1
EXHIBIT 10.1.1.
THIS AGREEMENT made this 15th day of December, 1997
BETWEEN:
THE MANUFACTURERS LIFE INSURANCE COMPANY,
A body corporate, having its head office
In Toronto, Canada, and having a local
Office at 1475, 550-6th Avenue SW
In the City
Of Calgary, Province of Alberta
(hereinafter called the "Landlord")
OF THE FIRST PART,
---and---
JAWS TECHNOLOGIES INC.
Having an office at Xxxxx 000, 000-0xx Xxxxxx XX
Xx the city
Of Calgary, Province of Alberta
(hereinafter called the "Tenant")
OF THE SECOND PART,
In consideration of the rents, covenants and agreements hereafter
contained, the Landlord and Tenant hereby agree as follows:
1. LEASED PREMISES
The landlord does demise and lease to the Tenant the premises (the "Leased
Premises") located in a building (the "Building") having a municipal address of
603-7th Ave SW in the City of Calgary, Province of Alberta and known as Manulife
House ( the Leased Premises, the Building, together with the lands described in
Schedule "A" attached hereto and present and future improvements, additions and
changes thereto being herein called the "Property"). The Leased Premises are
located on the third (3rd) floor and the approximate location is outlined in
heavy black and cross hatched on the plan marked Schedule "B1" attached hereto.
The parties agree that the Rentable Area of the Leased Premises is One Thousand
One Hundred forty-six rentable square feet (1,146 s.f.r.) and has been measured
in accordance with the provisions of Schedule "B" attached hereto.
2. TERM
(a) TO HAVE AND TO HOLD the Leased Premises for and during the term of three
(3) years and zero (0) days/months (the "Term") to be computed from the 1st
day of January, 1998, and to be fully complete and ended on the 31st day of
December, 2000, unless otherwise terminated.
(b) If the Leased Premises or any part thereof are not ready for occupancy on
the date of commencement of the Term, no part of the "Rent" (as hereinafter
defined) or only a proportionate part thereof, in the event that the Tenant
shall occupy a part of the Leased Premises, shall be payable for the period
prior to the date when the entire Leased Premises are ready for occupancy
and the full Rent shall accrue only after such last mentioned date. The
Tenant agrees to accept any such abatement of Rent in full settlement of
all claims which the Tenant might otherwise have by reason of the Leased
Premises not being ready for occupancy on the date of commencement of the
Term, provided that when the Landlord has completed construction of such
part of the Leased Premises as it is obliged hereunder to construct, the
Tenant shall not be entitled to any abatement of Rent for any delay in
occupancy due to
2
the Tenant's failure or delay to provide plans or to complete any special
installations or other work required for its purposes of due to any other
reason, nor shall the Tenant be entitled to any abatement of Rent for any
delay in occupancy if the Landlord has been unable to complete construction
of the Leased Premises by any reason of such failure or delay by the
Tenant. A certificate of the Landlord as to the date the Leased Premises
were ready for occupancy and such construction as the Landlord is obliged
to complete is substantially completed, or as to the date upon which the
same would have been ready for occupancy and completed respectively but for
the failure or delay of the Tenant, shall be conclusive and binding on the
Tenant and Rent in full shall accrue and become payable from the date set
out in the said certificate. Notwithstanding any delay in occupancy, the
expiry date of this Lease shall remain unchanged.
(c) If at the expiration of the Term or sooner termination hereof, the Tenant
shall remain in possession without any further written agreement or in
circumstances where a tenancy would thereby be created by implication of
law or otherwise, a tenancy from year to year shall not be created by
implication of law or otherwise, but the Tenant shall be deemed to be a
monthly tenant only, at double "Basic Rent" (as hereinafter defined)
payable monthly in advance plus "Additional Rent" (as hereafter defined)
and otherwise upon and subject to the same terms and conditions as herein
contained, excepting provisions for renewal (if any) and leasehold
improvement allowance (if any), contained herein, and nothing, including
the acceptance of any Rent by the Landlord, for periods other than the
monthly periods, shall extend this Lease to the contrary except an
agreement in writing between the Landlord and the Tenant and the Tenant
hereby authorizes the Landlord to apply any moneys received from the Tenant
in payment of such monthly Rent.
3. RENT
(a) (I) The Tenant shall without demand, deduction or right of offset pay to
the Landlord yearly and every year during the Term as rental ( herein
called "Basic Rent"), the sum of Fourteen Thousand Three Hundred
Twenty-eight Dollars ($14,328.00) of lawful money of the jurisdiction in
which the Leased Premises are located , in equal monthly installments of
One Thousand One Hundred Ninety-four Dollars ($1,194.00) each in advance on
the first day of each month during the Term, the first payment to be made
on the first day on January, 1998.
(b) The Tenant shall, without deduction or right of offset pay to the Landlord
yearly and every year during the Term as additional rental (herein called
"Additional Rent")
(i) The amounts of any Taxes payable by the Tenant to the Landlord
pursuant to the provisions of Schedule "C" attached hereto; and
(ii) The amounts required to be paid to the Landlord pursuant to the
provisions of Schedule "D" attached hereto.
(c) Additional Rent shall be paid and adjusted with reference to a fiscal
period of twelve (12) calendar months ("Fiscal Period"), which shall be a
calendar year unless the Landlord shall from time to time have selected a
Fiscal Period which is not a calendar year by written notice to the Tenant.
The Landlord shall advise the Tenant in writing of its Additional Rent
to be payable by the Tenant during the Fiscal Period (or broken portion of
the Fiscal Period, as the case may be, if applicable at the commencement or
end of the term or because of a change in Fiscal Period) which commenced
upon the commencement date of the Term and for each succeeding Fiscal
Period or broken portion thereof which commences during the Term. Such
estimate shall in every case be a reasonable estimate and, if requested by
the Tenant, shall be accompanied by reasonable particulars of the manner in
which it was calculated. The Additional Rent payable by the Tenant shall be
paid in equal monthly installments in advance at the same time as payment
of Basic Rent is due hereunder based on the Landlord's estimate as
aforesaid. From time to time, the Landlord may re-estimate, on a reasonable
basis, the amount of Additional Rent for any Fiscal Period or broken
portion thereof, in which case the Landlord shall advise the Tenant in
writing of such re-estimate and fix new equal monthly installments for the
remaining balance of such Fiscal Period or broken portion thereof and a
calculation of the amounts by which the Additional Rent payable by the
Tenant exceeds or is less than (as the case may be) the aggregate
installments paid by the Tenant on account of Additional Rent for such
Fiscal Period.
3
Within thirty (30) days after the submission of such statement either the
Tenant shall pay to the Landlord any amount by which the amount found
payable by the Tenant with respect to such Fiscal Period of broken portion
thereof exceeds the aggregate of the monthly payments made by it on account
thereof during such Fiscal Period or broken portion thereof , or the
landlord shall pay to the Tenant any amount by which the amount found
payable as aforesaid is less than the aggregate of such monthly payments.
(d) In this Lease "Rent" means all amounts required to be paid by the Tenant
pursuant to this Lease including without limitation Basic Rent and
Additional Rent.
(e) Basic Rent and Additional Rent shall be considered as accruing from day to
day, and for an irregular period of less than one year or less than one
calendar month shall be apportioned and adjusted by the Landlord for the
Fiscal Periods of the Landlord in which the tenancy created hereby
commences and expires. Where the calculation of Additional Rent for a
period cannot be made until after the termination of this Lease, the
obligation of the Tenant to pay Additional Rent shall survive the
termination hereof and Additional Rent for such period shall be payable by
the Tenant upon demand by the Landlord. If the Term commences or expires on
any day other than the first or last day of the month, Basic Rent and
Additional Rent for such fraction of a month shall be apportioned and
adjusted as aforesaid and paid by the Tenant on the commencement date of
the Term.
(f) The information set out in statements, documents or other writings setting
out the amount of Additional Rent submitted to the Tenant under or pursuant
to this Lease shall be binding on the Tenant and deemed to be accepted by
it and shall not be subject to amendment for any reason unless the Tenant
gives written notice (the "Dispute Notice") to the Landlord within sixty
(60) days of the Landlord's submission of such statement, document, or
writing. The Dispute Notice shall set out in reasonable detail the reason
why such statement, document or writing is in error or otherwise should not
be binding on the Tenant. If the Tenant disputes the amount of the
Additional Rent as aforesaid, and if such dispute is not resolved within
thirty (30) days after the Tenant delivers the Dispute Notice to the
Landlord, then the Landlord shall cause an audited statement of Additional
Rent to be prepared by an independent nationally recognized firm of
chartered accountants. The statement of Additional Rent as prepared by such
accountants shall be final and binding upon their parties hereto and within
fifteen (15) days after delivery of such statement of Additional Rent to
the parties by the accountants the Landlord and Tenant shall readjust
Additional Rent as contemplated by section 3(c). The cost of preparation
of such audited statement shall be paid by the Tenant as Rent unless the
amount of Additional Rent payable by the Tenant as set forth in such
audited financial statement is at least 4% less than the amount of
Additional Rent demanded by the Landlord in accordance with the statement
delivered to the Tenant pursuant to section 3(C).
4. SECURITY DEPOSIT
The Tenant shall pay to the Landlord on execution of this Lease by the
Tenant the sum of One Thousand Nine Hundred Dollars ($1,900.00) as a
deposit to the Landlord to stand as security for the payment by the Tenant
of any and all present and future debts and liabilities of the Tenant to
the Landlord and for the performance by the Tenant of all of its
obligations arising under or in connection with this Lease (the "Debts,
Liabilities and Obligations"). The Landlord shall not be required to keep
the deposit separate from its general funds. In the event of the Landlord
disposing of its interest in this Lease, the Landlord shall credit the
deposit to the Tenant. Subject to the foregoing and to the Tenant not being
in default under this Lease, the Landlord shall repay thee security deposit
to the Tenant without interest at the end of the Term or sooner termination
of the Lease provided that all Debts, Liabilities and Obligations of the
Tenant to the Landlord are paid and performed in full, failing which the
Landlord may on notice to the Tenant elect to retain the security deposit
and to apply it in reduction of the Debts, Liabilities and Obligations and
the Tenant shall remain fully liable to the Landlord for payment and
performance of the remaining Debts, Liabilities and Obligations.
