EXHIBIT 10.19
CUMBERLAND-BELLAIR INVESTMENT INC.
- and -
1184266 ONTARIO INC.
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L E A S E
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OFFICE LEASE
BASIC PROVISIONS
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Landlord: Cumberland-Bellair Investment Inc.
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Tenant: 1184266 Ontario Inc.
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Suite No.: 700
Area: Rentable Space - 8681 square feet
Term of Lease: 10 Years
From: August 1, 1997
To: July 31, 2007
Option to Renew: One further five (5) year term
Exercise Date: Six (6) months and not more than eighteen (18) months prior
to the expiration of the Term.
INDEX
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ARTICLE CAPTION
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1.00 GRANT AND WORK
2.00 TERM AND POSSESSION
3.00 RENT AND OPERATING COSTS
4.00 TAXES AND UTILITIES
5.00 USE OF LEASED PREMISES
6.00 SERVICES, MAINTENANCE, REPAIR, ALTERATIONS
AND ACCESS BY THE LANDLORD AND CONTROL
OF COMMON AREAS
7.00 MAINTENANCE, REPAIR, ALTERATIONS,
IMPROVEMENTS AND SIGNS BY THE TENANT
8.00 INSURANCE
9.00 INJURY TO PERSON OR PROPERTY
10.00 ASSIGNMENT AND SUBLETTING
11.00 SURRENDER
12.00 HOLDING OVER
13.00 RULES AND REGULATIONS
14.00 DAMAGE AND DESTRUCTION
15.00 ACKNOWLEDGMENTS, ATTORNMENT,
SUBORDINATION
16.00 NOTICES
17.00 DEFAULT
18.00 MISCELLANEOUS
19.00 OPTION TO EXTEND
SCHEDULE "A" DEFINITIONS
SCHEDULE "B" LEGAL DESCRIPTION
SCHEDULE "C" FLOOR PLAN
SCHEDULE "D" RULES AND REGULATIONS
SCHEDULE "E" LANDLORD'S WORK AND TENANT'S WORK
SCHEDULE "F" SPECIAL PROVISIONS
SCHEDULE "G" PHOTOGRAPH SHOWING LOCATION OF BUILDING
SIGNAGE
SCHEDULE "H" SIGNAGE FOR PRIMETECH
Office Lease
THIS LEASE made this 14th day of March, 1997.
BETWEEN:
CUMBERLAND-BELLAIR INVESTMENT INC.
(hereinafter called the "Landlord"),
OF THE FIRST PART;
- and -
1184266 ONTARIO INC.
(hereinafter called the "Tenant"),
OF THE SECOND PART.
ARTICLE 1.00
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GRANT AND WORK
1.01 Grant The Landlord hereby demises and leases the Leased Premises to
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the Tenant and the Tenant hereby leases and accepts the Leased Premises from the
Landlord, subject to the covenants and terms of this Lease.
1.02 Quiet Enjoyment The Landlord covenants with the Tenant for quiet
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enjoyment subject to the Tenant's full compliance with the terms of this Lease.
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ARTICLE 2.00
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TERM AND POSSESSION
2.01 Term The Landlord leases the Leased Premises to the Tenant for a Term
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of ten (10) years to be computed from the 1st day of August, 1997, and to be
fully completed and ended on the 31st day of July, 2007, save as hereinafter
provided for early termination.
Within a reasonable period of time following the Commencement Date,
the Landlord shall provide to the Tenant a certificate of measurement from the
Landlord's Architect, measured in accordance with the provisions of this Lease,
verifying the Rentable Space of the Leased Premises and the Rent shall be
adjusted accordingly. It is understood and agreed that the Rent payable
hereunder shall be payable on the Rentable Space of the Leased Premises.
2.02 Delayed Possession If for any reason other than delay caused by the
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Tenant or failure of the Tenant to complete its work, the Leased Premises are
not completed and ready for occupancy on the Commencement Date, Rent shall xxxxx
until the Leased Premises are completed and ready for occupancy as certified by
the Architect's Certificate and such abatement of Rent shall be in full
settlement of all claims which the Tenant may otherwise have by reason of the
delay.
2.03 Acceptance of Premises Taking possession of all or any portion of the
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Leased Premises by the Tenant shall be conclusive evidence as against the Tenant
that the Leased Premises or such portion thereof are in satisfactory condition
on the date of taking possession. Any warranties available to the Landlord in
respect of work done in the Leased Premises shall be pursued by the Landlord for
the benefit of the Tenant.
ARTICLE 3.00
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RENT AND OPERATING COSTS
3.01 Minimum Rent Yielding and paying therefor unto the Landlord yearly and
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every year and during the Term hereby granted:
(a) for the period commencing on the 1st day of August, 1997 until the
31st day of July, 2000, an annual Minimum Rent of FIFTY-SIX THOUSAND,
FOUR HUNDRED AND TWENTY-SIX DOLLARS AND FIFTY CENTS ($56,426.50) of
lawful money of Canada, payable at par at Toronto in equal consecutive
monthly instalments of FOUR THOUSAND, SEVEN HUNDRED AND TWO DOLLARS
AND TWENTY-ONE CENTS ($4,702.21), each in advance on the first day of
each month during the Term. It is understood and agreed that the
foregoing Minimum
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Rent is calculated on the basis of SIX DOLLARS AND FIFTY CENTS ($6.50)
per square foot of the Rentable Space of the Leased Premises per
annum;
(b) for the period commencing on the 1st day of August, 2000 until the
31st day of July, 2003, an annual Minimum Rent of SIXTY-NINE THOUSAND,
FOUR HUNDRED AND FORTY-EIGHT DOLLARS ($69,448.00) of lawful money of
Canada, payable at par at Toronto in equal consecutive monthly
instalments of FIVE THOUSAND, SEVEN HUNDRED AND EIGHTY-SEVEN DOLLARS
AND THIRTY-THREE CENTS ($5,787.33), each in advance on the first day
of each month during the Term. It is understood and agreed that the
foregoing Minimum Rent is calculated on the basis of EIGHT DOLLARS
($8.00) per square foot of the Rentable Space of the Leased Premises
per annum; and
(c) for the period commencing on the 1st day of August, 2003 until the
31st day of July, 2007, an annual Minimum Rent of SEVENTY-EIGHT
THOUSAND, ONE HUNDRED AND TWENTY-NINE DOLLARS ($78,129.00) of lawful
money of Canada, payable at par at Toronto in equal consecutive
monthly instalments of SIX THOUSAND, FIVE HUNDRED AND TEN DOLLARS AND
SEVENTY-FIVE CENTS ($6,510.75), each in advance on the first day of
each month during the Term. It is understood and agreed that the
foregoing Minimum Rent is calculated on the basis of NINE DOLLARS
($9.00) per square foot of the Rentable Space of the Leased Premises
per annum.
Provided the Tenant is in good standing under the terms of this Lease,
the Tenant shall not be responsible for payment of Minimum Rent or Additional
Rent during the first three (3) months of the Term.
3.02 Operating Costs The Tenant shall pay to the Landlord as Additional
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Rent, at the times and in the manner provided in Section 3.05, its Proportionate
Share of the Operating Costs.
3.03 Payment of Rent - General All amounts payable by the Tenant to the
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Landlord under this Lease or payable to a government authority by reason of the
Tenant's occupancy hereof other than Minimum Rent shall be considered
"Additional Rent" and shall be deemed to be Rent and shall be payable and
recoverable as Rent in the manner herein provided, and the Landlord shall have
all rights against the Tenant for default in any such payment as in the case of
arrears of Minimum Rent. Rent shall be paid to the Landlord, without the
requirement of notice and without deduction or set-off, in legal tender of
Canada, at the address of the Landlord as set forth in this Lease, or to such
other Person or at such other address as the Landlord may from time to time
designate in writing. The Tenant's obligation to pay Rent shall survive the
expiration or earlier termination of this Lease. If the time and manner of the
payment of any Rent is not provided in this Lease, the Landlord shall be
permitted to determine the time and manner of such payment. All Additional Rent
shall commence to be payable on the Commencement Date unless otherwise provided
for herein.
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3.04 Rent - Adjustment If the Term commences or ends on a day other than
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the first or last day of a calendar month, the monthly instalment of Minimum
Rent and Additional Rent under this Lease shall be calculated on a per diem
basis and pro rated accordingly using the Minimum Rent or Additional Rent
payable during the calendar month in question.
3.05 Payment - Operating Costs
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(a) Prior to the Commencement Date (or within a reasonable period of time
thereafter) and the beginning of each Lease Year thereafter, the Landlord shall
compute and deliver to the Tenant a bona fide estimate of Operating Costs for
the ensuing Lease Year.
(b) The Tenant shall pay to the Landlord in equal monthly instalments one-
twelfth of the Tenant's Proportionate Share of the Landlord's estimate of
Operating Costs for each Lease Year, simultaneously with the Tenant's monthly
instalment of Minimum Rent during such Lease Year.
(c) Unless delayed by causes beyond the Landlord's control, the Landlord
shall deliver to the Tenant within one hundred and twenty (120) days after the
end of each Lease Year a written statement (the "Operating Costs Statement")
setting out in reasonable detail the amount of Operating Costs for such Lease
Year. If the aggregate of such monthly instalments of Operating Costs actually
paid by the Tenant to the Landlord during such Lease Year differs from the
amount of Operating Costs payable for such Lease Year under Article 3.02, the
Tenant shall pay or the Landlord shall refund the difference (as the case may
be) without interest within thirty (30) days after the delivery of the Operating
Costs Statement.
(d) The Tenant shall not claim a readjustment in respect of Operating
Costs for a Lease Year, except by notice delivered to the Landlord within six
(6) months of the date of delivery of the Operating Costs Statement.
3.06 Deposit The Landlord hereby acknowledges receipt of the sum of
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$33,206.99 to be applied as a deposit against the first and last month's Minimum
Rent, Operating Costs, (including hydro), Taxes and Goods and Services Tax when
due.
3.07 Net Lease It is the intent of the parties hereto that the Minimum
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Rent payable under this Lease shall be absolutely net and carefree to the
Landlord. Any obligation which is not expressly declared herein to be that of
the Landlord pertaining to the Leased Premises shall be deemed to be that of the
Tenant to be paid by the Tenant or to be performed by or at the expense of the
Tenant. Notwithstanding the generality of the foregoing, the Tenant shall have
no responsibility for the income or capital taxes of the Landlord, and any
principal, interest or other carrying charges in any mortgage of the Building.
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ARTICLE 4.00
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TAXES AND UTILITIES
4.01 Taxes Payable by the Landlord The Landlord shall pay all Taxes,
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subject to Sections 4.02, 4.03, 4.04 and 4.05, provided that it may defer such
payments or compliance with any taxing statute, law, by-law, regulation or
ordinance to the fullest extent permitted by law, so long as it diligently
pursues any contest or appeal of any such Taxes.
4.02 Taxes Payable by the Tenant
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(a) If separate real property tax bills and separate real property
assessment notices for the Leased Premises are issued, the Tenant shall;
(i) pay promptly when due to the taxing authorities all Taxes imposed,
assessed, levied, rated or charged from time to time against the
Leased Premises or any part thereof and forthwith provide the Landlord
with evidence of payment upon request; and
(ii) provide the Landlord with a copy of each separate real property tax
xxxx and separate assessment notice within ten (10) days after receipt
thereof;
provided that if the Landlord so elects by notice to the Tenant, the Tenant
shall add any amounts payable under this Section 4.02(a) to the monthly
instalments of Minimum Rent payable under Section 3.01 and the Landlord shall
remit such amounts to the appropriate authorities.
(b) If separate real property tax bills and separate real property
assessment notices for the Leased Premises are not issued, the Tenant shall pay
to the Landlord at the times and in the manner provided in Section 4.03, a
share, as allocated to the Leased Premises by the Landlord in its discretion, of
all Taxes, imposed, assessed, levied, rated or charged against the Building and
the Lands.
4.03 Payment of Taxes
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(a) In the event that the provisions of Section 4.02(b) shall apply,
the Tenant shall pay to the Landlord in equal monthly instalments, one-twelfth
(1/12) of the Landlord's estimate of the amount payable by the Tenant pursuant
to Section 4.02(b) above for each Lease Year, simultaneously with the Tenant's
monthly instalment of Minimum Rent during such Lease Year.
(b) Unless delayed by causes beyond the Landlord's control, the
Landlord shall deliver to the Tenant within one hundred and twenty (120) days
after the end of each Lease Year a written statement (the "Tax Statement")
setting out in reasonable detail the amount of Taxes imposed, assessed, levied,
rated or charged against the Building and the Lands for such Lease Year
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and the amount of such Taxes payable by the Tenant for such Lease Year under
Section 4.02(b). If the aggregate of such monthly instalments of Taxes actually
paid by the Tenant to the Landlord during such Lease Year differs from the
amount of Taxes payable by the Tenant for such Lease Year under Section 4.02(b),
the Tenant shall pay or the Landlord shall refund the difference (as the case
may be) without interest within thirty (30) days after the delivery of the Tax
Statement.
(c) The Tenant shall not claim a re-adjustment in respect of Taxes for
a Lease Year except by notice delivered to the Landlord within six (6) months
after the date of delivery of the Tax Statement.
