EXHIBIT 10.4
LEASE OF OFFICE SPACE
This Lease made as of June 30, 2003.
BETWEEN:
CONSOLIDATED PROPERTIES (520 - 5TH AVENUE) LTD.
(hereinafter referred to as the "Landlord")
-and -
PARADIGM GEOPHYSICAL CANADA LTD.
(hereinafter referred to as the "Tenant")
IN CONSIDERATION of the mutual covenants hereinafter contained, the
Landlord and the Tenant hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Lease:
(a) "Annual Rent" means the amount payable by Tenant to Landlord in
respect of each year of the Term or any portion thereof under
Article 4.1;
(b) "Area A Premises" means those premises containing approximately
8,076 square feet of Rentable Area on the 25th floor of the Building
and cross-hatched in black on the plan attached as Schedule A;
(c) "Area A Premises Commencement Date" means October 1, 2003;
(d) "Area B Premises" means those premises containing approximately
8,025 square feet of Rentable Area on the 6th floor of the Building
and cross-hatched in black on the plan attached as Schedule A-l;
(e) "Area B Premises Commencement Date" means October 1, 2003;
(f) "Area C Premises" means those premises containing approximately
4,000 square feet of Rentable Area on the 6th floor of the Building
and outlined in heavy black on the plan attached as Schedule A-l;
(g) "Area C Premises Commencement Date" means April 1, 2005;
(h) "Architect" means such firm of professional architects, engineers or
surveyors as the Landlord may select from time to time engaged for
preparation of construction drawings for the Building or for general
supervision of architectural and engineering aspects and operations
thereof or for the measurement of the Building of part or parts
thereof and includes any consultant(s) from time to time appointed
by Landlord or the Architect whenever such consultant(s) is acting
within the scope of his appointment and specialty;
(i) "Article" means an article of this Lease;
(j) "BOMA Standard" means the American National Standard Method for
Measuring Floor Area in Office Buildings (ANSI/BOMA Z65.1-1996);
(k) "Building" means the office building known as 000 - 0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, in which the Premises are located and which is
situate on the Land;
(1) "Commencement Date" means, collectively the Area A Premises
Commencement Date, the Area B Premises Commencement Date and the
Area C Premises Commencement Date;
(m) "Common Areas" means at any time those portions of the Land and
Building which are provided to be used in common by (or by the
subleases, agents, employees, customers or licensees of) Landlord,
Tenant, and other tenants of the Building, whether or not the same
are open to the general public, and shall include any fixtures,
chattels, systems, decor, signs, facilities, or landscaping
contained therein or maintained or used in connection therewith, and
shall be deemed to include the city sidewalks adjacent to the Land
and pedestrian walkway system, park, or other public facility in
respect of which Landlord is from time to time subject to
obligations in its capacity as owner or tenant of the Land and/or
Building. All expenses incurred by Landlord in maintenance and
operation of Common Areas shall be included in the definition of
"Operating Expenses" set forth in Schedule C;
(n) "Environmental Claim" means all claims, losses, costs, expenses,
fines, penalties, payments and/or damages (including, without
limitation, all solicitors' fees and disbursements on a solicitor
and his own client basis) relating to, arising out of, resulting
from or in any way connected with the presence of any Hazardous
Substance at the Premises or the Land or Building, including,
without limitation, all costs and expenses of any investigation,
remediation, restoration or monitoring of the Premises, the Land or
Building and/or any property adjoining or in the vicinity of the
Land or Building required or mandated by Environmental Law;
(o) "Environmental Law" means any law, by law, order, ordinance, ruling,
regulation, certificate, approval, policy, guideline, consent or
directive of any applicable federal, provincial or municipal
government, governmental department, agency or regulatory authority
or any Court of competent jurisdiction, as well as any common law
obligations or requirements, relating to environmental or health and
safety matters and/or regulating the generation, import, storage,
distribution, labeling, sale, use, handling, transport or disposal
of any Hazardous Substance which may be in force from time to time;
(p) "Fiscal Year" means a twelve month period (all or part of which
falls within the Term) from time to time determined by Landlord, at
the end of which Landlord's books in respect of the Building are
balanced for auditing and/or taxation purposes;
(q) "Hazardous Substance" means:
(i) any material or substance declared or deemed to be hazardous,
deleterious, caustic, dangerous, a dangerous good, toxic, a
contaminant, a waste, a source of a contaminant, a pollutant
or toxic under any Environmental Law;
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(ii) any solid, liquid, gas or odour or combination of any of them
that, if emitted into the air, would create or contribute to
the creation of a condition of the air that:
(1) endangers the health, safety or welfare of persons or
the health of animal life;
(2) interferes with normal enjoyment of life or property; or
(3) causes damage to plant life or to property; and
(iii) any substance which is hazardous to the environment, including
persons or property and includes, without limiting the
generality of the foregoing, the following:
(1) radioactive materials;
(2) explosives;
(3) any substance that, if added to any water, would degrade
or alter or form part of a process of degradation or
alteration of the quality of that water to the extent
that it is detrimental to its use by man or by any
animal, fish or plant.
(r) "Land" means those lands located in the City of Calgary, in the
Province of Alberta, and having a legal description as set out in
Schedule B;
(s) "Lease" means this lease, any schedules and riders attached hereto,
and every properly executed instrument which by its terms amends,
modifies or supplements this lease;
(t) "Leasehold Improvements" has the meaning given in Schedule E;
(u) "Major Vertical Penetrations" shall mean stairs, elevator shafts,
flues, pipe shafts, vertical ducts, and the like, and their
enclosing walls, which serve more than one floor of the Building,
but shall not include stairs, dumb-waiters, lifts, and the like,
exclusively serving a tenant occupying a portion of the Building;
(v) "Occupancy Costs" means amounts payable by Tenant to Landlord under
Article 4.2 and defined in Schedule C;
(w) "Premises" means, collectively, the Area A Premises, the Area B
Premises and the Area C Premises;
(x) "Rent" means the aggregate of all amounts payable by Tenant to
Landlord under this Lease;
(y) "Rentable Area" of the Premises, the Building or any portion thereof
means such area measured in accordance with the BOMA Standard;
(z) "Schedule A" means the plan(s) attached hereto as Schedule A;
(aa) "Schedule A-1" means the plan(s) attached hereto as Schedule A-1;
(bb) "Schedule B" means the legal description of the Lands as described
in Schedule B attached hereto;
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(cc) "Schedule C" means the provisions relating to Occupancy Costs and
other matters attached hereto as Schedule C;
(dd) "Schedule D" means the rules and regulations attached hereto as
Schedule D;
(ee) "Schedule E" means the tenant's improvements and allowances attached
hereto as Schedule E;
(ft) "Schedule F" means the Landlord's Work and Tenant's Work attached
hereto as Schedule F;
(gg) "Tenant's Work" means the tenant's work described in Schedule F; and
(hh) "Term" means the period of time set out in Article 3.1.
ARTICLE 2
GRANT OF LEASE
2.1 GRANT
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of the Tenant to be paid, observed and
performed, Landlord hereby demises and leases the Premises to Tenant, and Tenant
hereby leases and accepts the Premises from Landlord, to have and to hold during
the Term, subject to the terms and conditions of this Lease.
2.2 QUIET ENJOYMENT
Landlord covenants to provide the Tenant with quiet enjoyment and
possession of the Premises during the Term, subject to the terms and conditions
of this Lease.
2.3 COVENANTS OF LANDLORD AND TENANT
Landlord covenants to observe and perform all of the terms and conditions
to be observed and performed by Landlord under this Lease including the terms
and conditions contained in Schedule E hereto. Tenant covenants to pay the Rent
when due under this Lease, and to observe and perform all of the terms and
conditions to be observed and performed by Tenant under this Lease including the
terms and conditions contained in Schedule E hereto.
ARTICLE 3
TERM AND POSSESSION
3.1 TERM
Notwithstanding Articles 3.2 and 3.3, the Term of this Lease shall be:
(a) for the Area A Premises, 5 years and 3 months beginning on the Area
A Premises Commencement Date and ending on December 31,2008;
(b) for the Area B Premises, 1 year and 6 months beginning on the Area B
Premises Commencement Date and ending on March 31,2005; and
(c) for the Area C Premises, 3 years and 9 months beginning on the Area
C Premises Commencement Date and ending on December 31,2008; unless
terminated earlier as provided in this Lease.
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3.2 EARLY OCCUPANCY AND FIXTURING PERIOD
The Tenant shall be permitted by the Landlord to occupy the Area A
Premises prior to the Commencement Date but in no event earlier than September
1, 2003 for the purpose of completing its leasehold improvements (the "Fixturing
Period") if the Tenant has executed this Lease in the form approved by the
Landlord, the Landlord is able to secure vacant possession of the Area A
Premises, the Landlord has given its written consent to such occupancy and the
Tenant has provided evidence of insurance showing compliance with the insurance
requirements of this Lease. During this Fixturing Period, the Tenant will not be
required to pay Annual Rent or Occupancy Costs, however, all other terms and
conditions of this Lease shall apply, except where clearly inappropriate.
3.3 DELAYED POSSESSION
If Landlord is delayed in delivering possession of all or any portion of
the Premises to Tenant on or before the Commencement Date, then unless such
delay is principally caused by or attributable to Tenant, its servants, agents
or independent contractors the date on which the Premises are to be made
available to the Tenant and the obligation of the Tenant to pay Annual Rent and
Occupancy Costs shall be postponed for a period equal to the duration of the
delay. This Lease shall not be void or voidable nor shall Landlord be liable to
Tenant for any loss or damage resulting from any delay in delivering possession
of the Premises to Tenant, and the deferment of the obligation of the Tenant to
pay Annual Rent and Occupancy Costs shall be accepted by the Tenant as full
compensation for any such delay. If any delay in the completion of the
Landlord's Work is attributable to Tenant, its servants, agents or independent
contractors, the obligation of Tenant to pay Annual Rent and Occupancy Costs
shall not be deferred and the time period for completion of Landlord's Work (but
not the expiry date of the Term) shall be extended for a reasonable period which
shall not in any event be less than a period corresponding to such delay.
3.4 ACCEPTANCE OF PREMISES
Taking possession of all or any portion of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises or such portion thereof
are in satisfactory condition on the date of taking possession, subject only to
latent defects and to deficiencies (if any) listed in writing in a notice
delivered by Tenant to Landlord within seven (7) days after the later of the
date of taking possession or the Commencement Date.
ARTICLE 4
RENT AND OCCUPANCY COSTS
4.1 ANNUAL RENT
The Tenant shall pay to the Landlord as Annual Rent for the Premises the
following:
(a) for the Area A Premises, the sum of $137,292.00 plus GST per annum
in respect of the Term payable in advance and without notice or
demand in monthly installments of $11,441.00 plus GST each on the
Area A Premises Commencement Date and on the first day of each
calendar month thereafter during the period, based on a net charge
of $17.00 plus GST per square foot of the Rentable Area of the Area
A Premises;
(b) for the Area B Premises, the sum of $124,387.50 plus GST per annum
in respect of the Term payable in advance and without notice or
demand in monthly installments of $10,365.63 plus GST each on the
Area B Premises Commencement Date and on the first day of each
calendar month thereafter during the period, based on a net charge
of $15.50 plus GST per square foot of the Rentable Area of the Area
B Premises; and
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(c) for the Area C Premises, the sum of $62,000.00 plus GST per annum in
respect of the Term payable in advance and without notice or demand
in monthly installments of $5,166.67 plus GST each on the Area C
Premises Commencement Date and on the first day of each calendar
month thereafter during the period, based on a net charge of $15.50
plus GST per square foot of the Rentable Area of the Area C
Premises.
Notwithstanding the foregoing and so long as the Tenant is not in default
of its obligations under this Lease, for the months of April, May and June,
2005, the Tenant will not be liable for Annual Rent for the Premises but the
Tenant shall remain liable for Occupancy Costs during this period.
In the event that the Tenant shall fail to pay any one installment
strictly on the due date, the Landlord may, without prejudice to the Landlord's
rights, require the Tenant to furnish the Landlord with a series of post-dated
cheques covering the next 12 installments of Annual Rent and payable on due
dates of such installments and the Tenant shall forthwith, upon request, deliver
such cheques to the Landlord.
The Premises shall be measured by a licensed interior designer, surveyor
or Architect in accordance with the BOMA Standard within a reasonable time after
occupancy by the Tenant, at the Landlord's discretion, and the licensed interior
designer's, surveyor's or Architect's certificate, as to the Rentable Area of
the Premises, shall be conclusive. The Landlord shall deliver a copy of the
licensed interior designer's, surveyor's or Architect's certificate to the
Tenant forthwith upon receipt of same and the above rentals shall be
appropriately adjusted, if necessary, retroactively to the Commencement Date of
the Term of the Lease. If at any time or times during the Term of this Lease,
the Landlord changes, modifies or alters the Common Areas or any part of them,
which change, modification or alteration results in a reduction or increase to
the Rentable Area of the Premises, the Landlord shall, upon remeasurement by a
licensed interior designer, surveyor or the Architect in accordance with the
BOMA Standard, deliver a copy of the licensed interior designer's, surveyor's or
Architect's certificate to the Tenant as to the Rentable Area of the Premises,
which licensed interior designer's, surveyor's or Architect's certificate shall
be conclusive and the above rentals shall be appropriately adjusted,
retroactively to the date of completion of such change, modification or
alteration to the Common Areas or part thereof.
