1
EXHIBIT 10.5
STANDARD FORM - NET LEASE
BETWEEN:
NOVO ESPLANADE LIMITED
Landlord
AND:
PIVOTAL SOFTWARE INC.
Tenant
PREMISES: Xxxxx 000 - 000 Xxxx Xxxxxxxxx
------------------------
North Vancouver, B.C.
2
TABLE OF CONTENTS
ARTICLE 1..............................................................................1
DEFINITIONS............................................................................1
1.01 Definitions...................................................................1
ARTICLE 2..............................................................................6
PREMISES.............................................................................6
2.01 Premises......................................................................6
ARTICLE 3 .............................................................................6
TERM.................................................................................6
3.01 Term..........................................................................6
3.02 Postponement..................................................................6
ARTICLE 4..............................................................................7
RENT.................................................................................7
4.01 Rent..........................................................................7
4.02 Payment of Rent...............................................................7
4.05 Rent for Irregular Periods....................................................9
4.06 Waiver of Offset..............................................................9
ARTICLE 5..............................................................................9
TENANT'S COVENANTS...................................................................9
5.00 Tenant's Covenants............................................................9
5.01 Rent..........................................................................9
5.02 Permitted Use.................................................................9
5.03 Waste and Nuisance............................................................9
5.04 Insurance Risks...............................................................9
5.05 Condition....................................................................10
5.06 By-Laws......................................................................10
5.07 Fire Exit Doors..............................................................10
5.08 Rules and Regulations........................................................10
5.09 Overholding..................................................................10
5.10 Signs and Directory..........................................................10
5.11 Inspection and Access........................................................10
5.12 Showing Leased Premises......................................................11
ARTICLE 6.............................................................................11
LANDLORD'S COVENANTS................................................................11
6.00 Landlord's Covenants.........................................................11
6.01 Quiet Enjoyment..............................................................11
6.02 Interior Climate Control.....................................................11
6.03 Elevators....................................................................11
6.04 Entrances, Lobbies, Etc......................................................12
6.05 Washrooms....................................................................12
6.06 Janitor Service..............................................................12
6.07 Maintenance of Common Areas..................................................12
ARTICLE 7.............................................................................12
REPAIR AND DAMAGE AND DESTRUCTION...................................................12
7.01 Landlord's Repairs...........................................................12
7.02 Tenants Repairs..............................................................13
7.03 Abatement and Termination....................................................13
ARTICLE 8.............................................................................14
3
TAXES AND OPERATING COSTS...............................................................14
8.01 Landlord's Tax Obligations.....................................................14
8.02 Tenant's Tax Obligations.......................................................14
8.03 Tenant's Tax Cost..............................................................14
8.04 Postponement, Etc. of Taxes....................................................15
8.05 Receipts, Etc..................................................................15
8.06 Allocation of Taxes............................................................15
8.07 Operating Cost.................................................................15
8.08 Allocation of Operating Cost...................................................16
8.09 Allocation to Particular Tenant................................................16
ARTICLE 9...............................................................................16
UTILITIES AND ADDITIONAL SERVICES.....................................................16
9.01 Water and Telephone............................................................16
9.02 Additional Services............................................................16
9.03 Extra Operating Costs..........................................................17
9.04 Energy Conservation............................................................17
ARTICLE 10..............................................................................18
LICENSES, ASSIGNMENTS AND SUBLETTINGS.................................................18
10.01 Licenses, Etc.................................................................18
10.02 Assignment and Subletting.....................................................18
10.03 Conditions of Consent.........................................................18
10.04 Change in Control of Tenant...................................................19
ARTICLE 11..............................................................................19
