improve and/or
replace any land and/or improvements included within or primarily
benefiting the Shopping Center. Taxes shall also not include
interest and penalties for late payment, unless Tenant shall fail to
remit on a timely basis its required tax payments and said interest
and penalties result therefrom. Taxes shall be regarded in
"substitution" of, or for, taxes due hereunder only if the
substitution tax or such imposition is imposed solely on real estate
owners as a class or solely on commercial real property owners as a
class, and then, only to the extent to which the substitution tax
would be payable if the Shopping Center were the Landlord's sole
income.
With respect to any assessments which may be levied as part of the
Taxes, evidenced by bonds or paid in annual installments, or which
may benefit the Shopping Center for a period of more than one (1)
year when the assessment is paid in a shorter period than the period
of benefit (in which case the total amount paid divided by the
number of years of benefit shall be deemed the annual installment
amount), only the amount of such installment (with per diem
proration for any partial fiscal year), together with statutory
interest thereon, shall be included in the computation of Taxes for
the fiscal year in question.
(iii) All charges, rates and assessments imposed, assessed or levied by
any lawful authority during the Term in respect of electricity,
light, heat, gas, power, water, sewer, garbage removal, telephone
and utilities of whatsoever nature or kind
21
(including works and services in connection therewith) used in or
supplied to the Premises.
Upon request by the Landlord, the Tenant will deliver promptly to the
Landlord receipts for payment of all charges payable by the Tenant
pursuant to this Article 4.09 which were due and payable up to one (1)
month prior to such request and will furnish to the Landlord, upon
request, evidence of payments before the 31st day of January in each year
covering payments for the preceding year.
4.10 IRREGULAR PERIOD
If, for any reason, it becomes necessary to calculate Minimum Rent, or
Additional Rent for irregular periods an appropriate pro rata adjustment
will be made on a daily basis in order to compute such rent for such
irregular period.
4.11 DISPUTE AS TO COSTS
In the event of any dispute as to the amount of any monies to be paid by
the Tenant pursuant to this Lease, the certificate of an independent
chartered accountant mutually appointed by the Landlord, and Tenant
determining such amount, will be final and binding on the Landlord and
Tenant.
4.12 INTEREST ON AMOUNTS IN ARREARS
Whenever any Minimum Rent, or Additional Rent (including interest thereof,
if any) payable hereunder by the Tenant to the Landlord is in arrears for
ten (10) days after written notice, the same shall bear interest as of the
due date to the date of complete payment at the Stipulated Rate of
Interest and such interest shall be due and payable on demand as
Additional Rent reserved hereunder.
4.13 POST-DATED CHEQUES
Intentionally Deleted.
5. PREMISES
The Premises, the approximate boundaries of which are outlined on Schedule
"A", bear the unit number as shown on the cover page of this Lease. The
Premises comprise an area ("Area of the Premises") of approximately the
square footage as shown on the Cover Page of this Lease.
Notwithstanding the approximate measurements referred to above, the Area
of the Premises shall be measured by Landlord according to the criteria
stipulated hereinbelow. To determine the Area of the Premises, the
Premises shall be measured from (a) the exterior face of all interior
walls, doors and windows separating the Premises from any common services
or facilities, including without limitation, malls, courts, corridors or
storage areas, and (b) the center line of all interior walls separating
the Premises from
22
adjoining leasable premises. The Area shall include all interior space
whether or not occupied by projections, structures or columns, structural
or non-structural.
6. ALTERATIONS, ADDITIONS AND CHANGES OF LOCATIONS
Intentionally Deleted.
7. INSURANCE
7.01 TENANT'S INSURANCE
The Tenant will purchase and keep in force throughout the term:
(a) all risk insurance with extended coverage endorsement (including
sprinkler leakage) covering all leasehold improvements made to or
installed in the Premises by or on behalf of the Tenant in an amount
equal to the full replacement value;
(b) all risk insurance with extended coverage endorsement (including
sprinkler leakage) covering all the contents of the Premises whether
owned by the Tenant or for which the Tenant is responsible in an
amount at least equal to the actual cash value;
(c) comprehensive general liability insurance (including without
limitation, Tenant's fire, legal liability and contractual liability
to cover the responsibilities assumed under Article 10.02 hereof)
with a cross-liability clause and otherwise in amounts (not to
exceed $2,000,000) and on terms otherwise mutually acceptable to the
Landlord and the Tenant;
(d) plate glass coverage with respect to the Premises in amounts
acceptable to the Landlord.
Tenant may maintain the required insurance in the form of a blanket or
master policy covering other locations of Tenant and/or its affiliates in
addition to the Premises; provided, however, that Tenant shall provide
Landlord with a certificate of insurance specifically naming the location
of the Premises and naming Landlord as required in this section, the
limits of which coverage are to be in the amounts set forth in this
section.
Tenant may, in lieu of carrying the insurance coverage of the items
contained in this section, self-insured said items (specifically including
plate glass), so long as Tenant agrees not to hold Landlord liable for any
losses resulting to such property.
7.02 POLICIES
The Tenant's policies shall be upon terms and in amounts, satisfactory to
the Landlord, acting reasonably. The Tenant will furnish to the Landlord
copies of insurance certificates, and will provide written notice of the
continuation of such policies not less than ten (10) days prior to their
respective expiry dates. The Tenant will pay the premium for each policy.
If the Tenant fails to purchase or keep in force such insurance
23
the Landlord may but shall not be obligated to effect such insurance, the
cost thereof being recoverable from the Tenant forthwith on demand as
Additional Rent hereunder.
7.03 LANDLORD AS INSURED
The Tenant shall cause each of its policies to contain an undertaking by
the insurer(s) to notify the Landlord at least thirty (30) days prior to
cancellation or any other change material to the Landlord's interest. The
liability policy will include the Landlord as an additional named insured
with a cross-liability clause.
7.04 SUBROGATION
The Landlord and Tenant shall each cause any insurance policy obtained by
it pursuant to this Lease to contain a waiver of subrogation clause in
favour of the Landlord or Tenant, as the case may be.
7.05 LANDLORD TO INSURE
The Landlord throughout the Term shall carry insurance against fire and
other perils as prescribed in the definition of Common Costs for the full
replacement cost of the Building and comprehensive general liability
insurance in amount not less than $2,000,000.
8. ASSIGNING, SUB-LETTING AND ENCUMBERING
8.01 LANDLORD'S CONSENT
Tenant shall have the ability to assign its lease in its entirety, or
sublease all or any part of the Premises without the consent of the
Landlord to (i) any parent, subsidiary or affiliate of Tenant (ii) any
entity resulting from a merger of consolidation with Tenant or (iii) any
entity succeeding to a substantive portion of the business and assets of
Tenant. For any other assignment or sublease, Tenant shall have the right,
subject to Landlord's consent, which shall not be unreasonably withheld or
delayed, to sublease or assign any portion of the Premises, and any
portion of any space subsequently leased, at any time during the initial
term and renewal option periods. Tenant shall retain one hundred percent
(100%) of any profits received. Tenant is to remain primarily liable.