4.04 Business Taxes and Other Taxes of the Tenant In addition to the Taxes
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payable by the Tenant pursuant to Section 4.02, the Tenant shall pay to the
taxing authorities or to the Landlord as it directs, before delinquency, all
"Business Taxes". "Business Taxes" means, (a) the taxes, rates, duties,
assessments and other charges that are imposed against or in respect of the
improvements, equipment and facilities of the Tenant on or in the Leased
Premises or the Building or the Lands or any part of them or the Landlord on
account of its ownership of or interest in either of them; and (b) every tax and
license fee that is imposed against or in respect of any and every business
carried on in the Leased Premises or in respect of the use or occupancy of the
Leased Premises or any part of the Building or the Lands by the Tenant or its
subtenants or licensees, or against the Landlord on account of its ownership of
or interest in either of them. If there is not a separate xxxx issued by the
relevant authority for Business Taxes, the Landlord shall be entitled to
reasonably allocate Business Taxes and the Tenant shall pay the amount so
allocated upon demand. The Landlord will remit amounts that it collects for
Business Taxes to the relevant authority.
4.05 Separate School Taxes If the Tenant designates that Taxes go to
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support separate schools, the Tenant shall pay to the Landlord forthwith upon
demand, the difference, if any, between the rate for separate and public
schools, together with any other payment required pursuant to this Article 4.00.
4.06 Right to Contest The Landlord and the Tenant shall each have the
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right to contest in good faith the validity or amount of any tax, assessment,
licence fee, excise fee and other charge which it is responsible to pay under
this Article 4.00, provided that; (a) the Tenant obtains the Landlord's prior
written consent to any such contest before commencing same; (b) no contest by
the Tenant may involve the possibility of forfeiture, sale or disturbance of the
Landlord's interest in the Leased Premises; (c) that the Tenant indemnifies and
agrees to save the Landlord harmless from any and all losses, costs or damages
that the Landlord may suffer by reason of such contest by the Tenant; and (d)
that, prior to contesting such charge, the Tenant shall immediately pay and
satisfy the amount claimed to be due, together with any costs, penalties and
interest and provide evidence of such payment to the Landlord.
4.07 Utility Charges and Services All electricity or other utilities
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supplied to the Leased Premises shall be at the expense of the Tenant. If the
Leased Premises are not separately metered, the Landlord shall pay the cost of
such electricity or other utilities and apportion such costs among
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all those tenants supplied therefrom on a reasonable and equitable basis. Upon
receipt of a statement from the Landlord for such electricity or utility
charges, the Tenant shall pay to the Landlord the amount shown on such
statement. Notwithstanding the above, the Landlord may elect by notice to the
Tenant to estimate the amounts for which the Tenant is liable hereunder and
require the Tenant to pay same in monthly instalments at the times and in the
manner provided under this Lease for payment of Minimum Rent, in which case the
provisions of Section 3.05 shall apply.
4.08 Goods and Services Taxes Notwithstanding any other Section of this
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Lease, the Tenant shall pay to the Landlord an amount equal to any and all goods
and services taxes, sales taxes, value added taxes, business transfer taxes, or
any other taxes imposed on the Landlord or the Tenant with respect to the Rent
payable by the Tenant to the Landlord under this Lease, or in respect of the
rental of space under this Lease, whether characterized as a goods and services
tax, sales tax, value added tax, business transfer tax, or otherwise (herein
collectively and individually called "Sales Taxes"). The amount of the Sales
Taxes so payable by the Tenant shall be calculated by the Landlord in accordance
with the applicable legislation and will be paid to the Landlord at the same
time as the amounts to which such Sales Taxes apply are payable to the Landlord
under the terms of this Lease or upon demand at such other time or times as the
Landlord from time to time determines. Notwithstanding any other Section of
this Lease, the amount payable by the Tenant pursuant to the provisions hereof
shall be deemed not to be Rent, but the Landlord shall have all of the same
remedies for and rights of recovery of the amount as it has for the recovery of
Rent under this Lease.
ARTICLE 5.00
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USE OF LEASED PREMISES
5.01 Use The Leased Premises shall be used and occupied only as a
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commercial school and ancillary offices. As of the date of the Lease, the
Landlord warrants that the Leased Premises are in compliance with all necessary
by-laws and regulations (including fire code) to permit the said use.
5.02 Compliance with Laws The Leased Premises shall be used and occupied
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in a safe, careful and proper manner so as not to contravene any present or
future governmental or quasi-governmental laws, by-laws, rules or regulations or
orders. If improvements, alterations, repairs or replacements are necessary to
comply with any of the foregoing or with the requirements of insurance carriers,
the Tenant shall pay the entire cost thereof.
5.03 Abandonment The Tenant shall not vacate or abandon the Leased
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Premises at any time during the Term without the written consent of the
Landlord.
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5.04 Nuisance The Tenant shall not cause or maintain any nuisance in or
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about the Leased Premises, and shall keep the Leased Premises free of debris,
rodents, vermin and anything of a dangerous, noxious or offensive nature or
which could create a fire hazard (through undue load on electrical circuits or
otherwise) or undue vibration, heat, noise or odours.
ARTICLE 6.00
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SERVICES, MAINTENANCE, REPAIR, ALTERATIONS
ACCESS BY THE LANDLORD AND
CONTROL OF COMMON AREAS
6.01 Operating of Building During the Term, the Landlord shall operate
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and maintain the Building in accordance with all applicable laws and regulations
and with standards from time to time prevailing for a similar multi-use building
of a similar age and size in the area in which the Building is located and,
shall provide the services set out in Sections 6.02, 6.03 and 6.04 subject in
all cases to reimbursement by the Tenant as part of Operating Costs.
The Building and the Lands are at all times subject to the exclusive
control, management and operation of the Landlord. Without limiting the
generality of the preceding sentence, the Landlord has the right, in its
control, management and operation of the Building and the Lands and by the
establishment of Rules and Regulations and general policies with respect to the
operation of the Building and the Lands or any part thereof, at all times
throughout the Term, to:
(i) construct improvements in or to the Building and make alterations
thereof, additions thereto, subtractions therefrom, rearrangements
thereof (including all entrances and exits thereto), build
additional storeys on the Building and construct additional
facilities adjoining or proximate to the Building;
(ii) relocate or rearrange the various facilities and improvements
comprising the Building or erected on the Lands from those existing
at the Commencement Date;
(iii) control, supervise and regulate any parking facilities which may be
used in conjunction with the Building in such manner as the Landlord
determines from time to time, including, without limitation,
imposing charges or rates as may from time to time be determined by
the Landlord for the use of any such parking facilities;
(iv) do and perform such other acts in and to the Building and the Lands
or any part thereof as, in the use of good business judgment, the
Landlord determines to be advisable for the more efficient and
proper operation of the Building and the Lands.
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6.02 Services to Premises Subject to the Additional Services which may be
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provided pursuant to Section 6.05, the Landlord (except during periods of repair
and maintenance) shall provide in the Leased Premises:
(a) heat, ventilation and cooling as required for the use and occupancy of
the Leased Premises during Normal Business Hours.
(b) janitor services, including window washing, as reasonably required to
keep the Leased Premises in a clean and wholesome condition, provided
that the Tenant shall leave the Leased Premises in a reasonably tidy
condition at the end of each business day,
(c) electric power for normal lighting and small business office equipment
but not equipment using amounts of power disproportionate to that used
by other tenants in the Building,
(d) replacement of Building standard fluorescent tubes, light bulbs and
ballasts as required from time to time as a result of normal usage,
and
(e) maintenance, repair and replacement as set out in Article 6.04.
6.03 Building Services The Landlord shall (except during periods of repair
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and maintenance) provide in the Building:
(a) domestic running water and necessary supplies in washrooms sufficient
for the normal use thereof by occupants of the Building,
(b) access to and egress from the Leased Premises during Normal Business
Hours of the Building, including elevator or escalator service if
included in the Building,
(c) heat, ventilation, cooling, lighting, electric power, domestic running
water and janitor service in those portions of the Common Areas from
time to time designated by the Landlord for use during Normal Business
Hours by the Tenant in common with all tenants and other Persons in
the Building but under the exclusive control of the Landlord,
(d) a general directory board on which the Tenant shall be entitled to
have its name shown, provided that the Landlord shall have exclusive
control thereof, including the right to require a fee to be paid for
the privilege of displaying the name of the Tenant thereon and any
additions or deletions, the Landlord being solely responsible for the
allocation of space to tenants, and
(e) maintenance, repair and replacement as set out in Article 6.04.
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6.04 Maintenance, Repair and Replacement The Landlord shall operate,
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maintain, repair and replace the systems, facilities and equipment necessary for
the proper operation of the Building and for provision of the Landlord's
services under Articles 6.02 and 6.03 (except as may be installed by or be the
property of the Tenant) and shall be responsible for and shall expeditiously
maintain and repair the foundations, structure and roof of the Building and
repair damage to the Building which the Landlord is obligated to insure against
under Article 8.01 hereof, provided that:
(a) if all or part of such systems, facilities and equipment are
destroyed, damaged or impaired, the Landlord shall have a reasonable
time in which to complete the necessary repair or replacement and
during that time shall be required only to maintain such services as
are reasonably possible in the circumstances,
(b) the Landlord may temporarily discontinue such services or any of them
at such times as may be necessary due to causes beyond the reasonable
control of the Landlord,
(c) if all or part of such systems, facilities and equipment are
destroyed, damaged or impaired by reason of the actions or inactions
of the Tenant, then the cost of repair or replacement shall be at the
expense of the Tenant.
6.05 Additional Services
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(a) If from time to time requested in writing by the Tenant and to the
extent that it is reasonably able to do so, the Landlord shall provide in the
Leased Premises services in addition to those set out in Articles 6.02 and 6.03,
provided that the Tenant shall within ten (10) days of receipt of any invoice
for any such additional service pay the Landlord therefor at such reasonable
rates as the Landlord may from time to time establish and as well comply with
all reasonable security requirements of the Landlord.
(b) The Tenant shall not without the Landlord's written consent install in
the Leased Premises equipment (including telephone equipment) which generates
sufficient heat to affect the temperature otherwise maintained in the Leased
Premises by the air conditioning system as normally operated. The Landlord may
install supplementary air conditioning units, facilities or services in the
Leased Premises, or modify its air conditioning system, as may be required in
the reasonable opinion of the Landlord to maintain proper temperature levels,
and the Tenant shall pay the Landlord within ten (10) days of receipt of any
invoice for the cost thereof, including installation, operation and maintenance
expense.
(c) If the Landlord shall from time to time reasonably determine that the
use of electricity or any other utility or service in the Leased Premises is
disproportionate to the use of other tenants, the Landlord may separately charge
the Tenant for the excess costs attributable to such disproportionate use. The
Landlord shall provide the Tenant with detailed invoices and calculations to
support the charges. At the Landlord's request, the Tenant shall install and
maintain, at the
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Tenant's expense, metering devices for checking the use of any such utility or
service in the Leased Premises.
6.06 Alterations by Landlord The Landlord may from time to time make
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repairs, replacements, changes or additions to the structure, systems,
facilities and equipment in the Leased Premises where necessary to serve the
Leased Premises or other parts of the Building.
6.07 Access by Landlord The Tenant shall permit the Landlord to enter the
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Leased Premises outside Normal Business Hours and during Normal Business Hours
where such will not unreasonably disturb or interfere with the Tenant's use of
the Leased Premises and operation of its business, to examine, inspect and show
the Leased Premises to Persons wishing to lease same, to provide services or
make repairs, replacements, changes or alterations as set out in this Lease, and
to take such steps as the Landlord may deem necessary for the safety,
improvement or preservation of the Leased Premises or the Building. The Landlord
shall whenever possible consult with or give reasonable notice to the Tenant
prior to such entry, but no such entry shall constitute an eviction or entitle
the Tenant to any abatement of Rent. During the last six (6) months of the Term
(or renewals), the Landlord shall be entitled to enter the Leased Premises for
the purposes of showing the Leased Premises to Persons wishing to lease same.
6.08 Policies The Landlord shall be deemed to have observed and performed
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the terms and conditions to be performed by the Landlord under this Lease,
including those relating to the provision of utilities and services, if in so
doing it acts in accordance with a directive, policy or request of a
governmental or quasi-governmental authority serving the public interest in the
fields of energy, conservation or security.
6.09 Limitation Notwithstanding anything contained in this Article or
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Lease, the Landlord shall not be liable under any circumstances for any loss or
damage to any Person or property arising out of any obligation of the Landlord
contained in this Article or Lease. No reduction or discontinuance of any
services set out in Article 6.00 herein or elsewhere in this Lease nor any
exercise by the Landlord of any of its rights set out in this Article 6.00 or
elsewhere in this Lease shall be construed as an eviction of the Tenant or a
release of the Tenant from any of its obligations under this Lease or a breach
of any covenant for quiet enjoyment contained in this Lease or implied by law.