5. GENERAL COVENANTS
(a) The Landlord covenants with the Tenant:
(i) for quiet enjoyment;and
(ii) to observe and perform all the covenants and obligations of the
Landlord herein.
4
(b) The Tenant covenants with the Landlord:
(i) to pay Rent;and
(ii) to observe and perform all the covenants and obligations of the Tenant
herein.
6. USE AND OCCUPANCY
The Tenant covenants with the Landlord:
(a) not to use the Leased Premises for any purpose other than an office for
the conduct of the Tenant's business which is computer software and
technology.
and such use shall be consistent with the character of the Property and
compatible with the other uses of the Property;
(b) not to commit, or permit, any waste, injury or damage to the Property
including the Leasehold Improvements and any trade fixtures therein, any
loading of the floors thereof in excess of the maximum degree of loading as
determined by the Landlord acting reasonably, any nuisance therein or any
use or manner of use causing annoyance to other tenants and occupants of
the Property or to the Landlord;
(c) not to do, omit or permit to be done or omitted to be done upon the
Property anything which would cause to be increased the Landlord's cost of
insurance or the costs of insurance of another tenant of the Property
against perils as to which the Landlord or such other tenant has insured or
which shall cause any policy of insurance on the Property to be subject to
cancellation:
(d) to comply at its own expense with all governmental laws, regulations
and requirements pertaining to the occupation and use of the Leased
Premises, the condition of the Leasehold Improvements, trade fixtures,
furniture and equipment installed by or on behalf of the Tenant therein and
making by the Tenant of any repairs, changes or improvements therein;
(e) (1) to conduct and maintain its business an operations at the
Leased Premises so as to comply in all respects with common law and
with all present and future applicable federal, provincial/state,
local, municipal, governmental or quasi-governmental laws, by-laws,
rules, regulations, licenses, orders, guidelines, directives, permits,
decisions, or requirements concerning occupational or public health and
safety or the environment and any order, injunction, judgement,
declaration, notice or demand issued thereunder, ("Environmental
Laws");
(ii) not to permit or suffer any substance which is hazardous or is
prohibited, restricted, regulated or controlled under any Environmental
Law to be present at , on or in the Leased Premises, unless it has
received the prior written consent of the Landlord which consent may e
arbitrarily withheld;
(f) to observe and perform, and to cause its employees, invitees and others
over whom the Tenant can reasonably be expected to exercise control to
observe and perform, the Rules and Regulations contained in Schedule"E"
hereto, and such further and other reasonable rules and regulations and
amendments and additions therein as may hereafter be made by the Landlord
and notified in writing to the Tenant, except that no change or addition
may be made that is inconsistent with this Lease unless as may be required
by governmental regulation or unless the Tenant consents thereto. The
imposition of such Rules and Regulations shall not create or imply any
obligation of the Landlord to enforce them or create any liability of the
Landlord for their non-enforcement or otherwise.
7. ASSIGNMENT AND SUB-LETTING
(a) The Tenant covenants that it will not assign this Lease or sublet all
or any part of the Leased Premises or mortgage or encumber this Lease or
the Leased Premises or any part thereof, or suffer or permit the occupation
of all or any part thereof by others (each of which is a "Transfer")
without prior
5
written consent of the Landlord, which consent the Landlord covenants not
to withhold unreasonably (I) as to any assignee, subtenant or occupant (the
Transferee") who is in a satisfactory financial condition, agrees to use
the Leased Premises for those purposes permitted hereunder, and is
otherwise satisfactory to the Landlord, and (ii) as to any portion of the
Leased Premises which, in the Landlord's sole judgement, is a proper and
rational division of the Leased Premises, subject to the Landlord' right of
termination arising under this paragraph. This prohibition against a
Transfer shall be construed to include a prohibition against any Transfer
by operation of law.
(b) The tenant shall not effect a Transfer unless:
(i)it shall have received or procured a bona fide written offer to
take an assignment or sublease which is not inconsistent with the
Laws, and the acceptance of which would not breach any provision of
this Lease if this paragraph is complied with and which the Tenant has
determined to accept subject to this paragraph being complied with,
and
(ii) it shall have first requested and obtained the consent in writing
of the Landlord thereto.
Any request for consent shall be in writing and accompanied by a copy of
the offer certified by the Tenant to be true and complete, and the Tenant
shall furnish to the Landlord all information available to the Tenant and
requested by the landlord as to the responsibility, financial standing and
business of the proposed Transferee. Notwithstanding the provisions of
sub-paragraph (a), within twenty (20) days after the receipt by the
Landlord of such request for consent and of all information which the
Landlord shall have requested hereunder, the Landlord shall have the right
upon written notice of termination submitted to the Tenant, if the request
is to assign this Lease or sublet a part of the Leased Premises only, to
cancel and terminate this Lease with respect to the part, in each case as
of a termination which shall be not less than sixty (60) days or more than
ninety (90) days following the giving of such notice. In such event the
Tenant shall surrender the whole or part, as the case may be, of the Leased
Premises in accordance with such notice of termination and Basic Rent and
Additional Rent shall be apportioned and paid to the date of surrender and,
if a part only of the Leased Premises is surrendered, Basic Rent and
Additional Rent shall after the date of surrender xxxxx proportionately. If
such consent shall be given the Tenant shall effect the Transfer only upon
the terns set out tin the offer submitted to the Landlord as aforesaid and
not otherwise. Any consent shall be given without prejudice to the
Landlord's rights under the Lease and shall be limited to the
particular Transfer in respect of which it was given and shall not be
deemed to be an authorization for or consent to any further or other
Transfer.
(c) In the event the Landlord consents to any Transfer, the Tenant shall
pay to the Landlord, as and when amounts on account are due or paid by the
Transferee to the Tenant, all excess Transfer rents (hereafter called the
"Excess Transfer Rent"), if any, as Rent. The Excess Transfer Rent shall be
determined in accordance with the following formula:
all gross revenue received by the Tenant from the Transferee and
attributable to the Transfer less:
(i) the Rent paid by the Tenant to the Landlord during the term of the
Transfer;
(ii) any reasonable and customary out of pocket transaction costs incurred
by the Tenant in connection with such Transfer including attorney's fees,
brokerage commissions, cash inducements and alteration costs (which
transaction costs shall be amortized on a straight line basis over the term
of the Transfer)
The Tenant agrees to promptly furnish such information with regard to the
Excess Transfer Rent as the Landlord may request from time to time.
(d) No Transfer shall be effective unless the Transferee shall execute an
agreement on the Landlord's form, assuming all the obligations of the
Tenant hereunder, and shall have paid to the Landlord its reasonable fee
for processing the Transfer.
6
(e) The Tenant agrees that any consent to a Transfer shall bot thereby
release the Tenant of its obligations hereunder.
(f) If the Tenant or occupant of the Leased Premises at any time is a
corporation, it is acknowledged and agreed that the transfer of thee
majority of the issued capital stock of the corporation or the transfer or
issuance of any capital stock of the corporation sufficient to transfer
effective voting control of the corporation to others than the shareholder
or shareholders having effective voting control of the corporation
immediately prior to such transfer or issuance, shall be deemed for all
purposes of this paragraph 7 to be a Transfer and, accordingly, a violation
this paragraph 7 respecting assignment of this Lease unless the prior
written consent of the Landlord is first obtained, and the Landlord shall
have all of the same rights in respect thereof as though any such transfer
or issuing of shares or proposed transferring or issuing of shares were a
Transfer. The Landlord shall have access at all times to the corporate
books and records of the Tenant, and the Tenant shall make the same
available to the Landlord or its representatives upon request, for
inspection and copying at all times in order to ascertain whether or not
there has at any time during the Term of this Lease been a transfer or
issuing of shares sufficient to constitute a change in the effective voting
control of the Tenant. This subparagraph 7 (f) shall not apply to the
Tenant if and for so long as the Tenant is a corporation whose shares are
listed and traded on any recognized stock exchange in Canada or the United
States.
(g) Notwithstanding anything in this Lease to the contrary, the Tenant
shall not be permitted without the written consent of the Landlord to
effect a Transfer to tenants currently occupying space in the Property.
8. REPAIR AND DAMAGE
(a) The Landlord covenants with the Tenant to keep in a good and reasonable
state of repair and decoration:
(i) those portions of the Property consisting of the entrance, lobbies,
stairways, corridors, landscaped areas, parking areas, and other
facilities from time to time provided for use in common by the Tenant
and other tenants of the Building or Property, and the exterior
portions (including foundations and roofs) of all buildings and
structures from time to time forming part of the Property and affecting
its general appearance; and
(ii) the Building (other than the Leased premises and premises of other
tenants) including the systems for interior climate control, the
elevators and escalators (if any), entrances, lobbies, stairways,
corridors and washrooms from time to time provided for use in common by
the Tenant and other tenants of the Building or Property and the
systems provided for use in common by the Tenant and other tenants of
the Building or Property and the systems provided for bringing
utilities to the Leased Properties.
(b) The Landlord covenants with the Tenant to repair, so far as reasonably
feasible, and as expeditiously as reasonably feasible, defects in standard
demising walls or in structural elements, exterior walls of the Building,
suspended ceiling, electrical and mechanical installations standard to the
Building installed by the Landlord in the Leased Premises (if and to the
extent that such defects are sufficient to impair the Tenant's use of the
Leased Premises while using them in a manner consistent with this Lease)
and "Insured Damage" (as herein defined). The Landlord shall in no event be
required to make repairs to Leasehold Improvements made by the Tenant, or
by the Landlord on behalf of the Tenant or another tenant or to make
repairs to wear and tear within the Leased Premises.