4.2 OCCUPANCY COSTS
Tenant shall pay to Landlord, at the times and in the manner provided in
Article 4.6, the Occupancy Costs (if any) determined under Schedule C. The
Occupancy Costs are estimated to be $9.74 per rentable square foot per annum for
2003 without representation or warranty or liability on the part of the
Landlord.
4.3 OTHER CHARGES
Tenant shall pay to Landlord, at the times and in the manner provided in this
Lease or, if not so provided, as reasonably required by Landlord, all amounts
(other than that payable under Articles 4.1 and 4.2) which are payable by Tenant
to Landlord under this Lease.
4.4 PAYMENT OF RENT-GENERAL
All amounts payable by Tenant to Landlord under this Lease shall be
deemed to be Rent and shall be payable and recoverable as Rent in the manner
herein provided, and Landlord shall have all rights against Tenant for default
in any such payment as in the case of arrears of Rent. Rent shall be paid to
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Landlord, without deduction or set-off; in legal tender of the jurisdiction in
which the Building is located, at the address of Landlord as set forth in this
Lease, or to such other person or at such other address as Landlord may from
time to time designate in writing. Tenant's obligation to pay Rent shall survive
the expiration or earlier termination of this Lease.
4.5 PARTIAL MONTH'S RENT
If the Commencement Date is a day other than the first day of a calendar
month, the installment of Annual Rent payable on the Commencement Date shall be
that proportion of Annual Rent which the number of days from the Commencement
Date to the last day of the month in which the Commencement Date falls bears to
365. If the Term ends on a day other than the last day of a calendar month, the
installment of Annual Rent payable on the first day of the last calendar month
of the Term shall be that proportion of Annual Rent which the number of days
from the first day of such last calendar month to the last day of the Term bears
to 365.
4.6 PAYMENT - OCCUPANCY COSTS
(a) Prior to the Commencement Date and to the beginning of each Fiscal
Year thereafter, the Landlord shall compute and deliver to the
Tenant a bona fide estimate in writing of the Occupancy Costs for
the following Fiscal Year or portion thereof, if applicable. Without
further notice or demand, the Tenant shall pay to the Landlord the
amount of the Occupancy Costs in equal monthly installments, in
advance, over the Fiscal Year or portion thereof, simultaneously
with the Tenant's payments on account of Annual Rent.
(b) The Landlord shall deliver to the Tenant, as soon as practicable
following the end of each Fiscal Year, a written statement, setting
out in reasonable detail the amount of Occupancy Costs for such
Fiscal Year. If the total monthly installments of Occupancy Costs
actually paid by the Tenant to the Landlord during the Fiscal Year
is lower than the amount of the Occupancy Costs payable for the
Fiscal Year under Schedule C, the Tenant shall pay to the Landlord
the difference within 30 days after the date on which such statement
is received by the Tenant and if the total monthly installments of
Occupancy Costs actually paid by the Tenant to the Landlord during
the Fiscal Year is greater than the amount of the Occupancy Costs
payable for the Fiscal Year under Schedule C, the Landlord shall
credit the difference against the Occupancy Costs for the current
Fiscal Year and the monthly installments payable in respect of same
shall be reduced accordingly.
(c) Tenant shall, at its expense, have the right, at any time within 90
days after a statement prepared and certified to be correct by an
officer of the Landlord of the actual Occupancy Costs for a
particular Fiscal year, to examine the Landlord's books and records
relating to the determination of such Occupancy Costs.
(d) Neither party may claim a re-adjustment in respect of Occupancy
Costs for a Fiscal Year if based upon any error of computation or
allocation except by notice delivered to the other party within 6
months after the date of delivery of the statement.
4.7 INTENT AND ADJUSTMENT FOR VACANCIES
It is the stated purpose and intent of the Landlord and Tenant that this
Lease shall be fully net to the Landlord and if there are any vacancies in the
Building during any Fiscal Year and because of such vacancies actual Occupancy
Costs are less than they would have been if the Building were fully rented, then
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for the purpose of determining the amount payable by the Tenant under this
Article 4 and Schedule C, actual Occupancy Costs for the relevant accounting
period shall be increased by the amount of any saving in Occupancy Costs for
such period attributable to such vacancies (as determined by the Landlord acting
reasonably) and any reference to Occupancy Costs in this Article 4 shall be
deemed to refer to Occupancy Costs as so increased.
4.8 SECURITY DEPOSIT
The Landlord acknowledges receipt from the Tenant of the sum of
$32,100.00, as partial consideration for this Lease and such sum shall be held
and applied by the Landlord without liability for interest towards the first and
last month's installments of Annual Rent and Occupancy Costs including G.S.T. In
the event the Tenant becomes in default under the terms of this Lease the
Landlord shall be entitled to retain the deposit paid hereunder on account of
the Landlord's liquidated damages and not as a penalty, provided that such
retention shall be without prejudice to the Landlord's right to seek further and
other remedies as it may be entitled to under law. If the entire security
deposit or any portion thereof is applied by the Landlord towards the payment of
overdue Rent prior to the expiration of the Term, then the Tenant shall, on
written demand of the Landlord, forthwith remit to the Landlord such sum as is
sufficient to restore such security deposit to its original amount. The Landlord
may deliver the deposit to any purchaser of the Landlord's interest in the
Building and the Landlord shall thereby be discharged of any further liability
with respect to such deposit. The Landlord may commingle the deposit with its
own funds and shall not hold the deposit as a trustee.
ARTICLE 5
USE OF PREMISES
5.1 USE
The Premises shall be used and occupied only as business offices for the
business of Tenant as initially conducted in the Premises or for such other
purposes as Landlord may specifically authorize in writing.
5.2 COMPLIANCE WITH LAWS
The Premises shall be used and occupied in a safe, careful and proper
manner so as not to contravene any present or future governmental or
quasi-governmental laws in force or regulations or orders. If due solely to
Tenant's use of the Premises, improvements are necessary to comply with any of
the foregoing or with the requirements of insurance carriers, Tenant shall pay
the entire cost thereof.
5.3 ABANDONMENT
Tenant shall not vacate or abandon the Premises at any time during the
Term without Landlord's written consent.
5.4 NUISANCE
Tenant shall not cause or maintain any nuisance in or about the Premises,
and shall keep the Premises free of debris, rodents, vermin and anything of a
dangerous, noxious or offensive nature or which could create a fire hazard
(through undue load on electrical circuits or otherwise) or undue vibration,
heat or noise.
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ARTICLE 6
SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD
6.1 OPERATION OF BUILDING
During the Term Landlord shall operate and maintain the Building in
accordance with standards from time to time prevailing for first-class office
buildings in the area in which the Building is located and, subject to
participation by Tenant by payment of Occupancy Costs under Article 4.2 shall
provide the services set out in Articles 6.2 and 6.3.
6.2 SERVICES TO PREMISES
Landlord shall arrange for the provision of:
(a) heat, ventilation and air conditioning (if included in building
standard) as required for the comfortable use and occupancy of the
Premises during normal business hours;
(b) janitor services, including window washing, as reasonably required
to keep the Premises in a clean and wholesome condition;
(c) electric power for normal lighting and small business office
equipment (but not equipment using amounts of power disproportionate
to that used by other tenants in the Building);
(d) replacement of building standard fluorescent tubes, light bulbs and
ballasts as required from time to time at Tenant's sole cost as a
result of normal usage, to the extent of Landlord's original xxxxxxx
allowance to Tenant; and
(e) maintenance, repair, and replacement as set out in Article 6.4.
6.3 BUILDING SERVICES
Landlord shall provide in the Building:
(a) domestic hot and cold (or temperate) running water and necessary
supplies in washrooms sufficient for the normal use thereof by
occupants in the Building;
(b) elevator or escalator service for access to and egress from the
Premises;
(c) heat, ventilation, air conditioning, lighting, electric power,
domestic hot and cold (or temperate) running water, and janitor
service in the Common Areas;
(d) a general directory board on which Tenant shall be entitled to have
its name shown, but the Landlord shall have exclusive control
thereof and of the area thereon to be allocated to each tenant; and
(e) maintenance, repair, and replacement as set out in Article 6.4.
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6.4 MAINTENANCE, REPAIR AND REPLACEMENT
Landlord shall operate, maintain, repair and replace the systems,
facilities and equipment necessary for the proper operation of the Building and
for provision of Landlord's services under Articles 6.2 and 6.3 (except such as
may be installed by or be the property of Tenant), and shall be responsible for
and shall expeditiously maintain and repair the foundations, structure and roof
of the Building provided that:
(a) if all or part of such systems, facilities and equipment are
destroyed, damaged or impaired, Landlord shall have a reasonable
time in which to complete the necessary repair or replacement, and
during that time shall be required only to maintain such services as
are reasonably possible in the circumstances;
(b) Landlord may temporarily discontinue such services or any of them at
such times as may be necessary due to causes beyond the reasonable
control of Landlord;
(c) Landlord shall use reasonable diligence in carrying out its
obligations under this Article 6.4, but shall not be liable under
any circumstances for any consequential damage to any person or
property for any failure to do so;
(d) no reduction or discontinuance of such services under this Article
6.4 (a) or (b) shall be construed as an eviction of Tenant or
(except as specifically provided in this Lease) release Tenant from
any obligation of Tenant under this Lease; and
(e) nothing contained herein shall derogate from the provisions of
Article 16.
6.5 ADDITIONAL SERVICES
(a) If from time to time requested in writing by Tenant and to the
extent that it is reasonably able to do so Landlord shall provide in
the Premises services in addition to those set out in Article 6.2,
provided that Tenant shall within ten days of receipt of any invoice
for any such additional service pay Landlord therefore at such
reasonable rates as Landlord may from time to time establish.
(b) Tenant shall not without Landlord's written consent install in the
Premises equipment (including telephone equipment) which generates
sufficient heat to affect the temperature otherwise maintained in
the Premises by the air conditioning system as normally operated.
Landlord may install supplementary air conditioning units,
facilities or services in the Premises, or modify its air
conditioning system, as may in Landlord's reasonable opinion be
required to maintain proper temperature levels and Tenant shall pay
Landlord within ten days of receipt of any invoice for the cost
thereof, including installation, operation and maintenance expense.
(c) If Landlord shall from time to time reasonably determine that the
use of electricity or any other utility or service in the Premises
is disproportionate to the use thereof by other tenants, Landlord
may separately charge Tenant for the excess costs attributable to
such disproportionate use. At Landlord's request, Tenant shall
install and maintain at Tenant's expense, metering devices for
checking the use of any such utility or service in the Premises. The
Tenant shall not be permitted to engage any person to provide any
utility service to the Premises.
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6.6 ALTERATIONS BY LANDLORD
Landlord may from time to time:
(a) make repairs, replacements, changes or additions to the structure,
systems, facilities and equipment in the Premises where necessary to
serve the Premises or other parts of the Building;
(b) make changes in or additions to any part of the Building not in or
forming part of the Premises; and
(c) change or alter the location of Common Areas of the Building,
provided that in doing so Landlord shall not disturb or interfere
with Tenant's use of the Premises and operation of its business any
more than is reasonably necessary in the circumstances and shall
repair any damage to the Premises caused thereby.
6.7 ACCESS BY LANDLORD
Tenant shall permit Landlord to enter the Premises outside normal business
hours, and during normal business hours in case of an emergency or where such
will not unreasonably disturb or interfere with Tenant's use of the Premises and
operation of its business, to examine, inspect, and show the Premises to persons
wishing to lease them, to provide services or make repairs, replacements,
changes or alterations as set out in this Lease, and to take such steps, as
Landlord may deem necessary for the safety, improvement or preservation of the
Premises or the Building. Landlord shall whenever possible consult with or give
reasonable notice to Tenant prior to such entry, but no such entry shall
constitute an eviction or entitle Tenant to any abatement of Rent.
6.8 RELOCATION
The Landlord shall have the right, at any time during the Term, to
relocate the Tenant anywhere within the Building, upon giving the Tenant 30 days
written notice. The relocated premises shall be of a similar type, size and
quality to the existing Premises. The Tenant shall provide the Landlord with a
written estimate of the Tenant's reasonable moving expenses, 30 days prior to
the date of relocation. The Landlord shall have the option of:
(a) reimbursing the Tenant for reasonable moving expenses within 30 days
following the presentation of invoices by the Tenant; or
(b) making suitable arrangements for moving the Tenant at the Landlord's
expense.
The Landlord shall, by written notice to the Tenant, elect one of the two
options 15 days prior to the date of relocation.
The Landlord shall not be liable for:
(a) any damage to the Tenant's property occurring as a result of the
relocation if the Tenant affects the move; and
(b) any loss suffered by the Tenant as a result of business interruption
of the Tenant occurring as a result of the relocation.
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The relocation shall be effective on the date stated in the Landlord's
notice and the Tenant shall complete its move in one (1) weekend. In the event
the Landlord relocates the Tenant to such new space, this Lease and each and all
of its terms, covenants and conditions shall remain in full force and effect and
be deemed applicable to such new space save and except:
(a) the right of first refusal or right of first offer, if any, and
(b) the location and size of the Premises which shall be in accordance
with the appropriate floor plan.
Upon the relocation taking place, the Annual Rent per square foot for the
new space shall be the same Annual Rent per square foot as for the Premises and
this Lease will be amended accordingly. If the Tenant refuses, fails or neglects
to relocate to such new space on or before the date stated in the Landlord's
notice then the Tenant shall be responsible and liable for all costs, expenses
and damages suffered by the Landlord as a result of the Tenant's refusal,
failure, or neglect of such relocation and in addition to the Landlord's right
of recovery against the Tenant for such costs, expenses and damages, the
Landlord shall have the right, at its sole option and discretion, to terminate
this Lease upon 10 days written notice to the Tenant, such termination right to
be exercised by the Landlord any time after the date set by the Landlord for
such relocation as aforesaid
The Landlord's exercise of its rights under this Article 6.8 does not
constitute a re-entry or breach of the Landlord's covenant for quiet enjoyment.