ARTICLE 7.00
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MAINTENANCE, REPAIR, ALTERATIONS, IMPROVEMENTS
AND SIGNS BY THE TENANT
7.01 Condition of Premises. Except to the extent that the Landlord is
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specifically responsible therefor under this Lease, the Tenant shall maintain
the Leased Promises and all improvements therein in good order and condition as
reasonably requested by the Landlord and at least to the standard of the repair
of the Building, including:
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(a) repainting and redecorating the Leased Premises and cleaning drapes
and carpets at reasonable intervals as needed,
(b) making repairs, replacements and alterations as needed, including
those necessary to comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction, and
(c) notifying the Landlord promptly of any damage to the Leased Premises
or Building.
7.02 Failure to Maintain Premises If the Tenant fails to perform any
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obligations under Section 7.01, then on not less than ten (10) days' notice to
the Tenant the Landlord may enter the Leased Premises and perform such
obligations without liability to the Tenant for any loss or damage to the Tenant
thereby incurred, and the Tenant shall pay the Landlord for the cost thereof,
plus fifteen percent (15%) of such cost for overhead and supervision, within ten
(10) days of receipt of the Landlord's invoice therefor.
7.03 No Alteration Without-Consent The Tenant shall not make any
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alterations repairs, changes, additions, fixturing, installations or
improvements (hereinafter collectively referred to as "Improvements") to the
Leased Premises without the prior written consent of the Landlord. All
Improvements (other than the Tenant's trade fixtures, furniture, drapery or
equipment) made, erected or installed in the Leased Premises shall immediately
upon their placement be and become the property of the Landlord without
compensation therefor to the Tenant and the Tenant shall not remove any such
Improvements either before or after the termination of this Lease without the
prior written consent of the Landlord. Prior to the Landlord giving
consideration to any application for the Landlord's consent pursuant to this
Section 7.03, the Tenant shall provide to the Landlord detailed plans, drawings
and specifications of such Improvements. Any costs incurred by the Landlord,
including, without limiting the generality of the foregoing, fees paid to
architects, engineers or other consultants, shall be paid by the Tenant to the
Landlord forthwith upon demand.
7.04 Construction of Improvements All Improvements, when approved by the
----------------------------
Landlord, shall be effected by such contractor, contractors or sub-contractors
as the Tenant may select but, in each case, only under written contract approved
in writing by the Landlord and subject to all reasonable conditions which the
Landlord may impose. It is expressly understood and agreed that, without
limiting the generality of the foregoing, it shall be reasonable for the
Landlord to impose as conditions of the granting of its consent any one or more
of the following:
(a) that the Tenant shall exhibit to the Landlord prior to the
commencement of the making of Improvements all building permits,
consents and other authorizations as may be required for the effecting
of such Improvements;
(b) that the Tenant shall, prior to the commencement of the making of
Improvements, furnish to the Landlord such security, whether by way of
performance bond, cash
-13-
deposit or otherwise, as the Landlord may require, to ensure the due
and proper carrying out and completion of the improvements and payment
therefor;
(c) that the Tenant shall permit the Landlord to supervise the carrying
out of the improvements; and
(d) that the Tenant shall pay to the Landlord all costs incurred by the
Landlord in supervising and inspecting the Improvements) including
fees paid to architects, engineers and other consultants, and salaries
paid to Persons on the Landlord's staff or on staff of any Person
managing or administering the Building as well as an administration
fee equal to five (5%) percent of the full contract price for all
approvals, supervision to ensure compliance with approved plans and
building code requirements, attendance at site meetings if necessary,
security, hoisting, elevator service, temporary power.
The Landlord may in its absolute discretion require that the whole or
any part of such Improvements be carried out by contractors or subcontractors
designated by the Landlord, but at the expense of the Tenant. Each such
contractor or subcontractors whether or not designated by the Landlord, shall be
the Tenant's contractor and subcontractor and the Tenant hereby undertakes that
any work performed by or for the Tenant shall be performed by competent workmen
whose labour union affiliations are not incompatible with those of any workmen
who may be employed in the Building by the Landlord its contractors or sub-
contractors.
7.05 Trade Fixtures The Tenant may install in the Leased Premises its
--------------
trade fixtures in a proper manner, provided that no such installation shall
interfere with or damage the mechanical or electrical systems or the structure
of the Building. If the Tenant is not then in default hereunder, trade fixtures
installed in the Leased Premises may be removed from the Leased Premises from
time to time in the ordinary course of the Tenants business or in the course of
reconstruction, renovation or alteration of the Leased Premises by the Tenant
and during a reasonable period prior to the expiration of the Term, provided
that the Tenant promptly repairs at its own expense any damage to the Leased
Premises resulting from such installation and removal. The foregoing reference
to trade fixtures which may be removed shall not include any Improvements which
as stated in Section 7.03 become the property of the Landlord upon installation.
7.06 Construction Liens The Tenant shall pay all costs for work done or
------------------
caused to be done by the Tenant in the Leased Premises which could result in any
lien or encumbrance on the Landlord's interest in the Building or the Lands or
any part thereof, shall keep the title to the Building and the Lands and every
part thereof free and clear of any lien or encumbrance in respect of such work,
and shall indemnify and hold harmless the Landlord against any claim, loss,
cost, demand and legal or other expense, whether in respect of any lien or
otherwise, arising out of the supply of material, services or labour for such
work. The Tenant shall immediately notify the Landlord of any such lien, claim
of lien or other action of which it has or reasonably should have knowledge and
which affects the title to the Building or the Lands or any part thereof, and
shall cause the same to
-14-
be removed within five (5) days, failing which the Landlord may take such action
as the Landlord deems necessary to remove same and the entire cost thereof
together with all legal fees and expenses expended by the Landlord shall be
immediately due and payable by the Tenant to the Landlord as Additional Rent.
7.07 Signs The Tenant shall not inscribe or affix any sign, lettering or
-----
design in the Leased Premises or the Building which is visible from the exterior
of the Building or on the interior or exterior of the Leased Premises. Any
sign, lettering or design of the Tenant which is visible from the exterior of
the Leased Premises, for example, in the Common Areas must be approved by the
Landlord, which approval may be arbitrarily withheld. Any sign, lettering or
design of the Tenant which is approved of by the Landlord shall be at the
Tenant's expense and shall conform to the uniform pattern (based on Building
standard and quality) of identification signs for tenants in the Building as
prescribed from time to time by the Landlord. Notwithstanding the foregoings the
Tenant, at the Tenant's sole cost, shall have the right to install building
signage in the south-west corner of the building (at second floor level - below
windows) and a plaque sign on either one (but not both) of the columns located
at the front entrance of the Building as illustrated in Schedules G and H. The
Landlord acknowledges having approved the Tenant's signage. Any future changes
to signs and/or plaques shall be subject to the Landlord's approval, which
approval shall not be unreasonably withheld and shall comply with all applicable
laws and by-laws. The Tenant shall be responsible for repairing any damage
caused to the Building as a result of installing such signage. The Tenant shall
also be responsible for removing said signage at the end of the Term, and any
renewals thereof, and the Tenant shall be responsible to make good any damage
caused by such removal.
ARTICLE 8.00
------------
INSURANCE
8.01 Landlord's Insurance
--------------------
(a) During the Term, the Landlord shall maintain liability insurances fire
insurance with extended coverage, boiler and pressure vessel insurance, loss of
rental income insurance or insurable gross profits and other insurance on the
Building and all property and interest of the Landlord in the Building with
coverage and in amounts not less than those which are from time to time
acceptable to a prudent owner in the area in which the Building is located. The
costs of such insurance shall be reimbursed by the Tenant to the Landlord as
part of Operating Costs.
(b) Notwithstanding any contribution by the Tenant to the cost of the
Landlord's insurance premiums, the Tenant acknowledges and agrees that:
(i) the Tenant is not relieved of any liability arising from or
contributed to by its negligence or its wilful act or omission;
-15-
(ii) no insurable interest is conferred upon the Tenant under any
insurance policies carried by the Landlord;
(iii) the Tenant has no right to receive any proceeds of any
insurance policies carried by the Landlord; and
(iv) the right of any insurer of the Landlord to be subrogated to
the rights of the Landlord is not limited or in any way
restricted.
8.02 Tenant not to Jeopardize Landlord's Insurance Tenant shall neither
---------------------------------------------
do, permit or omit to be done, nor keep or sell, anything in or about the Leased
Premises or the Building or the Lands which might result in any increase in the
premiums for Landlord's insurance coverage on the Building or which might result
in the actual or threatened reduction or cancellation of or material adverse
change in such coverage.
If the premiums for Landlord's insurance are increased as a result of
Tenants use or occupancy of the Leased Premises or any article kept by Tenant on
the Leased Premises or any act or omission of Tenant in the Building or the
Lands or any part thereof, Tenant shall pay such increase in premiums as
Additional Rent forthwith upon demand. In determining Tenant's responsibility
as aforesaid for any increased premiums a statement issued by the organization
or company establishing the insurance rate(s) on the Building shall be
conclusive evidence of the various components of such rate(s).
If any insurance coverage on the Building or any part thereof is
actually, or threatened to be, either canceled, reduced or materially adversely
changed by the insurer by reason of the use or occupancy of the Leased Premises
or any part thereof, and if Tenant fails to remedy the condition or use or
occupancy giving rise to such actual or threatened cancellation, reduction or
change within twenty-four (24) hours after notice thereof by Landlord then the
Landlord may at its option either:
(a) re-enter and take possession of the Leased Premises forthwith by
leaving upon the Leased Premises a notice in writing of its intention
to do so and thereupon the provisions of this Lease respecting
Landlord's remedies shall apply; or
(b) enter upon the Leased Premises and remedy the condition, use or
occupancy giving rise to such actual or threatened cancellation
reduction or change, and Tenant shall pay to Landlord on demand as
Additional Rent the cost thereof to Landlord. Tenant agrees that no
such entry by Landlord shall be deemed a re-entry or a breach of any
covenant of quiet enjoyment contained in this Lease.
Tenant agrees that Landlord shall not be liable for any loss or damage
to any Person or property located on the Leased Premises as a result of any
entry or re-entry by Landlord pursuant to this Section 8.02.
-16-
8.03 Tenant's Insurance
------------------
(a) Tenant shall, at its sole cost and expense, take out and keep in full
force and effect and pay all premiums for, throughout the Term and during such
other time as Tenant occupies the Leased Premises or any part thereof, the
following insurance:
(i) comprehensive general liability insurance including but not
limited to property damage, bodily injury liability,
contractual liability, non-owned automobile liability and
owners' and contractors' protective insurance coverage with
respect to the Leased Premises and Tenant's use of the
Building and the Lands, coverage to include the activities
conducted by Tenant and any other Person on the Leased
Premises, and by Tenant, those for whom Tenant is in law
responsible and any other Person performing work on behalf of
Tenant in any other part of the Building or the Lands. Such
policies shall have inclusive limits of at least Two Million
($2,000,000.00) Dollars for each occurrence involving bodily
injury, death or property damage, or such higher limits as
Landlord may from time to time reasonably require;
(ii) insurance upon property of every kind and description owned by
Tenant, or for which Tenant is legally liable, or installed by
or on behalf of Tenant in the Building, without limitation,
stock-in-trade, if appropriate, furniture, fixtures, interior
plate glass and leasehold improvements, in an amount of not
less than the full replacement cost thereof, which amount
shall be conclusively determined by Landlord in the event of
any dispute with respect thereto. Such coverage shall insure
at least against fire and such other perils as are from time
to time included in the standard "all-risks" coverage
including, without limitation, sprinkler leakages (where
applicable), earthquake, flood and collapse;
(iii) if appropriate, broad form comprehensive boiler and machinery
insurance on a blanket repair and replacement basis with
limits for each accident in an amount not less than the full
replacement costs of all leasehold improvements and of all
boilers, pressure-vessels, air-conditioning equipment and
miscellaneous electrical apparatus owned or operated by Tenant
or by others (other than Landlord) on behalf of Tenant in or
relating to or serving the Leased Premises;
(iv) business interruption insurance in such amounts as are from
time to time necessary to reimburse Tenant for direct or
indirect loss of earnings attributable to any of the perils
required to be insured against by Tenant pursuant hereto or
any other perils commonly insured against by prudent
-17-
tenants in similar circumstances or attributable to prevention
of access to Leased Premises or the Building as a result of
such perils;
(v) tenant's legal liability insurance for the whole replacement
cost of the Leased Premises, including loss of use thereof;
(vi) standard owners' form automobile policy providing third party
liability insurance with inclusive limits of not less than one
Million ($1,000,000.00) Dollars, and accident benefit
insurance, covering all licensed vehicles owned or operated by
or on behalf of Tenant; and
(vii) any other form of insurance, in such amounts and against such
risks, as Landlord may from time to time reasonably require.
(b) Each of Tenant's insurance policies shall name Landlord and any
Persons designated by Landlord as additional named insured as their respective
interests may appear and shall contain, as appropriate,
(i) the standard mortgage clause as may be required by any
mortgagee of Landlord;
(ii) a waiver of any subrogation rights which Tenant's insurers
would have against Landlord or any Person for whom Landlord is
in law responsible;
(iii) a severability of interests clause and a cross-liability
clause;
(iv) a provision stating that Tenant's insurance policy shall be
primary and shall not call into contribution any other
insurance available to Landlord; and
(v) a waiver, as respects the interests of Landlord and of any
mortgagee, of any provision in any of Tenant's insurance
policies with respect to any breach of any warranties,
representations, declarations, or conditions contained in the
said policies.