8.02 REQUEST FOR CONSENT
If the Tenant requests the Landlord's consent to any assignment or
subletting of the whole or any part of the Premises, such request shall be
accompanied by the name and address for the proposed assignee or subtenant
together with such information as to the nature of the business and
financial responsibility and standing of such proposed assignee or
subtenant as the Landlord may reasonably require in order to make a
reasoned determination as to the acceptability of the assignee or
subtenant. In addition, the Tenant shall provide the Landlord with a copy
of the proposed assignment or sublease. Landlord shall, not later than
twenty-one (21) days after receipt of Tenant's request, either consent
24
to the proposed assignment or subletting or shall refuse such consent
(such consent not to be unreasonably withheld).
8.03 ASSIGNMENT OR SUBLEASE FORM
No assignment or subletting consented to shall be valid unless prior to
the date of occupancy by the proposed assignee or subtenant a fully
executed duplicate original of such assignment or sublease in form
reasonably acceptable and satisfactory to the Landlord is delivered to the
Landlord.
8.04 CHANGE IN OWNERSHIP OR CONTROL
Intentionally Deleted.
8.05 TENANT NOT TO ENCUMBER INTEREST IN LEASE
The Tenant shall not without the Landlord's consent in writing mortgage,
hypothecate, pledge or otherwise encumber its interest in this Lease or in
the Premises.
8.06 DISPOSITION OF LANDS AND PREMISES
Any sale, lease, mortgage or other disposition of the lands and premises
of which the Premises form a part made or given by the Landlord shall, to
the extent that a purchaser, lessee or mortgagee assumes the obligations
of the Landlord hereunder shall, without any further written agreement,
relieve the Landlord from further liability thereafter arising under this
Lease.
9. LIABILITY AND INDEMNIFICATION
9.01 NON-LIABILITY OF LANDLORD
Except for the negligence and wilful misconduct of the Landlord, its
agents, employees or contractors, the Tenant agrees that the Landlord will
not be liable or responsible in any way for any personal injury that may
be sustained by the Tenant or any employee or customer of the Tenant, or
of any other person who may be upon the Premises, or for any loss of or
damage or injury to, property belonging to or in the possession of the
Tenant or any employee or customer of the Tenant or any other person, and
without limiting the generality of the foregoing, the Landlord will not be
liable or responsible while in the premises in any way for any injury,
loss or damage to person or property caused by smoke, steam, water, ice,
rain, snow or fumes which may leak, issue or flow into, through or from
the Premises or from the water sprinkler, drainage or smoke pipes or
plumbing equipment therein or from any other place or quarter or caused by
or attributable to the condition or arrangement of any electrical or other
wiring or the air conditioning equipment, or for any matter or thing or
whatsoever nature or kind arising from the Tenant's use and occupation of
the Premises or otherwise except to the extent resulting from Landlord's
breach of this Lease or the negligence or wilful misconduct of the
Landlord, its agents, employees or contractors.
25
9.02 INDEMNIFICATION
Except to the extent due to the negligence and wilful misconduct of the
Landlord, its agents, employees or contractors, the Tenant does hereby
indemnify and save harmless the Landlord from and against any and all
liabilities, damages, costs, expenses, causes of actions, actions, claims,
suits and judgments (but excluding consequential damages and/or lost
profits) which the Landlord may incur or suffer by reason of or in
connection with or arising from:
(a) any breach, violation or non-performance by the Tenant or any
covenant, condition or agreement set forth in this Lease;
(b) any damage to property of the Tenant, any subtenant, licensee, and
all persons claiming through or under the Tenant or any subtenant or
license or any of them, or damage to any other property howsoever
occasioned by the condition, use, occupation or maintenance of the
Premises;
(c) any injury to any person, including death resulting at any time
therefrom, occurring in or about the Premises;
(d) any wrongful act or neglect of the Tenant, in and about the
Premises;
Except to the extent due to the negligence and wilful misconduct of the
Tenant, its agents, employees or contractors, the Landlord does hereby
indemnify and save harmless the Tenant from and against any and all
liabilities, damages, costs, expenses, causes of action, actions, claims,
suits and judgments (but excluding consequential damages and/or lost
profits) which the Tenant may incur or suffer by reason of or in
connection with or arising from:
(a) any breach, violation or non-performance by the Landlord or any
covenant, condition or agreement set forth in this Lease;
(b) any damage to property of the Landlord, any tenant, licensee, and
all persons claiming through or under the Landlord or any of them,
or damage to any other property howsoever occasioned by the
condition, use, occupation or maintenance of the Common Areas;
(c) any injury to any person, including death resulting at any time
therefrom, occurring in or about the Common Areas;
(d) any wrongful act or neglect of the Landlord, in and about the
Premises or the Shopping Center.
9.03 SURVIVAL OF INDEMNIFICATION
Such Indemnification shall survive any termination of this Lease, anything
in this Lease to the contrary notwithstanding.
26
10. PERFORMANCE OF TENANT'S COVENANTS, DEFAULT AND BANKRUPTCY
10.01 LANDLORD MAY PERFORM COVENANTS
If the Tenant makes default in any of its covenants and agreements herein
beyond applicable notice and cure period, then the Landlord, without
limiting any other remedy which it may have, will have the right beyond
applicable and cure period to remedy any such default and for such purpose
may at any time enter upon the Premises. No entry for such purpose will be
deemed to cause a forfeiture or termination of this Lease. In order to
cure such default, the Landlord may do all things reasonably necessary to
cure the default and such things as may be incidental thereto, including,
without limitation, the right to make repairs and to expend monies. The
Tenant will reimburse the Landlord forthwith upon demand as Additional
Rent hereunder the aggregate of all reasonable costs, charges and expenses
incurred by the Landlord to remedying any such default. The Landlord will
be under no obligation to remedy any default of the Tenant, and will not
incur any liability to the Tenant for any action or omission in the course
of its remedying or attempting to remedy any such default unless such act
amounts to intentional misconduct or negligence on the part of the
Landlord.
10.02 RIGHTS OF TERMINATION
If and whenever:
(a) the Tenant shall fail to pay when due the Minimum Rent, or
Additional Rent, or any other sum required to be paid by the Tenant
hereunder, if such failure shall continue for 10 consecutive days
after notice to the Tenant of such failure;
(b) the Tenant shall fail to observe, perform and keep any one or more
of the covenants, provisions or stipulations to be observed
performed or kept by the Tenant hereunder, and if such failure shall
continue for a period of thirty (30) consecutive days after notice
to the Tenant of such failure plus such additional time as may be
reasonably required to cure such failure;
(c) the Term hereby granted or any of the goods or chattels on the
premises are at any time repossessed, seized, or taken in execution
or attachment by any creditor of the Tenant;
(d) a Writ of Execution or a judgment has been issued against the goods
or chattels of the Tenant;
(e) the Tenant makes an assignment for the benefit of creditors or
becoming bankrupt or insolvent takes the benefit of, or becomes
subject to any statutes that may be in force relating to bankrupt or
insolvent debtors;
(f) any certificate or order is made or granted for the winding-up or
dissolution of the Tenant, voluntarily or otherwise;
27
(g) if the Premises at any time during the Term become vacant or remain
unoccupied for five (5) days or more in consequence of the removal
of the Tenant by Legal process for non-payment of rent, breach of
covenant or any other cause;
(h) Intentionally Deleted.