7
(c) The Tenant covenants with the Landlord to repair, maintain and keep
at the Tenant's own cost, except insofar as the obligation to repair
rests upon the Landlord present to this paragraph, the Leased Premises,
including Leasehold Improvements in good and substantial repair,
reasonable wear and tear excepted, provided that this obligation shall
not extend to structural elements or to exterior glass or to repairs
which the Landlord would be required to make under this paragraph but
for the exclusion therefrom of defects not sufficient to impair the
Tenants use of the Leased Premises while using them in a manner
consistent with this Lease. The Landlord may enter the Leased Premises
at all reasonable times and view the condition thereof and the Tenant
covenants with the Landlord to repair, maintain and deep the Leased
Premises in good and substantial repair according to notice in writing,
reasonable wear and tear excepted. If the Tenant shall fail to repair
as aforesaid after reasonable notice to do so, the Landlord may effect
the repairs and the Tenant shall pay the reasonable cost thereof to the
Landlord on demand. The Tenant covenants with the Landlord that the
Tenant will at the expiration of the Term or sooner termination thereof
peaceably surrender the Leased Premises and appurtenances in good and
substantial repair and condition, reasonable wear and tear excepted.
(d) If any part of the Property becomes out of repair, damaged or
destroyed through the negligence of, or misuse by, the Tenant or its
employees, agents, invitees or others under its control, the Tenant
shall pay the Landlord on demand the expense of repairs or
replacements, including the Landlord's reasonable administration charge
thereof, necessitated by such negligence or misuse.
(e)It is agreed between the Landlord and the Tenant that:
(i)In the event of damage to the Property or to any part
thereof, if in the reasonable opinion of the Landlord the
damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and
occupancy by the Tenant for the purposes of its business for
any period of time in excess of ten (10) days, then
(1) unless the damage was caused by the fault or negligence of
the Tenant or its employees, agents, invitees or others under
its control, from the date of occurrence of the damage and
until the Leased Premises are again reasonably capable for use
and occupancy as aforesaid, the Tent payable pursuant to this
Lease shall xxxxx from time to time in proportion to the part
or parts of the Leased Premises not reasonable capable of such
use and occupancy, and
(2) unless this Lease is terminated as hereinafter provided,
the Landlord or the Tenant as the case may be (according to
the nature of the damage and their respective obligations to
repair as provided in sub-paragraphs (a), (b) and (c) of this
paragraph) shall repair such damage with all reasonable
diligence, but to the extent that any part of the Leased
Premises is not reasonably capable of such use and occupancy
by reason of damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the Tenant would
otherwise be entitled hereunder shall not extend later than
the time by which, in the reasonable opinion of the Landlord,
repairs by the Tenant ought to have been completed with
reasonable diligence;
(ii) if the damage is such that the Leased Premises are
rendered untenantable, in whole or in part, and if, in the
opinion of the Landlord, the damage cannot be repaired with
reasonable diligence within one hundred and eighty (180) days
from the happening of the damage, then the Landlord may,
within thirty (30) days after the date of the damage,
terminate this Lease by notice to the Tenant. Upon the
Landlord giving such notice, this Lease shall be terminated as
of the date of the damage and the Tent and all other payments
for which the Tenant is liable under the terns of this Lease
shall be apportioned and paid in full to the date of the
damage;
(iii) the Landlord shall not be required to use plans and
specifications and working drawings used in the original
construction of the Building and nothing in this Section
requires the Landlord to rebuild the Building in the condition
and state that existed before
8
the damage, but the Building, as rebuilt, will have reasonably
similar facilities and services to those in the Building prior
to the damage;and
(iv) If premises whether of the Tenant or other tenants of the
Property comprising in the aggregate half or more of the total
number of square feet of rentable office area in the Property
or half or more of the total number of square feet of rentable
office area in the Building (as determined by the Landlord )
or portions of the Property which affect access or services
essential thereto, are substantially damaged or destroyed by
any cause and if in the reasonable opinion of the Landlord the
damage cannot reasonably be repaired within one hundred and
eighty (180) days after the occurrence thereof, then thee
Landlord may by written notice to the Tenant given in which
event neither the Landlord nor the Tenant shall be bound to
repair as provided in sub-paragraphs (a), (b) and (c) of this
paragraph, and the Tenant shall instead deliver up possession
of the Leased Premises to the Landlord with reasonable
expedition but in any event within sixty (60) days after
delivery of such notice of termination, and Rent shall be
apportioned and paid to the date upon which possession is so
delivered up (but subject to any abatement to which the Tenant
may be entitled under the sub-paragraph (e) (I) of this
paragraph).
9. INSURANCE AND LIABILITY
(a) The Landlord shall take out and keep in force during the Term
insurance with respect to the Property except for the "Leasehold
Improvements" (as hereafter defined) in the Leased Premises. The
insurance to be maintained by the Landlord shall be in respect of
perils and in amounts and on terms and conditions which from time to
time are insurable at a reasonable premium and which are normally
insured by reasonable prudent owners of properties similar to the
Property, all as from time to time determined at reasonable intervals
by insurance advisors selected by the Landlord, and whose opinion shall
be conclusive. Unless and until the insurance advisors shall state that
any such perils are not customarily insured against by owners of
properties similar to the Property, the perils are not customarily
insured against by owners of properties similar to the Property, the
perils to be insured against by owners of properties similar to the
Property, the perils to be insured against by the Landlord shall
include, without limitation, public liability, boilers and machinery,
fire and extended perils and may include at the option of the Landlord
losses suffered by the Landlord in its capacity as Landlord through
business interruption. The insurance to be maintained by the Landlord
shall contain a waiver by the insurer of any rights of subrogation or
indemnity or any other claim over which the insurer might otherwise be
entitled against the Tenant or the agents or employees of the Tenant.
(b) The Tenant shall take out and keep in force during the Term:
(i) comprehensive general public liability insurance all on an
occurrence basis with respect to the business carried on in or
from the Leased Premises and the Tenant's use and occupancy of
the Leased Premises and of any other part of the Property,
with coverage for any one occurrence or claim of not less than
Five Million Dollars ($5,000,000) or such other amount as the
Landlord may reasonably require upon not less than one (1)
month notice at any time during the Term, which insurance
shall include the Landlord as a named insured and shall
contain a cross liability clause protecting the Landlord in
respect of claims by the Tenant as if the Landlord were
separately insured;
(ii) insurance in respect of fire and such other perils as are
from time to time in the usual extended coverage endorsement
covering the Leasehold Improvements, trade fixtures, and the
furniture and equipment in the Leased Premises for not less
than 80% of the full replacement cost thereof, and which
insurance shall include the Landlord as a named insured as the
Landlord's interest may appear; and
(iii) insurance against such other perils and in such amounts
as the Landlord may from time to time reasonably require upon
not less than ninety (90) says' written notice, such
9
requirement to be made on the basis that the required
insurance is customary at the time for prudent tenants of
properties similar to the Property.
All insurance required to be maintained by the Tenant shall be on terms
and with insurers satisfactory to the Landlord. Each policy shall
contain: (A) a waiver by the insurer of any rights of subrogation or
indemnity or any other claim over to which the insurer might otherwise
be entitled against the Landlord or the agents or employees of the
Landlord, (B) a cross liability clause and (C) an undertaking by the
insurer that no material change adverse to the Landlord or the Tenant
will be made, and the policy will not lapse or be canceled, except
after not less than thirty (30) days' written notice to the Landlord of
the intended change, lapse or cancellation. The Tenant shall furnish to
the Landlord, if and whenever requested by it, certificates or other
evidences acceptable to the Landlord as to the insurance from time to
time effected by the Tenant and its renewal or continuation in force,
together with evidence as to the method of determination of full of
full replacement cost of the Tenant's Leasehold Improvements, trade
fixtures, furniture and equipment, and if the Landlord reasonably
concludes that the full replacement cost has been underestimated, the
Tenant shall forthwith arrange for any consequent increase in coverage
required under sub-paragraph (b). If the Tenant shall fail to take out,
renew and keep in force such insurance, or if the evidence submitted to
the Landlord are unacceptable to the Landlord (or such evidences are
submitted within a reasonable period after request therefor by the
Landlord), then the Landlord may give to the Tenant written notice
requiring compliance with this sub-paragraph and specifying the
respects in which the Tenant is not then in compliance with this
sub-paragraph. If the Tenant does not within forty-eight hours (48)
hours provide appropriate evidence of compliance with this
sub-paragraph, the Landlord may (but shall not be obligated to) obtain
some or all of the additional coverage or other insurance which the
Tenant shall have failed to obtain, without prejudice to any other
rights of the Landlord under this Lease or otherwise, and the Tenant
shall pay all premiums and all other reasonable expenses incurred by
the Landlord to the Landlord on demand.
(c) The Tenant agrees that the Landlord shall not be liable for any
bodily injury or death of, or loss or damage to any property belonging
to, the Tenant or its employees, invitees or licensees or any other
person in, on or about the Property unless resulting from the actual
willful misconduct or gross negligence of the Landlord or its own
employees. In no event shall the Landlord be liable for any damage,
including indirect, special or consequential damages, which is caused
by steam, water, rain or snow or other thing which may leak into, issue
or flow from any part of the Property or from the popes or plumbing
works, including the sprinkler system (if any) therein or from any
other place or for any damage caused by or attributable to the
condition or arrangement of any electric or other wiring or of
sprinkler heads (if any) or for any such damage caused by anything done
or omitted by any other tenant.
(d) Except with respect to claims or liabilities in respect of any
damage which is Insured Damage to the extent of the cost of repairing
such Insured Damage, the Tenant agrees to indemnify and save harmless
the Landlord in respect of:
(i) all claims for bodily injury or death, property damage or
other loss or damage arising from the conduct of any work or
any act or omission of the Tenant or any assignee, sub-tenant,
agent, employee, contractor, invitee or licensee of the
Tenant, and in respect of all costs, expenses and liabilities
incurred by the Landlord in connection with or arising out of
all such claims, including the expenses of any action or
proceeding pertaining thereto; and
(ii) any loss, cost, (including, without limitation, lawyers'
fees and disbursements ), expense or damage suffered by the
Landlord arising from any breach by the Tenant of any of its
covenants and obligations under this Lease.