FIXTURES AND IMPROVEMENTS.............................................................19
11.01 Installation of Fixtures and Improvements.....................................19
11.02 Liens and Encumbrances on Fixtures and Improvements...........................19
11.03 Removal of Fixtures and Improvements..........................................20
ARTICLE 12 .............................................................................20
INSURANCE AND LIABILITY ..............................................................20
12.01 Landlord's Insurance .........................................................20
12.02 Tenant's Insurance ...........................................................20
12.03 Limitation of Landlord's Liability ...........................................21
12.04 Limitation of Tenant's Liability .............................................21
12.05 Indemnity of Landlord ........................................................22
ARTICLE 13 .............................................................................22
SUBORDINATION, ATTORNMENT, REGISTRATION AND CERTIFICATES..............................22
13.00 Tenant's Covenants............................................................22
13.01 Sale or Financing of Building.................................................22
13.02 Subordination and Attornment..................................................22
13.03 Registration..................................................................23
13.04 Certificates..................................................................23
13.05 Assignment by Landlord........................................................23
ARTICLE 14..............................................................................23
OCCURRENCE OF DEFAULT.................................................................23
14.01 Unavoidable Delay.............................................................23
14.02 No Admission..................................................................24
14.03 Part Payment..................................................................24
ARTICLE 15..............................................................................24
REMEDIES OR LANDLORD AND TENANT'S DEFAULT.............................................24
15.01 Remedying by Landlord, Non-Payment and Interest...............................24
15.02 Remedies Cumulative...........................................................24
15.03 Right of Re-Entry on Default or Termination...................................24
15.04 Termination and Re-Entry......................................................25
15.05 Payment of Rent, Etc. on Termination..........................................25
15.06 Waiver of Distress............................................................25
4
15.07 Re-Letting, Etc...............................................................25
ARTICLE 16..............................................................................26
EVENTS TERMINATING LEASE..............................................................26
16.01 Cancellation of Insurance.....................................................26
16.02 Prohibited Occupancy, Bankruptcy, Etc.........................................26
ARTICLE 17..............................................................................26
MISCELLANEOUS.........................................................................26
17.01 Notices.......................................................................26
17.02 Extraneous Agreements.........................................................27
17.03 Time of Essence...............................................................27
17.04 Area Determination............................................................27
17.05 Successors and Assigns........................................................27
17.06 Frustration...................................................................27
17.07 Waiver........................................................................27
17.08 Governing Law.................................................................27
17.09 Net Lease.....................................................................28
17.10 Captions......................................................................28
17.11 Acceptance....................................................................28
ARTICLE 18..............................................................................28
SCHEDULES.............................................................................28
18.01 Schedules.....................................................................28
SCHEDULE "A" TO LEASE.................................................................30
SCHEDULE "B" TO LEASE.................................................................31
1. Legal Description of Esplanade Centre............................................31
2. Description of Leased Premises...................................................31
SCHEDULE "C" TO LEASE.................................................................32
RULES AND REGULATIONS...............................................................32
SCHEDULE "D" TO LEASE.................................................................34
OPTION TO RENEW.....................................................................34
SCHEDULE "E" TO LEASE.................................................................36
SPECIAL PROVISIONS..................................................................36
Parking...........................................................................36
Option to Terminate...............................................................36
Right of First Refusal............................................................36
Free Rent.........................................................................36
5
THIS LEASE made the 18th day of September, 1997.
BETWEEN: NOVO ESPLANADE LIMITED, a body corporate duly authorized and licensed
to carry on business in the Province of British Columbia.
(hereinafter called the "Landlord")
OF THE FIRST PART
AND PIVOTAL SOFTWARE INC, a body corporate duly authorized and licensed to
carry on business in the Province of British Columbia having an office
at XXXXX 000 - 000 XXXX XXXXXXXXX, XXXXX XXXXXXXXX, X.X.