(i) Intentionally Deleted.
(j) Intentionally Deleted.
(k) then in any of the said cases, at the option of the Landlord the
Term shall become forfeited and void and the Landlord may upon
notice and with legal process forthwith re-enter the Premises or any
part thereof in the name of the whole and repossess and enjoy the
same as of its former estate, anything contained in any statute or
law to the contrary notwithstanding. Such forfeiture shall be wholly
without prejudice to the right of the Landlord to recover arrears of
rent or damages for any antecedent breach of the Tenant's covenants,
obligations or agreements under this Lease, and provided that
notwithstanding any such forfeiture the Landlord may subsequently
recover from the Tenant damages for loss of rent suffered by reason
of this Lease having been rendered forfeited and void as aforesaid.
No such re-entry or taking possession of the Premises by the
Landlord shall be construed as an election on the part of the
Landlord to terminate this Lease unless at the time of or subsequent
to such re-entry or taking up possession written notice of such
intention has been given to the Tenant or such termination is
decreed by a court of competent jurisdiction.
10.03 WAIVER WITH RESPECT TO RE-ENTRY
If the Landlord does not exercise its option under Section 10.02 to
terminate this Lease it may in addition to any remedies available to the
Landlord herein, or at law or in equity, from time to time to re-enter the
Premises without terminating this Lease, make such alterations and repairs
as may be necessary in order to relet the Premises as agent of the Tenant
for such period or periods (which may extend beyond the Term) and at such
rentals and upon such terms and conditions as the Landlord in its sole
discretion may deem advisable. All reasonable expenses the Landlord may
incur in reletting the Premises, including legal fees and disbursements
and real estate fees and commissions and expenses of preparing the
Premises for reletting shall be paid by the Tenant to the Landlord
forthwith on demand. Upon such reletting, rent received by the Landlord
shall be applied firstly to the payment of said reasonable expenses,
secondly to the payment of any indebtedness (other than Gross Rent) due
from the Tenant to the Landlord, and thirdly to the payment of Gross Rent.
The residue, if any, shall be held by the Landlord and applied in payment
of future rent as the same may become due and payable.
Notwithstanding anything to the contrary set forth in the Lease or any
default damages that may be permitted or authorized by applicable law, in
no event shall damages recoverable from Tenant as a consequence of
Tenant's default under this Lease include any of the following:
28
(i) consequential or punitive damages;
(ii) loss of business or profits by Landlord or any other tenant or
occupant of the Shopping Center;
(iii) diminution of the value of the Premises or the Shopping Center (or
any portion thereof);
(iv) costs incurred or allowances granted by Landlord for the demolition,
alteration, remodeling or build-out of the Premises to make them
suitable for use by any subsequent tenant or occupant thereof; or
(v) leasing commissions and/or brokerage fees to the extent allocable to
any period after the expiration date of the original Term of this
Lease (as such Term may be extended by any renewals or extensions
either exercised by Tenant or otherwise agreed to by Landlord and
Tenant prior to occurrence of Tenant's default).
If rentals received from such reletting during any month are less than
that to be paid during that month by the Tenant hereunder, the Tenant
shall forthwith pay any such deficiencies to the Landlord. No re-entry or
taking possession of the premises by the Landlord shall be construed as an
election on its part to terminate this Lease unless a written notice of
such intention has been given to the Tenant or unless the termination
thereof be decreed by a Court of competent jurisdiction. Notwithstanding
any such re-letting without termination, the Landlord may at any time
thereafter elect to terminate this Lease by reason of such previous event.
Should the Landlord at any time terminate this Lease by reason of any such
event, in addition to any other remedies it may have, it may recover from
the Tenant all damages it may incur with respect thereto including the
cost of recovering the Premises and the worth at the time of such
termination of the excess, if any, of the amount of Gross Rent, for the
remainder of the Term over the then reasonable rental value of the
Premises for the remainder of the Term, all of which rent shall be
immediately due and payable from the Tenant to the Landlord. In
determining the rent which would be payable under this Lease by the Tenant
subsequent to default the Rent for each year of the unexpired portion of
the Term shall be equal to the average Rent paid by the Tenant from the
commencement of the term to the event of default, or during the
immediately preceding three (3) full Lease Years, whichever period is
shorter.
Landlord shall use reasonable efforts to relet the premises, it being
understood that such efforts shall consist of the same efforts as Landlord
makes with respect to other vacant space in the Shopping Center and that
Landlord shall not be required to prefer the reletting of the Premises
over any other vacant or empty space in the Shopping Center or to accept a
tenant for any use or purpose other than a use or purpose acceptable to
Landlord.
10.04 WAIVER OF BENEFIT OF LEGISLATION AND SEIZURE
Intentionally Deleted.
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10.05 REMEDIES OF LANDLORD AND CUMULATIVE
The remedies of the Landlord under this Lease are cumulative and are in
addition to any remedies of the Landlord at law or in equity. No remedy
will be deemed to be exclusive and the Landlord may from time to time have
recourse to one or more of all the available remedies specified herein or
at law in equity.
10.06 BANKRUPTCY
In the event of default pursuant to section 10.02(e) then and in any such
event the then current month's Gross Rent and the next ensuring three (3)
months' Gross Rent shall become due and be payable.
10.07 LANDLORD'S RIGHTS ON RE-ENTRY
The Tenant agrees that in the event the Landlord shall be entitled to
re-enter and re-take possession of the Premises it may use such force as
it deems necessary for that purpose and for gaining admittance to the
Premises without being liable in respect thereof for any loss or damage
occasioned thereby. The Tenant hereby expressly releases the Landlord from
all action, proceedings, claims and demands whatsoever for or in respect
of any such forcible entry, or any loss or damage that may be sustained by
the Tenant in respect thereto.
11. REPAIRS, MAINTENANCE AND ALTERATIONS
11.01 REPAIR AND MAINTENANCE
Subject to Landlord's repaid and maintenance obligations as set forth
elsewhere in this Lease, the Tenant, throughout the Term, at its own
expense, will repair, maintain and keep the Premises and all improvements,
appurtenances and equipment therein and thereon (including, without
limitation, all electrical, sprinkler and plumbing fixtures and equipment,
and windows) in good repair and condition, as is fitting for a first class
Shopping Centre development. Such repair and maintenance shall not include
repairs of a structural nature save, and except for Tenant's fixtures and
improvements, which require repairs, which could be considered of a
structural nature. And such repairs and maintenance shall exclude such
standard of repair and maintenance of damage by fire and other risks
against which the Landlord is insured and reasonable wear and tear which
is not inconsistent with maintenance in good order and condition of the
Premises generally, and repairs for which the Landlord is responsible
under this Lease.
11.02 INSPECTION AND EMERGENCIES
Subject to Section 20.02, the Landlord's representatives may enter upon
the Premises at all reasonable times and during any emergency to inspect
the state of repair and maintenance.