(e) For purposes of this Lease, "Insured Damage" means that part of any
damage occurring to the Property of which the entire cost of repair (or
the entire cost of repair other than deductible
10
amount properly collectable by the Landlord as part of the Additional
Rent) is actually recovered by the Landlord under a policy or policies
of insurance from time to time effected by the Landlord pursuant to
sub-paragraph (a).
10. EVENTS OF DEFAULT AND REMEDIES
(a) In the event of the happening of any one of the following events:
(i) the Tenant shall have failed to pay an installment of Tent
or any other amount payable hereunder when due, and such
failure shall be continuing for a period of more than ten (10)
days after the date such installment or amount was due;
(ii) there shall be a default of or with any condition,
covenant, agreement or other obligation on the part of the
Tenant to be kept, observed or performed hereunder (other than
the obligation to pay Rent or any other amount of money) and
such default shall be continuing for a period of more than
fifteen (15) days after written notice by the Landlord to the
Tenant specifying the default and requiring that it be cured;
(iii) if any policy of insurance upon the Property or any part
thereof from time to time effected by the Landlord shall be
canceled or about to be canceled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or
any assignee, sub-tenant or licensee of the Tenant or anyone
permitted by the Tenant to be upon the Leased Premises and the
Tenant after receipt of notice in writing from the Landlord
shall have failed to take such immediate steps in respect of
such use or occupation as shall enable the Landlord to
reinstate or avoid cancellation (as the case may be) of such
policy of insurance;
(iv) the Leased Premises shall, without the prior written
consent of the Landlord, be used by any other persons than the
Tenant or a permitted Transferee or for any purpose other than
that for which they were leased or occupied or by any persons
whose occupancy is prohibited by this Lease;
(v) the Leased Premises shall be vacated or abandoned, or
remain unoccupied without the prior written consent of the
Landlord for fifteen (15) consecutive days or more while
capable of being occupied;
(vi) the balance of the Term of this Lease or any of the goods
and chattels of the Tenant located in the Leased Premises,
shall at any time be seized in execution or attachment; or
(vii) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt or insolvent or take the benefit
of any statute for bankrupt or insolvent debtors or, if a
corporation, shall take any steps or suffer any order to be
made for its winding-up or other termination of its corporate
existence; pr a trustee, receiver or receiver-manager or agent
or other like person shall be appointed of any of the assets
of the Tenant;
then the Landlord shall have the following rights and remedies all of
which are cumulative and not alternative and not to the exclusion of
any other or additional rights and remedies in law or equity available
to the Landlord by statute or otherwise:
(A) to remedy or attempt to remedy any default of the Tenant,
ad in so doing to make any payments due to or alleged to be
due b the Tenant to third parties and to enter upon the Leased
Premises to do any work or other things therein, and in such
event all reasonable expenses of the Landlord in remedying or
attempting to remedy such default shall be payable by the
Tenant to the Landlord on demand;
11
(B) with respect to unpaid overdue Rent, to the payment by the
Tenant of the Rent and of interest (which said interest shall
be deemed included herein in the term "Rent") thereon at a
rate equal to the lesser of three percent (3%) above the prime
commercial loan rate charged to borrowers having the highest
credit rating from time to time by the Landlord's principal
bank from the date upon which the same was due until actual
payment thereof and the maximum amount allowed under the laws
of the jurisdiction in which the Building is located;
(c ) to terminate this Lease forthwith by leaving upon the
Leased Premises or by affixing to an entrance door to the
Leased Premises notice terminating the Lease and to
immediately thereafter cease to furnish any services hereunder
and enter into and upon the Leased Premises or any part
thereof in the name of the whole and the same to have again,
re-possess and enjoy as of its former estate, anything in this
Lease contained to the contrary notwithstanding. Provided,
however, that notwithstanding such forfeiture the Landlord
shall have the right to recover arrears of Rent and damages
for any prior default by the Tenant under this Lease and
provided that notwithstanding any such forfeiture the Landlord
shall have the right to recover from the Tenant damages for
loss of Rent which would, but for the premature determination
of the Lease, otherwise have been owing for the balance of the
Term and all damages it may have incurred by reason of this
Lease having been prematurely determination of the Lease,
otherwise have been owing for the balance of the Term and all
damages it may have incurred by reason of this Lease having
been prematurely determined, including the cost of recovering
the Leased Premises, enforcing the Lease and reletting the
Leased Premises; and
(D) to enter the Leased Premises as agent of the Tenant and as
such agent to re-let them and to receive the rent therefor and
as the agent of the Tenant to take possession of any furniture
or other property thereon and upon giving ten (10) days'
written notice to the Tenant to store the same at the expense
and risk of the Tenant or to sell or otherwise dispose of the
dame at public or private sale without further notice and to
apply the proceeds thereof and any rent derived from
re-letting the Leased Premises upon account of the Rent due
and to become due under this Lease and the Tenant shall be
liable to the Landlord for the deficiency if any and for all
damages the Landlord may have incurred by reason of the
Tenant's breach.
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 is decreed by a court of
competent jurisdiction. Notwithstanding any reletting of the Leased
Premises 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 have incurred by reason of such breach including the
cost of recovering the Premises, and damages for loss of Rent, which
would, but for the premature determination of the Lease, otherwise have
been owing for the balance of the Term.
(b) Upon the giving by the Landlord of a notice in writing terminating
this Lease under sub-paragraph 10 (a) (C) above, this Lease and the
Term shall terminate, Rent and any other payments for which the Tenant
is liable under this Lease shall be computed, apportioned and paid in
full to the date of such termination forthwith, and there shall
immediately become due and payable forthwith the full amount of the
current month's Rent together with the next three (3) month's
installments of Rent, all of which shall accrue on a day-to-day basis
and shall immediately become due and payable as accelerated rent, and
the Landlord may immediately distrain for the same. Upon termination if
this Lease and the Term, the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord, and the Landlord may
forthwith re-enter and take possession of them.
12
(c) The Tenant shall pay to the Landlord on demand all costs and
expenses, including lawyers' fees, incurred by the Landlord in
enforcing any of the obligations of the Tenant under this Lease.
ADDITIONAL PROVISIONS
11. The Tenant acknowledges and agrees that the common areas of the
Property shall at all times be subject to the exclusive management and
control of the Landlord. Without limiting the generality of the
foregoing, the Tenant specifically acknowledges and agrees that the
Landlord may temporarily close or restrict the use of all or any part
of the common areas of the Property in an emergency, or for security or
crowd control purposes, to facilitate tenants moving in or out of the
building, or for the purpose of making repairs, alterations or
renovations. The Landlord agrees not to permanently alter such common
areas in any manner which would deny reasonable access to the Leased
Premises. In the event of any such temporary closure or restriction of
use or if changes are made to such common areas by the Landlord, the
Landlord shall not be subject to any liability nor shall the Tenant be
entitled to any compensation or any diminution or abatement of Rent and
such closures, restriction and changes shall not be deemed to be a
constructive or actual eviction or a breach of the Landlord's covenant
for quiet enjoyment.
12. The Landlord shall have the right at any time upon sixty (60) days'
written notice (the "Notice of Relocation") to relocate the Tenant to
other premises in the Property (the "Relocated Premises") and the
following terms and conditions shall be applicable:
(a) the Relocated Premises shall contain approximately the same as, or
greater Rentable Area than, the Leased Premises;
(b) the Landlord shall provide at its expense leasehold improvements in
the Relocated Premises equal to the standards of the Leasehold
Improvements in the Leased Premises which have been completed or which
the Landlord is obliged herein to provide in the Leased Premises;
(c) the Landlord shall pay for the reasonable moving costs (if any)
from the Leased Premises to the Relocated Premises of the Tenant's
trade fixtures and furnishings;
(d) as compensation for all other costs, expenses and damages which the
Tenant may suffer or incur in connection with the relocation including
disruption and loss of business, Basic Rent and Additional Rent for the
Relocated Premises for the period of the first one (1) month of
occupancy shall xxxxx:
(e) during the remaining Term of the Lease but not including any
renewals of the Lease, the Basic Rent and Tenant's Proportionate Share
of Additional Rent for the Relocated Premises shall be no greater than
the Basic Rent and Tenant's Proportionate Share of Additional Rent for
the Leased Premises, notwithstanding the Relocated Premises may contain
a greater Rentable Area;
(f) all other terms and conditions of the Lease shall apply to the
Relocated Premises except as are inconsistent with the terms and
conditions of this sub-paragraph;
(g) the Tenant agrees to execute the Landlord's standard form of lease
amendment then being used by the Landlord for the Building to give
effect to the relocation.
13. This Lease and all rights of the Tenant hereunder are subject and
subordinate to all underlying leases and charges, or mortgages now or hereafter
existing (including charges, and mortgages by way of debenture, note, bond,
deeds of trust and mortgage and all instruments supplemental thereto) which may
now or hereafter affect the Property or any part thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof provided the
lessor, chargee, mortgagee or trustee agrees to accept this
13
Lease if not in default; and in recognition of the foregoing the Tenant agrees
that it will, whenever requested, attorn to such lessor, chargee, mortgagee as a
Tenant upon all the terms of this Lease. The Tenant agrees to execute promptly
whenever requested by the Landlord or by the holder of any such lease, charge,
or mortgage an instrument of subordination or attornment as may be required of
it.
14. The Tenant agrees that it shall promptly whenever requested by the Landlord
from time to time execute and deliver to the Landlord, and if required by the
Landlord, to any lessor, chargee, or mortgagee (including any trustee) or other
person designated by the Landlord, an acknowledgment in writing as to the then
status of this Lease, including as to whether it is in full force and effect, is
modified or unmodified, confirming the Rent payable hereunder and the state of
the accounts between Landlord and the Tenant, the existence or non-existence of
defaults, and any other matters pertaining to this Lease as to which the
Landlord shall request an acknowledgment.