(c) All policies shall be taken out with such insurers and be in such form
as are satisfactory from time to time to Landlord. Tenant shall deliver to
Landlord either certificates of insurance in the form designated by Landlord or
certified copies of Tenant's insurance policies as soon as practicable after the
placement of such insurance, and shall from time to time furnish to Landlord
certificates or other evidences acceptable to Landlord as to Tenant's insurance
in effect and its renewal or continuation in force, together with such evidence
as may be required by the Landlord as to the method of determination of the full
replacement cost of Tenant's stock-in-trade, furniture, fixtures, interior plate
glass and leasehold improvements.
-18-
(d) All policies shall contain an undertaking by the insurers that no
material change, cancellation or termination of any policy will be made unless
Landlord has received not less than thirty (30) days prior written notice
thereof, delivered in accordance with the provisions of this Lease.
8.04 Landlord's Right to Place Tenant's Insurance If Tenant at any time
--------------------------------------------
fails to take out, keep in force or pay the premiums on, any such insurance as
required herein, or if Tenant fails from time to time to deliver to Landlord
satisfactory proof of the good standing of any such insurance or the payment of
premiums thereon as required herein then in any such event Landlord shall,
without prejudice to any of its other rights and remedies under this Lease, have
the right but not the obligation to effect such insurance on behalf of Tenant
and the cost thereof together with all reasonable expenses incurred by Landlord
shall be paid by Tenant to Landlord upon demand.
ARTICLE 9.00
------------
INJURY TO PERSON OR PROPERTY
9.01 Loss or Damages. The Landlord shall not be liable for any death or
---------------
injury arising from or out of any occurrence in, upon, at, or relating to, the
Building or the Lands, or damage to property of the Tenant or of others located
on the Leased Premises or elsewhere in the Building or upon the Lands, nor shall
the Landlord be responsible for any loss of or damage to any property of the
Tenant or others from any cause whatsoever, whether or not any such death,
injury, loss or damage results from the negligence of the Landlord, its agents,
servants or employees or other Persons for whom it may, in law, be responsible.
Without limiting the generality of the foregoing, the Landlord shall not be
liable for any injury or damage to Persons or property resulting from fire,
explosion, falling plaster, failing ceiling tile, falling ceiling fixtures and
diffuser coverings, steam, gas, electricity, water, rain, flood, snow or leaks
from any part of the Leased Premises or from the pipes, sprinklers, appliances,
plumbing works, root windows or subsurface of any floor or ceiling of the
Building or from the adjoining streets or any other place or by dampness or by
any other cause whatsoever. The Landlord shall not be liable for any such
damage caused by other tenants or Persons in the Building or by occupants of
adjacent property thereto, or the public, or caused by construction or by any
private, public or quasi-public work. All property of the Tenant kept or stored
on the Leased Premises shall be so kept or stored at the risk of the Tenant only
and the Tenant shall indemnify the Landlord and save it harmless from any claims
arising out of any damages to the same including, without limitation, any
subrogation claims by the Tenant's insurers.
9.02 Indemnity by Tenant The Tenant will indemnify the Landlord and save it
-------------------
harmless from and against any and all claims, actions, damages, liability and
expense in connection with the loss of life, personal injury and/or damage to
property arising from or out of any occurrence in, upon or at the Leased
Premises, the occupancy or use by the Tenant of the Leased Premises or any part
thereof or occasioned wholly or in part by any act or omission of the Tenant
provided that such claims are not due to the gross negligence of the Landlord or
those for whom the Landlord is responsible at law. In case the Landlord shall,
without fault on its part, be made a party to any
-19-
litigation commenced by or against the Tenant, then the Tenant shall protect and
hold the Landlord harmless and shall pay all costs, expenses and solicitors'
fees on a solicitor and his client basis incurred or paid by the Landlord in
connection with such litigation. The foregoing obligation of the Tenant shall
survive the expiration or earlier termination of the Term.
ARTICLE 10.00
-------------
ASSIGNMENT AND SUBLETTING
10.01 Assignment, Subletting and Transfers The Tenant shall not assign this
------------------------------------
Lease or sublet the Leased Premises in whole or in part or otherwise transfer
its rights to all or any part of the Leased Premises or the occupancy thereof,
and will not mortgage charge or otherwise encumber this Lease or the Leased
Premises (such assignments subletting transfer, mortgage, charge and
encumbrance being herein called a "Transfer") to or in favour of any Person
(herein called a "Transferee") without the prior written consent of the Landlord
in each instance, which consent shall not be unreasonably withheld but shall be
subject to the Landlord's rights under Section 10.02 and, notwithstanding any
statutory provision to the contrary, it shall not be considered unreasonable for
the Landlord to take into account the following factors in deciding whether to
grant or withhold its consent:
(a) whether such Transfer is in violation or in breach of any covenants or
restrictions made or granted by the Landlord to other tenants or
occupants or prospective tenants or occupants of the Building;
(b) whether in the Landlord's opinion, the financial background, business
history and capability of the proposed Transferee is satisfactory; and
(c) if the Transfer is to an existing tenant of the Landlord; and
the consent by the Landlord to any Transfer if granted shall not constitute a
waiver of the necessity for such consent to any subsequent Transfer. This
prohibition against a Transfer shall include a prohibition against any Transfer
by operation of law and no Transfer shall take place by reason of the failure of
the Landlord to give notice to the Tenant within 30 days as required by Section
10.02.
10.02 Landlord's Right to Terminate If the Tenant intends to effect a
-----------------------------
Transfer or if a Transfer occurs by operation of law, the Tenant shall give at
least thirty (30) days prior written notice to Landlord of such intent or
occurrence specifying the identity of the Transferee, the type of Transfer
intended or occurring, the portion of the Leased Premises affected thereby, and
the financial and other terms of the Transfer, and shall provide such financial,
business or other information relating to the proposed Transferee and its
principals as the Landlord or its mortgagee requires, together with copies of
any documents which record the particulars of the intended or occurring
-20-
Transfer. The Landlord shall, within 30 days after having received such notice
and all requested information notify the Tenant either that it:
(a) consents or does not consent to the Transfer in accordance with the
provisions and qualifications of this Article 10.00; or
(b) elects to terminate this Lease as to the whole or parts as the case
may be, of the Leased Premises affected by the intended or occurring
Transfer.
If the Landlord elects to terminate this Lease in whole or in part it
shall stipulate in its notice the termination date of this Lease, which date
shall be no less than 30 days nor more than 90 days following the giving of such
notice termination.
10.03 Conditions of Landlord's Consent The Landlord's consent to any
--------------------------------
subletting or parting with possession of all or any part of the Leased Premises
or to an assignment of this Lease shall be subject to the condition that:
(a) the minimum rent and additional rent payable by the sublessee,
occupant or assignee, as the case may be, shall not be proportionately
less than the Minimum Rent and Additional Rent payable hereunder as at
the effective date of the sublease, parting with possession or
assignment, as the case may be (including any increases provided for
in this Lease);
(b) if the minimum rent and/or additional rent to be paid by the
sublessee, occupant or assignee, as the case may be, proportionately
exceeds the Minimum Rent and/or Additional Rent payable hereunder, the
amount of such excess shall be paid by the Tenant to the Landlord as
Additional Rent, if, as and when received the Tenant; and
(c) if the Tenant receives from any sublessee, occupant or assignee, as
the case may be, either directly or indirectly, any consideration
other than minimum rent or additional rent for such sublease,
occupancy or assignment as the case may be, either in the form of
cash, goods or services, the Tenant shall forthwith pay to the
Landlord an amount equivalent to such consideration.
10.04 Conditions of Transfer If there is a permitted Transfer, the
----------------------
Landlord may collect rent from the Transferee and apply the net amount collected
to the Rent payable hereunder but no acceptance by the Landlord of any payments
by a Transferee shall be deemed a waiver of the Tenant's covenants or an
acceptance of the Transferee as tenant or a release of the Tenant from the
further performance by the Tenant of its obligations under this Lease. Any
consent by the Landlord shall be subject to the Tenant and the Transferee
executing an agreement with the Landlord agreeing that the Transferee will be
bound by all of the terms of this Lease as if it had originally executed this
Lease as tenant; and so as to incorporate any conditions imposed by the Landlord
in its consent or required by Section 10.03 and Section 10.04.
-21-
10.05 Tenant Not Released Notwithstanding any Transfer permitted or
-------------------
consented to by the Landlord, the Tenant shall remain liable under this Lease
and shall not be released from performing any of the terms of this Lease.
10.06 No Partial Payments of Rent Notwithstanding the effective date of any
---------------------------
permitted Transfer as between the Tenant and the Transferee, all Minimum Rent
and Additional Rent for the month in which such effective date occurs shall be
paid in advance by the Tenant so that the Landlord will not be required to
accept partial payments of minimum Rent and Additional Rent for such month from
either the Tenant or its Transferee.
10.07 Documentation Any document evidencing any Transfer permitted by the
-------------
Landlord, or setting out any terms applicable to such Transfer or the rights and
obligations of the Tenant or Transferee thereunder, shall be prepared by the
Landlord or its solicitors and all associated legal costs shall be paid by the
Tenant.
10.08 Change of Control If the Tenant is at any time a company,
-----------------
corporation or partnership, any actual or proposed Change of Control in such
company, corporation or partnership shall be deemed to be a Transfer and subject
to all of the provisions of this Article 10.00. The Tenant shall make available
to the Landlord or its representatives all of its corporate or partnership
records, as the case may be, for inspection at all reasonable times, in order to
ascertain whether any Change of Control has occurred. For the purposes of this
Section, Change of Control means the transfer, or issue of any shares, voting
rights or interests by sale, assignment subscriptions transmission on death, or
by operation of law (and shall be deemed to include a mortgage, charge or
security interest granted on such shares, voting rights or interest), where such
transfer, issue, mortgage or charge would result in any change in the effective
control of such company, corporation or partnership unless such change occurs as
a result of trading on a recognized stock exchange in Canada or the United
States and then only so long as the Landlord receives assurances reasonably
satisfactory to it that there will be continuity of management and of the
business practices of such company or corporation notwithstanding such Change of
Control.
10.09 No Advertising The Tenant shall not advertise that the whole or part
--------------
of the Leased Premises are available for assignment or sublease and shall not
permit any broker or other Person to do so unless the text and format of such
advertisement is approved in writing by the Landlord. No such advertisement
shall contain any reference to the Rent for the Leased Premises.
10.10 Assignment by Landlord The Landlord shall have the unrestricted right
----------------------
to sell, lease, convey or otherwise dispose of all or any part of the Building
and the Lands or this Lease or any interest of the Landlord therein. To the
extent that the purchaser, lessee or assignee from the Landlord assumes the
obligations of the Landlord under this Lease, the Landlord shall thereupon and
without further agreement be released of liability under this Lease to the
extent of such assumption.
-22-
ARTICLE 11.00
-------------
SURRENDER
11.01 Possession Upon the expiration or other termination of the Term, the
----------
Tenant shall immediately quit and surrender possession of the Leased Premises in
the condition in which the Tenant is required to maintain the Leased Premises.
Upon such surrender, all right, title and interest of the Tenant in the Leased
Premises shall cease.
11.02 Trade Fixtures and Improvements Subject to the Tenant's rights under
-------------------------------
Section 7.05, after the expiration or other termination of the Term all of the
Tenant's trade fixtures and Improvements remaining in the Leased Premises shall
be deemed conclusively to have been abandoned by the Tenant and may be
appropriated, sold, destroyed or otherwise disposed of by the Landlord without
notice or obligation to compensate the Tenant or to account therefor, and Tenant
shall pay to the Landlord on written demand all reasonable costs incurred by the
Landlord in connection therewith. The Landlord shall not require the Tenant to
remove any Improvements made to the Leased Premises by or on behalf or at the
request of the Tenant (and whether installed by the Tenant or not) or to restore
the Leased Premises to the state that existed prior to the making of any such
Improvements therein whether by Landlord or Tenant. In any event, the Tenant
shall promptly repair at its own expense any damage to the Leased Premises
resulting from any removal of Improvements or trade fixtures.
11.03 Payments after Termination No payments of money by the Tenant to the
--------------------------
Landlord after the expiration or other termination of the Term or after the
giving of any notice (other than a demand for payment of money) by the Landlord
to the Tenant, shall reinstate, continue or extend the Term or make ineffective
any notice given to the Tenant prior to the payment of such money. After the
service of notice of the commencement of a suit, or after final judgment
granting the Landlord possession of the Leased Premises, the Landlord may
receive and collect any sums of Rent due under the Lease, and the payment
thereof shall not make ineffective any notice, or in any manner affect any
pending suit or any judgment theretofore obtained.
ARTICLE 12.00
-------------
HOLDING OVER
12.01 Month to Month Tenancy If the Tenant remains in possession of the
----------------------
Leased Premises with or without the Landlord's written consent after the
expiration or other termination of the Term, the Tenant shall be deemed to be
occupying the Leased Premises on a month to month tenancy only, at a monthly
rental equal to one hundred and fifty percent (150%) of the Minimum Rent and
Additional Rent in the last month of the Term or such other rental as is agreed
in writing by the Landlord and the Tenant, and such month to month tenancy may
be terminated by the Landlord or the Tenant on the last day of any calendar
month by delivery of at least thirty (30) days' advance notice of termination to
the other.