6.9 ENERGY CONSERVATION AND SECURITY POLICIES
Landlord shall be deemed to have observed and performed those things
required to be observed and performed pursuant to the terms of this Lease,
including those relating to the provision of utilities and services, if in doing
so it acts in accordance with a directive, policy or request of a governmental
or quasi-governmental authority serving the public interest in the field of
energy conservation or security.
6.10 LANDLORD'S WORK
It is understood and agreed that the Tenant has entered into this Lease on
the express understanding that the Landlord's Work, as defined in Schedules E
and F in respect of the Premises, is limited to the scope delineated as such in
Schedules E and F. It is further understood and agreed that all other
improvements to the Premises constitute Tenant's Work as defined in Schedule E
and shall be performed at the sole expense of the Tenant in accordance with the
terms of this Lease.
ARTICLE 7
MAINTENANCE, REPAIR, ALTERATIONS AND IMPROVEMENTS BY TENANTS
7.1 CONDITION OF PREMISES
Except to the extent that Landlord is specifically responsible therefore
under this Lease, Tenant shall maintain the Premises and all improvements
therein in good order and condition, including:
(a) repainting and redecorating the Premises and cleaning drapes and
carpets at reasonable intervals as needed;
(b) making repairs, replacements and alterations as needed, including
those necessary to comply with the requirements of any governmental
or quasi-governmental authority having jurisdiction, reasonable wear
and tear and damage by fire, lightning and tempest only excepted;
and
(c) leaving the Premises in a reasonably tidy condition at the end of
each business day.
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7.2 FAILURE TO MAINTAIN PREMISES
If Tenant fails to perform any obligation under Article 7.1, then on not
less than ten days' notice to Tenant, Landlord may enter the Premises and
perform such obligation without liability to Tenant for any loss or damage to
Tenant thereby incurred and Tenant shall pay Landlord for the cost thereof, plus
15% of such cost for overhead and supervision, within ten days of receipt of
Landlord's invoice therefore.
7.3 ALTERATIONS BY TENANT
Tenant may from time to time at its own expense make changes, additions
and improvements in the Premises to better adapt the same to its business,
provided that any such change, addition or improvement shall:
(a) comply with the requirements of the Landlord's insurer and any
governmental or quasi-governmental authority having jurisdiction;
(b) comply with the requirements set forth in Schedule E;
(c) be made only with the prior written consent of the Landlord after
detailed plans and specifications therefore have been submitted to
the Landlord;
(d) equal or exceed the then current standard for the Building;
(e) be carried out only by persons selected by Tenant and approved in
writing by Landlord. Such persons shall be compatible with others
employed by or through the Landlord directly or indirectly including
Landlord's other tenants, contractors and subcontractors and their
trade union affiliations; and
(f) if required by Landlord, deliver to Landlord before commencement of
the work performance and payment bonds as well as proof of workers'
compensation and public liability and property damage insurance
coverage, with Landlord named as an additional insured, in amounts,
with companies, and in form reasonably satisfactory to Landlord,
which shall remain in effect during the entire period in which the
work will be carried out.
Any increase in property taxes or fire or casualty insurance premiums for
the Building attributable to such change, addition or improvement shall be borne
by the Tenant. In addition, Tenant shall pay Landlord 15% of the cost of such
work (or, if such cost is not ascertainable, the fair market value of such work)
as a fee for the Landlord's supervision.
In the event any of the following work is required by Tenant, it shall be
carried out by the Landlord under written contract with the Tenant and at the
Tenant's sole expense under contract to Landlord only and by agreement in
writing:
(a) all approved work relating to heating, cooling, ventilation,
exhaust, control, electrical distribution and life safety systems;
(b) patching of Building standard fireproofing;
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(c) any drilling, cutting, coring and patching for conduit, pipe
sleeves, chases, duct equipment, or openings in the floors, walls,
columns or roofs of the Building which is approved by Landlord; and
(d) installation of approved modifications to the sprinkler system.
7.4 TRADE FIXTURES AND PERSONAL PROPERTY
Tenant may install in the Premises its usual trade fixtures and personal
property in a proper manner, provided that no such installation shall interfere
with or damage the mechanical or electrical systems or the structure of the
Building.
7.5 BUILDER'S LIENS
Tenant shall pay before delinquency all costs for work done or caused to
be done by Tenant in the Premises which could result in any lien or encumbrance
being placed on Landlord's interest in the Land or Building or any part thereof,
shall keep the title to the Land or Building and every part thereof free and
clear of any lien or encumbrance in respect of such work, and shall indemnify
and hold harmless Landlord against any claim, loss, cost, demand and legal or
other expense, whether in respect of any lien or otherwise, arising out of the
supply of material, services or labour for such work. Tenant shall immediately
notify Landlord of any such lien, claim of lien or other action of which it has
or reasonably should have had knowledge of and which affects the title to the
Land or Building or any part thereof, and shall cause the same to be removed
within five days (or such additional time as Landlord may consent to in
writing), failing which Landlord may take such action as Landlord deems
necessary to remove the same and the entire cost thereof shall be immediately
due and payable by Tenant to Landlord.
7.6 SIGNS
Tenant has the right to have its name displayed on the main lobby
directory board for the Building, on the floor lobby directory board on each
floor on which the Premises are located and on the main door to the Premises,
all such signs to be at Tenant's expense and to be under the exclusive control
of Landlord and to conform to the uniform pattern of identification signs for
tenants of the Building prescribed by Landlord.
If the Premises constitute one or more full floors of the Building, Tenant
has the right to have a sign displaying the name of Tenant in the elevator lobby
of each such floor, at Tenant's expense, provided that the design of the sign
has been approved by the Landlord
7.7 NORMAL BUSINESS HOURS
Except as otherwise specifically provided in this Lease, normal business
hours for the Building shall be from 7:00 a.m. to 6:00 p.m. Monday through
Friday excluding days which are legal or statutory holidays in the jurisdiction
in which the Building is located.
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ARTICLE 8
TAXES
8.1 LANDLORD'S TAXES
Landlord shall pay before delinquency (subject to participation by Tenant
by payment of Occupancy Costs under Article 4.2) every real estate tax, property
tax, assessment, license fee and other charge (except for Tenant's taxes under
Articles 8.2 and 8.3), which is imposed, levied, assessed or charged by any
governmental or quasi-governmental authority having jurisdiction and which is
payable in respect of the Term upon or on account of the Land or Building.
8.2 TENANT'S TAXES
Tenant shall pay before delinquency every tax, assessment, license or
privilege fee, excise, gross receipts or sales tax and other charge, however,
described, which is imposed, levied, assessed or charged by any govern-mental or
quasi-governmental authority having jurisdiction and which is payable in respect
of the Term upon or on account of:
(a) operations at, occupancy of, or conduct of business from the
Premises by or with the percussion of Tenant;
(b) fixtures or personal property in the Premises which do not belong to
the Landlord; and
(c) the Rent paid or payable or reserved by Tenant to Landlord for the
Premises or for the use and occupancy of all or any part thereof,
provided that if Landlord so elects by notice to Tenant, Tenant shall add
any amounts payable under this Article 8.2 to the monthly installments of Annual
Rent payable under Article 4.1 and Landlord shall remit such amounts to the
appropriate authorities. 8.3 GOODS AND SERVICES TAXES
The Tenant specifically acknowledges and agrees that as part of its
Occupancy Costs payable pursuant to Article 4.2 hereof, the Tenant shall pay to
the Landlord any multi-stage sales, sales, use, consumption, value-added or
other similar taxes imposed by the Government of Canada, or by any provincial or
local government upon the Landlord or the Tenant or in respect of this Lease,
the payments made by the Tenant (whether Annual Rent, Occupancy Costs or
otherwise) for the goods and services provided by the Landlord hereunder
including, without limitation, the rental of the Premises or administrative
services provided to the Tenant or to tenants generally. In addition, the Tenant
shall also reimburse and indemnify the Landlord for the Tenant's Pro-rata Share
of amounts paid by the Landlord as or on account of such taxes in respect of any
goods or services acquired by the Landlord for the purpose of this Lease.
Amounts payable by the Tenant under this Article from time to time shall be paid
when Occupancy Costs under this Lease are payable, together with an
administration fee in such amount as shall be standard from time to time in the
office building industry, as determined by the Landlord, acting reasonably, and
which is permitted by applicable legislation to cover the Landlord's costs in
allocating and administering the collection of such tax.
8.4 RIGHT TO CONTEST
Landlord and Tenant shall each have the right to contest in good faith the
validity or amount of any tax, assessment, license fee, excise fee and other
charge which it is responsible to pay under this Article 8, provided that no
contest by Tenant may involve the possibility of forfeiture, sale or disturbance
of Landlord's interest in the Premises and that upon the final determination of
any contest by Tenant, Tenant shall immediately pay and satisfy the amount found
to be due, together with any costs, penalties and interest.
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ARTICLE 9
INSURANCE
9.1 LANDLORD'S INSURANCE
During the Term, Landlord shall take out and maintain (subject to
participation by Tenant by payment of Occupancy Costs under Article 4.2)
liability insurance, fire insurance with extended coverage, boiler and pressure
vessel insurance, and such other insurance on the Building as the Landlord shall
deem necessary with coverage and in amounts not less than those which are from
time to time acceptable to a prudent owner in the area in which the Building is
located.
9.2 TENANT'S INSURANCE
During the Term, Tenant shall take out and maintain at its own expense:
(a) fire insurance with extended coverage and water damage insurance in
amounts sufficient to fully cover Tenant's improvements and all
property in the Premises which is not owned by Landlord on a full
replacement cost basis;
(b) comprehensive general public liability insurance, with Landlord, its
manager and mortgagee, if any, named as an additional insured,
against claims for death, personal injury and property damage in or
about the Premises, in amounts which are from time to time carried
by a prudent tenant in the community in which the Building is
located, but in any event not less than $2,000,000 for death or
injury to one person, $3,000,000 for death or injury to more than
one person, and $500,000 for property damage, in respect of each
occurrence;
(c) Tenant's legal liability insurance for the actual cash value of the
Premises from any damage howsoever caused; and
(d) any other form of insurance that the Tenant, or the Landlord, acting
reasonably, requires in amounts and for insurance risks against
which a prudent tenant would insure.
Policies for fire and liability insurance shall be in a form and with an
insurer reasonably acceptable to Landlord, shall require at least thirty days
written notice to Landlord of termination or material alteration of the policy
during the Term and shall either waive any right of subrogation against
Landlord, its manager and mortgagee, or cause the Landlord, its manager and
mortgagee to be named as an insured in such policies of insurance. If requested
by Landlord, Tenant shall from time to time promptly deliver to Landlord,
certified copies or other evidence of such policies, and evidence satisfactory
to Landlord that all premiums thereon have been paid and the policies are in
full force and effect.
9.3 PLACEMENT OF TENANT'S INSURANCE BY LANDLORD
If the Tenant fails to take out, renew or keep in force any of the
policies of insurance required to be taken out and maintained by the Tenant
under Article 9.2, the Landlord may do so as agent of the Tenant and the Tenant
shall reimburse the Landlord any amount so paid by the Landlord as agent of the
Tenant promptly upon demand by the Landlord.
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ARTICLE 10
INJURY TO PERSON OR PROPERTY
10.1 INDEMNITY BY TENANT
Tenant shall indemnify and hold harmless Landlord from and against every
demand, claim, cause of action, judgment and expense, and all losses and damage
arising from:
(a) any injury or damage to the person or property of Tenant, any other
tenant in the Building or to any other person rightfully in the
Building, where the injury or damage is caused by negligence or
misconduct of Tenant, its agents, servants or employees, or of any
other person entering upon the Premises under express or implied
invitation of Tenant, or results from the violation of laws or
ordinances, governmental orders of any kind or of the provisions of
this Lease by any of the foregoing;
(b) any loss or damage, however caused, to books, records, files, money,
securities, negotiable instruments or papers in or about the
Premises;
(c) any loss or damage resulting from interference with or obstruction
of deliveries to or from the Premises; and
(d) any injury or damage not specified above to the person or property
of Tenant, its agents, servants or employees, or any other person
entering upon the Premises under express or implied invitation of
Tenant, where the injury or damage is caused by any reason other
than the negligence or misconduct of Landlord, its agents, servants,
or employees.
10.2 SUBROGATION
The provisions of this Article 10 are subject to the waiver of any right
of subrogation against Landlord in Tenant's insurance.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 ASSIGNMENT OR SUBLETTING
The Tenant will not, during the Term, assign, transfer, sublet, part with
possession or set over or otherwise by any act or deed procure the Premises or
any part of them to be assigned, transferred, set over or sublet unto any
persons, firm or corporation whomsoever except with the consent of the Landlord,
as set out in Article 11.2. In the event Tenant desires to assign this Lease or
sublet the Premises or any portion thereof to a named third party, Tenant shall
first provide Landlord with any information it may reasonably require (including
a true copy of the agreement to assign or sublet, as the case may be) and, if it
so elects, Landlord shall have the right to terminate this Lease or sublet the
Premises in the manner hereinafter mentioned.