15. The Landlord shall be permitted at any time and from time to time to enter
and to have its authorized agents, employees and contractors enter the Leased
Premises for the purposes of inspection, window cleaning, maintenance, providing
janitor service, making repairs, alterations or improvements to the Leased
Promises or the Property, or to have access to utilities and services (including
all ducts and access panels (if any), which the Tenant agrees not to obstruct)
and the Tenant shall provide free and unhampered access for the purpose, and
shall not be entitled to compensation or any diminution or abatement of Rent for
any inconvenience, nuisance or discomfort caused thereby. The Landlord and its
authorized agents and employees shall be permitted entry to the Leased Premises
for the purpose of exhibiting them to prospective tenants. The Landlord in
exercising its rights under this paragraph shall do so to the extent reasonably
necessary so as to minimize interference with the Tenant's use and enjoyment of
this Leased Premises provided that in an emergency the Landlord of persons
authorized by it may enter the Leased Premises without regard to minimizing
interference.
16. Except as herein otherwise expressly provided, if and whenever an to the
extent that either the Landlord or the Tenant shall be prevented, delayed or
restricted in the fulfillment of any obligation hereunder in respect of the
supply or provision of any service or utility, the making of any repair, the
doing of any work or any other thing (other than the payment of moneys required
to be paid by the Tenant to the Landlord hereunder) by reason of:
(a) Strikes or work stoppages;
(b) Being unable to obtain any material, service, utility or labor required
to fulfill such obligation;
(c) any state, law or regulation of, or inability to obtain any permission
from any government authority having lawful jurisdiction preventing,
delaying or restricting such fulfillment;
or
(d) other unavoidable occurrence,
the time for fulfillment of such obligation shall be extended during the period
in which such circumstance operates to prevent, delay or restrict the
fulfillment thereof, and the other party to this Lease shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned;
provided that nevertheless the Landlord will use its best efforts to maintain
services essential to the use and enjoyment of the Leased Premises and provided
further that if the Landlord shall be prevented, delayed or restricted in the
fulfillment of any such obligation hereunder by reason of any of the
circumstances set out in sub-paragraph (c) of this paragraph 15 and to fulfill
such obligation could not, in the reasonable opinion of the Landlord, be
completed without substantial additions to or renovations of the Property, the
Landlord may on sixty (60) days' written notice to the Tenant terminate this
Lease.
14
17. If either the Landlord or the Tenant shall overlook, excuse, condone or
suffer any default, breach, non-observance, improper compliance or
non-compliance by the other of any obligation hereunder, this shall not operate
as a waiver of such obligation in respect of any continuing or subsequent
default, breach, or non-observance, and no such waiver shall be implied but
shall only be effective if expressed in writing.
18. (a) The term "Landlord" as used in this Lease, means only the owner for the
time being of the Property, so that in the event of any sale or sales or
transfer or transfers of the Property, or the making of any lease or leases
thereof, or the sale or sales or the transfer or transfers or the assignment or
assignments of any such lease or leases, previous landlords shall be and hereby
are relieved of all covenants and obligations of Landlord hereunder. It shall be
deemed and construed without further agreement between the parties, or their
successors in interest, or between the parties and the transferee or acquirer,
at any such sale, transfer or assignment, or lessee on the making of any such
lease, that the transferee, acquirer or lessee has assumed and agreed to carry
out any and all of the covenants and obligations of Landlord hereunder to
Landlord's exoneration, and Tenant shall thereafter be bound to and shall attorn
to such transferee, acquirer or lessee, as the case may be, as Landlord under
this Lease;
(b) Notwithstanding anything contained in this Lease to the contrary, in the
event the Landlord intends to demolish or to renovate substantially all the
Building, then the Landlord, upon giving the Tenant one hundred and eighty (180)
days" written notice, shall have the right to terminate this Lease and this
Lease shall thereupon expire on the expiration of one hundred and eighty (180)
days from the date of the giving of such notice without compensation of any kind
to the Tenant.
19. The Landlord and Tenant shall co-operate, each with the other, in respect of
any Public Taking of the Leased Premises or any part thereof so that the Tenant
may receive the maximum award for all other compensation arising from or
relating to such Public Taking (including all compensation for the value of the
Tenant's leasehold interest subject to the Public Taking) which shall be the
property of the Landlord, and the Tenant's rights to such compensation are
hereby assigned to the Landlord. If the whole or any part of the Leased Promises
is Publicly Taken, as between the parties hereto, their respective rights and
obligations under their Lease shall continue until the day on which the Public
Taking authority takes possession thereof. If the whole or any part of the
Leased Premises is Publicly Taken, the Landlord shall have the option, to be
exercised by written notice to the Tenant, to terminate this Lease and such
termination shall be effective on the day the Public Taking authority takes
possession of the date of such termination and the Tenant shall, on the date of
such Public Taking, vacate the Leased Premises and surrender the same to the
Landlord, with the Landlord, with the Landlord having the right to re-enter and
repossess the Leased Premises discharged of this Lease and to remove all persons
therefrom. In this paragraph, the words "Public Taking" shall include
expropriation, condemnation or taking, in lieu of or under threat of
expropriation or taking and "Publicly Taken" shall have a corresponding meaning.
20. The Tenant agrees with the landlord not to register this Lease in any
recording office and not to register notice of this Lease in any form without
the prior written consent of the Landlord. If such consent is provided such
notice of Lease or caveat shall be in such form as the Landlord shall have
approved and upon payment of the Landlord's reasonable fee for same and all
applicable transfer or recording taxes or charges. The Tenant shall remove and
discharge at Tenant's expense registration of such a notice or caveat at the
expiry or earlier termination of the Term, and in the event of Tenant's failure
to so remove or discharge
15
such notice or caveat after ten (10) day's written notice by Landlord to Tenant,
the Landlord may in the name and on behalf of the Tenant execute a discharge of
such a notice or caveat in order to remove and discharge such notice of caveat
and for the purpose thereof the Tenant hereby irrevocably constitutes and
appoints any officer of the Landlord the true and lawful attorney of the Tenant.
21. The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions express or implied, collateral or otherwise
forming part of or in any way affecting or relating to this Lease save as
expressly set out in this lease and Schedules attached hereto and that this
Lease and such Schedules constitute the entire agreement between the Landlord
and the Tenant and may not be modified except as herein explicitly provided or
except by agreement in writing executed by the Landlord and the Tenant.
22. Any notice, advice, document or writing required or contemplated by any
provision hereof shall be given in writing and if to the Landlord, either
delivered personally to an officer of the Landlord or mailed by prepaid mail
addressed to the Landlord at the said local office address of the Landlord shown
above, and if to the Tenant, either delivered personally to the Tenant (or to an
officer of the Tenant, if the corporation) or mailed by prepaid mail addressed
to the Tenant at the Leased Premises, or if an address of the Tenant is shown in
the description of the Tenant above, to such address. Every such notice, advice,
document or writing shall be deemed to have been given when delivered
personally, or if mailed as aforesaid, upon the fifth day after being mailed.
The Landlord may from time to time by notice in writing to the Tenant designate
another address as the address to which notices are to be mailed to it, or
specify with greater particularity the address and persons to which such notices
are to be mailed and may require that copies of notices be sent to an agent
designated by it. The Tenant may, if an address of the Tenant is shown in the
description of the Tenant above, from time to time by notice in writing to the
Landlord, designate another address as the address to which notices are to be
mailed to it, or specify with greater particularity the address to which such
notices are to be mailed.
23. In this Agreement "herein", "hereof", "hereby", "hereunder", "hereto",
"hereinafter", and similar expressions refer to this Lease and not to any
particular paragraph, clause or other promotion thereof, unless there is
something in the subject matter or context inconsistent therewith; and the
parties agree that all of the provisions of this lease are to be construed as
covenants and agreements as though words importing such covenants and agreements
were used in each separate paragraph hereof, and that should any provision or
provisions of this Lease be illegal or not enforceable it or they shall be
considered separate and severable from the Lease and its remaining provisions
shall remain in force and be binding upon the parties hereto as though the said
provision or provisions had never been included, and further that the captions
appearing for the provisions of this lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or enlarge the
scope or meaning of this lease or of any provisions hereof.
24. This Agreement and everything herein contained shall enure to the benefit of
and binding upon the respective heirs, executors, successors, assigns and other
legal representatives, as the case may be, of each and every of the parties
hereto, subject to the granting of consent by the Landlord to any assignment or
sublease, and every reference herein to any party hereto shall include the
heirs, executors, administrators, successors, assigns and other legal
representatives of such party, and where there is more that one tenant or there
is a male or female party the provisions hereof shall be read with all
grammatical changes thereby rendered necessary and all covenants shall be deemed
joint and several.
25. If the Tenant shall for any reason use or occupy the leased Premises in any
way prior to the commencement of the Term without there being an existing lease
between the Landlord and Tenant under which the Tenant has occupied the leased
Premises, then during such prior use or occupancy the Tenant shall be a Tenant
of the Landlord and shall be subject to the same covenants and agreements in
this Lease mutatis mutandis.
16
26. The provisions of the following Schedules attached hereto shall form part of
this lease as if the same were embodied herein:
Schedule "A" - Legal Description of Property
Schedule "B" - Measurement of Rentable Area
Schedule "B-1" - Location of Leased Premises
Schedule "C" - Taxes Payable by Landlord and Tenant
Schedule "D" - Services and Costs
Schedule "E" - Rules and Regulations
Schedule "F" - Leasehold Improvements
Schedule "K" - Occupancy Prior to Commencement of Term
IN WITNESS WHEREOF the parties hereto have executed this Agreement. I/We have
authority to bind the corporation.
Landlord:
THE MANUFACTURES LIFE INSURANCE COMPANY
_________________________________ By Signature ___________________________
Witness as to signing Title:
by Landlord
Tenant:
JAWS TECHNOLOGIES INC.
_________________________________ By Signature ___________________________
Witness as to singing by Title:
Tenant or officer(s) of Tenant Name:
By Signature ___________________________
Title:
Name:
SCHEDULE "A"
(Legal Description of Property)
TO A LEASE AGREEMENT BETWEEN
17
THE MANUFACTURERS LIFE INSURANCE COMPANY
-and-
JAWS TECHNOLOGIES INC.