-23-
12.02 General Any month to month tenancy shall be subject to all other
-------
terms conditions of this Lease except any right of renewal and nothing contained
in this Article 12.00 shall be construed to limit or impair any of the
Landlord's rights of re-entry eviction or constitute a waiver thereof.
ARTICLE 13.00
RULES AND REGULATIONS
13.01 Purpose The Rules and Regulations in Schedule "D' have been adopted
-------
by the Landlord for the safety, benefit and convenience of all tenants and other
Persons in the Building.
13.02 Observance The Tenant shall at all times comply with, and shall cause
----------
its employees, agents, licensees and invitees to comply with, the Rules and
Regulations from time to time in effect.
13.03 Modification The Landlord may from time to time, for the purposes set
------------
out in Section 13.0 1, amend, delete from or add to the Rules and Regulations,
provided that any such modification:
(a) shall not be repugnant to any other provision of this Lease,
(b) shall be reasonable and have general application to all tenants in the
Building, and
(c) shall be effective upon delivery of a copy thereof to the Tenant at
the Leased Premises.
13.04 Non-Compliance The Landlord shall not be responsible to the Tenant
--------------
for failure of any Person to comply with such Rules and Regulations.
ARTICLE 14.00
-------------
DAMAGE AND DESTRUCTION
14.01 No Abatement If the Leased Premises or the Building are damaged or
------------
destroyed in whole or in part by fire or any other occurrence, this Lease shall
continue in force and effect and there shall be no abatement of Rent except as
provided in this Article 14.00.
14.02 Damage to Leased Premises. If the Leased Premises are at any time
-------------------------
destroyed or damaged as a result of fire or any other occurrence insured against
by the Landlord and not caused or contributed to by the Tenant and such damage
is such that, in the opinion of the Landlord, the Leased Premises can be rebuilt
or restored and made fit for the purpose of the Tenant within one hundred and
eighty (180) days of the happening of such damage or destruction then the
following provisions shall apply:
-24-
(a) if the Leased Premises are rendered untenantable only in part, the
Landlord shall proceed to diligently repair the Leased Premises to
the extent only of its obligations under Section 6.04 and Rent shall
xxxxx proportionately to the portion of the Leased Premises rendered
untenantable from the date of destruction or damage until the
Landlord's repairs have been substantially completed;
(b) if the Leased Premises are rendered wholly untenantable, the Landlord
shall proceed to diligently repair the Leased Premises to the extent
only of its obligations pursuant to Section 6.04 and Rent shall xxxxx
entirely from the date of destruction or damage until the Landlord's
repairs have been substantially completed;
(c) if the Leased Premises are not rendered untenantable in whole or in
part, the Landlord shall diligently perform such repairs to the
Leased Premises to the extent only of its obligations under Section
6.04, but in such circumstances Rent shall not xxxxx;
(d) upon being notified by the Landlord that the Landlord's repairs have
been substantially completed, the Tenant shall diligently perform all
repairs to the Leased Premises which are the Tenant's responsibility
under Section 7.01 and all other work required to fully restore the
Leased Premises for use in the Tenant's business, in every case at
the Tenant's cost and without any contribution to such cost by the
Landlord, whether or not the Landlord has at any time made any
contribution to the cost of supply, installation or construction of
Improvements in the Leased Premises;
(e) nothing in this Section shall require the Landlord to rebuild the
Leased Premises in the condition which existed before any such damage
or destruction occurred so long as the Leased Premises as rebuilt
will have reasonably similar facilities to those in the Leased
Premises prior to such damage or destruction, having regard, however,
to the age of the Building at such time; and
(f) nothing in this Section shall require the Landlord to undertake any
repairs having a cost in excess of the insurance proceeds actually
received by the Landlord with respect to such damage or destruction.
14.03 Right of Termination If the damage or destruction which has
--------------------
occurred in the Leased Premises is such that in the reasonable opinion of the
Landlord the Leased Premises cannot be rebuilt or made fit for the purposes of
the Tenant within one hundred and eighty (180) days of the happening of the
damage or destruction, the Landlord may, at its option, terminate this Lease on
notice to the Tenant given within thirty (30) days after such damage or
destruction. If such notice is given, Minimum Rent and Additional Rent shall be
apportioned and paid to the date of such damage or destruction and the Tenant
shall immediately deliver vacant possession of the Leased Premises in accordance
with the terms of this Lease.
-25-
14.04 Destruction of Building Notwithstanding any other provision of this
-----------------------
Lease, if:
(a) 35% or more of the Total Rentable Space in the Building is destroyed
or damaged by any cause; or
(b) portions of the Building which affect services essential thereto are
damaged or destroyed and, in the reasonable opinion of the Landlord,
cannot be reasonably repaired within one hundred and eighty (180)
days after the occurrence of the damage or destruction; then
the Landlord may, by notice to the Tenant given within thirty (30) days of such
damage or destruction, terminate this Lease, in which event neither the Landlord
nor the Tenant shall be bound to repair and the Tenant shall surrender the
Leased Premises to the Landlord within thirty (30) days after delivery of its
notice of termination and minimum Rent and Additional Rent shall be apportioned
and paid to the date on which the Tenant delivers vacant possession of the
Leased Premises, subject to any abatement to which the Tenant may be entitled
under Section 14.02 and provided that if the Landlord does not so elect to
terminate this Lease, the Landlord shall proceed to diligently repair that Part
of the Building damaged or destroyed, but only to the extent of the Landlord's
obligations under Section 6.04 and exclusive of any Tenant's responsibilities
with respect to such repair. If the Landlord elects to repair the Building, the
Landlord may do so in accordance with plans and specifications other than those
used in the original construction of the Building-
14.05 Architect's Certificate For the purposes of Sections 14.02 and
-----------------------
14.04 above, the certificate of the Architect appointed by the Landlord shall
bind the parties as to:
(a) the percentage of the Total Rentable Space in the Building damaged or
destroyed;
(b) whether or not the Leased Premises are rendered untenantable and the
percentage of the Leased Premises rendered untenantable;
(c) the time required to rebuild, restore and make the Leased Premises
fit for the purposes of the Tenant;
(d) the date upon which either the Landlord's or the Tenant's work of
reconstruction or repair is substantially completed; and
(e) the state of completion of any work of the Landlord or the Tenant.
-26-
ARTICLE 15.00
ACKNOWLEDGMENTS, ATTORNMENT, SUBORDINATION
15.01 Acknowledgment of Tenancy Within ten (10) days after request
-------------------------
therefor by the Landlord, or in the event that upon any sale, assignment,
mortgage, charge or hypothecation of the Leased Premises, the Lands and/or the
Building by the Landlord and an acknowledgment of tenancy is required from the
Tenant, the Tenant agrees to deliver a certificate to any proposed mortgagee or
purchaser, or to the Landlord, certifying (if such be the case) that this Lease
is in full force and effect; that Rent is paid currently without any defences or
offsets thereto; that the Tenant is in possession; that there are no prepaid
rents or security deposits other than those set out in this Lease; that there
are no uncured defaults by the Landlord or stating those claimed by the Tenant,
and such other matters as the Landlord may reasonably require. Any such
statement may be relied upon by any prospective transferee or encumbrancer of
all or any portion of the Leased Premises, the Lands and/or the Building, or any
assignee of any such transferee or encumbrancer.
15.02 Attornment The Tenant shall, in the event any proceedings are
----------
brought for the foreclosure of, or in the event of exercise of the power of sale
under any mortgage made by the Landlord covering the Building and/or the Lands
or any part thereof, attorn to the mortgagee or purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease.
15.03 Subordination Upon request of the Landlord, the Tenant will
-------------
subordinate or postpone its rights hereunder to the lien of any mortgage or the
lien resulting from any other method of financing or refinancing, now or
hereafter in force against the Building and/or the Lands or any part thereof and
to all advances made or hereafter to be made upon the security thereof or will
acknowledge the subordination or postponement of any such mortgage or lien or
its rights hereunder.
15.04 Power of Attorney The Tenant, upon request of any Party, shall
-----------------
execute promptly such instruments or certificates to carry out the intent of
Sections 15.01, 15.02 and 15.03 above as shall be requested. If fifteen (15)
days after the date of a written request by the Landlord to execute such
instruments, the Tenant shall not have executed the same, the Landlord may at
its option, execute such instruments or certificates as the attorney for the
Tenant and the Tenant hereby authorizes the Landlord to do so.
15.05 Financial Information. The Tenant shall, upon request, provide
---------------------
the Landlord with such reasonable information as to the Tenant's and/or the
Indemnifier's financial standing and corporate organization as the Landlord or
its mortgagee(s) may reasonably require from time to time. Failure of the Tenant
to comply with the Landlord's request herein shall constitute a default under
the terms of this Lease and the Landlord shall be entitled to exercise all of
its rights and remedies provided for in this Lease.
-27-
ARTICLE 16.00
-------------
NOTICES
16.01 Notices Any demand, approval, consent or notice from one party
-------
to the other hereunder shall be in writing and shall be deemed duly served if
delivered personally to a responsible employee of the party being served, or if
mailed by registered mail addressed to the Tenant at the Leased Premises
(whether or not the Tenant has departed from, vacated or abandoned the same) or
to the Landlord at the place from time to time established for the payment of
Rent. Any notice shall be deemed to have been given at the time of personal
delivery or, if mailed, three (3) business days after the date of mailing
thereof. Either party shall have the right to designate by notice, in the
manner above set forth, a different address to which notices are to be mailed.
ARTICLE 17.00
-------------
DEFAULT
17.01 Interest and Costs The Tenant shall pay monthly to the Landlord
------------------
interest at the Stipulated Rate of Interest on all Rent required to be paid
hereunder from the due date for payment thereof until the same is fully paid and
satisfied. The Tenant shall indemnify the Landlord against all costs and
charges (including legal fees) lawfully and reasonably incurred in enforcing
payment thereof and in obtaining possession of the Leased Premises after default
of the Tenant, or upon expiration or earlier termination of the Term of this
Lease or in enforcing any covenant, proviso or agreement of the Tenant herein
contained.
17.02 Right to Re-enter
-----------------
When:
(a) the Tenant shall be in default in the payment of any Rent whether
lawfully demanded or not and such default shall continue for a
period of five (5) consecutive days following written notice from
the Landlord of such default; or
(b) the Tenant shall be in default of any of its covenants,
obligations or agreements under this Lease or of any term or
condition of this Lease (other than its covenant to pay Rent) and
such default shall continue for a period of fifteen (15)
consecutive days after written notice by the Landlord to the
Tenant specifying with reasonable particularity the nature of
such default and requiring same to be remedied;
then and in any of such cases the then current month's Rent, together with the
Rent for the three (3) months next ensuing shall immediately become due and
payable and at the option of the Landlord,
-28-
the Term shall become forfeited and void, and the Landlord may without notice or
any form of legal process whatsoever forthwith re-enter upon the Leased 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 provided, however, that such forfeiture shall be wholly without
prejudice to the right of the Landlord to recover arrears of Rent or damages for
any antecedent default by the Tenant of its covenants, obligations or agreements
under this Lease or any term or condition of this Lease and provided further
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 prematurely determined.
17.03 Right to Relet Should the Landlord elect to re-enter as herein
--------------
provided, or should it take possession pursuant to legal proceedings or pursuant
to any notice provided for by law, it may either terminate this Lease or it may
from time to time without terminating this Lease, make such alterations and
repairs as may be necessary in order to relet the Leased Premises, and relet the
Leased Premises or any part thereof as agent for the Tenant for such term or
terms (which may be for a term extending beyond the Term of this Lease) and at
such rental or rentals and upon such other terms and conditions as the Landlord
in its sole discretion may deem advisable; upon each reletting all rentals
received by the Landlord from such reletting shall be applied; first, to the
payment of any indebtedness other than Rent due hereunder from the Tenant to the
Landlord; second, to the repayment of any costs and expenses of such reletting,
including brokerage fees and solicitors' fees and the costs of such alterations
and repairs; third, to the payment of Rent due and unpaid hereunder, and 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 hereunder. If such Rent received
from such reletting during any month be less than that to be paid during that
month by the Tenant hereunder, the Tenant shall pay any such deficiency to the
Landlord. Such deficiency shall be calculated and paid monthly.
No such re-entry or taking possession of the Leased Premises by
the Landlord shall be construed as an election on its part to terminate this
Lease unless a written notice of such intention be given to the Tenant or unless
the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, the Landlord may at any
time thereafter elect to terminate this Lease for such previous breach. Should
the Landlord at any time terminate this Lease for any breach, in addition to any
other remedies it may have, it may recover from the Tenant all damages it may
incur by reason of such breach, including the cost of recovering the Leased
Premises, and including the worth at the time of such termination of the excess,
if any, of the amount of Rent and charges equivalent to Rent reserved in this
Lease for the remainder of the Term hereof, all of which amounts shall be
immediately due and payable from the Tenant to the Landlord. In determining the
Rent which would be payable by the Tenant hereunder, subsequent to default, the
Minimum Rent for each year of the unexpired Term shall be equal to the then
annual Minimum Rent required to be paid by the Tenant as the time of default,
together with all Additional Rent which would have been payable during the
calendar year in which this Lease was terminated, pro-rated over a full calendar
year, if required.