(hereinafter called the "Tenant")
OF THE SECOND PART
WITNESSETH THAT:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS
In this Lease the following expressions shall have the following meanings:
(a) "Additional Rent" means all sums of money to be paid by the Tenant
whether to the Landlord or otherwise pursuant to this Lease save
and except Annual Rent;
(b) "Additional Services" means the services and supervisions supplied
by the Landlord and referred to in section 9.02 or in any other
provision hereof as Additional Services, and any other services
which from time to time the Landlord supplies to the Tenant and
which are additional to other services which the Landlord has
agreed to supply pursuant to the provisions of this Lease and to
like provisions of other leases of space in the Building or may
elect to supply as included within the standard level of services
available to tenants in the Building generally and in addition to
those normally supplied, the provision of labour and supervision in
connection with the moving of any furniture or equipment of any
tenant and the making of any repairs or alterations for any tenant
and maintenance or other services not normally furnished to tenants
generally;
(c) "Annual Rent" means the annual rent reserved hereunder payable by
the Tenant as set forth in section 4.01(a);
(d) "Building" means that certain building and those certain areas and
improvements and amenities located on the Land and having the
municipal address of 000 Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxxx;
1
6
(e) "Capital Tax" means any tax or excise imposed upon the Landlord
which is measured by or based in whole or in part upon the capital
employed by the Landlord at and after the date of the substantial
completion of construction of the Building, computed as if the
amount of such tax or excise were that amount due if the Building
were the only real property of the Landlord and includes the amount
of any capital or place of business tax levied by any applicable
taxing authority against the Landlord with respect to the Building;
(f) "Commencement Date of the Term" means the date the Lease commences
as set forth in section 3.01;
(g) "Cost of Additional Services" shall mean in the case of Additional
Services provided by the Landlord a reasonable charge made therefor
by the Landlord which shall not exceed the cost of obtaining such
services from independent contractors and in the case of Additional
Services by independent contractors the Landlord's total cost of
providing Additional Services to the Tenant including the cost of
all labour (including salaries, wages and fringe benefits) and
materials and other direct expenses incurred, the cost of
supervision and other indirect expenses capable of being allocated
thereto (such allocation to be made upon a reasonable basis) and
all other out-of-pocket expenses made in connection therewith
including amounts paid to independent contractors, plus an
administration fee equal to 15% thereof;
(h) "Insured Damage" means that part of the damage occurring to any
portion of the Leased Premises for which the Landlord is
responsible of which the entire cost of repair is actually
recoverable by the Landlord under a policy of insurance in respect
of fire and other perils from time to time effected by the Landlord
or, if and to the extent that the Landlord has not insured and is
deemed to be a co-insurer or self-insurer pursuant to section
12.01, would have been recoverable had the Landlord effected
insurance in respect of perils and to amounts and on terms for
which it is deemed to be insured;
(i) "Land" means the parcels or tracts of land described in Schedule B;
(j) "Leased Premises" means, subject to section 2.02, that portion of
the second and third floors of the Building aggregating 8,627
square feet (801.44 square meters) of Rentable Area as shown
outlined in red on the plan attached as Schedule A hereto and
having the municipal address of Xxxxxx 000 & 000 - 000 Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxxx, X.X. The exterior face of the Building
and any space in the Leased Premises used for stairways or
passageways to other premises, stacks, shafts, pipes, conduits,
ducts or other building facilities, heating, electrical, plumbing,
air conditioning and other Building systems supplied by the
Landlord for use in common with other tenants are expressly
excluded from the Leased Premises;
(k) "Leasehold Improvements" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed in the Leased Premises with the exception of
trade fixtures and furniture and equipment not of the nature of
fixtures, but includes all partitions however fixed (including
moveable partitions) and includes all wall-to-wall carpeting with
the exception of such carpeting where laid over vinyl tile or other
finished floor and installed so as to be readily removable without
damage;
(l) "Market Rent for the Leased Premises" means the current market
rental value of premises similar to the Leased Premises including
similar leasehold improvements in buildings of similar age and
class in the geographic area in which the Building is located as
between persons dealing at arm's length;
2
7
(m) "Normal Business Hours" means the hours from 8:00 a.m. to 6:00 p.m.