Those portions of Lots Seventeen (17), Eighteen (18),
Nineteen (19) and Twenty (20), which lie to the South of
the Northerly Seven (7) feet throughout the said Lots and
Seventeen (17), Eighteen (18), Nineteen (19) and
Twenty (20) in Block Forty-eight (48) on Plan "A-1", Calgary,
Expecting out of Lots Nineteen (19) and Twenty (20)
All mines and minerals.
(hereinafter referred to as the "Property")
DATED the 15th day of December, 1997
MUNICIPALLY DESCRIBED AS: 000-0XX Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
Property Name: XXXXXXXX XXXXX
XXXXXXXX "X"
(Xxxxxxxxxxx xx Xxxxxxxx Xxxx)
Single Tenant Floor
18
The "Rentable Area" of a single tenant floor shall be computed by measuring from
the inside finish of the permanent outer Building walls or from the glass line
in accordance with the standards of the Building established by the Landlord.
Rentable area shall include all areas within outside walls or glass line less
stairs (but including stair landings where they provide access to washrooms,
storage rooms, etc.), elevator shafts, flues, pipe shafts, vertical ducts, and
their enclosing walls. Washroom, janitor rooms, on-floor storage rooms,
telephone rooms, electrical closets shall be included in the Rentable Area.
Where the space on both sides of a wall is Rentable Area, the wall is to be
included in the Rentable Area. No deductions shall be made for columns and
projections necessary to the Building.
Multi-Tenant Floor
The Rentable Area of a multi-tenant floor tenant shall be computed by
multiplying such portion of the Usable Area (as set out below) allocated to the
multi-tenant floor tenant by the ratio of the total Rentable Area of the floor
to the total Useable Area of the floor.
The "Useable Area" of a multi-tenant floor is the Rentable Area of a single
tenant floor less the area of the Normal Corridor (as set out below), washrooms,
janitor closets, telephone rooms, electrical closets, air conditioning rooms and
their enclosing walls.
The Usable Area of the multi-tenant shall be computed by measuring form the
inside finish of the permanent outer building Wall or from the glass line to the
Useable Area side of the Normal Corridor and/or other permanent partitions and
to the centre line of partitions which demise tenant areas.
The "Normal Corridor" is the minimum corridor permitted by the applicable code,
yet practical for leasing purposes. For example, although the code may permit a
42 inch wide corridor, for aesthetic reasons or because of grid restrictions,
the corridor might well be 4'6" or 5.0" wide. Once the corridor dimensions have
been established they shall remain unchanged and marked on the master plan
showing all dimensions used to calculate Rentable Area and Usable Area.
The ground floor is measured as Usable Area.
If the Normal Corridor is extended to provide a multi-tenant floor tenant access
to its space, the area of the corridor extension is included in the tenant's
Usable Area or allocated proportionately to the multi-tenant floor tenants
benefiting from the extension of the Normal Corridor.
Property Name: MANULIFE HOUSE
SCHEDULE "B1"
(Location of Leased Premises cross-hatched)
19
This Schedule is for identification purposes only and is not to be interpreted
as being a representation or warranty on the party of the Landlord as to the
exact location, area, configuration and layout.
(insert diagram of floor plan)
Property Name: MANULIFE HOUSE
SCHEDULE "C"
TAXES PAYABLE BY LANDLORD AND TENANT
1. (a) The Tenant covenants to pay all Tenant's Taxes, as and when the same
become due and payable. Where any Tenant's Taxes are payable by the
Landlord to the relevant taxing authorities, the Tenant covenants to pay
the amount thereof to the Landlord.
(b) The Tenant covenants to pay the Landlord the Tenant's Proportionate
Share of the amount of the Landlord's Taxes in each Fiscal Period.
(c) The Tenant covenants to pay to the Landlord the Tenant's Proportionate
Share of the costs and expenses (including legal and other professional
fees and interest and penalties on deferred payments) incurred in good
faith by the Landlord in contesting, resisting or appealing any of the
Taxes.
(d) The Landlord covenants to pay all Landlord's Taxes subject to the
payments on account of Landlord's Taxes required to be made by the
Tenant elsewhere in this lease. The Landlord may appeal any official
assessment or the amount of any Taxes or other taxes based on such
assessment and relating to the Property. In connection with any such
appeal, the Landlord may defer payment of any Taxes or other taxes, as
the case may be, payable by it to the extent permitted by law, and the
Tenant shall co-operate with Landlord and provide the Landlord with all
relevant information reasonably required by the Landlord in connection
with any such appeal.
(e) In the event that the Landlord is unable to obtain from the taxing
authorities any separate allocation of Landlord's Taxes, Tenant's Taxes
or assessment as required by the Landlord to make calculations of
Additional Rent under this Lease, such allocation shall be made by the
Landlord acting reasonably and shall be conclusive.
(f) Whenever requested by the Landlord, the Tenant shall deliver to it
receipts for payment of all the Tenant's Taxes and furnish such other
information in connection therewith as the Landlord may reasonably
require.
(g) If the Building has not been taxed as a completed and fully occupied
building for any Fiscal Period, the Landlord's Taxes will be determined
by the Landlord as if the Building had been taxed as a completed
building fully occupied by commercial tenants for any such Fiscal
Period.
2. In this Lease:
(a) "Landlord's Taxes" shall mean the aggregate of all Taxes attributable
to Property, the Rent or the Landlord in respect thereof and including,
any amounts imposed, assessed, levied or charged in
20
substitution for or in lieu of any such Taxes, but excluding such taxes as
capital gains taxes, corporate income, profit or excess profit taxes to
the extent such taxes are not levied in lieu of any of the foregoing
against the Property or the Landlord in respect thereof;
(b) "Taxes" shall mean all taxes, rates, duties, levies, fees, charges,
local improvement rates, capital taxes, rental taxes and assessments
whatsoever including fees, rents, and levies for air rights and
encroachments on or over municipal property imposed, assessed, levied or
charged by an school, municipal, regional, state, provincial, federal,
parliamentary or other body, corporation, authority, agency or commission
provided that "Taxes" shall not include any special utility, levies, fees
or charges imposed, assessed, levied or charged which are directly
associated with initial construction of the Property;
(c) "Tenant's Taxes" shall mean the aggregate of:
(i) all Taxes (whether) imposed upon the Landlord or the Tenant)
attributable to the personal property, trade fixtures, business,
income, occupancy or sales of the Tenant or any other occupant of
the Leased Premises, and to any Leasehold Improvements or fixtures
installed by or on behalf of the Tenant within the Leased Premises,
and to the use by the Tenant of any of the Property; and
(ii) the amount by which Taxes (whether imposed upon the Landlord or the
Tenant) are increased above the Taxes which would have otherwise
been payable as a result of the Leased Premises or the Tenant or any
other occupant of the Leased Premises being taxed or assessed in the
support of separate schools; and
(d) "Tenant's Proportionate Share" shall mean once decimal four three percent
(1.43%) subject to adjustment as determined solely by the Landlord and
notified to the Tenant in writing for physical increases or decreases in
the total Rentable Area of the Property provided that total Rentable Area
of the Property and the Rentable Area of the Leased Premises shall
exclude areas designated (whether or not rented) for parking and for
storage.
21
SCHEDULE "D"
SERVICES AND COSTS
1. The Landlord covenants with the Tenant:
(a) To maintain in the Leased Premises conditions of reasonable
temperature and comfort in the accordance with good standards
applicable to normal occupancy of premises for office purposes
subject to governmental regulations during hours to be
determined by the landlord (but to be at least the hours from
8:00 a.m. to 6:00 p.m. from Monday to Friday inclusive with
exception of holidays, Saturdays and Sundays), such conditions
to be maintained by means of a system for heating and cooking,
filtering and circulating air; the Landlord shall have no
responsibility for any inadequacy of performance of the said
system if the occupancy of the Leased Premises or the
electrical power or other energy consumed on the Leased
premises for all purposes exceeds reasonable amounts as
determined by the Landlord or the Tenant installs partitions
or other installations in locations which interfere with the
proper operation of the system of the interior climate control
or if the window covering on exterior windows is not kept
fully closed;
(b) To provide janitor and cleaning services to the Leased
Premises and to common of the Building consisting of
reasonable services in accordance with the standards of
similar office buildings;
(c) To keep available the following facilities for use by the
Tenant and its employees and invitees in common with other
persons entitled thereto:
(i) passenger and freight elevator service to each floor upon
which the Leased Premises are located provided such service is
installed in the Building and provided that the Landlord may
prescribe the hours during which and the procedures under
which freight elevator service shall be available and may
limit the number of elevators providing service outside normal
business hours;
(ii) common entrances, lobbies, stairways and corridors giving
access to the Building and the Leased Premises, including such
other areas from time to time which may be provided by the
Landlord for common use and enjoyment with the Property;
(iii) the washrooms as the Landlord may assign from time to
time which are standard to the Building, provided that the
Landlord and the Tenant acknowledge that where an entire floor
is leased to the Tenant or some other tenant the Tenant or
such other tenant, as the case may be, may exclude others from
the washrooms thereon.
2. (a) The Landlord covenants with the Tenant and the Landlord shall
have the sole right to furnish electricity to the Leased
Premises (except Leased Premises which have separate meters)
for normal office use for lighting and for office equipment
capable of operating from the circuits available to the Leased
Premises and standard to the Building during hours to be
determined by the Landlord (but to be at least the hours from
8:00 a.m. to 6:00 p.m.) from Monday to Friday inclusive with
the exception of holidays, Saturdays and Sundays) and during
such
22
other hours that the Tenant elects at its sole cost and
expense subject to governmental regulations;
(b) The amount of electricity consumed on the Leased Premises in
excess of electricity required by the Tenant for normal office
use shall be as determined by the Landlord acting reasonably
or by a metering device installed by the Tenant for normal
office use shall be as determined by the Landlord acting
reasonably or by a metering device installed by the Tenant at
the Tenant's expense. The Tenant shall pay the Landlord for
any such excess electricity on demand.