-29-
17.04 Legal Expenses ln case suit shall be brought for recovery of
--------------
possession of the Leased Premises, for the recovery of Rent or any other amount
due under the provisions of this Lease, or because of the breach of any other
covenant herein contained on the part of the Tenant to be kept or performed and
a breach shall be established, the Tenant shall pay to the Landlord all expenses
incurred therefor, including reasonable solicitors' and counsel fees on a
solicitor and his client basis.
17.05 Bankruptcy The Tenant covenants and agrees that if the Term or
----------
any of the goods and chattels of the Tenant on the Leased Premises shall be at
any time during the Term seized or taken in execution or attachment by any
creditor of the Tenant or if the Tenant shall make any assignment for the
benefit of creditors or any bulk sale or, becoming bankrupt or insolvent, shall
take the benefit of any Act now or hereafter in force for bankrupt or insolvent
debtors or if any order shall be made for the winding up of the Tenant, or if a
Receiver or Manager should be appointed for or should take possession of the
assets or undertaking of the Tenant, or if the Leased Premises shall without the
written consent of the Landlord become and remain vacant for a period of fifteen
(15) days, or be used by any other Persons than such as are entitled to use them
under the terms of this Lease, or if the Tenant shall without the written
consent of the Landlord abandon or attempt to abandon the Leased Premises or to
sell or dispose of goods or chattels of the Tenant or to remove them or any of
them from the Leased Premises so that there would not in the event of such
abandonment, sale or disposal be sufficient goods on the Leased Premises subject
to distress to satisfy the Rent above due or accruing due, then and in every
such case the then current month's Rent and the next ensuing three (3) month's
Rent shall immediately become due and be paid and the Landlord may re-enter and
take possession of the Leased Premises as though the Tenant or the servants of
the Tenant or any other occupant of the Leased Premises were holding over after
the expiration of the Term and the Term shall, at the option of the Landlord,
forthwith become forfeited and determined, and in every one of the cases above
such accelerated Rent shall be recoverable by the Landlord in the same manner as
the Rent hereby reserved and as if Rent were in arrears and the said option
shall be deemed to have been exercised if the Landlord or its agents give notice
to the Tenant as provided for herein.
17.06 The Landlord May Perform Covenants If the Tenant shall fail to
----------------------------------
perform any of its covenants or obligations under or in respect of this Lease,
the Landlord may from time to time at its discretion, perform or cause to be
performed any of such covenants or obligations, or any part thereof, and for
such purpose may do such things upon or in respect of the Leased Premises or any
part thereof as the Landlord may consider requisite or necessary.
All expenses incurred and expenditures made by or on behalf of
the Landlord under this Section shall be forthwith paid by the Tenant and if the
Tenant fails to pay the same, the Landlord may add the same to the Rent and
recover the same by all remedies available to the Landlord for the recovery of
Rent in arrears.
17.07 Landlord May Follow Chattels Provided that in the case of
----------------------------
removal by the Tenant of the goods and Chattels of the Tenant from the Leased
Premises, the Landlord may follow the same
-30-
for thirty (30) days in the same manner as is provided for in the Landlord and
Tenant Act, R.S.O. 1990, c.L. 7 as amended.
17.08 Waiver of Exemptions The Tenant hereby covenants and agrees with
--------------------
the Landlord in consideration of the premises and of the leasing and letting by
the Landlord to the Tenant of the Leased Premises for the Term hereby created
(and it is upon that express understanding that these presents are entered into)
that notwithstanding anything contained in Section 30 of the Landlord and Tenant
Act R.S.O. 1990, c.L. 7, as amended, or in any other Statute which may hereafter
be passed to take the place of the said Act or to amend the same, none of the
goods or chattels of the said Tenant at any time during the continuance of the
Term hereby created on the Leased Premises shall be exempt from levy by distress
for Rent in arrears by the Tenant as provided for by any Section or Sections of
the said Act, or any amendment or amendments thereto, and that upon any claim
being made for such exemption by the tenant or on distress being made by the
Landlord this covenant and agreement may be pleaded as an estoppel against the
Tenant in any action brought to test the right to the levying upon any such
goods as are named as exempted in said Section or Sections or amendment or
amendments thereto, the Tenant waiving as the Tenant hereby does, all and every
benefit that could or might have accrued to the Tenant under and by virtue of
the said Section or Sections of the said Act or any amendment or amendments
thereto but for this covenant.
ARTICLE 18.00
-------------
MISCELLANEOUS
18.01 Waiver Failure by the Landlord to require performance of any
------
term, covenant or condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition or of any subsequent breach of the same or
of any other term, covenant or condition herein contained. The subsequent
acceptance of Rent hereunder by the Landlord shall not be deemed to be a waiver
of any preceding breach by the Tenant of any term, covenant or condition of this
Lease, other than the failure of the Tenant to pay the particular Rent so
accepted, regardless of the Landlord's knowledge of such preceding breach at the
time of acceptance of such Rent. No covenant, term or condition of this Lease
shall be deemed to have been waived by the Landlord, unless such waiver be in
writing by the Landlord.
18.02 Accord and Satisfaction No payment by the Tenant or receipt by
-----------------------
the Landlord of a lesser amount than the Rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement or any cheque or any letter accompanying any cheque or
payment as Rent be deemed an accord and satisfaction, and the Landlord may
accept such cheque or payment without prejudice to the Landlord's right to
recover the balance of such Rent or pursue any other remedy in this Lease
provided.
-31-
18.03 Entire Agreement This Lease and the Schedules and Riders, if any,
----------------
attached hereto and forming a part hereof, set forth all the covenants,
promises, agreements, conditions and understandings between the Landlord and the
Tenant concerning the Leased Premises and there are no covenants, promises,
warranties, agreements, conditions or representations, either oral or written,
between them other than are herein set forth. Except as herein otherwise
provided no subsequent alteration amendments change or addition to this Lease
shall be binding upon the Landlord or the Tenant unless reduced to writing and
signed by them.
18.04 No Partnership The Landlord does not, in any way or for any
--------------
purpose, become a partner of the Tenant in the conduct of its business, or
otherwise, or joint venturer or a member of a joint enterprise with the Tenant
under the terms of this Lease.
18.05 Force Majeure In the event that either party hereto shall be
-------------
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labour troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. Notwithstanding anything herein
contained, the provisions of this Section 18.05 shall not operate to excuse the
Tenant from the prompt payment of Rent, nor entitle the Tenant to compensation
for any inconvenience, nuisance or discomfort thereby
18.06 Name of Building The Landlord shall have the right to change
----------------
the name, number or designation of the Building during the Term without
liability to the Tenant.
18.07 Consent not Unreasonably Withheld Except as otherwise
---------------------------------
specifically provided, whenever consent or approval of the Landlord or the
Tenant is required under the terms of this Lease, such consent or approval shall
not be unreasonably withheld or delayed. The Tenant's sole remedy if the
Landlord unreasonably withholds or delays consent or approval shall be an action
for specific performance or with respect to Article 10.00 such other remedies as
are available under the Landlord and Tenant Act, R.S.O. 1990, c.L. 7, as
amended, and the Landlord shall not be liable for damages. If either party
withholds any consent or approval, such party shall on written request deliver
to the other party a written statement giving the reasons therefor.
18.08 Approval in Writing Wherever the Landlord's consent is required
-------------------
to be given hereunder or wherever the Landlord must approve any act or
performance by the Tenant, such consent or approval, as the case may be, shall
be given in writing by the Landlord before same shall be deemed to be effective.
18.09 Registration The Tenant shall not register this Lease without
------------
the written consent of the Landlord. However, upon the request of either party
hereto the other party shall join in the execution of a memorandum or notice of
this Lease for the purpose of registration. Said
-32-
memorandum or notice of this Lease shall describe the parties, the Leased
Premises and the Term and shall be prepared and registered at the expense of the
Tenant.
18.10 Governing Law The Lease is to be governed by and construed
-------------
according to the laws of the Province of Ontario.
18.11 Captions and Section Numbers The captions, section numbers and
----------------------------
article numbers appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such sections or articles or of this Lease, nor in any way affect this
Lease.
18.12 Partial Invalidity If any term, covenant or condition of this
------------------
Lease or the application thereof to any Person or circumstance shall, to any
extent be invalid or unenforceable, the remainder of this Lease and/or the
application of such term covenant or condition to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Lease shall be
separately valid and enforceable to the fullest extent permitted by law.
18.13 No Option The submission of this Lease for examination does not
---------
constitute a reservation of or option for the Leased Premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by the
Landlord and the Tenant.
18.14 Compliance with The Planning Act It is an expressed condition of
---------------------------------
the within lease and the Landlord and the Tenant so agree and declare that the
provisions of Section 50 of The Planning Act, R.S.O. 1990, c.P. 13, and
amendments thereto, be complied with if applicable in law. Until any necessary
consent to the Lease is obtained the Term (including any extensions thereof) and
the Tenant's rights and entitlement granted by this Lease are deemed to extend
for a period not exceeding twenty-one (21) years less one (1) day from the
Commencement Date. The Tenant shall apply diligently to prosecute such
application for such consent forthwith upon the execution of the Lease by both
the Landlord and the Tenant and the Tenant shall be responsible for all costs,
expenses, taxes and levies imposed, charged or levied as a result of such
application and in order to obtain such consent. The Tenant shall keep the
Landlord informed, from time to time, of its progress in obtaining such consent
and the Landlord shall cooperate with the Tenant in regard to such application.
Notwithstanding the foregoing provisions of this Section 18.14, the Landlord
reserves the right at any time to apply for such consent in lieu of the Tenant
(on behalf and at the expense of the Tenant) and the Tenant's application is
hereby expressly made subject to any application which the Landlord intends to
make.
18.15 Letter of Credit The Tenant hereby covenants and agrees to
----------------
provide to the Landlord an irrevocable Letter of Credit in a form acceptable to
it, its advisors and its bank in the sum of ONE HUNDRED AND SEVENTY-THREE
THOUSAND, SIX HUNDRED AND TWENTY DOLLARS ($173,620.00) to be held by the
Landlord as security for the performance by the Tenant of all the covenants,
obligations and agreements herein to be observed and performed by the Tenant.
-33-
The Letter of Credit is to be provided by the Tenant to the Landlord on or
before the Commencement Date and in any event prior to the date that the Tenant
takes possession of the Leased Premises. If the Tenant shall default in the
observance or performance of any of such covenants, obligations or agreements
the Landlord may, at its option and with five (5) days notice to the Tenant,
draw upon the Letter of Credit, or so much of it as may in the Landlord's sole
discretion and opinion be necessary to compensate the Landlord for Rent
outstanding or loss or damage suffered or sustained by the Landlord arising out
of or in connection with any default by the Tenant. Notwithstanding the
foregoing, it is understood and agreed by the Landlord and the Tenant that the
aggregate amount available to the Landlord to draw upon under the Letter of
Credit shall be reduced by FOURTEEN THOUSAND, SIX HUNDRED AND THIRTEEN DOLLARS
($14,613.00) per month on the fifteenth day of months four (4) and fifteen (15)
both inclusive of the Term and therefore to be fully reduced on the expiration
of the fifteenth (15th) month of the Term.
18.16 Time To Be of the Essence Time shall be of the essence of this
-------------------------
Indenture of Lease.
18.17 Successors and Assigns Except as otherwise specifically
----------------------
provided, the covenants, terms and conditions contained in this Lease shall
apply to and bind the heirs, successors, executors administrators and/or assigns
of the parties hereto.
18.18 Relocation of Leased Premises The Landlord shall have the right
-----------------------------
at any time during the Tenant, upon sixty (60) days' prior written notice to the
Tenant, to relocate the Tenant to other premises located in the Office Portion
of the Building (the "Relocated Premises") and in such event the following terms
and conditions shall be applicable:
(a) The Relocated Premises (which term shall mean the Leased Premises
after relocation) shall contain approximately the same Rentable
Space as the Leased Premises prior to relocation;
(b) The Landlord shall provide at its expense leasehold improvements
in the Relocated Premises at least equal to the standard of the
leasehold improvements in the Leased Premises which have been
completed or which the Landlord is obligated hereunder to provide
in the Leased Premises;
(c) The Landlord shall pay for the reasonable costs (if any) of
moving the Tenant's trade fixtures and furnishings from the
Leased Premises to the Relocated Premises;
(d) All other terms and conditions of this Lease shall apply to the
Relocated Premises except insofar as they are inconsistent with
the terms and conditions of this Section 18.18.