Tenant shall give written notice of such agreement to sublease or assign,
as the case may be, to Landlord by sending a true copy thereof and Landlord
shall thereupon have the following rights:
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(a) to sublease from Tenant the Rentable Area to be sublet or assigned
under the said agreement on the same terms and conditions as set out
in such agreement (except in respect of rent which shall be the
lesser of the Rent paid therefore by Tenant under this Lease or the
rent specified in such agreement) by giving written notice to Tenant
within fourteen (14) days of receipt of a true copy of the said
agreement; or
(b) to terminate this Lease in respect of the Rentable Area to be sublet
or assigned under the said agreement as set out in Article 11.2;
it being understood and agreed that if a portion of the Premises is being sublet
or assigned, this Lease shall, at the option of the Landlord, be amended to
reflect the reduction in Rentable Area of the Premises.
Tenant shall pay the Landlord's costs on account of any request for
approval and, if applicable, the preparation of the implementing documentation,
in such form as may be acceptable to the Landlord, together with an
administration cost of not less than $400.00 and legal costs incurred by the
Landlord.
The Tenant shall not assign or sublet all or part of the Premises to any
other tenant in the Building without prior written consent of the Landlord which
consent may be arbitrarily withheld, in Landlord's sole discretion.
11.2 LANDLORD'S RIGHTS
Landlord's termination rights set out in Article 11.1 (b) above shall be
exercised by giving written notice to Tenant within fourteen (14) days of
receipt by Landlord of the true copy of the said agreement and such other
information as the Landlord may reasonably require, and the termination date
shall be such date as is stipulated in Landlord's notice which shall in no event
be less than 60 days nor more than 90 days following the giving of such notice
by Landlord. If Landlord exercises its rights set out in Article 11.1 (a) above,
Landlord shall have an additional right to terminate this Lease in respect of
the Rentable Area sublet by Tenant to Landlord and such additional right of
termination shall be exercised by giving written notice to Tenant not less than
7 days prior to the end of the term of the sublease to Landlord and the
termination date shall be the day following the end of the term of the said
sublease. If this Lease is terminated by Landlord with respect to a part of the
Premises, then Rent payable under this Lease shall thereafter xxxxx
proportionately and all other appropriate recalculations shall be made to
recognize that the area of the premises to be sublet under the said agreement
has abated.
In the event that the Tenant desires to assign this Lease or sublet the
Premises or any portion thereof, and Landlord does not exercise its rights set
out in Article ll.l(a) or (b) above, Tenant shall, subject to the consent of
Landlord being first obtained, which consent may not be arbitrarily withheld, be
free to assign this Lease to the named third party in the said agreement or to
sublet the Rentable Area to be sublet under the said agreement to the named
third party on the terms and conditions contained in the said agreement.
If Tenant, with the consent of Landlord, sublets Rentable Area to the
named third party pursuant to the said agreement and the said agreement provides
for a rental payable greater than that payable under this Lease in respect of
the Rentable Area so sublet, the excess, when received by Tenant, shall be paid
by Tenant to Landlord as additional rent under this Lease. All of the foregoing
rights of Landlord shall be alternative to, but not in substitution for, any
other rights which Landlord may have to either consent or withhold its consent
to any such assigning or subletting.
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In the event any sublease is made pursuant to this Article 11, Tenant
shall bear the cost of all improvements (including, without limiting the
generality of the foregoing, all demising walls) necessary to separate the area
to be sublet from the remainder of the Premises.
11.3 TENANT'S OBLIGATIONS CONTINUE
No assignment or disposition by Tenant of this Lease or of any interest
under this Lease, shall relieve Tenant from the performance of its covenants,
obligations or agreements under this Lease. Such assignment or other disposition
shall render null and void at the time of such assignment or other disposition
any options to renew this Lease, options or rights to additional area and
options or rights to car parking areas unless Landlord shall have otherwise
agreed in writing. Upon the Landlord granting its consent to an assignment or
subletting by the Tenant, the Tenant and its assignee or subtenant shall be
required to enter into the Landlord's standard form consent agreement at the
Tenant's cost.
11.4 SUBSEQUENT ASSIGNMENTS
Landlord's consent to an assignment, transfer or subletting (or use or
occupation of the Premises by any other person) shall not be deemed to be a
consent to any subsequent assignment, transfer, subletting, use or occupation.
11.5 CHANGE IN CORPORATE CONTROL
If the sale, assignment, transfer or other disposition of any of the
issued and outstanding capital stock of the Tenant (or of any successor or
assignee of the Tenant which is a corporation) shall result in changing the
control of the Tenant such sale, assignment, transfer or other disposition shall
be deemed an assignment of this Lease and shall be subject to all of the
provisions of this Lease with respect to assignments by the Tenant, provided,
however, that the Landlord's consent shall not be required to an assignment or
transfer of the issued and outstanding capital stock of the Tenant:
(a) to a corporation controlled by or subject to the same control as the
assignor or transferor;
(b) to a member or members of the family of the assignor or transferor;
or
(c) in the case of devolution through death.
For the purpose of this Article, "control" of any corporation shall be deemed to
be vested in the person or persons owning more than 50% per cent of the voting
power for the election of the board of directors of such corporation and a
"member or members" of the family of any assignor or transferor shall include
his spouse, parents, brothers or sisters and issue.
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ARTICLE 12
SURRENDER
12.1 POSSESSION
At the expiration or earlier termination of the Term, Tenant shall
peaceably surrender and yield up to Landlord the Premises and all improvements
made, constructed, erected or installed in the Premises in good and substantial
repair and condition in accordance with its covenants to maintain and repair the
Premises. Notwithstanding anything contained in this Article 12.1, upon the
expiration of the Term and at Tenant's cost, Tenant shall remove all or any part
of the improvements as may be required by Landlord and shall make good any
damage caused by reason of the installation and removal of such improvements. On
the expiration of the Term all improvements made, constructed, erected or
installed in the Premises and not required by Landlord to be removed shall be
deemed to have become the property of Landlord.
12.2 MERGER
The voluntary or other surrender of the Lease by Tenant or the
cancellation of the Lease by mutual agreement of Tenant and Landlord shall not
work a merger, and shall at Landlord's option terminate all or any subleases.
Landlord's option hereunder shall be exercised by notice to Tenant and all known
subleases or subtenants in the Premises or any part thereof.
12.3 PAYMENTS AFTER TERMINATION
No payments of money by Tenant to Landlord after the expiration or other
termination of the Term or after giving of any notice (other than a demand for
payment of money) by Landlord to Tenant, shall reinstate, continue or extend the
Term or make ineffective any notice given to Tenant prior to the payments of
such money. After the service of notice or the commencement of a suit, or after
final judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums of Rent due under this Lease, and the payment
thereof shall not make ineffective any notice, or in any manner affect any
pending suits or any judgment therefore obtained.
ARTICLE 13
HOLDING OVER
13.1 MONTH-TO-MONTH TENANCY
If with Landlord's written consent Tenant remains in possession of the
Premises after the expiration or other termination of the Term, Tenant shall be
deemed to be occupying the Premises on a month-to-month tenancy only, at a
monthly rental equal to the Rent as determined in accordance with Article 4 or
such other rental as is stated in such written consent, and such month-to-month
tenancy may be terminated by Landlord or Tenant on the last day of any calendar
month by delivery of at least 30 days advance notice of termination to the
other.
13.2 TENANCY AT SUFFERANCE
If, without Landlord's written consent, Tenant remains in possession of
the Premises after the expiration or other termination of the Term, Tenant shall
be deemed to be occupying the Premises upon a tenancy at sufferance only, at a
monthly rental equal to two times the Rent determined in accordance with Article
4. Such tenancy at sufferance may be terminated by Landlord at any time by
notice of termination to Tenant and by Tenant on the last day of any calendar
month by at least 30 days advance notice of termination to Landlord.
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13.3 GENERAL
Any month-to-month tenancy or tenancy at sufferance hereunder shall be
subject to all other terms and conditions of the Lease except any right of
renewal and nothing contained in this Article 13 shall be construed to limit or
impair any of Landlord's rights of re-entry or eviction or constitute a waiver
thereof.
ARTICLE 14
RULES AND REGULATIONS
14.1 PURPOSE
The rules and regulations set forth in Schedule D have been adopted by
Landlord for the safety, benefit and convenience of all tenants and other
persons in the Building.
14.2 OBSERVANCE
Tenant shall, at all times, comply with, and shall cause its employees,
agents, licensees and invitees to comply with, such rules and regulations
attached as Schedule D hereto and such further and other reasonable rules and
regulations and amendments and changes thereto as may be made by the Landlord
and notified to the Tenant by mailing a copy thereof to the Tenant or by posting
same in a conspicuous place in the Building. All such rules and regulations now
or hereafter in force shall be read as forming part of this Lease.
14.3 NON-COMPLIANCE
Landlord shall use its best efforts to secure compliance by all tenants
and other persons with such rules and regulations from time to time In effect,
but shall not be responsible to Tenant for failure of any person to comply with
such rules and regulations.
14.4 LOADING AND UNLOADING
The delivery and shipping of merchandise, supplies, fixtures, and other
materials or goods of whatsoever nature to or from the Premises and all loading,
unloading, and handling thereof shall be done only at such times, in such areas,
by such means, and through such elevators, entrances, malls and corridors as are
designated by Landlord.
ARTICLE 15
EXPROPRIATION
15.1 TAKING OF PREMISES
If during the Term all of the Premises shall be taken for any public or
quasi-public use under any statute or by right of expropriation, or purchases
under threat of such taking, this Lease shall automatically terminate on the
date on which the expropriating authority takes possession of the Premises
(thereinafter called the "date of such taking").
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15.2 PARTIAL TAKING OF BUILDING
If during the Term only part of the Building is taken or purchased as set
out in Article 15.1, then:
(a) if in the reasonable opinion of Landlord substantial alteration or
reconstruction of the Building is necessary or desirable as a result
thereof, whether or not the Premises are or may be affected,
Landlord shall have the right to terminate this Lease by giving
Tenant at least 30 days written notice of such termination, and
(b) if more than one-third of the number of square feet in the Premises
is included in such taking or purchase, Landlord and Tenant shall
each have the right to terminate this Lease by giving the other at
least 30 days written notice thereof.
If either party exercises its right of termination hereunder, this Lease shall
terminate on the date stated in the notice, provided however, that no
termination pursuant to notice hereunder may occur later than 60 days after the
date of such taking.
15.3 SURRENDER
On any such date of termination under Articles 15.1 or 15.2, Tenant shall
immediately surrender to Landlord the Premises and all interest therein under
this Lease. Landlord may re-enter and take possession of the Premises and remove
Tenant there from, and the Rent shall xxxxx on such date in respect of the
portion taken. After such termination, and on notice from Landlord stating the
Rent then owing, Tenant shall forthwith pay Landlord such Rent.
15.4 PARTIAL TAKING OF PREMISES
If any portion of the Premises (but less than the whole thereof) is so
taken, and no rights of termination herein conferred are timely exercised, the
Term of the Lease shall expire with respect to the portion so taken on the date
of such taking. In such event the Rent payable hereunder with respect to such
portion so taken shall xxxxx on such date, and the Rent thereafter payable with
respect to the remainder not so taken shall be adjusted pro rata by Landlord in
order to account for the resulting reduction in the number of square feet in the
Premises.
15.5 AWARDS
Upon any such taking or purchase, Landlord shall be entitled to receive
and retain the entire award or consideration for the affected lands and
improvements, and Tenant shall not have nor advance any claim against Landlord
for the value of its property or its leasehold estate or the unexpired Term of
the Lease, or for costs of removal or relocation, or business interruption
expense or any other damages arising out of such taking or purchase. Nothing
herein shall give Landlord any interest in or preclude Tenant from seeking and
recovering on its own account from the condemning authority any award or
compensation attributable to the taking or purchase of Tenant's improvements,
chattels or trade fixtures, or the removal or relocation of its business. If any
such award made or compensation paid to either party specifically includes an
award or amount for the other, the party first receiving the same shall promptly
account therefore to the other.
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ARTICLE 16
DAMAGE BY FIRE OR OTHER CASUALTY
16.1 LIMITED DAMAGE TO PREMISES
If all or part of the Premises are rendered untenantable by damage from
fire or other casualty which, in the reasonable opinion of the Landlord's
Architect, can be substantially repaired under applicable laws and government
regulations within 180 days from the date of such casualty (employing normal
construction methods without overtime or other premium), the Landlord and the
Tenant, as the case may be, according to the nature of the damage and their
respective obligations to repair, shall repair the damage with all reasonable
diligence.
16.2 MAJOR DAMAGE TO PREMISES
If all or part of Premises are rendered untenantable by damage from fire
or other casualty which, in the reasonable opinion of an architect acceptable to
Landlord and Tenant, cannot be substantially repaired under applicable laws and
governmental regulations within 180 days from the date of such casualty
(employing normal construction methods without overtime or other premium), then
either Landlord or Tenant may elect to terminate this Lease as of the date of
such casualty by written notice delivered to the other not more than 10 days
after receipt of such Architect's opinion, failing which the Landlord or the
Tenant, as the case may be, according to the nature of the damage and their
respective obligations under this Lease, shall repair such damage with all
reasonable diligence.
16.3 ABATEMENT
If Landlord is required to repair damage to all or part of the Premises
under Articles 16.1 or 16.2 the Rent payable by Tenant hereunder shall be
proportionately reduced to the extent that the Premises are thereby rendered
unusable by Tenant in its business, from the date of such casualty until 5 days
after completion by Landlord of the repairs to the Premises (or the part thereof
rendered untenantable) or until Tenant again uses the Premises (or the part
thereof rendered untenantable) in its business, whichever first occurs.