3. The Landlord shall maintain and keep in repair the facilities required for
the provision of the interior climate control, elevator (is installed in the
Building) and other services referred to in sub-paragraph (a) and (c) of
paragraph 1 and sub-paragraph (a) of paragraph 2 of this Schedule in accordance
with the standards of office buildings similar to the Building but reserves the
right to stop the use of any of these facilities and the supply of the
corresponding services when necessary by reason of accident or breakdown or
during the making of repairs, alterations or improvements, in the reasonable
judgment of the Landlord necessary or desirable to be made, until the repairs,
alterations or improvements shall have been completed to the satisfaction of the
Landlord.
4. (a) The Landlord may (but shall not be obligated) on request of
the Tenant supply services or materials to the Leased Premises
and the Property which are not provided for under this Lease
and which are used by the Tenant (the "Additional Services")
including, without limitation, and which are used by the
Tenant (the "Additional Services") including, without
limitation,
(i) replacement of tubes and ballasts;
(ii) carpet shampooing;
(iii) window covering cleaning;
(iv) locksmithing;
(v) removal of bulk garbage;
(vi) picture hanging; and
(vii) special security arrangement.
(b) When Additional Services are supplied or furnished by the
Landlord, accounts therefor shall be rendered by the Landlord
and shall be payable by the Tenant to the Landlord on demand.
In the event the Landlord shall elect not to supply or furnish
Additional Services, only persons with prior written approval
by the Landlord (which approval shall not be unreasonably
withheld) shall be permitted by the Landlord or the Tenant to
supply or furnish Additional Services to the Tenant and the
supplying and furnishing shall be subject to the reasonable
rules fixed by the Landlord with which the Tenant undertakes
to cause compliance and to comply.
5. (a) The Tenant covenants to pay the Landlord the Tenant's
Proportionate Share of the amount of the Operating Costs in
each Fiscal Period;
(b) Subject to the other terms and conditions of this Lease, the
Landlord shall not be responsible during the Term for any
costs, charges, expenses and outlays of any nature whatsoever
arising from or relating to the Leased Premises and the Tenant
shall pay all charges, impositions, costs and expenses of
every nature and kind relating to the Leased Premises and the
amounts included as Additional Rent whether or not
specifically provided for herein and the Tenant covenants with
the Landlord accordingly;
(c) In this Lease "Operating Costs" shall include all costs
incurred or which will be incurred by the Landlord in
discharging its obligations under this Lease and in the
maintenance, operation, administration and management of the
Property including without limitation:
23
(i) cost of heating, ventilating and air-conditioning;
(ii) cost of water and sewer charges;
(iii) cost of electricity, fuel or other form of energy
which are not separately metered and recovered or
paid by tenants;
(iv) costs of insurance carried by the Landlord pursuant
to paragraph 9(a) of this Lease and cost of any
deductible amount paid by the Landlord in connection
with each claim made by the Landlord under such
insurance;
(v) cost of building office expenses, including
telephone, rent, stationery and supplies;
(vi) costs of all elevator and escalator (if installed in
the Building) maintenance and operation;
(vii) costs of operating staff, management staff and other
administrative personnel, including salaries, wages,
and fringe benefits;
(viii) cost of providing security and costs of repair,
maintenance and replacement of communications, fire
and life safety systems serving the Property;
(ix) cost of providing janitorial services, window
cleaning, garbage and snow removal and pest control;
(x) cost of supplies and materials;
(xi) cost of decoration of common areas;
(xii) cost of landscaping;
(xiii) cost of maintenance and operation of the parking area
and costs of operating, maintaining, repairing, and
replacing all pedestrian and vehicular entrances and
exits, passageways, driveways, tunnels, subway
connections and delivery and holding areas used in
connection with the Property;
(xiv) cost of consulting, and professional fees including
expenses;
(xv) cost of replacements, additions and modifications
unless otherwise included under Operating Costs under
subparagraph (xvi), and cost of repair and;
(xvi) costs in respect of each Major Expenditure (as
hereinafter defined) as amortized over the period of
the Landlord's reasonable estimate of the economic
life of the Major Expenditure, but not to exceed
fifteen (15) years, using equal monthly installments
of principal and interest at ten percent (10%) per
annum compounded semi-annually. For the purpose
hereof "Major Expenditure" shall mean any expenditure
incurred after the date of substantial completion of
the Building for replacement of machinery, equipment,
building elements, systems or facilities forming a
part of or used in connection with Property or for
modifications, upgrades or additions to the Property
or facilities used in connection therewith, provided
that, in each case, such expenditure was more that
ten percent (10%) of the total Operating Costs for
the immediately preceding Fiscal Period.
(d) In this Lease there shall be excluded from Operating Costs the
following:
(i) interest on debt and capital retirement of debt;
(ii) such of the Operating Costs as are recovered from
insurance proceeds; and
(iii) costs as determined by the Landlord of acquiring
tenants for the Property.
6. In calculating Operating Costs for any Fiscal Period, if less than one
hundred percent (100%) of building is occupied by tenants, than the amount of
such Operating Costs shall be deemed for the purposes of this Schedule to be
increased to an amount equal to the like Operating Costs which normally would be
expected by the Landlord to have been incurred had such occupancy been one
hundred percent (100%) during such entire period.
7. In this Lease, "Tenant's Proportionate Share" shall mean one decimal four
three percent (1.43%) subject to adjustment as determined solely by the Landlord
and notified to the Tenant in writing for physical increases or decreases in the
total Rentable Area of the Property provided that total Rentable Area of the
Property and the Rentable Area of the Leased Premises shall exclude areas
designated (whether or not rented) for parking and for storage.
24
SCHEDULE "E"
RULES AND REGULATIONS
1. The sidewalks, entry passages, elevators (if installed in the Building) and
common stairways shall not be obstructed by the Tenant or used for any other
purpose that for ingress and egress to and from the Leased Premises. The Tenant
will not place or allow to be placed in the Building corridors or public
stairways any waste paper, dust, garbage, refuse or anything whatever.
2. The washroom plumbing fixtures and other water apparatus shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown therein. The
expense of any damage resulting by misuse by the Tenant shall be borne by the
Tenant.
3. The Tenant shall permit window cleaners to clean the windows of the leased
Premises during normal business hours.
4. No birds or animals shall be kept in or about the Property nor shall the
Tenant operate or permit to be operated by any musical or sound-producing
instruments or device or make or permit any improper noise inside or outside the
Leased Premises which may be heard outside such Leased Premises.
5. No one shall use the Leased Premises for residential purposes, or for the
storage of personal effects or articles other than those required for business
purposes.
6. All persons entering and leaving the Building at anytime other than normal
business hours shall register in the books which by be kept by the Landlord at
or near the night entrance and the Landlord will have the right to prevent any
person from entering or leaving the Building or the Property unless provided
with a key to the premises to which such person seeks entrance and a pass in
form to approved by the Landlord. Any persons found in the Building at such
times without such keys and passes will be subject to the surveillance of the
employees and agents of the Landlord.
7. No dangerous or explosive materials shall be kept or permitted to be kept in
the Leased Premises.
8. The Tenant shall not permit any cooking in the Leased Premises except for
food warmed up in microwaves for consumption by employees or guests of the
Tenant. The Tenant shall not install or permit the installation or use of any
machine dispensing goods for sale in the Leased Premises without the prior
written approval of the Landlord. Only persons authorized by the Landlord shall
be permitted to deliver or to use the elevators (if installed in the Building)
for the purpose of delivering food or beverage to the Leased Premises.
9. The Tenant shall not bring in or take out, position, construct, install or
move and safe, business machine or other heavy office equipment without first
obtaining the prior written consent of the Landlord. In giving such consent, the
Landlord shall have the right in its sole discretion, to prescribe the weight
permitted and the position thereof, and the use and design of planks, skids or
platforms to distribute the weight thereof. All damage done to the Building by
moving or using any such heavy equipment or other office equipment or furniture
shall be repaired at the expense of the Tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only at times
consented by the Landlord and the persons employed to move the same in and out
of the Building must be acceptable to the Landlord. Safes and other heavy office
equipment will be moved through the halls and corridors only upon steel
25
bearing plates. No freight or bulky matter of any description will be received
into the Building or carried in the elevators (if installed in the Building)
except during hours approved by the Landlord.
10. Tenant shall give the Landlord prompt notice of any accident to or any
defect in the plumbing, heating, air-conditioning, ventilating, mechanical or
electrical apparatus or any other part of the Building.
11. The parking of automobiles shall be subject to the charges and the
reasonable regulations of the Landlord. The Landlord shall not be responsible
for damage to or theft of any car, its accessories or contents whether the same
be the result of negligence or otherwise.
12. The Tenant shall not xxxx, drill into or in any way deface the walls,
ceiling, partitions, floors or other parts of the Leased Premises and the
Building.
13. Except with the prior written consent of the Landlord, nor tenant shall use
or engage any person or persons other than the janitor or janitorial contractor
of the Landlord for the purpose of any cleaning of the Leased Premises.
14. If the Tenant desires any electrical or communications wiring, the Landlord
reserves the right to direct qualified persons as to where and how the wires are
to be introduced, and without such directions no borings or cutting for wires
shall take place. No other wires or pipes of any kind shall be introduced
without the prior written consent of the Landlord.
15. The Tenant shall not place or cause to be placed any additional locks upon
any doors of the leased Premises without the approval of the Landlord and
subject to any conditions imposed by the Landlord. Additional keys may be
obtained from the Landlord at the cost of the Tenant.
16. The Tenant shall be entitled to have its name shown upon the directory board
of the building and at one of the entrance doors to the Leased Premises all at
the Tenant's expense, but the Landlord shall in its sole discretion design the
style of such identification and allocate the space on the directory board for
the Tenant.
17. The Tenant shall keep the window coverings (if any) in a closed position
during period of direct sun load. The Tenant shall not interfere with or
obstruct any perimeter heating, air-conditioning or ventilating units.