Monday to Friday, inclusive, of each week, holidays excepted;
(n) "Office Portion of the Building" means that portion of the Building
designated from time to time by the Landlord for rental for office
purposes;
(o) "Operating Cost" means the total of all expenses, calculated in
accordance with generally accepted accounting principles, without
duplication, incurred in the complete maintenance and operation of
the Building and the Land, whether incurred by or on behalf of any
owner or owners of parts of or interests in the Building and the
Land with whom the Landlord may from time to time have agreements
for the pooling or sharing of costs or by or on behalf of tenants
of space in the Building with whom the Landlord may from time to
time have agreement whereby in respect of their premises such
tenants perform any cleaning, maintenance or other work or services
usually performed by the Landlord, and which expenses if directly
incurred by the Landlord would have been included in Operating
Cost. Operating Cost (without limiting the generality of the
foregoing) shall:
(i) include (but subject to certain deductions as hereinafter
provided) the cost of providing complete supervisory and all
maintenance services, the cost of operating elevators, the
cost of heating, cooling and ventilating all space including
both rentable and non-rentable areas, the cost of providing
hot and cold water, electricity (including lighting),
telephone and other utilities and services to both rentable
and non-rentable areas, the cost of cleaning, maintaining
and servicing in all respects all electric lighting fixtures
in the Building (including both rentable and non-rentable
areas) and the cost of replacement of electric light bulbs,
tubes, starters and ballasts (such to be within the
exclusive right of the Landlord), the cost of all repairs
and replacements including repairs and replacements of a
capital nature whether to the Building or the Land or any
part thereof, the cost of window cleaning and providing
security and supervision, the costs of all insurance for
liability or fire or other casualties (and if the Landlord
shall elect in whole or in part to self-insure, the amount
of reasonable contingency reserves not exceeding the amount
of premiums which would otherwise have been incurred in
respect of the risk undertaken), Capital Tax, accounting
costs incurred in connection with maintenance and operation
including computations required for the imposition of
charges to tenants and audit charges required to be incurred
for the conclusive determination of any costs hereunder, and
the reasonable rental value (having regard to the rentals
prevailing from time to time for similar space) of space
utilized by the Landlord in connection with the operation or
maintenance of the Building and the Land, the amount of all
salaries, wages and fringe benefits paid to employees
engaged in the maintenance or operation of the Building and
the Land, amounts paid to independent contractors for any
services in connection with such maintenance or operation,
the cost of direct supervision and of management and other
indirect expenses to the extent allocable to the maintenance
and operation of the Building and the Land, the cost to the
Landlord of capital improvements made for the general
benefit of tenants of the Building including improvements
intended to reduce Operating Cost, to increase safety and to
improve the maintenance and operation of the Land and
Building, the cost of any management fees and managing
agent's fees, interest (at the prime rate quoted by the
Landlord's bank at Toronto for loans to creditworthy and
substantial commercial customers) on the unamortized portion
of capital expenditures
3
8
made under this subparagraph, and all other expenses of
every nature incurred in connection with the maintenance and
depreciation of the Building and the Land;
(ii) exclude Taxes (other than Capital Tax), debt service,
depreciation (except depreciation of costs incurred for
repairing and replacing fixtures, equipment and facilities
servicing or comprising the Building (including the
heating, ventilating, air conditioning and climate control
systems servicing the Building) which by their nature
require periodic repair or replacement and are not charged
fully in the year in which they are incurred at rates
determined from time to time by the Landlord in accordance
with sound accounting principles), expenses properly
chargeable to capital account (except capital expenditures
that are made by the Landlord with the intention of reducing
Operating Cost, increasing safety or improving the
maintenance and operation of the Land and Building), costs
determined by the Landlord from time to time to be fairly
allocable to the correction of construction faults or
initial maladjustments in operating equipment, the Cost of
Additional Services for any tenant of the Building, and all
management cost not allocable to the actual maintenance and
operation of the Building (such as in connection with
leasing and rental advertising).
In computing Operating Cost there shall be credited as a deduction
the amounts of proceeds of insurance relating to Insured Damage and
other damage actually recovered by the Landlord (or if the Landlord
is deemed to self-insure, a corresponding application of reserves)
applicable to such damage, recovery of electricity and light bulb
and tube and ballast replacement, in each case to the extent that
the cost thereof was included therein. If there are unoccupied
premises in the Building, the Landlord may make an equitable
adjustment of the amount of Operating Cost by reason of the fact
that unoccupied premises occasion lower cost to the end that the
tenants of the occupied premises will bear the actual amount of the
Operating Cost attributable to their premises. Any report of the
Landlord's auditor or other licensed public accountant appointed by