16.4 MAJOR DAMAGE TO BUILDING
If all or a substantial part (whether or not including the Premises) of
the Building is rendered untenantable by damage from fire or other casualty to
such a material extent that in the reasonable opinion of Landlord the Building
must be totally or partially demolished or reconstructed whether or not to be
reconstructed in whole or in part, Landlord may elect to terminate this Lease as
of the date of such casualty (or on the date of notice if the Premises are
unaffected by such casualty) by written notice delivered to Tenant not more than
60 days after the date of such casualty, in which event:
(a) the Tenant shall deliver up possession of the Premises to the
Landlord within 30 days after delivery of the notice of termination;
and
(b) Rent shall be apportioned and paid to the date upon which possession
has been delivered up,
but otherwise, the Landlord or the Tenant, as the case may be, according to the
nature of the damage and their respective obligations under this Lease, shall
repair such damage with all reasonable diligence.
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16.5 LIMITATION ON LANDLORD'S LIABILITY
Except as specifically provided in this Article 16, there shall be no
reduction of Rent and Landlord shall have no liability to Tenant by reason of
any injury to or interference with Tenant's business or property arising from
fire or other casualty, howsoever caused, or from the making of any repairs
resulting there from in or to any portion of the Building or the Premises.
Notwithstanding anything contained herein, Rent payable by Tenant hereunder
shall not be abated, if the damage is caused by any act or omission of Tenant,
its agents, servants, employees or any other person entering upon the Premises
under express or implied invitation of Tenant.
ARTICLE 17
TRANSFERS BY LANDLORD
17.1 SALE, CONVEYANCE AND ASSIGNMENT
Nothing in this Lease shall restrict the right of Landlord to sell,
convey, assign or otherwise deal with the Land or the Building, subject only to
the rights of Tenant under this Lease.
17.2 Effect of Sale, Conveyance or Assignment
A sale, conveyance or assignment of the Building shall operate to release
Landlord from liability from and after the effective date thereof upon all of
the covenants, terms and conditions of this Lease, express or implied, except as
such may relate to the period prior to such effective date, and Tenant shall
thereafter look solely to Landlord's successor in interest in and to this Lease.
This Lease shall not be affected by any such sale, conveyance or assignment, and
Tenant shall attorn to Landlord's successor in interest there under.
17.3 SUBORDINATION
This Lease is and shall be subject and subordinate in all respects to any
and all mortgages and leasehold interests now or hereafter placed on the
Building or Land, and to all renewals, modifications, consolidations,
replacements and extensions thereof.
17.4 ATTORNMENT
If the interest of Landlord is transferred to any person (herein called
the "Purchaser") by reason of foreclosure or other proceedings for enforcement
of any such mortgage, or by delivery of a deed in lieu of such foreclosure or
other proceedings, Tenant shall immediately and automatically attorn to
Purchaser.
17.5 EFFECT OF ATTORNMENT
Upon attornment under Article 17.4 this Lease shall continue in full force
and effect as a direct lease between Purchaser and Tenant, upon all of the same
terms, conditions and covenants as are set forth in this Lease except that,
after such attornment, Purchaser shall not be:
(a) liable for any act or omission of Landlord; or
(b) subject to any offsets or defenses which Tenant might have against
Landlord; or
(c) bound by any prepayment by Tenant of more than one month's
installment of Rent, or by any previous modification of this Lease,
unless such prepayment or modification shall have been approved in
writing by Purchaser or any predecessor in interest except Landlord.
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17.6 EXECUTION OF INSTRUMENTS
The subordination and attornment provisions of this Article 17 shall be
self-operating and no further instrument shall be required. Nevertheless Tenant,
on request by and without cost to Landlord or any successor in interest, shall
execute and deliver any and all instruments further evidencing such
subordination and (where applicable hereunder) attornment.
ARTICLE 18
NOTICES, ACKNOWLEDGEMENTS, AUTHORITIES FOR ACTION
18.1 NOTICES
Any notice from one party to the other hereunder shall be in writing and
shall be deemed duly served if delivered personally to a responsible employee of
the party being served, or if mailed by registered or certified mail addressed
to Tenant at the Premises (whether or not Tenant has departed from, vacated or
abandoned the same) or to Landlord at 0000, 000 - 0xx Xxxxxx X.X., Xxxxxxx,
Xxxxxxx, X0X0X0, attention Property Manager, or any other place from time to
time established for the payment of Rent. Any notice shall be deemed to have
been given at the time of personal delivery or, if mailed, seven days after the
date of mailing thereof. Either party shall have the right to designate by
notice, in the manner above set forth, a different address to which notices are
to be mailed.
18.2 ACKNOWLEDGEMENTS
Each of the parties hereto shall at any time and from time to time upon
not less than 20 days prior notice from the other execute, acknowledge and
deliver a written statement certifying that:
(a) this Lease is in full force and effect, subject only to such
modification (if any) as may be set out therein;
(b) Tenant is in possession of the Premises and paying Rent as provided
in this Lease;
(c) the dates (if any) to which Rent is paid in advance; and
(d) that there are not, to such party's knowledge any uncured defaults
on the part of the other party hereunder, or specifying such
defaults if any are claimed.
Any such statement may be relied upon by any prospective transferee or
encumbrances of all or any portion of the Building, or any assignee of any such
persons. If Tenant fails to timely deliver such statement, Tenant shall be
deemed to have acknowledged that this Lease is in full force and effect, without
modification except as may be represented by Landlord, and that there are no
uncured defaults in Landlord's performance.
18.3 AUTHORITIES FOR ACTION
Landlord may act in any matter provided for herein by its property manager
and any other person who shall from time to time be designated by Landlord by
notice to Tenant. Tenant shall designate in writing one or more persons to act
on its behalf in any matter provided for herein and may from time to time
change, by notice to Landlord, such designation. In the absence of any such
designation, the person or persons executing this Lease for Tenant shall be
deemed to be authorized to act on behalf of Tenant in any matter provided for
herein.
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ARTICLE 19
DEFAULT
19.1 INTEREST AND COSTS OF LEASE OF SPACE
Tenant shall pay to Landlord interest at a rate equal to 5% per annum over
the prime rate charged by the Landlord's principal banker to Landlord,
calculated and compounded monthly, upon all Rent required to be paid hereunder
from the due date for payment thereof until the same is fully paid and
satisfied. Tenant shall indemnify Landlord against all costs, charges (including
legal fees and disbursements on a solicitor and his own client basis ) lawfully
and reasonably incurred in enforcing payment thereof, and in obtaining
possession of the Premises after default of Tenant or upon expiration or earlier
termination of the Term of this Lease, or in enforcing covenant, provision or
agreement of Tenant herein contained.
19.2 RIGHT OF LANDLORD TO PERFORM COVENANTS
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant, at Tenant's sole cost and
expense, and without abatement of Rent. If Tenant shall fail to perform any act
on its part to be performed hereunder, and such failure shall continue for 10
days after notice thereof from Landlord, Landlord may (but shall not be
obligated to do so) perform such act without waiving or releasing Tenant from
any of its obligations relative thereto. All sums paid or costs incurred by
Landlord in so performing such acts under this Article 19.2, together with
interest thereon at the rate set out in Article 19.1 from the date each such
payment was made or each such cost incurred by Landlord, shall be payable by
Tenant to Landlord on demand.
19.3 EVENTS OF DEFAULT
If and whenever:
(a) all or any part of the Rent hereby reserved is not paid when due,
and such default continues for seven days after the due date
thereof;
(b) the remaining Term of this Lease, or any goods, chattels or
equipment of Tenant is taken or exigible in execution or in
attachment or if a writ of execution is issued against Tenant;
(c) Tenant becomes insolvent or commits an act of bankruptcy or becomes
bankrupt or takes the benefit of any statute that may be in force
for bankrupt or insolvent debtors or becomes involved in voluntary
or involuntary winding-up proceedings or if a receiver shall be
appointed for the business, property, affairs or revenues of Tenant;
(d) Tenant makes a bulk sale of its goods or moves or commences,
attempts or threatens to move its goods, chattels and equipment out
of the Premises (other than in the normal course of its business) or
ceases to conduct business from the Premises; or
(e) Tenant fails to observe, perform and keep each and every one of the
covenants, agreements, provisions, stipulations and conditions
herein contained to be observed, performed and kept by Tenant (other
than payment of Rent) and persist in such failure after 10 days
notice by Landlord requiring that Tenant remedy, correct, desist or
comply (or if any such breach would reasonably require more than 10
days to rectify, unless Tenant commences rectification within the 10
days notice period and thereafter promptly and effectively and
continuously proceeds with the rectification of the breach);
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then and in any of such cases, at the option of Landlord, the full amount of the
then current month's and the next ensuing three months' installments of Annual
Rent, together with all expenses incurred by Landlord in performing any of
Tenant's obligations under this Lease, re-entering or terminating and
re-letting, collecting sums due or payable by Tenant, effecting seizure and
realizing upon assets seized (including brokerage fees and legal fees and
disbursements on a solicitor and his own client basis), and the expense of
keeping the Premises in good order, repairing the same and preparing them for
re-letting, shall immediately become due and payable and Landlord may
immediately distain for the same, together with any arrears then unpaid; and
Landlord may without notice or any form of legal process forthwith re-enter upon
and take possession of the Premises or any part thereof in the name of the whole
and remove and sell Tenant's goods, chattels and trade fixtures there from, any
rule of law or equity to the contrary notwithstanding; and Landlord may seize
and sell such goods, chattels and equipment of Tenant whether within the
Premises or removed there from, and the Tenant waives or renounces the benefit
of any present or future law taking away or limiting the Landlord's right of
distress on the property of the Tenant, and may apply the proceeds thereof to
all Rent and other payments to which Landlord is then entitled under this Lease.
Any such sale may be effected in the discretion of Landlord by public auction or
otherwise, and either in bulk or by individual item, or partly by one means and
partly by another, all as Landlord in its entire discretion may decide. If any
of Tenant's property is disposed of as provided in this Article 19.3, 10 days
prior notice to Tenant of disposition shall be deemed to be commercially
reasonable.
19.4 WAIVER OF EXEMPTION AND REDEMPTION
Notwithstanding anything contained in any statute now or hereafter in
force limiting or abrogating the right of distress, none of Tenant's goods,
chattels or trade fixtures on the Premises at any time during the continuance of
the Term shall be exempt from levy by distress for Rent in arrears, and upon any
claim being made for such exemption by Tenant or on distress being made by
Landlord this agreement may be pleaded as an estoppel against Tenant in any
action brought to test the right to levying upon any such goods as are named as
exempted in any such statute, Tenant hereby waiving all and every benefit that
could or might have accrued to Tenant under and by virtue of any such statute
but for this Lease. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the Premises, by reason of the violation by Tenant of
any of the terms or conditions of this Lease or otherwise.
19.5 SURRENDER
If and whenever Landlord is entitled to or does re-enter, Landlord may
terminate this Lease by giving notice thereof, and in such event Tenant shall
forthwith vacate and surrender the Premises.
19.6 PAYMENTS
If Landlord shall re-enter or if this Lease shall be terminated hereunder,
Tenant shall pay to Landlord on demand:
(a) Rent up to the time of re-entry or termination, whichever shall be
the later, plus accelerated rent as herein provided;
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(b) all expenses incurred by Landlord in performing any of Tenant's
obligations under this Lease, re-entering or terminating and
re-letting, collecting sums due or payable by Tenant, realizing upon
assets seized (including brokerage fees and legal fees and
disbursements on a solicitor and his own client basis), and the
expense of keeping the Premises in good order, repairing the same
and preparing them for re-letting; and
(c) as damages for the loss of income of Landlord expected to be derived
from the Premises, the amounts (if any) by which the Rent which
would have been payable under this Lease exceeds the payments (if
any) received by Landlord from other tenants in the Premises,
payable on the first day of each month during the period which would
have constituted the unexpired portion of the Term had it not been
terminated, or at the election of Landlord by notice to Tenant at or
after re-entry or termination, a lump sum amount equal to the Rent
which would have been payable under this Lease from the date of such
election during the period which would have constituted the
unexpired portion of the Term had it not been terminated, reduced by
the rental value of the Premises for the same period, established by
reference to the terms and conditions upon which Landlord re-lets
them if such re-letting is accomplished within a reasonable period
after termination, and otherwise established by reference to all
market and other relevant circumstances; Rent and rental value being
reduced to present worth at an assumed interest rate of 10% per cent
on the basis of Landlord's estimates and assumptions of fact which
shall govern unless shown to be erroneous.
19.7 REMEDIES CUMULATIVE
No reference to nor exercise of any specific right or remedy by Landlord
shall prejudice or preclude Landlord from exercising or invoking any other
remedy in respect thereof, whether allowed at law or in equity or expressly
provided for herein. No such remedy shall be exclusive or dependent upon any
other such remedy, but Landlord may from time to time exercise any one or more
of such remedies independently or in combination.