-34-
ARTICLE 19.00
-------------
OPTION TO EXTEND
19.00 Provided the Tenant is not then in material default and has not
been habitually in default under the Lease, the Landlord will, upon the request
in writing by the Tenant given at least six (6) months and not more than
eighteen (18) months prior to the expiration of the Term (the "Notice Period"),
grant to the Tenant one (1) consecutive right to extend its lease for a further
term of five (5) years upon and subject to the same covenants, conditions and
agreements stated in the Proposal save and except for rental rate, inducement
Landlord's Work, this option to extend, parking and storage charges. The new
basic net rent shall be the fair market net rental for the Leased Premises at
the time when such rental is determined, (the "New Basic Net Rent"). The New
Basic Net Rent shall be mutually agreed to by the Landlord and the Tenant at
least ninety (90) days prior to the expiration of the Term, however in no event
shall the Basic Net Rent be less than the last year of the original Term, and
failing agreement, shall be determined by arbitration in the manner hereinafter
provided. In the event that the Landlord and the Tenant fail to agree on the
New Basic Net Rent, then the Landlord and the Tenant, within eighty (80) days
prior to the expiry of the Term, shall notify the other of an arbitrator
selected by such party and, within seventy (70) days prior to the expiry of the
Term, the two arbitrators so nominated shall name a third arbitrator. In the
event that either the Landlord or the Tenant fail to name an arbitrator within
the period of time herein before specified, the arbitrator named by the other
party shall determine the New Basic Net Rent. In the event the two arbitrators
named fail to agree on a third arbitrator within the time herein before
specified, the third arbitrator shall be such person as shall be appointed by a
Judge of the Supreme court of Ontario upon application by either of the Landlord
or the Tenant. In no event shall the New Basic Net Rent be less than the Basic
Net Rent payable in the last year of the Term.
-35-
IN WITNESS WHEREOF the Landlord and Tenant have signed and sealed this
Lease as of the day and year first above written.
CUMBERLAND-BELLAIR INVESTMENT INC.
Per: /s/ Xxxxxxx Xxxx
----------------------------------- c/s
Name: Xxxxxxx Xxxx
Title: Director
Per:
___________________________________
Name:
Title:
1184266 ONTARIO INC.
Per: /s/ Xxxxxx Xxxxxxxx
----------------------------------- c/s
Name: Xxxxxx Xxxxxxxx
Title: President
Per:____________________________________
Name:
Title:
SCHEDULE "A"
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DEFINITIONS
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In this Lease:
(a) "Architect" means such firm of professional architects, surveyors,
consultants or engineers as the Landlord may from time to time engage
(b) "Architect's Certificate" means a certificate of the Architect.
(c) "Building" means the buildings housing the integrated retail and
office complex and its related improvements and facilities, all
constructed and located on the Lands, as same may from time to time
be altered, expanded or reduced.
(d) "Commencement Date" means the first day of the Term.
(e) "Common Areas" means (a) those areas, facilities, utilities,
improvements, equipment and installations in the Building which,
from time to time, are not designated or intended to be leased to
tenants of the Building, and (b) those areas, facilities,
utilities, improvements, equipment and installations which serve or
are for the benefit of the Building, whether or not located within,
adjacent to, or near the Building and which are designated from
time to time as part of the Common Areas. Common Areas includes,
without limitation, all areas, facilities, utilities, improvements,
equipment and installations which are provided or designated (and
which may be changed from time to time) for the use or benefit of
the tenants, their employees, customers and other invitees in
common with others entitled to the use or benefit thereof in the
manner and for the purposes permitted by the Lease.
Without limiting the generality of the foregoing, Common Areas includes the
roof, exterior wall assemblies (including weather walls), exterior and interior
structural elements and bearing wails in the buildings and improvements
comprising the Building; parking areas, all vestibules for and entrances and
exits thereto and all structural elements thereof; driveways; truckways; related
areas; pedestrian sidewalks; landscaped and planted areas; public seating and
service areas; corridors; equipment, furniture, furnishings and fixtures;
stairways, escalators, ramps and elevators and other transportation equipment
and systems; tenant common and public washrooms; electrical, telephone, meter,
valve, mechanical, mail, storage, service and janitor rooms and galleries;
music, fire prevention, security and communication systems; general signs,
including, without limitation, directory signs and canopy signs; columns; pipes;
electrical, plumbing, drainage, mechanical, and all other installations
equipment or services located therein or related thereto as well as the
structures housing the same (including, without limitation, the heating,
ventilating and air-conditioning system of the Building).
(f) "Landlord" means the Landlord, its successors, assigns and authorized
representatives.
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(g) "Lands" means the lands underneath, adjacent and appurtenant to the
Building, as more particularly described in Schedule "B" attached hereto as
such lands may from time to time be altered, expanded or reduced.
(h) "Lease" means this lease.
(i) "Lease Year'" means a period of time, the first Lease Year commencing
on the Commencement Date and ending on the 31st day of December in the calendar
year of the Commencement Date. Thereafter, Lease Years shall consist of
consecutive periods of twelve calendar months ending in each case on December
31st, save for the last Lease Year of the Term which shall terminate upon the
expiration or earlier termination of this Lease.
(j) "Leased Premises" means the previous leased to the Tenant together
with all improvements, equipment and fixtures therein (other than those
servicing more than one (1) tenant) containing approximately 8681 square feet of
Rentable Space, more or less, on the 7/th/ floor of the Building which Leased
Premises are shown outlined in red on Schedule "C" attached hereto.
(k) "Minimum Rent" means the amount payable by the Tenant to the Landlord
in respect of each year of the Term under Section 3.01 herein.
(l) "Normal Business Hours" means 8:00 a.m. to 7:00 p.m. Monday through
Friday and Saturday from 9:00 a.m.. to 2:00 p.m. excluding days which are legal
or statutory holidays in the jurisdiction in which the Building is located.
(m) "Occupiable Space" means the "rentable area" of such premises as
defined in American National Standard Z65.1-1980 as recognized by the Building
Owners and Managers Association International. Occupiable Space may be adjusted
from time to time to reflect any expansion, reduction or rearrangement. The
Architect's Certificate as to Occupiable Space shall be final and binding on the
Parties hereto.
(n) "Operating Costs" means all costs and expenses incurred or accrued by
the Landlord or by others on behalf of the Landlord without duplication and
calculated in accordance with generally accepted accounting principles (as if
the Building had been 100-% occupied during the whole of the particular Lease
Year) in connection with the supervision, security, maintenance, operation,
cleaning, repair, replacement and insurance of the Building, the Lands and all
appurtenances thereto including any pedestrian tunnels or underground walkways
to adjacent buildings and all common driveways, walkways, sidewalks, ramps and
entrances on the street level of the Building and includes without limitation,
any tax or levy imposed on the Building and/or the Lands or on the Landlord by
reason of its ownership of the Building and/or the Lands, based on total gross
area or floor area whether known as a Commercial Concentration Tax or otherwise,
all Taxes not recovered from tenants of the Building, all Taxes assessed,
levied, rated or charged from time to time against the Common Areas to the
extent only that such Taxes on the Common Area have not
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been included in the Taxes otherwise charged to the Tenant under the Lease, the
cost of all repairs required in the maintenance of the Building, heating,
ventilating and air conditioning costs, elevator and escalator maintenance and
repair costs, equipment rental, providing hot and cold water, the costs of
plumbing and sanitary drainage, the cost of electricity and of replacing
electrical fixtures, ballasts, tubes and bulbs not otherwise chargeable to any
tenant of the Building, window cleaning, snow removal, landscaping, uniforms and
security, all fire, casualty, liability and other insurance costs, telephone and
other utility costs, amounts paid under service contracts with independent
contractors, all salaries, wages and other remuneration and the cost of benefits
paid to employees of the Landlord engaged in operating, managing and maintaining
the Building and/or the Lands, depreciation on an amortized basis established by
the Landlord's auditors or accountants on fixtures or equipment paid for by the
Landlord and used to provide services to the Building and/or the Lands, legal,
appraisal, accounting, auditing and other professional fees incurred for the
purposes of attempting to reduce Taxes and various costs referred herein, cost
of accounting services and operational auditing and accounting fees, the cost of
any modification or addition to the Building or the machinery and equipment
therein where, in the reasonable opinion of the Landlord, such expenditure may
reduce Operating Costs, or the cost of any additional equipment or improvements
required by law or, in the Landlord's reasonable opinion, made for the benefit
or safety of the users of the Building and including repairs, replacements and
maintenance to the structural elements of the Building (including, without
limitation, the bearing walls, foundations, structural beams and roof, including
the roof membrane and roofing) and including any capital replacement of the
heating or air-conditioning system servicing the Building, and an administration
and management fee of fifteen (15%) percent of the total of all of the above
costs. The Tenant acknowledges and agrees that the Operating Costs may be
attributed to the Landlord to the various components of the Building (being the
Office Portion and the Retail Portion) in accordance with reasonable and current
practices on a basis consistent with the nature of the particular costs being
attributed, and the costs so attributed may be allocated to the tenants of such
components separately.
(o) "Person", if the context allows, includes any Person, firm,
partnership or corporation, or any group of persons, firms, partnerships or
corporations or any combination thereof
(p) "Proportionate Share"' means a fraction, the numerator of which is the
Rentable Space in the Leased Premises and the denominator of which is the Total
Rentable Space in the Building.
(q) "Rent" means any and all amounts payable by the Tenant under this Lease
including Minimum Rent and Additional Rent.
(r) "Rentable Space" means 110% of Occupiable Space. Rentable Space may be
adjusted from time to time to reflect any expansion, reduction or rearrangement.
The Architect's Certificate as to Rentable Spare shall be final and binding upon
the parties hereto.
(s) "Total Rentable Space of the Building" means the aggregate of each
Rentable Space of a floor in the Building. The Total Rentable Space of the
Building shall (i) exclude the main telephone, mechanical, electrical end other
utility rooms and enclosures, the management office for
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the Building, public lobbies on the ground floor and other public space common
to the entire Building and all areas in the Building located below grade. The
Total Rentable Space of the Building may be adjusted from time to reflect any
expansion, reduction or rearrangement. The Architect's Certificate as to the
Total Rentable Space of the Building shall be final and binding upon the parties
hereto.
(t) "Stipulated Rate of Interest" means the prime rate of interest charged
from time to time by the chartered bank of the Landlord at their respective head
offices expressed as an annual rate by the Bank from time to time as a reference
rate for commercial loans denominated in Canadian dollars and made by the said
Bank in Canada as announced and adjusted from time to firm by the said Bank plus
five percent (5%) per annum..
(u) "Taxes" means all duties, real property taxes, business taxes,
assessments and payments, extraordinary as well as ordinary, whether foreseen or
unforeseen, as shall fix during the Term hereby demised be laid, levied,
assessed or imposed upon or become liens upon the Leased Premises or the
Building or the Lands or any part thereof or any appurtenances thereto or the
leasehold estate hereby created or as may be levied, assessed or imposed upon
the Landlord by reason of its ownership of the Leased Premises, the Building and
the Lands Imposed or levied upon the, Landlord, and all governmental charges
including an increase in income taxes wholly or partially submitted for any real
property taxes, all by virtue of any present or future law, order or ordinance
of Canada or of the provincial, city, county, local or regional government or of
any department, office or bureau of any governmental authority. Taxes shall
also include any and all penalties, late payment or interest charges imposed by
any municipality or other taxing authority as a result of the Tenant's late
payments of any Taxes or instalments thereof but not as a result of the
Landlord's delinquency.
(v) "Tenant" means the Tenant herein and those for whom in law the Tenant
is responsible.
(w) "Term" means the period of time set out in Article 2.01.
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SCHEDULE "B"
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LEGAL DESCRIPTION
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SCHEDULE "C"
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FLOOR PLAN
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SCHEDULE "D"
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RULES AND REGULATIONS
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1. The Landlord may prohibit any persons from entering the Building
except during Normal Business Hours unless such person has a key to the premises
to which such person seeks entry and has complied with the security arrangements
of the Landlord as same may exist from time to time. The Landlord shall be
under no responsibility for failure to enforce this rule.
2. The Common Areas of the Buildings shall be used only for their
intended purposes. The Tenant shall not use any entrance or exits, passageway,
corridor, lobby, sidewalk, ramp, stairway, escalator or elevator except for
ingress to and egress from the Leased Premises. The Tenant shall not obstruct
such areas in any way and shall not deposit any footwear, waste, garbage or
refuse therein. The Landlord may remove at the expense of the Tenant any such
obstruction at the expense of and without notice or obligation to the Tenant.
The Landlord reserves the right to restrict or prohibit canvassing, soliciting
or peddling in the Building.
3. All plumbing fixtures shall be used only for their intended purposes
and no sweeping, rubbish, rags, ashes or other substances shall be thrown
therein. The Tenant shall not permit any toilet or drain to be obstructed.
Taps shall be turned off when not in use.
4. The Leased Premises shall not be used for any residential purpose
including sleeping accommodation and cooking, the storage of any personal
effects or articles not required for the use of the Leased Premises in
accordance with the lease or the storage of any inflammable, explosive or
dangerous materials.
5. No musical instruments or sound producing equipment or amplifier which
may be heard outside the Leased Premises shall be played or operated on the
Leased Premises.
6. No drapes or window coverings shall be installed on any exterior
windows of the Leased Premises without the prior written consent of the
Landlord. Any drapes or window, coverings so approved shall not interfere with
the climate control central system of the Building and shall present a uniform
exterior appearance for the Building.