the Landlord for the purpose shall be conclusive as to the amount
of Operating Cost for any period to which such report relates;
(p) "Operating Cost" in any fiscal period means an amount equal to the
aggregate of all Operating Cost for such fiscal period;
(q) "Rent" means and includes the Annual Rent, Additional Rent and all
other sums payable by the Tenant to the Landlord under this Lease;
(r) "Rentable Area" in the case of a whole floor of the Building shall
include all area within the outside walls and shall be computed by
measuring to the inside surface of the glass of the outer Building
walls without deduction for columns and projections necessary to
the Building, and shall include the Service Areas within the
exclusively serving the floor, but shall not include stairs and
elevator shafts supplied by the Landlord for use in common with
other tenants, and flues, stacks, pipe shafts or vertical ducts
within their enclosing walls;
(s) "Rentable Area" in the case of part of a floor of the Building
shall include all area occupied and shall be computed by measuring
from the inside surface of the glass of the outer Building walls to
the office side of corridors or other permanent partitions or to
the lease line separating the Leased Premises from any other area
of the Building or Service Areas where no wall or partition exists
and to the centre of partitions which separate the area occupied
form adjoining Rentable Areas without deduction for columns and
projections necessary to the Building or for any storefront or
doorway area recessed from the lease line and shall include a
portion of the
4
9
Service Areas within and exclusively serving only the floor, but
shall not include stairs and elevator shafts supplied by the
Landlord for use in common with other tenants, and flues, stacks,
pipe shafts and vertical ducts within their enclosing walls within
the area occupied; the portion of the Service Areas to be included
in the Rentable Area of the Leased Premises shall be equal to the
area of such Service Areas times a fraction, the numerator of which
is the area of the Leased Premises and the denominator of which is
the area of all leasable premises (including the Leased Premises)
on the floor, with such areas to be calculated in accordance with
this subsection without reference to Service Areas;
(t) "Rental Taxes" means any tax or duty imposed upon the Landlord
which is measured by or based in whole or in part directly upon the
Rent payable under this lease, whether existing at the date hereof
or hereinafter imposed by any governmental authority, including
without limitation value added tax, business transfer tax, retail
sales tax, federal sales tax, excise taxes or duties, or any tax
similar to any of the foregoing.
(u) "Retail Portion of the Building" means that portion of the Building
designated from time to time by the Landlord for rental for retail
purposes;
(v) "Service Areas" shall mean the area of corridors elevator lobbies,
service elevator lobbies, refuse area, washrooms, air-cooling
rooms, fan rooms, janitor's closets, telephone and electrical
closets and other closets on the floor serving the Leased Premises
and other premises on such floor should the floor be a multiple
tenancy floor;
(w) "Taxes" means all taxes, rates duties, levies and assessments
whatsoever, whether municipal, parliamentary or otherwise, levied,
imposed or assessed against the Building and the Land or upon the
Landlord in respect thereof or from time to time levied, imposed or
assessed in the future in lieu thereof, including those levied,
imposed or assessed for education, schools and local improvements,
and including all costs and expenses (including legal and other
professional fees and interest and penalties on deferred payments)
incurred by the Landlord in good faith in contesting, resisting or
appealing any taxes, rates, duties, levies or assessments, but
excluding taxes and license fees in respect of any business carried
on by tenants and occupants of the Building (including the
Landlord) and income or profits taxes upon the income of the
Landlord to the extent such taxes are not levied in lieu of taxes,
rates, duties, levies and assessments against the Building or the
Land or upon the Landlord in respect thereof and shall also include
any and all taxes which may in future be levied in lieu of taxes as
hereinbefore defined;
(x) "Tax Cost" for any calendar year means an amount equal to the
aggregate, without duplication, of all Taxes for such calendar
year;
(y) "Tenant's Particular Share" means the fraction, the numerator of
which is the Rentable Area of the Leased Premises and the
denominator of which is the Rentable Area of the portion of the
Building (i.e. Office Portion of the Building or Retail Portion of
the Building) in which the Leased Premises are located;
(z) "Tenant's Share" means the fraction, the numerator of which is the
Rentable Area of the Leased Premises and the denominator of which
is the Total Rentable Area;
(aa) "Term" means the term of this Lease set forth in section 3.01 and
any renewal or extension thereof and any period of permitted
overholding;
5
10
(bb) "Total Rentable Area" shall mean the total Rentable Area of the
Building, whether rented or not, calculated as if the Building were
entirely occupied by tenants renting whole floors. The lobby and
entrances on the ground floor and subservice floors used in common
by tenants and areas rented or to be rented for automobile parking
or for storage shall be excluded from the foregoing calculations.
The calculation of the Total Rentable Area, whether rented or not,
shall be adjusted from time to time to give effect to any change.
ARTICLE 2
PREMISES
2.01 PREMISES
In consideration of the rents, covenants and agreements hereinafter reserved and
contained on the part of the Tenant to be paid, observed and performed, the
Landlord hereby demises and leases the Leased Premises to the Tenant.