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11.03 TENANT'S REPAIRS BY DESIGNATED TRADESPEOPLE
The Tenant, when necessary and whether upon receipt of notice from the
Landlord or not, will effect and pay for such maintenance and repairs
which it is responsible.
11.04 REPAIR ACCORDING TO NOTICE
Without restricting the generality for Article 11.01 hereof, the Tenant,
promptly upon notice by the Landlord, will make and do all repairs and
maintenance for which it is responsible. If the Tenant fails to repair or
maintain within what the Landlord considers to be a reasonable time, then
the Landlord may cause such repairs and maintenance to be undertaken and
may cause its employees and agents to enter on the Premises for such
purpose. Should the Landlord undertake any repairs or maintenance, then
the Tenant will pay to the Landlord the cost of such work or monies
expended and shall until paid to the Landlord bear interest at the
Stipulated Rate of Interest in Section 4.12 and be recoverable as
Additional Rent reserved hereunder.
11.05 ALTERATIONS
As shown on the Cover Page of this Lease under Special Clause
"Alterations".
Notwithstanding any other provision hereof, any such installation,
alteration, addition or partition must be constructed in accordance with
the National Building Code from time to time in effect. In effecting any
alteration of addition hereunder, the provisions of Article 11.02 apply
mutatis mutandis in regard to approval of contractors, subcontractors or
tradespeople.
11.06 CONSTRUCTION OF ALTERATION
As per shown on the Cover Page of this Lease under Special Clause
"Alterations".
11.07 PAYMENT FOR WORK
The Tenant will pay for expenses incurred for labor and services performed
upon, and materials supplied to the Premises for which it is responsible
as same are due.
11.08 LANDLORD'S REPAIRS
As shown on the Cover Page of this Lease under Special Clause "Landlord
Responsibilities".
11.09 MAINTENANCE CONTRACT
The Landlord pledges to sign an annual maintenance contract, for the HVAC
system serving the Premises, with a recognized company agreed upon by the
Landlord and Tenant. The contract shall be an all inclusive maintenance
contract for ten (10) years at a cost of $19,920.00 plus HST (Canadian
Funds). The Tenant shall reimburse the Landlord $85.10 for years 1-5 and
$105.80 for years 6-10 per month applicable taxes included
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(Payable in Canadian Funds), such monthly reimbursements payable together
with the monthly installments of Minimum Rent payable by Tenant hereunder.
12. COMPLIANCE WITH LAWS; LIENS AND PRIVILEGES
12.01 COMPLIANCE WITH LAWS
The Tenant, during the Term and at its own expense, will promptly comply,
and will cause its employees, agents, licensees, invitees and other
persons within in the Premises, to comply with the requirements of every
applicable law, rule, by-law, regulations, order, direction ordinance and
standard of every competent federal, provincial, municipal, regional and
other statutory authority in force during the Term and concerning or
affecting the condition, maintenance, use and occupation of the Premises
and all improvements, appurtenances, equipment, machinery and other
facilities from time to time therein, thereon or used in connection
therewith and the making of any repairs, replacements and alterations to
the Premises and with every applicable regulation, order and requirement
of the Canadian Fire Underwriters' Association or any successor body
having similar functions and of any liability or fire insurance company by
which the Landlord and Tenant or either of them may be insured at any time
during the Term, and in so doing, the Tenant, subject to Article 7 hereof,
will make any necessary alterations, repairs, additions or deletions in,
on or to the Premises, improvements or appurtenances or any part or parts
thereof, and any equipment, machinery or other facilities in, on, upon,
used in connection with or appurtenant to the Premises or any part
thereof. Notwithstanding the foregoing, Landlord shall comply with the
foregoing and shall be obligated to make all necessary alterations,
repairs, additions or deletions in, on or to the Common Areas and any
portion of the Premises which Landlord is required to maintain
improvements or appurtenances or any part or parts thereof, and any
equipment, machinery or other facilities in, on, upon, used in connection
with or appurtenant to the Common Areas and any portion of the Premises
which Landlord is required to maintain or any part thereof.
12.02 LIENS OR PRIVILEGES
The Tenant will not suffer or permit any lien or privilege to be
registered against title to the Premises or Lands by reason of work,
services or materials supplied or claimed to have been supplied to the
Tenant or to anyone holding any interest through or under the Tenant
during the Term. If any such lien or privilege is registered, the Tenant
will do all things necessary to obtain and register a discharge, insure or
bond over forthwith after the lien or privilege has come to the notice of
the Tenant. If the Tenant desires to contest in good faith the amount or
validity of any lien or privilege and has so notified the Landlord, and if
the Tenant has paid into a court of competent jurisdiction to the credit
of any action or adequately insured or bonded the claim, the amount
claimed and costs, then the Tenant may contest the claim with due
diligence. The Landlord may, but will not be obliged to, discharge any
lien or privilege registered at any time if in the Landlord's judgment the
Premises of the Tenant's interest therein becomes liable to any forfeiture
of sale or is otherwise in jeopardy, and any amount paid by the Landlord
in so doing, together with all reasonable costs and expenses of the
Landlord, will be paid to the
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Landlord by the Tenant on demand and if not so paid, shall be recoverable
as rent in arrears. Nothing herein contained will be deemed to authorize
the Tenant, or imply any consent or agreement on the part of the Landlord,
to subject the Landlord's estate and interest in the Premises to any lien
or privilege.
13. COMMON AREA AND PARKING
13.01 CUSTOMER PARKING
The customers of the Tenant shall be entitled during normal business hours
of the Shopping Centre only, to the use of the customer parking areas
forming part of the Lands, in common with the customers of other tenants
of the Shopping Centre.
13.02 TENANT'S USE OF PARKING AREAS
(a) As shown on the Cover Page of this Lease under Special Clause
"Parking";
(b) Should the Tenant, its employees, suppliers and other persons, not
customers, having business with the Tenant park vehicles in areas
not allocated for that purpose, the Landlord shall have the right to
remove the said trespassing vehicles and the Tenant hereby
indemnifies and saves harmless the Landlord from any and all damages
arising therefrom and the Tenant will pay the cost of such removal
as Additional Rent hereunder.
13.03 NUISANCE
The Tenant will not store anything in or do anything, which would be
likely to injure the Common Area.
13.04 USE OF COMMON AREA AND RELOCATION
Subject to this Lease and to such other reasonable rules and regulations
as the Landlord may make pertaining to the use of the Common Area, the
Tenant will have for itself and its licensees and invitees, the
non-exclusive right to use the Common Area in common with other entitled
thereto for their proper and intended purposes during normal business
hours. The Tenant acknowledges that the Common Area is subject to the
exclusive control and management of the Landlord and that the Landlord
shall be entitled, from time to time, to alter the Common Area and to make
changes and additions thereto; and in particular without restricting the
generality of the foregoing may change the area, level, location,
arrangement, and use of the Common Area, construct other buildings,
structures or improvements upon the Common Area and/or make alterations or
additions thereto, subtractions therefrom or rearrangements thereof and
build additional stories or any building or buildings in the Shopping
Centre and buildings adjoining the same, construct double deck or elevated
or underground parking facilities or both, relocate or rearrange the
various building or parking areas and all other Common Area.