ARTICLE 20
HAZARDOUS SUBSTANCES
20.1 TENANT'S COVENANTS
The Tenant covenants and agrees that it will:
(a) not bring or allow any Hazardous Substance to be brought onto the
Land or Building or the Premises except in compliance with
Environmental Law;
(b) comply at all times and require all those for whom the Tenant is in
law responsible to comply at all times with Environmental Law as it
affects the Premises or the Land or Building;
(c) give notice to the Landlord of the presence at any time during the
Term of any Hazardous Substance on the Premises (or the Land or
Building if such substance is in the control of the Tenant) together
with such information concerning such Hazardous Substance and its
presence on the Premises or the Land or Building as the Landlord may
require;
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(d) give notice to the Landlord of any occurrence which might give rise
to a duty under Environmental Law by either the Tenant or the
Landlord with respect to the presence of any Hazardous Substance on
the Premises or the Land or Building including, without limitation,
Notice of any discharge, release, leak, spill or escape into the
environment of any Hazardous Substance at, to or from the Premises
or the Land or Building;
(e) in any case where the Tenant has given notice as to the presence of
a Hazardous Substance on the Premises or the Land or Building, or is
required to give such notice, or where the Landlord has reasonable
grounds to believe that any Hazardous Substance is going to be or
has been brought onto the Premises or the Land or Building by the
Tenant or any person for whom the Tenant is in law responsible, to
commission an Environmental Audit at the Tenant's expense when
required by the Landlord to do so;
(f) comply with any investigative, remedial or precautionary measures
required under Environmental Law or as reasonably required by the
Landlord, be fully and completely liable to the Landlord for any and
all investigation, clean up, remediation, restoration or monitoring
costs or any costs incurred to comply with Environmental Law or any
request by the Landlord that such measures be taken;
(g) protect, indemnify and save each of the Landlord and its directors,
officers, employees, agents, successors and assigns completely
harmless from and against any Environmental Claim, directly or
indirectly incurred, sustained or suffered by or asserted against
the Landlord and/or its directors, officers, employees, agents,
successors and assigns caused by or attributable to, either directly
or indirectly, any act or omission of the Tenant and/or any person
for whom the Tenant is in law responsible;
(h) enter into any additional contract of insurance respecting the
Premises which the Landlord may reasonably require to protect the
Landlord and its directors, officers, employees, agents, successors
and assigns from any Environmental Claim respecting the Premises;
(i) provide to the Landlord such security as the Landlord may from time
to time require, acting reasonably, to ensure compliance by the
Tenant of its covenants herein contained; and
(j) provide access to the Premises for the Landlord or its agent, to
conduct an Environmental Audit of the Premises, at the Tenant's
expense, at least two (2) months prior to the expiry of the Term of
this Lease.
20.2 INQUIRIES BY LANDLORD
The Tenant hereby authorizes the Landlord to make inquiries from time to
time of any government or governmental agency with respect to the Tenant's
compliance with the Environmental Law at the Premises, and the Tenant covenants
and agrees that the Tenant will from time to time provide to the Landlord such
written authorization as the Landlord may reasonably require in order to
facilitate the obtaining of such information. The Landlord or its agent may
inspect the Premises from time to time without notice, in order to verify the
Tenant's compliance with the Environmental Law and the requirements of this
Lease respecting Hazardous Substance. If the Landlord suspects that the Tenant
is in breach of any of its covenants herein, the Landlord and its agent shall be
entitled to conduct an Environmental Audit immediately, and the Tenant shall
provide access to the Landlord and its agent for the purpose of conducting an
Environmental Audit. Such Environmental Audit shall be at the Tenant's expense,
and the Tenant shall forthwith remedy any problems identified by the
Environmental Audit, and shall ensure that it complies with all of its covenants
herein. Upon request by the Landlord from time to time, the Tenant shall provide
to the Landlord a certificate executed by a senior officer of the Tenant
certifying ongoing compliance by the Tenant with its covenants contained herein.
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20.3 Ownership of Hazardous Substances
If the Tenant shall bring or create upon the Premises, the Building or the
Land any Hazardous Substance or if the conduct of the Tenant's business shall
cause there to be any Hazardous Substance upon the Land or the Premises then,
notwithstanding any rule of law to the contrary, such Hazardous Substance shall
be and remain the sole and exclusive property of the Tenant and shall not become
the property of the Landlord notwithstanding the degree of affixation of the
Hazardous Substance or the goods containing the Hazardous Substance to the
Premises or the Land and notwithstanding the expiry or earlier termination of
this Lease.
20.4 Landlord's Remedies upon Default
Upon the Tenant's material default under this Article and in addition to
the rights and remedies set forth elsewhere in this Lease, the Landlord shall be
entitled to the following rights and remedies:
(a) at the Landlord's option, to terminate this Lease, and/or
(b) to recover any and all damages associated with the material default,
including without limitation, in addition to any rights reserved or
available to the Landlord in respect of an early termination of this
Lease, cleanup costs and charges, civil and criminal penalties and
fees, loss of business and sales by the Landlord and other tenants
of the Land or Building, any and all damages and claims asserted by
third parties and Landlord's solicitors' fees and disbursements on a
solicitor and his own client basis.
ARTICLE 21
MISCELLANEOUS
21.1 RELATIONSHIP OF PARTIES
Nothing contained in this Lease shall create any relationship between the
parties hereto other than that of landlord and tenant, and it is acknowledged
and agreed that Landlord does not in any way or for any purpose become a partner
of Tenant in the conduct of its business, or a joint venturer or a member of a
joint or common enterprise with Tenant.
21.2 CONSENT NOT UNREASONABLY WITHHELD
Except as otherwise specifically provided, whenever consent or approval of
Landlord or Tenant is required under the terms of this Lease, such consent or
approval shall not be unreasonably withheld or delayed. Tenant's sole remedy if
Landlord unreasonably withholds or delays consent or approval shall be an action
for specific performance, and Landlord shall not be liable for damages. If
either party withholds any consent or approval, such party shall on written
request deliver to the other party a written statement giving the reasons
therefore.
21.3 NAME OF BUILDING
Landlord shall have the right, after 30 days notice to Tenant, to change
the name, number or designation of the Building, during the Term without
liability to Tenant.
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21.4 APPLICABLE LAW AND CONSTRUCTION
This Lease unless otherwise agreed by the parties shall be governed by and
construed under the laws of the jurisdiction in which the Building is located,
and its provisions shall be construed as a whole according to their common
meaning and not strictly for or against Landlord or Tenant. The words Landlord
and Tenant shall include the plural as well as the singular. Time is of the
essence in this Lease and each of its provisions and continues to be of the
essence notwithstanding any indulgences given by Landlord. The captions of the
Articles are included for convenience only, and shall have no effect upon the
construction or interpretation of this Lease.
21.5 ENTIRE AGREEMENT
There are no terms and conditions which at the date of execution of this
Lease are additional or supplemental to those set out on the pages of this
Lease. This Lease contains the entire agreement between the parties hereto with
respect to the subject matter of this Lease. Tenant acknowledges and agrees that
it has not relied upon any statement, representation, agreement or warranty
except such as are set out in this Lease.
21.6 AMENDMENT OR MODIFICATION
Unless otherwise specifically provided in this Lease, no amendment,
modification, or supplement to this Lease shall be valid or binding unless set
out in writing and executed by the parties hereto in the same manner as the
execution of this Lease.
21.7 CONSTRUED COVENANTS AND SEVERABILITY
All of the provisions of this Lease are to be construed as covenants and
agreements as though the word importing such covenants and agreements were used
in each separate Article hereof. Should any provision of this Lease be or become
invalid, void, illegal or not enforceable, it shall be considered separate and
severable from the Lease and the remaining provisions shall remain in force and
be binding upon the parties hereto as though such provision had not been
included.
21.8 NO IMPLIED SURRENDER OR WAIVER
No provisions of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by Landlord. Landlord's waiver
of a breach of any term or condition of this Lease shall not prevent a
subsequent act, which would have originally constituted a breach, from having
all the force and effect of any original breach. Landlord's receipt of Rent with
knowledge of a breach by Tenant of any term or condition of the Lease shall not
be deemed a waiver of such term or condition. No act or thing done by Landlord,
its agents or employees during the Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid, unless in writing and signed by Landlord. The delivery
of keys to any of Landlord's agents or employees shall not operate as a
termination of the Lease or a surrender of the Premises. No payment by Tenant,
or receipt by Landlord, of a lesser amount than the Rent due hereunder shall be
deemed to be other than on account of the earliest stipulated Rent, nor shall
any endorsement or statement on any cheque or any letter accompanying any
cheque, or payment as Rent, be deemed an accord and satisfaction, and Landlord
may accept such cheque or payment without prejudice to Landlord's right to
recover the balance of such Rent or pursue any other remedy available to
Landlord.
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21.9 SUCCESSORS BOUND
Except as otherwise specifically provided, the covenants, terms and
conditions contained in this Lease shall apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto.
21.10 LIABILITY: JOINT/SEVERAL
In the event there is more than one entity or person which or who are
parties constituting the Tenant under this Lease, the obligation imposed upon
the Tenant under this Lease shall be joint and several.
21.11 SET-OFF
In the event the Landlord is liable for any payment or reimbursement to
the Tenant then unless otherwise provided for in this Lease Landlord has the
right to set-off such reimbursement or liability against liabilities of Tenant
to Landlord.
21.12 REGISTRATIONS
The Tenant agrees with the Landlord not to register this Lease nor any
notice of this Lease in any Land Titles Office in any form without 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 allocable transfer or
recording taxes or charges. The Tenant shall remove and discharge at the
Tenant's expense the registration of such a notice at the expiry or the earlier
termination of the Term and in the event of Tenant's failure to remove or
discharge this notice or caveat after 10 days written notice by Landlord or
Tenant, the Landlord may in the name and on behalf of the Tenant execute a
discharge of such a notice in order to remove and discharge such notice and for
the purposes thereof, the Tenant hereby irrevocably constitutes and appoints any
officer of the Landlord the true and lawful attorney of the Tenant.
21.13 UNAVOIDABLE DELAY
Except as herein otherwise expressly provided, if and whenever and to the
extent that either the Landlord or the Tenant shall be prevented, delayed or
restricted in the fulfillment of any obligation hereunder in respect to 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 monies 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 labour
required to fulfill such obligations; or
(c) other unavoidable occurrences,
then the time for fulfillment of such condition and obligation shall be extended
during the period in which such circumstances operates to prevent, delay or
restrict fulfillment thereof, and the other party to this Lease shall not be
entitled to compensation for any inconvenience, nuisance or discomfort thereby
occasioned.
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21.14 RIGHT OF FIRST REFUSAL
So long as:
(a) an Event of Default has not occurred; and
(b) Paradigm Geophysical Canada Ltd. is in possession of all of the
Premises, has not sublet the Premises in part or in whole and has
not assigned the Lease in part or in whole or otherwise parted with
possession of the Premises in part or in whole;
the Landlord agrees that prior to renting the space located in the Building on
the 6th floor cross-hatched in black on the plan attached as Schedule A-2 (the
"First Refusal Space") to a third party and subject to any prior rights in
respect of the First Refusal Space , the Landlord shall submit to the Tenant a
copy of the proposed lease which the Landlord is willing to accept from the
third party (the "Offered Lease"). On or before the 2nd business day after the
date of such submission the Tenant will have the right (the "First Refusal
Right") to send the Landlord a notice stating that the Tenant elects to rent the
First Refusal Space upon the identical terms and conditions set forth in the
Offered Lease (the "Offered Lease Terms").
If the Tenant duly and timely exercises the First Refusal Right, the
Landlord and the Tenant will promptly (and in any event within 10 business days
after the Landlord's receipt of the Tenant's notice) enter into a lease or an
amendment to this Lease for the First Refusal Space (the "New Lease") on the
Offered Lease Terms. If for any reason the Tenant fails to duly and timely
exercise the First Refusal Right, or if the Tenant properly exercises it but
thereafter for any reason (except the Landlord's fault) does not timely enter
into the New Lease, the Landlord will be free to lease the First Refusal Space
to another tenant on the Offered Lease Terms and the First Refusal Right and the
Landlord's obligation under this section will cease to have effect throughout
the remainder of the Term and any extensions or renewals thereof.
Notwithstanding any contrary provision hereof the Tenant agrees that any
default by it under this Lease will be deemed to constitute a like default under
the New Lease.
21.15 PARKING
The Landlord agrees to make available to the Tenant as a licensee on the
Commencement Date and thereafter throughout the Term, 4 single stalls in parking
facility in the Building (the "Parking Facility"). The Tenant shall pay parking
fees to the Landlord (or to the parking operator if the Landlord so directs)
throughout the Term at the prevailing rates being charged for parking stalls in
the Parking Facility, from time to time, which at the Commencement Date is
$285.00 per permit per month. Where the prevailing parking rates in the Parking
Facility are being generally increased by the Landlord, the Landlord shall be
entitled to increase the Tenant's parking fees upon 30 days written notice to
the Tenant. Each such payment shall be made in advance on the first day of each
month throughout the Term. The use of the parking stalls within the Parking
Facility by the Tenant shall be conditional on the following:
(a) execution and delivery of this Lease by the Landlord and the Tenant;
(b) there being no unremedied event of default under Article 19.3;
(c) the Landlord has the right to relocate any of he Tenant's parking
stalls upon 7 days prior notice;
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(d) the Landlord's right to make such Rules and Regulations with respect
to the use of the Parking Facility as the Landlord deems advisable
from time to time;
(e) the use by the Tenant of the Parking Facility is subject to the
exclusive control of the Landlord;
(f) the Tenant shall use the Parking Facility at its sole risk;
(g) the Tenant, if the Landlord so requests, entering into a parking
agreement on the Landlord's then current standard form;
(h) the Landlord shall not be responsible for any loss due to theft of,
fire or damage due to automobiles or its contents of the Tenant or
those of its agents, employees, servants, invitees or licensees; and
(i) the licence granted to the Tenant being personal and
non-transferable except to its employees and agents.