18. The Tenant shall not conduct, and shall not permit any, canvassing in the
Building.
19. The Tenant shall take care of the rugs and drapes (if any) in the Leased
Premises and shall arrange for the carrying-out of regular spot cleaning and
shampooing of carpets and dry cleaning of drapes in a manner acceptable to the
Landlord.
20. The Tenant shall permit the periodic closing of lanes, driveways and
passages for the purpose of preserving the Landlord's rights over such lanes,
driveways and passages.
21. The Tenant shall not place or permit to be placed any sign, advertisement,
notice or other display on any part of the exterior of the Leased Premises or
elsewhere if such sign, advertisement, notice or other display is visible from
outside the Leased Premises without the prior written consent of the Landlord
which may be arbitrarily withheld. The Tenant, upon request of the Landlord,
shall immediately remove any sign, advertisement, notice or other display which
the Tenant has placed or permitted to be placed which , in the opinion of the
Landlord, is objectionable, and if the Tenant shall fail to do so, the Landlord
may remove the same at the expense of the Tenant.
22. The Landlord shall have the right to make such other and further reasonable
rules and regulations and to alter the same as in its judgment may from time to
time be needful for the safety, care, cleanliness and appearance of the Leased
Premises and the Building and for the preservation of good order therein, and
the same shall be kept and observed by the tenants, their employees and
26
servants. The Landlord also has the right to suspend or cancel any or all of
these rules and regulations herein set out.
SCHEDULE "F"
Leasehold Improvements
1. For purposes of this Lease, the term "Leasehold Improvements" includes,
without limitation, all fixtures, improvements, installations, alterations and
additions from time to time made, erected, or installed by or on behalf of the
Tenant, or any previous occupant of the Leased Premises, in the Leased Premises
and by or on behalf of other tenants in other premises in the Building
(including the Landlord if an occupant of the Building), including all
partitions, doors and hardware however affixed, and whether or not movable, all
mechanical, electrical and utility installation and all carpeting and drapes
with the exception only of furniture and equipment not of the nature of
fixtures.
2. The Tenant shall not make, erect, install or alter any Leasehold Improvements
in the Leased Premises without having requested and obtained the Landlord's
prior written approval. The Landlord's approval shall not, if given, under any
circumstances be construed as consent to the Landlord having its estate charged
with the cost of work. The Landlord shall not unreasonably withhold its approval
to any such request, but failure to comply with the Landlord's reasonable
requirements from time to time for the Building shall be considered sufficient
reason for refusal. In making, erecting, installing or altering any Leasehold
Improvements the Tenant shall not, without the prior written approval of the
Landlord, alter or interfere with any installations which have been made by the
Landlord or others and in no event shall alter or interfere with window
coverings (if any) or other light control devices (if any) installed in the
Building. The Tenant's request for any approval hereunder shall be in writing
and accompanied by an adequate description of the contemplated work and, where
considered appropriate by the Landlord, working drawings and specifications
thereof. If the Tenant requires from the Landlord, working drawings and
specifications thereof. If the Tenant requires from the Landlord drawings or
specifications of the Building in connection with the Leasehold Improvements
shall be paid by the Tenant to the Landlord on demand. All work to be performed
in the Leased Premises shall be performed by competent and adequately insured
contractors and subcontractors of whom the Landlord shall be performed by
competent and adequately insured contractors and subcontractors of whom the
Landlord shall have approved in writing prior to commencement of any work, such
approval not to be unreasonably withheld (except that the Landlord may require
that the Landlord's contractors and sub-contractors be engaged for any
mechanical or electrical work) and by workmen who have labor union affiliations
that are compatible with those affiliations ( if any) of workmen who have labor
union affiliations that are compatible with those affiliations (if any) of
workmen employed by the Landlord and its contractors and sub-contractors. All
such work including the delivery, storage and removal of materials shall be
subject to the reasonable supervision of the Landlord, shall be performed in
accordance with any reasonable conditions or regulations imposed by the Landlord
including, without limitation, payment on demand of a reasonable fee of the
Landlord for such supervision, and shall be completed in good and workmanlike
manner in accordance with the description of the work approved by the Landlord
and in accordance with all laws, regulations and by-laws of all regulatory
authorities. Copies of required building permits or authorizations shall be
obtained by the Tenants at its expense and copies thereof shall be provided to
the Landlord. If the Tenant undertakes Leasehold Improvements, upon completion
of such Leasehold Improvements the Tenant shall supply to the Landlord complete
"As-Built" drawings representing Leasehold Improvements installed and, if
applicable, an engineer approved air balance report. No locks shall be installed
on the entrance doors or in any doors in the Leased Premises that are not keyed
to the Building master key system.
3. In connection with the making, erection, installation or alteration of
Leasehold Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply
27
with all the provisions of the construction lien and other similar statutes from
time to time applicable thereto (including any proviso requiring or enabling the
retention by way of holdback of portions or any sums payable), and, except as to
any such holdback, shall promptly pay all accounts relating thereto. The Tenant
will not created any mortgage, conditional sale agreement or other encumbrance
in respect of its Leasehold Improvements or, without the written consent on the
Landlord, with respect to its trade fixtures nor shall the Tenant take any
action as a consequence of which any such mortgage, conditional sale agreement
or other encumbrance would attach to the Property or any part thereof. If and
whenever any construction or other lien for work, labor, services or materials
supplied to or for the Tenant or for the cost of which the Tenant may be in any
way liable or claims therefor shall arise or be filed or any such mortgage,
conditional sale agreement or other encumbrance shall attach, the Tenant shall
within twenty (20) days after submission by the Landlord of notice thereof
procure the discharge thereof, including any certificate of action registered in
respect of any lien, by payment or giving security or in such other manner as
may be required or permitted by law, and failing which the Landlord may avail
itself of any of its remedies hereunder for default of the Tenant and may make
any payments or take any steps or proceedings required to procure the discharge
of any such liens or encumbrances, an shall be entitled to be repaid by the
Tenant on demand for any such payments and to be paid on demand by the Tenant
for all costs and expenses in connection with steps or proceedings taken by the
Landlord and the Landlord's right to reimbursement and to payment shall not be
affected or impaired if the Tenant shall then or subsequently establish or claim
that any lien or encumbrances so discharged was without merit or excessive or
subject to any abatement, set-off or defense. The Tenant agrees to indemnify the
Landlord from all claims, costs and expenses which may be incurred by the
Landlord in any proceedings brought by any person against the Landlord alone or
with another or others for or in respect of work, labor, services or materials
supplied to or for the Tenant.
4. All Leasehold Improvements in or upon the Leased Premises shall immediately
upon their placement be and become the Landlord's property without compensation
therefore to the Tenant. Except to he extent otherwise expressly agreed by the
Landlord in writing, no Leasehold Improvements, furniture or equipment shall be
removed by the Tenant from the Leased Premises either during or at the
expiration or sooner termination of the Term except that:
a) The Tenant shall, prior to the end of the Term, remove such of the
Leasehold Improvements and trade fixtures in the Leased Premises as the
Landlord shall require to be removed; and
b) the Tenant may, at the times appointed by the Landlord and subject to
availability of elevators (if installed in the Building), remove its
furniture and equipment at the end of the Term, and also during the
Term in the usual and normal course of its business where such
furniture or equipment has become excess for the Tenant's purposes or
the Tenant is substituting therefor new furniture and equipment.
The Tenant shall, in the case of every removal, make good at the expense of the
Tenant any damage caused to the Property by the installation and removal. In the
event of the Non-removal by the end of the Term, or sooner termination of this
Lease, of such trade fixtures or Leasehold Improvements required by the Landlord
of the Tenant to be removed, the Landlord shall have the option, in addition to
its other remedied under this Lease to declare to the Tenant that such trade
fixtures are the property of the Landlord and the Landlord upon such a
declaration may dispose of such trade fixtures and retain any proceeds of
disposition as security for obligations of the Tenant to the Landlord and the
Tenant shall be liable to the Landlord for any expenses incurred by the
Landlord.
5. For the purpose of this Lease,
THE TENANT ACCEPTS THE PREMISES ON AN "AS IS " BASIS.
28
SCHEDULE "K"
OCCUPANCY PRIOR TO COMMENCEMENT OF TERM
The Tenant may enter the Leased Premises 15 days prior to commencement of the
Term for the sole purpose of installing Leasehold Improvements (the "Improvement
Period"). Landlord and Tenant mutually acknowledge and agree that the
Improvement Period precedes and is not part of Basic Rent Free Period, if any,
provided for in this Lease.
Tenant's occupancy of the Leased Premises during the Improvement Period shall be
upon and subject to the following conditions:
1. During the improvement Period the Tenant, its servants, agents,
employees, contractors, subcontractors, officers and directors shall be
subject to and bound by all of the terms and conditions of this Lease
including without limiting the generality of the foregoing insurance
and indemnification subject only to the following:
(a) During the Improvement Period the Tenant shall not be obligated to pay
Rent except those charges set out in 1(d).
(b) In the event the Tenant commences to conduct its business form the
Leased Premises during the Improvement Period all Rent and other
charges shall commence from the date of such commencement
notwithstanding that the Term has not yet begun.
(c) During the Improvement Period the Landlord shall have no obligation to
provide the Tenant any of the services required to be provided by the
Landlord hereunder to the Tenant including without limitation any of
the services referred to in paragraphs 1, 2, 3, and 4 Schedule "D" of
this Lease except those services reasonably required by the Tenant for
the purposes of installing the Leasehold Improvements an the Landlord
shall not be liable to the Tenant for any loss whatsoever resulting
from Landlord not providing any such services.
(d) The Tenant shall be responsible for the Landlord's reasonable charges
during the Improvement Period for services and utilities used for or in
connection with the Leased Premises, including, without limiting the
generality of the foregoing, those relating to security and access to
the Leased Premises, garbage removal from the Leased Premises and the
use and consumption of utilities such as water, fuel, power and
telephone. The Tenant shall pay to the Landlord on demand the amount of
such charges, based on estimates by the Landlord.