ARTICLE 3
TERM
3.01 TERM
To have and to hold the Leased Premises for the term of five (5) years,
commencing on the 1st day of October, 1997, and to be fully completed and ended
on the 30th day of September, 2002.
3.02 POSTPONEMENT
If the Leased Premises are not ready for occupancy on the Commencement Date of
the Term, then the Tenant shall take possession of the Leased Premises as soon
as the same are ready for occupancy as determined by the Landlord or his
architect, and this Lease shall not be void or voidable nor shall the Landlord
be liable for any loss or damage resulting from the delay in the Tenant's
obtaining possession, and in such event the Term of the Lease shall commence on
the Commencement Date of the Term but Rent shall not commence until the Leased
Premises are ready for occupancy.
6
11
ARTICLE 4
RENT
4.01 RENT
YIELDING AND PAYING THEREFOR unto the Landlord, at the office of the Landlord's
building manager, or at such other place as the Landlord may direct in writing,
during the Term in lawful money of Canada without any setoff, compensation or
deduction whatsoever on the days and at the times hereinafter specified, Rent
which shall include the aggregate of the sums specified in clauses (a) and (b)
below:
Annual Rent
(a) SUBJECT TO THE RECEIPT OF ANY FREE RENT PURSUANT TO SCHEDULE "E",
the Annual Rent of ONE HUNDRED AND TWENTY THOUSAND SEVEN HUNDRED
AND SEVENTY-EIGHT DOLLARS ($120,778.00) per annum payable in equal
consecutive monthly instalments of TEN THOUSAND AND SIXTY-FOUR
DOLLARS AND EIGHTY-THREE CENTS (10,064.83) in advance of the first
day of each and every month during years ONE to FIVE of the Term;
and
Additional Rent
(b) TOGETHER WITH the aggregate of the following:
(i) Rental Taxes, if any;
(ii) the Tenant's Share of Tax Cost; and
(iii) The Tenant's Particular Share of Operating Cost.
4.02 PAYMENT OF RENT
The Rent provided for in this Article 4 shall be paid by the Tenant as follows:
(a) The Annual Rent shall be paid in equal consecutive monthly
instalments in advance of the first day of each and every month
during the Term. The first monthly instalment of the Annual Rent
shall be paid by the Tenant on the Commencement Date of the Term.
Where the Commencement Date of the Term is the first day of a
month, such instalment shall be in respect of such month; where the
Commencement Date of the Term is not the first day of a calendar
month, the Annual Rent for the period from the Commencement Date of
the Term to the first day of the next ensuing calendar month shall
be pro-rated on a per diem basis and paid on the first day of such
month and the instalment of the Annual Rent paid upon the
Commencement Date of the Term shall be in respect of the Annual
Rent for the first full calendar month of the Term; thereafter in
either case subsequent monthly instalments shall each be in advance
on the first day of each ensuing calendar month during the Term.
Additional Rent Payments
(b) The amount of Additional Rent pursuant to section 4.01 (b) which
the Tenant is to pay shall be estimated by the Landlord for such
period as the Landlord may determine. The Tenant agrees to pay to
the Landlord such amount in monthly instalments, in advance during
such period on the dates and at the times for payment of the Annual
Rent provided for in this Lease. As soon as
7
12
reasonable possible after the end of the period for which such
estimated payments have been made, the Tenant shall be advised of
the actual amount required to be paid as Additional Rent pursuant
to section 4.01(b) and if necessary an adjustment shall thereupon
be made between the parties.
Basis of Determining Rent
(c) The Tenant acknowledges that the Annual Rent is calculated on the
basis of the Rentable Area of the Leased Premises being 8,627
square feet at a rate of $14.00 for each square foot (801.44 square
meters at a rate of $150.64 for each square meter) of Rentable
Area. The Tenant agrees that the Landlord may adjust the Annual
Rent in the event that the Rentable Area of the Leased Premises is
found to be different than the Rentable Area stated above.
8
13
4.05 RENT FOR IRREGULAR PERIODS
All Rent reserved herein shall be deemed to accrue from day to day, and if for
any reason it shall become necessary to calculate Rent for irregular periods of
less than one year an appropriate pro-rata adjustment shall be made on a daily
basis in order to compute Rent for such irregular period.