Landlord shall not cause or permit any change, alteration or use of the
Shopping Center (including any parking areas) in any manner which would
temporarily or permanently
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(i) alter the dimensions, location, exterior appearance or storefront of
the Premises or adversely affect the use, operation or conduct of Tenant's
business being conducted therein; (ii) adversely affect the accessibility
or visibility of the Premises; or (iii) reduce the existing parking
facilities of the Shopping Center or Tenant's designated parking area.
14. SURRENDER OF PREMISES AND REMOVAL OF FIXTURES
14.01 SURRENDER
Upon the expiration or earlier termination of this Lease and the Term and
any period of overholding, the Tenant will surrender to the Landlord
possession of the Premises and fixtures thereon, all of which will become
the property of the Landlord without any claim by or compensation to the
Tenant, all in good order, condition and repair in accordance with the
Tenant's obligation to repair and maintain, subject to ordinary wear and
tear and damage due to casualty of condemnation, and, free and clear of
all encumbrances and all claims of the Tenant or of any person claiming by
or through or under the Tenant, and all the rights of the Tenant under
this Lease will terminate (but the Tenant, notwithstanding such
termination, will remain and be liable to the Landlord for any loss,
damage, expenses or costs suffered or incurred by the Landlord by reason
of any default by the Tenant to the extent provided herein).
14.02 DOCUMENT OF SURRENDER
If this Lease and the Term are terminated for any reason, the Tenant will
execute and deliver to the Landlord any and all documents reasonably
required to surrender this Lease and to withdraw notice of this Lease form
the Landlord's title to the Lands.
14.03 CONDITION OF PREMISES
Without restricting the generality of Article 14.01, the Tenant, upon the
expiration or earlier termination of the Lease, shall leave the Premises
in a clean condition subject to ordinary wear and tear and damage due to
casualty or condemnation.
14.04 REMOVAL OF FIXTURES
The Tenant may, at the expiration of the Term, remove from the Premises
all trade or Tenant's fixtures on the condition the Tenant repairs any
damage to the Premises caused thereby. In no event will the Tenant remove
from the Premises any plumbing, heating, air conditioning, electrical or
ventilating plan or equipment or other building services; and the Tenant
may, at Tenant's sole option remove all or any portion of its
installations, alterations, additions, partitions and fixtures and
anything in the nature of improvements made or installed by the Tenant or
by the Landlord on behalf of the Tenant to or in the Premises, or any of
them, and to make good any damage caused to the Premises by such removal.
34
15. DAMAGE OR DESTRUCTION AND EXPROPRIATION
15.01 DAMAGE TO OR DESTRUCTION OF PREMISES AND SHOPPING CENTRE
(a) If the Premises shall be damaged by fire or other casualty for which
the Landlord is insured, but are not thereby rendered untenantable
in whole or in part, the Landlord shall at its own expense cause
such damage, excluding damage to Tenant's fixtures and improvements,
to be repaired and the Minimum Rent shall not xxxxx. If by reason of
such occurrence the Premises shall be rendered untenantable only in
part, the Landlord shall, at its own expense, cause the damage,
excluding damage to Tenant's fixtures and improvements, to be
repaired and the Minimum Rent and Additional Rent meanwhile xxxxx
proportionately until such time as the Premises and Tenant's
fixtures and improvements are restored. If the Premises shall be
rendered wholly untenantable by reason of such occurrence until such
times as the Premises and Tenant's fixtures and improvements are
restored the Landlord shall at its own expense cause such damage,
excluding damage to Tenant's fixtures and improvements, to be
repaired, and the Minimum Rent and Additional Rent shall xxxxx until
the Premises including Tenants fixtures and improvements have been
restored and rendered tenantable; or the Landlord may, at its
election, terminate this Lease and the Tenancy hereby created by
giving to the Tenant within sixty (60) days following the date of
said occurrence provided the Landlord also terminates the Leases of
all other Tenants of the Building, written notice of the Landlord's
election to do so and in the event of such termination rental shall
be adjusted as of the date of said occurrence. In the event that
Fifty (50%) percent or more of the Gross Leasable Area of the
Shopping Centre shall be damaged or destroyed by fire or other
casualty, notwithstanding that the Premises may be unaffected
thereby, the Landlord may, at its election, terminate this Lease and
the Tenancy thereby created by giving to the Tenant within sixty
(60) days following the date of such occurrence, provided the
Landlord also terminates the Leases or all other Tenants of the
building five (5) days prior written notice of the Landlord's
election to do so and in the event of such termination rental shall
be adjusted as of the date of such termination.
Notwithstanding anything contained herein to the contrary, if
Landlord is unable or unwilling to commence to repair, restore or
rebuild the Premises within three (3) months after the occurrence of
any such casualty or to substantially complete repairs to the
Premises within twelve (12) months after the occurrence of such
casualty, Tenant may terminate this Lease upon thirty (30) days
notice to Landlord after the expiration of the applicable time
period and upon the expiration of said thirty (30) days notice
period, neither party hereto shall have any further obligation to
the other with respect to his Lease or the tenancy created hereby
except for obligations occurring or accruing prior to such
termination. Tenant shall have the right to terminate this Lease if,
in Tenant's reasonable business judgment, the Premises are rendered
untenantable during the last one (1) year of the Term by giving
Landlord written notice of such termination within thirty (30) days
after the occurrence of such casualty.
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15.02 EXPROPRIATION
Both the Landlord and Tenant shall cooperate each with the other in
respect of any expropriation all or any part of the Premises or the
Shopping Centre, so that each may receive the maximum award in the case of
any expropriation to which they are respectively entitled in law. If the
whole or any part of the Premises or of the Shopping Centre is
expropriated; as between the parties hereto, their respective rights and
obligations under the Lease shall continue until the day on which the
expropriating authority takes possession thereof. If in the case of
partial expropriation of the Premises this Lease is not frustrated by
operation of governing law and such expropriation does not render the
Premises wholly untenantable, the Tenant and the Landlord shall restore
the part not so taken in accordance with their respective repair
obligations under the provisions of sections 11.01 and 11.08, and the
Minimum Rent shall be reduced as of the date of taking possession in
proportion to the relationship between the area of the Premises so taken
and the area remaining.
16. QUIET ENJOYMENT
If the Tenant punctually pays the sums due under this Lease and complies
with its obligations under this Lease, the Tenant shall peaceably posses
and enjoy the Premises during the Term without any interruption or
disturbance from the Landlord or any person or persons claiming by,
through or under the Landlord;
17. IMPOSSIBILITY OF PERFORMANCE
Whenever the Landlord or the Tenant is unable to fulfil any obligations
hereunder by reason of being unable to obtain the materials, goods,
equipment, service, utility or labour required to enable it to fulfil such
obligation or by reason of any law or regulation or by reason of any other
cause beyond its reasonable control, the Landlord or the Tenant, as the
case may be, will be entitled to extend the time for fulfillment of such
obligation by a time equal to the duration of the delay or restriction,
provided that in no event shall the foregoing be applicable to Tenant's
obligation to timely pay Rent hereunder.