The Tenant's rights under this section shall terminate upon expiry or
earlier termination of the Lease or the Landlord taking possession of the
Premises. The Tenant acknowledges and agrees further that the Tenant's rights
under this section are contractual rights only and do not form a part of the
Premises and, further, that no Landlord and Tenant relationship exists with
respect to these rights, but the obligations shall be binding upon the
successors and assigns of the Landlord's interest in the Building.
IN WITNESS WHEREOF the parties hereto have affixed their respective
corporate seals, duly attested by the hands of their respective authorized
officers in that regard as of the day and year first above written.
LANDLORD:
CONSOLIDATED PROPERTIES
(520 - 5TH AVENUE) LTD.
R. Xxxxx Xxxxxxxxx, President & CEO Per: /s/R. Xxxxx Xxxxxxxxx
----------------------------------- ----------------------------------
I/We Have the authority to bind the
corporation
TENANT:
PARADIGM GEOPHYSICAL CANADA LTD.
Moosy Teablus, President Per: /s/ Moosy Teablus
----------------------------------- ----------------------------------
Name & Title
Xxxx Xxxxxx, Office Manager Per: /s/ Xxxx Xxxxxx
----------------------------------- ----------------------------------
Name & Title
I/We Have the authority to bind the
corporation
34
SCHEDULE A - FLOOR PLAN (Area A Premises)
SCHEDULE A-1 - FLOOR PLAN (Area B Premises)
(Floor Plan Image)
SCHEDULE A-1 - FLOOR PLAN (Area C Premises)
(Floor Plan Image)
SCHEDULE B - LEGAL DESCRIPTION
PLAN "A 1" BLOCK 16
LOTS 23, 24 AND 25 AND THAT PORTION OF LOT 26 WHICH LIES TO THE EAST OF THE
WESTERLY 2.88 FEET THROUGHOUT THE SAID LOT 26
EXCEPTING THEREOUT: (AS TO SURFACE)
PLAN NUMBER AREA
----- ------ -----
ROAD 8910616 (PTN) (LOTS 23, 24, 25,26)
SCHEDULE C - DETERMINATION OF OCCUPANCY COSTS
DEFINITIONS:
In this Lease
(a) "Capital Tax" means an amount allocated by the Landlord to the
Building in respect of taxes, rates, duties and assessments
presently or hereafter levied, rated, charged or assessed from time
to time upon the Landlord and payable by the Landlord (or any
corporation acting on behalf of the Landlord) on account of the
capital that the Landlord has invested in the Building. Capital Tax
shall be allocated:
(i) as if the amount of such tax were that amount due if the
Building were the only property of the Landlord; and
(ii) on the basis of the Landlord's determination of the amount of
capital attributable to the Building.
Capital Tax also means the amount of any capital, sales or place of
business tax levied by any government or other applicable taxing
authority against the Landlord with respect to the Building whether
known as Capital Tax or by any other name.
(b) "Occupancy Costs" means the Tenant's Pro-rata Share of the amount of
Operating Expenses and Real Estate Taxes, calculated annually.
(c) "Operating Expenses" shall mean all costs which shall be incurred by
the Landlord for the complete maintenance, repair, replacement,
operating and administration of the Building and property, such as
are in keeping with maintaining the standard of a first class office
building so as to give it high character and distinction, including
without limitation:
(1) cost of heating, ventilating and air conditioning;
(2) cost of providing hot and cold water;
(3) cost of sewer charges;
(4) cost of fire, casualty, liability, rental and other
insurance which the Landlord carries and the costs of
any deductible amount paid by the Landlord in connection
with a claim made by the Landlord under such insurance;
(5) cost of Building office expenses, including telephones,
stationery and supplies;
(6) cost of fuel;
(7) cost of providing electricity and other utilities not
otherwise chargeable to tenants;
(8) cost of all elevator and escalator (if installed in the
Building) maintenance and operation;
(9) cost of porters, reception staff, maintenance,
management and engineering staff and other
non-administrative personnel, including salaries, wages
and fringe benefits;
(10) cost of providing security;
(11) cost of providing janitorial services; window cleaning
and garbage removal;
(12) cost of supplies and materials;
(13) cost of landscaping, gardening and snow and ice removal;
(14) cost of decoration and maintenance of Common Areas;
(15) cost of consulting engineering fees;
(16) cost of repairs and replacements, unless otherwise
included under operating costs;
(17) costs of all service contracts;
(18) cost of business taxes and audit fees for determining
the amounts payable under leases;
(19) cost of the rental charge which in the Landlord's
reasonable opinion is the average market rent or the
average rent charged to tenants of the Building, for the
non-leasable service areas serving the Building
including without limitation and without duplication any
enclosed garbage, utility, transformer, electrical,
telephone or storage rooms, corridors, and lobby area;
(20) cost of each "major expenditure" (as hereinafter
defined) which may be expensed in the year incurred, or
at the Landlord's option amortized over the period of
the Landlord's reasonable estimate of the economic life
of the item acquired, but not to exceed fifteen years,
using equal monthly installments of principal and
interest at the prime commercial loan rate charged to
borrowers having the highest credit rating from time to
time by the Landlord's principal bank, per annum
compounded semi-annually, where "major expenditure"
shall mean any single expenditure incurred for
replacement of machinery, equipment, building elements,
repairs, systems or facilities in connection with the
property or Building which expenditure is more than 10%
of the total Occupancy Costs for the previous Fiscal
Year, or for modifications or additions to the Building
or property if one of the principal purposes of such
modification or addition was to reduce energy
consumption or Operating Expenses or was required by
government regulation;
(21) depreciation for all structures, improvements,
furnishings, fixtures, equipment, machinery, facilities,
systems, and property which is part of or installed in
or used in connection with the Building which, by their
nature require periodic or substantial repair or
replacement, or which are installed or used primarily to
reduce the cost or consumption of other items included
in Operating Expenses (whether or not such costs in
respect of the same are, in fact, reduced); and
(22) the cost of management fees paid to managing agents or
Landlord's charges in lieu thereof if the Landlord
manages the property;
There shall be excluded from Operating Expenses the following:
i. interest on Landlord's debt and capital retirement of
debt;
ii. such Operating Expenses as are recovered from proceeds
of insurance paid to the Landlord;
iii. costs as determined by the Landlord of repairing
structural defects in the Building;
iv. costs as determined by the Landlord of acquiring new
tenants to the property; and
v. any amounts directly charged by the Landlord to any
tenant or tenants.
(d) "Real Estate Taxes" means: (a) any form of assessment (including any
"special" assessment), property tax, license fee, license tax,
business license fee, business license tax, commercial rental tax,
levy, charge, penalty or tax, imposed by any authority having the
direct power to tax, including any city, county, provincial or
federal government, or any school, agricultural, lighting, water
drainage or other improvement or special district thereof, against
the Premises or the Building or the Lands or any legal or equitable
interest of Landlord therein; (b) any tax on Landlord's right to
rent the Premises or against Landlord's business of leasing the
Premises; (c) any assessment, tax, fee, levy or charge in
substitution, partially or totally, of or in addition to any
assessment, tax, fee, levy or charge previously included within the
definition of Real Estate Taxes which may be imposed by governmental
agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services
provided to property owners or occupants; (d) all business taxes and
other taxes, if any, from time to time payable by Landlord with
respect to the Common Areas; (e) Capital Tax as it relates to or is
attributed by Landlord to the Building; (f) any business transfer
tax; (g) any goods and services tax and other taxes payable pursuant
to Article 8.3 of this Lease; (h) and all taxes or business taxes,
if any, not recovered, or which in Landlord's opinion are not
recoverable, from tenants of the Building. It is the intention of
Landlord and Tenant that all new assessments, taxes, fees, levies
and charges be included within the definition of Real Estate Taxes
for purposes of this Lease. The following shall also be included
within the definition of Real Estate Taxes for purposes of this
Lease; provided, however, that Tenant shall pay Landlord the entire
amount thereof (i) any tax allocable to or measured by the area of
the Premises or the rental'payable hereunder, including without
limitation, any gross income, privilege, sales or excise tax levied
by any municipal or provincial or federal government, with respect
to the receipt of such rental, or upon or with respect to the
possession, leasing, operating, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any portion
thereof; (ii) any tax upon this transaction or any document to which
Tenant is a party, creating or transferring an interest or an estate
in the Premises; and (iii) all costs incurred by the Landlord
contesting or appealing the Real Estate Taxes (including, without
limitation, legal, appraisal and other professional fees and costs
and administration and overhead costs). "Real Estate Taxes" shall
not include the Landlord's income, franchise, inheritance or estate
taxes. (e) "Tenant's Pro-rata Share" shall be a fraction, equal to
the Rentable Area of the Premises, divided by the total Rentable
Area of the Building.
(20) cost of each "major expenditure" (as hereinafter defined) which may
be expensed in the year incurred, or at the Landlord's option
amortized over the period of the Landlord's reasonable estimate of
the economic life of the item acquired, but not to exceed fifteen
years, using equal monthly installments of principal and interest at
the prime commercial loan rate charged to borrowers having the
highest credit rating from time to time by the Landlord's principal
bank, per annum compounded semi-annually, where "major expenditure"
shall mean any single expenditure incurred for replacement of
machinery, equipment, building elements, repairs, systems or
facilities in connection with the property or Building which
expenditure is more than 10% of the total Occupancy Costs for the
previous Fiscal Year, or for modifications or additions to the
Building or property if one of the principal purposes of such
modification or addition was to reduce energy consumption or
Operating Expenses or was required by government regulation;
21) depreciation for all structures, improvements, furnishings,
fixtures, equipment, machinery, facilities, systems, and property
which is part of or installed in or used in connection with the
Building which, by their nature require periodic or substantial
repair or replacement, or which are installed or used primarily to
reduce the cost or consumption of other items included in Operating
Expenses (whether or not such costs in respect of the same are, in
fact, reduced); and
(22) the cost of management fees paid to managing agents or Landlord's
charges in lieu thereof if the Landlord manages the property;
There shall be excluded from Operating Expenses the following:
i. interest on Landlord's debt and capital retirement of debt;
ii. such Operating Expenses as are recovered from proceeds of insurance
paid to the Landlord;
iii. costs as determined by the Landlord of repairing structural defects
in the Building;
iv. costs as determined by the Landlord of acquiring new tenants to the
property; and
v. any amounts directly charged by the Landlord to any tenant or
tenants.
(d) "Real Estate Taxes" means: (a) any form of assessment (including any
"special" assessment), property tax, license fee, license tax,
business license fee, business license tax, commercial rental tax,
levy, charge, penalty or tax, imposed by any authority having the
direct power to tax, including any city, county, provincial or
federal government, or any school, agricultural, lighting, water
drainage or other improvement or special district thereof, against
the Premises or the Building or the Lands or any legal or equitable
interest of Landlord therein; (b) any tax on Landlord's right to
rent the Premises or against Landlord's business of leasing the
Premises; (c) any assessment, tax, fee, levy or charge in
substitution, partially or totally, of or in addition to any
assessment, tax, fee, levy or charge previously included within the
definition of Real Estate Taxes which may be imposed by governmental
agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services
provided to property owners or occupants; (d) all business taxes and
other taxes, if any, from time to time payable by Landlord with
respect to the Common Areas; (e) Capital Tax as it relates to or is
attributed by Landlord to the Building; (0 any business transfer
tax; (g) any goods and services tax and other taxes payable pursuant
to Article 8.3 of this Lease; (h) and all taxes or business taxes,
if any, not recovered, or which in Landlord's opinion are not
recoverable, from tenants of the Building. It is the intention of
Landlord and Tenant that all new assessments, taxes, fees, levies
and charges be included within the definition of Real Estate Taxes
for purposes of this Lease. The following shall also be included
within the definition of Real Estate Taxes for purposes of this
Lease; provided, however, that Tenant shall pay Landlord the entire
amount thereof (i) any tax allocable to or measured by the area of
the Premises or the rental payable hereunder, including without
limitation, any gross income, privilege, sales or excise tax levied
by any municipal or provincial or federal government, with respect
to the receipt of such rental, or upon or with respect to the
possession, leasing, operating, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any portion
thereof; (ii) any tax upon this transaction or any document to which
Tenant is a party, creating or transferring an interest or an estate
in the Premises; and (iii) all costs incurred by the Landlord
contesting or appealing the Real Estate Taxes (including, without
limitation, legal, appraisal and other professional fees and costs
and administration and overhead costs). "Real Estate Taxes" shall
not include the Landlord's income, franchise, inheritance or estate
taxes.
(e) "Tenant's Pro-rata Share" shall be a fraction, equal to the Rentable
Area of the Premises, divided by the total Rentable Area of the
Building.
SCHEDULE D - RULES AND REGULATIONS
1. Security: Landlord may from time to time adopt appropriate systems
and procedures for the security or safety of the Building, any
persons occupying, using or entering the same, or any equipment,
finishings or contents thereof, and Tenant shall comply with
Landlord's reasonable requirements relative thereto.
2. Locks: Landlord may from time to time install and change locking
mechanisms on entrances to the Building, Common Areas thereof, and
the Premises, and (unless 24 hour security is provided by the
Building) shall provide to Tenant a reasonable number of keys and
replacements therefore to meet the bona fide requirements of Tenant.
In these rules "keys" include any device serving the same purpose.
Tenant shall not add to or change existing locking mechanisms on any
door in or to the Premises without Landlord's prior written consent.
If with Landlord's consent, Tenant installs lock(s) incompatible
with the Building master locking system:
(a) Landlord, without abatement of Rent, shall be relieved of any
obligation under this Lease to provide any service to the
affected areas which requires access thereto;
(b) Tenant shall indemnify Landlord against any expenses as a
result of a forced entry thereto which may be required in an
emergency; and
(c) Tenant shall at the end of the Term and at Landlord's request
remove such lock(s) at Tenant's expense.