7. The Tenant shall not obstruct or interfere with access to janitor and
electrical closets or heating, ventilating or air conditioning ducts or
equipment in the Leased Premises. In the event of any such obstruction or
interference the Tenant shall be responsible for the cost of providing access to
same.
8. The Tenant shall leave the Leased Premises in a reasonably tidy
condition at the end of each business day.
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9. The Tenant shall not xxxx, drill into, bore or cut or in any way
damage or deface the walls, ceilings or floors of the Leased Premises. No
broadloom or carpeting shall be affixed to the Leased Premises by means of a
non-soluble adhesive or similar product.
10. (a) No safe, heavy equipment, bulky materials or office furniture or
equipment shall be brought into or removed from the Building except during such
hours and by such means as the Landlord may approve. The Landlord may prohibit
the installation of the Leased Premises of any safe or equipment which exceeds
the load-bearing capacity of the floor of the Leased Premises.
(b) Any hand trucks, carryalls or similar appliances used in the
Building with the consent of the Landlord shall be equipped with rubber tires,
side guards and such other safeguards as the Landlord requires or as agreed upon
by the parties acting reasonably.
11. No machine dispensing food, beverages of merchandise for sale shall be
installed in the Leased Premises without prior written approval of the Landlord
which may be arbitrarily withheld. No food, beverage or merchandise shall be
delivered to the Leased Premises except during such hours and by persons
authorized by the Landlord.
12. The Tenant shall not hinder or prevent window cleaners from cleaning
the windows of the Leased Premises during Normal Business Hours.
13. The directory board for the Building, the style thereof and the
lettering thereon and the manner and order in which the names are displayed
thereon shall be within the sole discretion of the Landlord.
14. The Tenant shall not use the name of the Building for any purpose
except as the business address of the Leased Premises.
15. The use of car parking spaces (if any) shall be in accordance with
reasonable rules and regulations of the Landlord.
16. No cleaning, maintaining. replacement or servicing of the whole or any
part of the Leased Premises including electric lighting fixtures shall be done
or performed by any person or persons other than persons employed by the
Landlord. Only Building standard fluorescent tubes shall be used in the Leased
Premises.
17. The Tenant shall at all times provide the Landlord with a duplicate
key for the Leased Premises. No additional locks shall be placed upon, nor
shall changes be made to the existing locks in any doors of the Leased Premises
without the prior written consent of the Landlord, provided that all locks shall
conform to the master keying system for the Building established by the
Landlord. Additional keys to the door locks shall be obtained from the Landlord
at the cost of the Tenant.
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18. All loading and unloading of goods shall be done only at such times,
in the areas and through the entrances designated for such purposes from time to
time by the Landlord. Any movers or moving company moving furniture or equipment
in or out of the Leased Premises shall be reputable, established movers and
shall make prior arrangements with the Landlord as to the times of such moving
of furniture or equipment. The Tenant shall promptly pay or cause to be paid to
the Landlord the cost of repairing any damage in the Building caused by such
movement of furniture or equipment.
19. All work in connection with additions or changes requested by the
Tenant to the lighting fixtures, air conditioning apparatus or other mechanical
or electrical apparatus of the Building shall, if the landlord so elects, be
performed for the Tenant by the Landlord and, if the landlord does not so elect,
shall not be performed except with the prior written consent of the Landlord and
in any event the cost of such work shall be paid by the Tenant.
20. The Tenant shall give the Landlord prompt written notice of any
accident to or defect in the plumbing, heating, air conditioning, mechanical or
electrical apparatus or any other part of the Building.
21. No bicycles or other vehicles and no dog or other animal or bird shall
be brought into or kept in the Building other than those bicycles or other
vehicles as may be permitted in the parking areas of the Building.
22. No inflammable oils or other inflammable, dangerous or explosive
materials (save those approved in writing by the Landlord's insurers), shall be
kept or permitted to be kept in the Leased Premises which the landlord's
insurers prohibit, and if not prohibited by the Landlord's insurers shall be
kept in protective containers.
23. The Tenant shall not permit or allow any odours, vapours, steam,
water, vibrations, noises or other undesirable effects to emanate from the
Leased Premises or any equipment or installation therein which, in the
Landlord's opinion, are objectionable or cause any interference with the safety,
comfort or convenience of the Building by the Landlord or the occupants and
tenants thereof or their agents, servants, invitees or employees.
24. The Tenant shall permit the cleaning staff to clean the Leased
Premises after Normal Business Hours. For purposes of security, efficiency and
uniformity of housekeeping standards, any special cleaning. or shampooing
required by the Tenant shall be performed by the Landlord's cleaning contractor,
unless otherwise authorized by the Landlord in writing.
25. Canvassing, soliciting and peddling in or about the Building is
prohibited.
26. No bankruptcy, liquidation or auction sales shall be allowed to take
place in the Leased Premises.
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SCHEDULE "E"
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LANDLORD'S WORK AND TENANT'S WORK
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1. General
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1. Items enumerated under the heading "Landlord's Work" will be
provided by and at the expense of the Landlord and all other
items including those enumerated under the heading "Tenant's
Work" will be provided by and at the expense of the Tenant. The
Tenant shall deliver to the Landlord, within a reasonable time
after the date of this Lease, but in any event not later than ten
(10) days after being requested so to do, three (3) copies and
one (1) set of sepias of each of its plans and specifications and
such other information as may be necessary for the Landlord's
Work to proceed and for the Tenant's Work to be reviewed under
the terms of this Lease. If the Tenant fails to deliver the
required copies, the Landlord may obtain them from the Tenant's
architect or designer at the Tenant's expense. Such plans and
specifications shall include working plans and specifications for
the following:
(a) floor layout, and complete interior finishing schedules;
(b) reflected ceiling plan;
(c) electrical plans and specifications for wiring, fixtures, security,
power, fire alarm, life safety, telephone systems and any of the
special features or installations that effect the Leased Premises;
(d) mechanical plans and specifications for plumbing, heating, ventilating
and air conditioning system sprinklers, fire hose cabinets and fire
detection devices, building automation system and any other special
features or installations that affect the Leased Premises.
Plans and specifications shall be professionally designed and
generally to a scale of 1/4 inch to 1 foot. The Landlord recommends that the
Tenant retain Base Building mechanical/electrical engineering consultants to
ensure compatibility of Base Building and Tenant systems. If the Landlord
requires revisions of the Tenant's Plans and specifications prior to giving
review, such revisions shall be made expeditiously by the Tenant and in any
event within ten (10) days of the request therefor.
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2. Landlord May Perform Tenant' Work
---------------------------------
The Tenant acknowledges that if the performance of the Tenant's Work
is to be properly integrated with the Landlord's Work, the performance of
portions of the Landlord's Work cannot be proceeded with or completed until such
plans and specifications, information and revisions have been delivered by the
Tenant to the Landlord and reviewed by the Landlord. Accordingly, unless they
have been delivered within the times aforesaid, the Landlord may, in such manner
as in the absolute discretion of the landlord is sufficient for the tenant's
purpose, perform on the Tenant's behalf and at the Tenant's expenses all
Tenant's Work required to permit the Landlord's Work to be proceeded with and
completed.
3. Landlord's Work
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The item enumerated under this heading constitute the Landlord's Work
and will be provided by and completed at the expense of the Landlord in
accordance with its base building plans and specifications.
Provided the Lease has been executed by the Tenant in a form
acceptable to the Landlord, the Landlord shall complete, prior to the
Commencement Date at its sole cost and expense the following;
(a) ensure that all electrical outlets are in working order;
(b) modify existing HVAC to Tenant's needs to be approved by and in
co-ordination with the Tenant's project manager acting
reasonably;
(c) install suitable HVAC distribution for an open Plan;
(d) install suitable lighting for an open Plan;
(e) install building standard signage on the building directory and
on the front entrance of the suite;
(f) replace all ceiling tiles and window coverings;
(g) demolish all existing partitions and doors remove carpets, pot
lights, and stucco from existing columns; and
(h) provide $15,000.00 towards the cost of upgrading the washrooms on
the floor in which the Leased Premises are situate with all work
to be co-ordinated by the Tenant's Project Manager.
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The Tenant, at the Tenant's sole cost, may make any further
renovations to the Premises with the prior written approval of the Landlord,
such approval not to be unreasonably withheld.
Save and except, for the Landlord's Work, the Tenant accepts the
Leased premises in an "as is" condition and acknowledges and agrees the Landlord
has no obligations with respect to the construction of or fixturing in the
Leased Premises.
4. Tenant's Work
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The Tenant shall be responsible, at its expense, for all design,
construction, modifications, finishing work, signage and the installation of
fixtures and equipment necessary to properly complete the Leased Premises ready
for use and occupancy by the Tenant and the proper conduct of the Tenant's
business therein, all such work to be completed in accordance with plans and
specifications approved by the Landlord. The Tenant acknowledges having
received a preliminary space plan from the Landlord.
5. Performance of Tenant's Work
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The Tenant shall secure and pay for all approvals and regulatory
permits, in its name, required for the Tenant's Work from the authorities having
jurisdiction and shall submit to the Landlord proof of such approvals and
permits having been obtained prior to commencing any Tenant's Work. The
Tenant's Work shall otherwise be carried out in accordance with the following
provisions:
(a) work shall be done as expeditiously as possible in a good and
workmanlike manner and with first-class new materials;
(b) it shall be done in compliance with such reasonable rules and
regulations as the Landlord or its agents or contractors may make;
(c) it shall be done in such manner as will not interfere unreasonably
with the work being done by the Landlord in respect of the Leased
premises or in any other portion of the Building;
(d) it shall be subject to the reasonable supervision of the Landlord or
its agents or contractors;
(e) it shall be done at the risk of the Tenant;
(f) it shall be done so as not to increase the premiums payable in respect
of insurance or Taxes included in the Lease, provided if such premiums
or Taxes payable are
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increased, the Tenant shall pay to the Landlord the amount of any
increase that is directly attributable to the Tenant's Work;
(g) the Tenant, its employees, contractors and contractors' employees
shall not enter onto any roof of the Building or make any opening in
the roof or Building envelope.
(h) no load greater than the design load, uniformly distributed shall be
imposed on any concrete floor. No unusual loads my be suspended from
the underside of the ceilings and no holes shall be drilled through
the floor or structural elements without the written approval of the
Landlord and its consultants first obtained. The Landlord will
identify areas for extra file loading and the maximum loads
permissible in the preliminary space plan;
(i) the Tenant shall maintain the Leased Premises in a reasonably clean
and orderly state and shall be responsible for removing from the
Building, at its sole cost and expense all excess material and garbage
resulting from its work;
(j) objectionable odours from the Leased premises shall, at the Tenant's
expense, be exhausted in such a manner satisfactory to the Landlord,
in its sole and absolute discretion so that they do not escape into
the Building or other tenant's premises and so that they do not short
circuit into any fresh air vents.
(k) the Tenant acknowledges that certain Tenant Work requiring
modification and interfacing with Base Building work and system shall
be done only by Landlord designated contractors at the Tenant's
expense to maintain compatibility and warranties.
(l) the Tenant shall engage contractors/subcontractors who are acceptable
to the Landlord and are compatible with the union jurisdictions, if
necessary under normal union contracts, of Base Building contractors,
as appropriate.
(m) the Tenant shall comply with all rules, guidelines and regulations
which may be set forth in a Tenant Design Construction Manual which
the Landlord, at its discretion, may compile and issue to the Tenant
prior to commencement of the Tenant's Work.
Any Tenant's Work that is not in accordance with plans,
specifications, information and revisions delivered to and approved by the
Landlord or that it not otherwise in accordance with the Landlord's requirements
and that has not been removed or corrected forthwith after demand may be removed
or corrected by the Landlord at the expense of the Tenant. The Tenant shall pay
to the Landlord the Landlord's cost of such work performed by the Landlord,
within thirty (30) days of receipt of an invoice form the Landlord.
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SCHEDULE "F"
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SPECIAL PROVISIONS
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FIXTURING PERIOD
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The Tenant shall be permitted to occupy the Leased Promises from March 1, 1997
and for a period of forty-five (45) days for the purposes of constructing
leasehold improvements. During the period no Rent shall be paid. All other
terms of this Lease shall be in full force and effect.
EARLY OCCUPANCY
---------------
Upon completion of the Fixturing period referred to in this Schedule "F" the
Tenant shall have the right to occupy and commence operation in the Leased
Premises provided that the Tenant complies with all of the terms of this Lease.
The Tenant shall not be responsible for any Minimum Rent or Additional Rent
during its occupancy prior to the Commencement Date.
SPACE PLANNING
--------------
The Landlord shall provide the Tenant an allowance for the cost for one (1)
space planning service and one (1) revision, such cost shall be up to a maximum
of SEVEN CENTS ($0.07) per square foot of the Leased Premises.
TENANT INDUCEMENT
-----------------
The Landlord agrees to pay the Tenant TWENTY DOLLARS ($20.00) per rentable
square foot plus goods and services tax. This inducement shall be paid in full
to the Tenant by the Landlord prior to commencement of the Fixturing Period
referred to in this Schedule "F" so long as the Lease has been executed by the
Tenant and so long as the Letter of Credit as described in Paragraph 18.15 of
the Lease has been delivered.