18. REGULATIONS
The Tenant and its employees, agents, contractors, licensees and invitees
will be bound by rules and regulations as the Landlord may from time to
time make of which written notice is given to the Tenant. All such rules
and regulations will be deemed to be incorporated into and form part of
this Lease.
Notwithstanding anything to the contrary contained herein, all rules and
regulations, whether now existing or hereafter adopted by Landlord, shall
be reasonable in nature, non-discriminatory and uniformly enforced, if at
all, against all tenants of the Shopping Center and shall not adversely
affect the conduct of Tenant's business within the Premises. Furthermore,
no charge by Landlord in any rules or regulations with respect to the
Shopping Center or the Premises shall increase Tenant's duties and
obligations hereunder or reduce or restrict the estate, rights or benefits
hereof. In the event of a
36
conflict between the terms and provisions of this Lease and the rules and
regulations, the terms and provisions of this Lease shall govern and
prevail in each and every instance.
19. OVERHOLDING
If the Tenant remains in possession of the Premises after the expiration
of this Lease and without the execution and delivery of a new Lease, the
Landlord may re-enter and take possession of the Premises and remove the
Tenant therefrom and the Landlord may use such force as it may deem
necessary for that purpose without being liable in respect thereof or for
any loss or damage occasioned thereby; PROVIDED THAT while the Tenant
remains in possession after the expiration of this Lease, and the Landlord
accepts rent, the Tenancy, in the absence of written agreement, will be
from month to month only at a rent per month equal to 1.25 times the
Minimum Rent payable in respect of the month immediately preceding
expiration of this Lease in each case payable in advance on the 1st day of
each month and shall be subject to all terms of this Lease, except that
the tenancy will be from month to month and a tenancy from year to year
will not be created by implication of law.
Notwithstanding the foregoing, in the event that Tenant and Landlord are
conducting negotiations in good faith for a renewal of this Lease, Tenant
may remain in the Premises at the same Minimum Rent as during the last
Lease Year of the Term; provided, however, upon reaching agreement with
Landlord on new lease terms for the renewal, Tenant will pay,
retroactively, the agreed-upon new Minimum Rent for the entire holdover
period. In the event that (i) Landlord deems that Tenant is not in
Landlord's reasonable judgement, bargaining in good faith; (ii) Landlord
and Tenant cannot reach a mutually acceptable agreement; or (iii)
Landlord, in its sole judgment, chooses to terminate negotiations, then,
in any such event and upon thirty (30) days prior written notice to
Tenant, Tenant's monthly rent shall equal 1.25 times the monthly amount
payable as Minimum Rent during the last Lease Year of the Term, beginning
upon the expiration of the thirty (30) day period.
20. INSPECTION, SALE AND LEASE
20.01 SIGN
The Landlord may from time to time place upon the Premises a notice of
reasonable dimensions and reasonably placed so as not to interfere with
the business of the Tenant stating that the Lands are for sale, and during
the last twelve (12) months of the Term may similarly place a sing stating
that the Premises are for let.
20.02 ACCESS
Landlord shall have the right, at all reasonable times upon reasonable
advance notice to Tenant (and without notice in cases of emergency), to
enter into the Premises to inspect, maintain, repair and/or make
replacements as required under this Lease, to show the Premises to
prospective purchasers of the Shopping Center, and during the last ninety
(90) days of the Term hereof (as same may be extended), to show the
Premises to prospective tenants. Landlord agrees to use its best efforts
not to disturb or
37
inconvenience Tenant in the conduct of Tenant's business therein. Except
as otherwise expressly provided in this Lease, Landlord shall refrain from
entering the Premises or conducting any work therein without the prior
written consent of Tenant.
In the event that Landlord or any of its agents, employees, contractors or
designees enters into the Premises under non-emergency situations in order
to perform alterations, improvements and/or repairs thereto or to any
other portion of the Shopping Center, and as a result thereof, Tenant
cannot, in the exercise of its reasonable business judgement, operate its
business, rent and all other charges payable to Landlord hereunder shall
xxxxx in proportion to the degree of interference from the date of such
closure until such time as the condition giving rise to said closure has
been corrected, at which time Tenant shall resume the payments required
hereunder.
Landlord's right to install additional pipes, ducts, conduits, wires and
appurtenant fixtures, if in the reception and/or employee area of the
Premises, shall be restricted to those areas above Tenant's finished
ceiling or below the slab floor, and Landlord shall use all reasonable
efforts to install such items adjacent to walls, if feasible, in other
areas of the Premises. All such installations by Landlord shall be
undertaken in such a manner so as to interfere as little as may be
reasonably possible with Tenant's activities in the Premises. Access
panels and grease and cleaning traps which do not exclusively serve the
Premises shall be either located outside of the Premises or in a
non-reception and/or employee portion of the Premises such that access to
or through same shall not interfere with Tenant's use, enjoyment and
occupancy of the Premises.
Landlord shall be liable for any damage to the Premises of Tenant's
property and shall indemnify and hold Tenant harmless for any liability
incurred by Tenant as a result of any of the foregoing activities by
Landlord or any of its agents, employees, contractors or designees.
21. MISCELLANEOUS
21.01 WAIVER
No waiver of any default will be binding unless acknowledged in writing by
the Landlord and Tenant.
21.02 CONDONING
Any condoning, excusing or overlooking by the Landlord or Tenant of any
default will not operate as a waiver of the Landlord's or Tenant's rights
hereunder in respect of any subsequent default.
21.03 SUBORDINATION
Intentionally Deleted.
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21.04 ACKNOWLEDGEMENT
The Tenant or the Landlord will execute within thirty (30) days after
written request by the other party, a certificate in favour of any
prospective mortgagee or purchaser of the requesting party certifying to
the certifying party's knowledge the status of the Lease, any
modifications or breaches of this Lease, and the status of the rent
account, all with the intent that any such acknowledgement or certificate
may be relied upon by any party to whom it is directed.
21.05 SEVERABILITY
If any provision of this Lease is illegal or invalid or unenforceable at
law it will be deemed to be severed from this Lease and the remaining
provisions will nevertheless continue to be in full force and effect.
21.06 HEADINGS
All headings in this Lease are inserted for convenience of reference only
and will not affect the construction and interpretation of this Lease.
21.07 REPRESENTATIONS AND ENTIRE AGREEMENTS
The Tenant acknowledges and agrees that the Landlord has made no
representations, covenants, warranties, guarantees, promises or agreements
(verbal or otherwise) with the Tenant other than those contained in this
Lease; that no agreement collateral hereto will be binding upon the
Landlord unless made in writing and signed by the Landlord; and that this
Lease constitutes the entire agreement between the Landlord and Tenant.