3. Return of Keys: At the end of the Term, Tenant shall promptly return
to Landlord all keys for the Building and Premises which are in
possession of Tenant.
4. Windows: Tenant shall observe Landlord's rules with respect to
maintaining uniform drapes and Venetian blinds at all windows in the
Premises so that the Building presents a uniform exterior
appearance, and shall not install any window shades, screen, drapes,
covers or other materials on or at any window in the Premises
without Landlord's written consent. Tenant shall ensure that all
drapes and Venetian blinds are closed on all windows in the Premises
while they are exposed to direct rays of the sun.
5. Repair. Maintenance. Alterations and Improvements: Tenant shall
carry out Tenant's repair, maintenance, alterations and improvements
in the Premises only during time agreed to in advance by Landlord
and in a manner which will not interfere with the rights of other
tenants in the Building.
6. Water Fixtures: Tenant shall not use water fixtures for any purpose
for which they are not intended, nor shall water be wasted by
tampering with such fixtures. Any cost or damage resulting from such
misuse by Tenant shall be paid for by Tenant.
7. Personal Use of Premises: The Premises shall not be used or
permitted to be used for residential, lodging or sleeping purposes
or for the storage of personal effects or property not required for
business purposes.
8. Heavy Articles: Tenant shall not place in or move about the Premises
without Landlord's prior written consent any safe or other heavy
article which in Landlord's reasonable opinion may damage the
Building, and Landlord may designate the location of any heavy
articles in the Premises.
9. Carpet Pads: In those portions of the Premises where carpet has been
provided directly or indirectly by Landlord, Tenant shall at its own
expense install and maintain pads to protect the carpet under all
furniture having casters other than carpet casters.
10. Bicycles. Animals: Tenant shall not bring any animals or birds into
the Building, and shall not permit bicycles or other vehicles inside
or on the sidewalks outside the Building except in areas designated
from time to time by Landlord for such purposes.
11. Deliveries: Tenant shall ensure that deliveries of materials and
supplies to the Premises are made through such entrances, elevators
and corridors and at such times as may from time to time be
designated by Landlord, and shall promptly pay or cause to be paid
to Landlord the cost of repairing any damage in the Building caused
by any person making such deliveries.
12. Furniture and Equipment: Tenant shall ensure that furniture and
equipment being moved into or out of the Premises is moved through
such entrances, elevators and corridors and at such times as may
from time to time be designated by Landlord, and by movers or a
moving company approved by Landlord, and shall promptly pay or cause
to be paid to Landlord the cost of repairing any damage in the
Building caused thereby, and the cost of building staff regarding
special moving requirements of the Tenant. 13. Solicitations:
Landlord reserves the right to restrict or prohibit canvassing,
soliciting or peddling in the Building.
14. Food and Beverages: Only persons approved from time to time by
Landlord may prepare, solicit orders for, sell, serve or distribute
foods or beverages in the Building, or use the elevators, corridors
or Common Areas for any such purpose. Except with Landlord's prior
written consent and in accordance with arrangements approved by
Landlord, Tenant shall not permit on the Premises the use of
equipment for dispensing food or beverages or for the preparation,
solicitation of orders for, sale, serving or distribution of food or
beverages.
15. Refuse: Tenant shall place all refuse in proper receptacles provided
by Tenant at its, expense in the Premises or in receptacles (if any)
provided by Landlord for the Building, and shall keep sidewalks and
driveways outside the Building, and lobbies, corridors, stairwell,
ducts and shafts of the Building free of all refuse.
16. Obstructions: Tenant shall not obstruct or place anything in or on
the sidewalks or driveways outside the Building or in the lobbies,
corridors, stairwells or other Common Areas of the Building, or use
such locations for any purpose except access to and exit from the
Premises without Landlord's prior written consent. Landlord may
remove at Tenant's expense any such obstruction or thing
(unauthorized by Landlord) without notice or obligation to Tenant.
17. Dangerous or Immoral Activities: Tenant shall not make any use of
the Premises which involves the danger of injury to any person, nor
shall the same be used for any immoral purpose.
18. Proper Conduct: Tenant shall not conduct itself in any manner which
is inconsistent with the character of the Building as a first
quality Building or which will impair the comfort and convenience of
other tenants in the Building.
19. Employees. Agents and Invitees: In these Rules and Regulations,
Tenant includes the employees, agents, invitees and licensees of
Tenant and others permitted by Tenant to use or occupy the Premises.
20. Signs: Tenant shall not paint, display, inscribe, place or affix any
sign, picture, advertisement, notice, lettering or direction on any
part of the exterior of the Premises or so as to be visible from the
exterior of the Premises without the Landlord's written consent.
Tenant shall adhere to the building standard identification signs
for tenants to be placed on the outside of the doors leading into
the Premises of tenants of multiple tenancy floors.
SCHEDULE E - TENANT IMPROVEMENTS
1. Definition of Leasehold Improvements:
For purposes of the Lease, the term "Leasehold Improvements" includes,
without limitations, 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 Premises, in
the 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 and hardware however affixed, and whether or not
movable, all mechanical electrical and utility installations and all
carpeting and drapes, with the exception only of furniture and equipment
not of the nature of the fixtures.
2. Installation of Improvements and Fixtures:
(a) All work including changes to the structure or the systems employed
in the Building necessitated by the Tenant's work shall be first
approved by the Landlord.
(b) The preparation of all design and working drawings and
specifications relating to completion of the Premises for occupation
by the Tenant and the calling of Tenders and letting of contracts
relating to the Tenant's work and the supervision and completion of
the Tenant's work and payment therefore shall be the responsibility
of the Tenant.
(c) Approvals must be obtained by the Tenant for its work from the
municipal building department and all authorities having
jurisdiction and the Tenant must submit evidence of these approvals
to the Landlord before commencing work. The Tenant shall be
responsible for payment of all fees and charges incurred in
obtaining said approvals to the Landlord before commencing work and
for obtaining an occupancy permit prior to opening.
(d) All the Tenant's Work required by the Tenant to complete the
Premises for occupancy shall be carried out with good workmanship
and shall not be in contravention of the codes or regulations of the
municipality or any other authority having jurisdiction.
(e) Before commencing any work, the Tenant shall furnish the Landlord
with written proof of all contractors' comprehensive general
liability insurance for limits not less than those required by the
Lease. The Landlord shall be named as an additional named insured in
the Tenant's insurance policy.
(f) Before commencing any work, the Tenant shall furnish the Landlord
with written proof of all contractors' Workers' Compensation Board
Clearance.
(g) The Tenant shall at all times keep the premises and all other areas
clear of waste materials and refuse caused by itself, its suppliers,
contractors or by their work.
(h) The Landlord may require the Tenant to clean up on a daily basis and
be entitled to clean up at the Tenant's expense if the Tenant shall
not comply with the Landlord's reasonable requirements.
(i) All Tenant work including the delivery, storage and removal of
materials shall be subject to the reasonable supervision of the
Landlord and 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.
(j) In no event shall the Tenant alter or interfere with window
coverings (if any) or other light control device (if any) installed
in the Building.
(k) The Landlord may require that the Landlord's contractors and
sub-contractors be engaged for any mechanical or electrical work.
(1) No locks shall be installed on the entrance doors or in any doors in
the Premises that are not keyed to the Building master key system.
(m) The Landlord shall not in any way be responsible for or liable with
regard to any work carried out or any materials left or installed in
the Premises and shall be reimbursed for any additional cost and
expenses caused which may be occasioned to it by reason thereof and
for any delays which may be directly or indirectly caused by the
Tenant or its contractor. (n) Any damages caused by the Tenant,
their contractors or subtrades employed on the work to any of the
structure or the systems employed in the Building or to any property
of the Landlord or of other Tenants, shall be repaired by the
Landlord's contractor to the satisfaction of the Landlord and the
Landlord may recover the costs incurred from the Tenant.
(o) If the Tenant's contractor neglects to carry out the work properly
or fails to perform any work required by or in accordance with the
approved plans and specifications, the Landlord, after 30 days
written notice to the Tenant and the Tenant's contractor may,
without prejudice to any right or remedy, complete the work, remedy
the default or make good any deficiencies and recover the costs
incurred from the Tenant.
(p) The Tenant shall maintain and keep on the Premises at all times
during construction and the Term of the Lease, a suitable portable
fire extinguisher for Class A, B and C fires.
(q) The Tenant shall perform its work expeditiously and efficiently and
shall complete the same within the period stipulated in the Offer to
Lease or any other agreement between the parties subject only to
circumstances over which the Tenant has no control and which by the
exercise of due diligence could not have been avoided.
(r) On completion of the Tenant's work, the Tenant shall forthwith
furnish to the Landlord a statutory declaration stating that there
are no builders' Hens outstanding against the demised premises on
account of the Tenant's work and that all accounts for work, service
and materials have been paid in full with respect to all of the
Tenant's work, together with evidence in writing satisfactory to the
Landlord that all assessments under the Workers Compensation Act
have been paid.
(s) The Tenant shall not suffer or permit any Builders' or other lien
for work, labour, services or materials to be filed against or
attached to the entire premises or any part thereof. The Tenant
agrees that if any builders' lien is filed, as aforesaid as a result
of his occupancy or possession, the Tenant shall do all within its
power to have the lien removed at the earliest possible date. This
includes, but shall not be limited to, payment of monies into court
and/or any other remedy which would result in the lien being removed
from the titles for the entire premises forthwith.
(t) No work shall be commenced by the Tenant until all drawings and
specifications have been approved in writing by the Landlord and
until the Tenant has secured approval and permits from all
authorities having jurisdiction and submitted proof of same to the
Landlord. The Tenant shall complete all work in a good and
workmanlike manner, and in strict accordance with the drawings and
specifications approved by the Landlord. The Tenant agrees to
indemnify and save the Landlord harmless from any and all loss,
damage or injury which may result from the Tenant's activities in
the entire premises in completing the demised premises as aforesaid.
The Tenant acknowledges and agrees that there may be inconvenience
associated with completing either the Landlord's Work or the
Tenant's Work.
(u) If the Tenant does not comply with the provisions of the Lease or
any other agreement relative to the construction or occupation of
the Premises, including this Schedule, the Landlord, in addition to
and not in lieu or by other rights or remedies, shall have any or
all of the following rights in its discretion:
(i) to declare all fees, charges and other sums payable by the
Tenant to the Landlord pursuant to this Schedule to be rent
and to be collectable as rent under the provisions of this
Lease; or
(ii) to declare and treat the Tenant's non-compliance as a default
or breach of covenant under this Lease and exercise any right
available under the provisions of this Lease, including the
right of termination.
3. Removal of Improvements and Fixtures:
All Leasehold Improvements in or upon the Premises shall immediately upon
their placement be and become the Landlord's property without compensation
therefore to the Tenant. Except to the extent otherwise expressly agreed
by the Landlord in writing, no Leasehold Improvements, furniture or
equipment shall be removed by the Tenant from the 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 Premises as the
Landlord shall require to be removed; and
(b) the Tenant may, at the time 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 therefore 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 Premises 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 remedies 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 the debts, liabilities and obligations of the Tenant and the
Tenant shall be liable to the Landlord for any expense incurred by the
Landlord.
4. For the purpose of this Lease and except as specified in the Lease:
(a) the term "Landlord's Work" shall mean finishing the Premises in a
mariner and in colours standard to the Building which, without
limiting the generality of the foregoing, will include those items
set out in Schedule F attached hereto.'
(b) the term "Tenant's Work" shall mean all work other than the
Landlord's Work required to be done to complete the Premises for
occupancy by the Tenant. The Tenant's Work shall not be undertaken
or commenced by the Tenant until:
(i) all permits necessary for the installation of the Tenant's
improvements and approval have been obtained by the Tenant
from applicable municipal and other government departments,
prior to the commencement of the installation by Tenant, and
copies provided to the Landlord;
(ii) a certificate of insurance has been provided to the Landlord
showing that a valid insurance policy is in place naming the
Landlord as co-insured for minimum general liability no less
than 2 million dollars; and
(iii) proper documentation has been provided by the Tenant to the
Landlord verifying that provisions have been made by the
Tenant for payment in full of all costs of the Tenant's Work.
(c) All improvements to the Premises shall conform to the quality
standards of the Building. The Tenant shall use an architect to
design and prepare working drawings and specifications of the
Tenant's Work and shall submit them for the Landlord's prior written
approval.
SCHEDULE F - LANDLORD'S WORK AND TENANT'S WORK
Only those items enumerated below as Landlord's Work ("Landlord's Work") will be
provided and installed by the Landlord in the Premises on a "once only" basis at
the Landlord's expense in accordance with the Landlord's choice of materials.
All other work required for the Premises, including those items enumerated as
Tenant's Work will be provided and installed by the Tenant, at the Tenant's sole
cost and expense. Excepting the items shown as Landlord's Work, it is hereby
agreed that the Premises are leased on an "as is, where is" basis and there are
no representations or warranties concerning the Premises or the Building except
as contained herein.
LANDLORD'S WORK
NONE
TENANT'S WORK
1. All improvements to Premises in excess of Landlord's Work including all
further electrical and mechanical requirements.
2. Any changes desired by the Tenant to the Landlord's Work are subject to
the Landlord's approval and shall be made at the Tenant's expense.
3. All permits and approvals necessary for the installation of the Tenant's
improvements shall be obtained by the Tenant from applicable municipal and
other government departments, prior to the commencement of the
installations by the Tenant.