21.08 NOTICES
Any notice, request or demand herein provided or permitted to be given
hereunder, shall be sufficiently given if personally served or sent by a
recognized overnight courier, or by certified or registered mail postage
prepaid, return receipt requested, to the addresses stipulated in
paragraph 1.01 as to notices to Landlord, and in paragraphs 1.02 and 1.03
and to the said Premises as to notices to Tenant. Any notice sent as
aforesaid shall for the purposes of this Lease be presumed to have been on
the date of actual delivery or refusal of delivery as shown on the return
receipt or other written evidence thereof obtained by the courier or
deliverer thereof. Any party may at any time give notice in writing to the
others of any change of address, and after the giving of such notice the
address therein specified will be deemed to be the address of such party
of the purpose of giving notices hereunder.
21.09 TIME OF ESSENCE
Time will be of the essence of this Lease.
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21.10 SIGNING OF LEASES
The Landlord will not be deemed to have made an offer to the Tenant by
furnishing to the Tenant a copy of this Lese with particulars inserted;
and notwithstanding that installments of rent may be received by the
Landlord when this Lease is received by it for signature no contractual or
other rights will exist or be created between the Landlord and Tenant
until such time as all parties to this Lease have executed the same.
21.11 RELATIONSHIP
Nothing herein contained will at any time create or be construed as
creating a joint venture, partnership or relationship between the parties
other than that of Landlord and Tenant.
21.12 GOVERNING LAW
This Lease will be construed and governed by the laws of the Province in
which the Shopping Centre is located.
21.13 GENDER
Words in the singular will include the plural and words in the masculine
gender will include feminine and neuter genders where the context so
requires.
21.14 GUARANTOR'S CLAUSE
In consideration of the grant of this Lease by the Landlord, and as a
condition thereof, the Guarantor hereby covenants with and guarantees to
the Landlord the performance and observance of all of the covenants and
agreements of the Tenant to be performed or observed by the Tenant
hereunder, including the payment of Gross Rent on the days and at the
times and in the manner specified in this Lease, and, that if any default
be made by the Tenant beyond applicable notice and cure period, whether in
payment of Gross Rent or in performance of its obligations hereunder, the
Guarantor will forthwith indemnify the Landlord on demand for any such
default.
The Guarantor further covenants with the Landlord that the Guarantor is
jointly and severally bound among themselves and with the Tenant for the
fulfillment of all obligations of the Tenant under the Lease and the
bankruptcy or other act of the Tenant which might or could operate as a
release of the Tenant of all of its obligations hereunder shall not
release or discharge the Guarantor from its covenants herein. In the
enforcement of its rights hereunder the Landlord may proceed against the
Guarantor as if the Guarantor was named Tenant hereunder. The Guarantor
hereby waives any right to require the Landlord to proceed against the
Tenant or to proceed against or exhaust any security held from the Tenant
or to pursue any other remedy whatsoever which may be available to the
Landlord proceeding against the Guarantor. No neglect or forbearance of
the Landlord in endeavoring to enforce observance of this Lease or obtain
indemnification as set forth herein, no extension of time which may be
given by the Landlord from time to time to the Tenant and no other act or
failure to act by the
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Landlord shall release, discharge or in any way reduce the obligation of
the Guarantor under the covenants herein. Notwithstanding the foregoing,
the obligations of Guarantor hereunder shall terminate upon termination of
this Lease by Tenant pursuant to any right of termination granted to
Tenant under this Lease (or pursuant to any applicable law) or in the
event Landlord and Tenant agree to an early termination or surrender of
this Lease.
21.15 JOINT AND SEVERAL LIABILITY
If two (2) or more individuals, corporations, partnerships or other
business associations, or any combination of two (2) or more thereof sign
this Lease as Tenant, the liability of each such individual, corporation,
partnership or other business association to pay rent and perform all
other obligations under this Lease will be deemed to be joint and several.
If the Tenant named in this Lease is a partnership or other business
association, the liability of each such member shall be deemed to be joint
and several.
21.16 MERCHANT'S ASSOCIATION
Intentionally Deleted.
21.17 SIGNAGE
As shown on the Cover Page of this Lease under Special Clause "Signage".
21.18 ENERGY EFFICIENCY
The Tenant covenants and agrees that it shall at all times use the lease
premises in such a manner that it does not subject the Landlord or the
other tenants to any additional heating or air-conditioning costs. The
Tenant further covenants and agrees that it shall at all times keep all
doors or other openings to its leased premises closed except to the extent
necessary for the ingress and egress of its agents, servants and invitees.
21.19 CREDIT VERIFICATION
Intentionally Deleted.
21.20 CONDITION OF PREMISE
That the Tenant does hereby accept this Lease of the Premises to be held
by it as Tenant and subject to the Conditions, restrictions and covenants
hereinbefore set forth.
21.21 ENURING EFFECT
This Lease and everything herein contained will enure to the benefit of
and be binding upon the parties hereto and each of their respective heirs,
executors, administrators, successors and permitted assigns.
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21.22 BINDING EFFECT
It is further agreed between the parties hereto that the signing of this
Lease by the Tenant does not constitute a binding agreement until such
time as the Lease shall have been accepted by the Landlord, through
execution by its proper officers.
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SCHEDULE A
[MAP]
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SCHEDULE "C"
LANDLORD'S WORK
Only those items enumerated below as Landlord's Work will be provided and
installed by Landlord in the Premises at its expense in accordance with
Landlord's choice of materials consistent with those used in the Shopping Center
and with Tenant's plan for Tenant's Work.
I. Site Improvements
A. Repair and completely restripe both the upper and lower
parking areas surrounding the building that will be used by
Tenant's employees.
B. Provide landscaping around the building per local zoning
requirements for office usage. If no requirements exist, a
minimum level of twenty percent of the parking area shall be
dedicated to landscaping and pedestrian access pathways.
C. Provide access pathway from lower side parking area to
Tenant's proposed entrance.
D. Install adequate site lighting for all parking areas and
pedestrian access pathways leading to the building. Parking
areas shall be illuminated at a minimum level of 2.50
foot-candles. Pedestrian access pathways shall be illuminated
at a minimum level of five-foot candles.
E. Provide all trenching required by electrical, communications
or plumbing service that is not provided by service provider.
F. Provide power to dedicated area for tenant to install site
monument sign.
G. Provide mutually agreed upon screening of existing trash
receptacles, HVAC equipment, electrical transformers etc.
surrounding the building.
II. Exterior of the Building
A. Install exterior wall system that shall reflect the character
of a newer office building. Said system shall be mutually
agreed upon by both Landlord and Tenant.
B. Install a new building facade consistent with the rendering of
the building that was submitted to Tenant along with
Landlord's proposal.
C. Provide additional perimeter windows. To be agreed upon by
both Landlord and Tenant.
D. Dedicate, design and build separate building entrance for
tenant's exclusive use which shall include exterior weather
protection, vestibule, and signage opportunity.
E. Install a covered smoking area adjacent to the building but
away from Tenant's entrance. Said smoking area shall be
visually screened from public access to the building.
F. Reroof with a new 10-year guaranteed roof.
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III. Interior Building Core Areas To Be Exclusively Used by Tenant
A. Demolish existing improvements in building as mutually agreed
upon by Landlord and Tenant.
B. Construct men's and women's washrooms in compliance with all
applicable laws and codes based on actual headcount and
finished with (i) ceramic tile or better on the floors, base
and wet walls; (ii) ceiling and other wall completely
finished; (iii) vanities, fixtures, accessories, water closed
partitions, lighting furnished and installed; (iv) washroom
signage and (v) all mechanical and plumbing services complete.
C. Provide telephone room, mechanical room, electrical room and
janitors closet in building.
D. Provide necessary exit pathways and/or stairways required by
code or actual headcount, which ever is greater.
E. Provide all doors and hardware, including locking devices and
closures as well as exterior aluminum entrance systems.
F. Provide access in Premises to domestic water, drainage and
vent systems.
G. Install water heating system for hot water installed in
washrooms and janitor's closet.
H. Deliver from building main telephone service room to specified
location within Premises dedicated 4" conduits (minimum two).
Said conduit shall be delivered without offsets or within
acceptable industry standards.
I. Install new HVAC air handlers for heating and cooling designed
for call center office conditions and main HVAC loop
installed.
IV. Work Within Premises
A. Construct perimeter walls to be complete with framing,
insulation, window xxxxx and gypsum wallboard (taped, finished
and ready for painting).
B. Provide tile ceiling system including suspended ceiling grid
at a minimum 9'-0" above finish floor throughout Premises or
equivalent allowance based on design.
C. Provide access to overhead mechanical, electrical and lighting
systems without damage to ceiling components within hard
ceiling areas.
D. Provide floor slab which is designed to support a minimum live
load of 80 lbs. p.s.f. at the building core and 50 lbs at the
perimeter with a partition load of 20 lbs p.s.f. One area to
be provided as determine by Tenant to support at a minimum
live load of 325 lbs. p.s.f. including structural bracing.
E. Provide general office lighting with parabolic type fixtures
(3 lamp) at a minimum standard or equivalent allowance based
on design.
F. Provide fire sprinkler system including sprinkler risers, main
loop, and sprinkler heads installed in the Premises as
required by applicable code or laws.
G. Provide infrastructure for fire horns and strobes required for
tenant improvement build-out. Landlord to provide emergency
and exit lighting
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to meet code and will ensure that all exit signs and emergency
lights shall be backed up by an emergency generator or battery
pack.
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SCHEDULE "D"
TENANT'S WORK
Tenant shall provide and carry out, at its cost and expense, all equipment and
work not included in Landlord's Work. The Tenant is responsible for all Trade
Fixtures, Furniture and Decorations.
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SCHEDULE "E"
DEFINITIONS
Definitions
In this Lease the Landlord and Tenant agree that:
1. "Additional Rent" means all amounts payable by a Tenant to the Landlord
hereunder except Minimum Rent, whether or not specifically designated as
Additional Rent elsewhere in this Lease.
2. "Building" means collective the building or buildings, structures,
facilities and other improvements erected or to be erected and all
expansions, alterations, additions or relocations within, upon or under
the Lands.
3. "Common Area" means the areas of the Lands and the Building that are
designated by the Landlord (which designation may be changed by the
Landlord from time to time as permitted hereunder) as Common Areas set
aside by the Landlord for the common use of the Tenant, its licensees and
invitees, in the manner and for the purposes permitted by this Lease. The
Common Area includes, without limitation, parking areas, roadways,
sidewalks, loading areas and landscaped areas and improvements thereon,
the exterior walls, roof and foundations of the Building and all other
fixtures, fittings or structural members of the Building which are not
included within the Premises or those premises in the building which are
leased to other tenants.
4. "Common Costs" - Intentionally Deleted.
5. "Gross Leasable Area" means the aggregate of all floor areas of all
premises intended by Landlord for leasing from time to time (other than
storage areas or other areas not leased for retail purposes or for
purposes of offering services to the public).
6. "Gross Rent" means the aggregate of the Minimum Rent and Additional Rent.
7. "Gross Revenue" - Intentionally Deleted.
8. "Land" or "Lands" means the parcel or parcels of land on which the
Shopping Centre was built.
9. "Lease Year" means, in respect of the first Lease Year, a period of time
commencing on the Commencement Date and expiring on the last day of the
month stipulated in paragraph 1.13 of the Basic Provisions. For greater
certainty, if the Commencement Date is within the month stipulated in
paragraph 1.13 of the Basic Provisions, the first Lease Year shall consist
of the portion of such month commencing on the Commencement Date and
expiring on the last day of such month. Thereafter, Lease Year shall
consist of consecutive periods of twelve (12) calendar months. However,
the last Lease Year shall terminate upon the expiration of the Term or
earlier termination of the Offer to Lease, as
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the case may be. Landlord may in its discretion change the Lease Year from
time to time provided that such change will not increase Tenant's
liability for any amounts payable pursuant to this Lease nor reduce or
extend the Lease Term.
10. "Premises" or "Leased Premises" means that portion of the Building more
particularly shown and outlined in red on Schedule "A" hereto, and
consisting of the area certified correct by the Property Manager.
11. "Property Manager" means the Property Manager from time to time named by
the Landlord.
12. "Proportionate Share" means for the purposes of this Lease a fraction, the
numerator of which is the Area of the Premises and the denominator of
which is the Gross Leasable Area. Notwithstanding, if the Tax Costs do not
apply to or benefit all of the Tenants of the Shopping Centre the
Proportionate Share means a fraction, the numerator of which is the Area
of the Premises and the denominator of which is the area of the Premises
benefiting from the specific Tax Costs.
13. "Shopping Centre Addition" means collectively all buildings, structures,
facilities and other improvements not now erected on the Lands and all
expansions, alterations, additions or relocations from time to time which
may be made pursuant to this Lease upon the Lands.
14. "Shopping Centre" means collectively the Lands, the Building and all
buildings, structures, facilities and other improvements erected or to be
erected thereon and all expansions, alterations, additions or relocations
from time to time which may be made thereto pursuant to this Lease.
15. "Stipulated Rate of Interest" means the rate equal to two percent (2%) per
year above the current referential rate charged from time to time by the
Royal Bank of Canada to its most creditworthy customers.
16. "Tax Costs" means all immovable property taxes, rates, duties and
assessments, whether municipal, school, local improvement, general or
special, imposed from time to time by any duly constituted governmental
authority, whether federal, provincial, municipal, school or other,
legally empowered to impose any Taxes, in respect of the Shopping Centre
or upon Landlord or the owner on account of its interest therein and
including tax on paid-up capital (or portion thereof, reasonably
attributable to the Shopping Centre), and all costs and fees incurred by
Landlord in contesting any Taxes, although Landlord shall not be obliged
to do so. If the system of real estate taxation is altered or varied from
that in force on the Commencement Date and any new tax shall be levied or
imposed on all or any portion of the Shopping Centre and/or the revenues
therefrom and/or the Landlord in substitution for and/or in addition to
Taxes levied or imposed on the Commencement Date, then any such new tax or
levy shall be deemed to be and/or to be included in the Tax Costs.
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