4.06 WAIVER OF OFFSET
The Tenant hereby waives and renounces any and all existing and future claims,
offsets and compensation against any Rent and agrees to pay such Rent regardless
of any claim, offset or compensation which may be asserted by the Tenant or on
its behalf.
ARTICLE 5
TENANT'S COVENANTS
5.00 TENANT'S COVENANTS
The Tenant covenants with the Landlord as follows:
5.01 RENT
To pay the Annual Rent and Additional Rent on the days and in the manner
provided herein.
5.02 PERMITTED USE
To use the Leased Premises only for the purpose of an office for the conduct of
the Tenant's business of general commercial purposes and not to use or permit to
be used the Leased Premises or any part thereof for any other purpose or
business.
5.03 WASTE AND NUISANCE
Not to commit or permit any waste or injury to the Leased Premises including the
Leasehold Improvements and trade fixtures therein, any overloading of the floors
thereof, any nuisance therein or any use or manner of use causing annoyance to
other tenants and occupants of the Building.
5.04 INSURANCE RISKS
Not to do, omit to do or permit to be done or omit to be done upon the Leased
Premises anything which would cause the Landlord's cost of insurance to be
increased (and, without waiving the foregoing prohibition, the Landlord may
demand and the Tenant shall pay to the Landlord upon demand the amount of such
increase of cost caused by anything so done or omitted to be done) or which
shall cause any policy of insurance to be subject to cancellation.
9
14
5.05 CONDITION
Not to permit the Leased Premises to become untidy, unsightly or hazardous or
permit unreasonable quantities of waste or refuse to accumulate therein.
5.06 BY-LAWS
To comply at its own expense with all municipal, federal, provincial, sanitary,
fire and safety laws, by-laws, regulations and requirements pertaining to the
operation and use of the Leased Premises, the condition of the Leasehold
Improvements, trade fixtures, furniture and equipment installed therein and the
making by the Tenant of any repairs, changes or improvements therein.
5.07 FIRE EXIT DOORS
To permit the installation by the Landlord at the cost of the Tenant of any
door in any wall of the Leased Premises necessary to comply with the
requirements of any statute, law, by-law, ordinance, order or regulation
referred to in section 5.06, and to permit ingress and egress to and from the
Leased Premises by the Landlord or by other tenants of the Landlord or by their
respective employees, servants, workmen and invitees, by use of such doors in
case of fire or emergency.
5.08 RULES AND REGULATIONS
To observe, and to cause its employees, invitees and others over whom the Tenant
can reasonably be expected to exercise control to observe the Rules and
Regulations attached as Schedule "C" hereto, and such further and other
reasonable rules and regulations and amendments and changes therein as may
hereafter be made by the Landlord of which notice in writing shall be given to
the Tenant and all such rules and regulations shall be deemed to be incorporated
into and form part of this Lease.
5.09 OVERHOLDING
That if the Tenant shall continue to occupy the Leased Premises after the
expiration of this Lease without any further written agreement and without
objection by the Landlord, the Tenant shall be a monthly tenant at a monthly
rent equal to 150% of the monthly rent payable by the Tenant as set forth in
Article 4 hereof during the last month of the Term and (except as to length of
tenancy) on and subject to the provisions and conditions herein set out. NOT
WITHSTANDING THE FOREGOING, IF THE LANDLORD AND THE TENANT ARE IN ARBITRATION
PURSUANT TO SCHEDULE "D" HERETO, THE MONTHLY RENT PAYABLE BY THE TENANT DURING
SUCH PERIOD SHALL BE THE SAME AS THE MONTHLY RENT PAYABLE IN THE LAST MONTH OF
THE TERM UNTIL THE NEW RENTAL VALUE IS DETERMINED PURSUANT TO THE ARBITRATION.
5.10 SIGNS AND DIRECTORY
Not to paint, display, inscribe, place or affix any sign, symbol, notice or
lettering of any kind anywhere outside the Leased Premises (whether on the
outside or inside of the Building) or within the Leased Premises so as to be
visible from the outside of the Leased Premises, with the exception only of a
building standard identification sign at or near the entrance of the Leased
Premises and a directory listing in the main lobby of the Building, in each case
containing only the name of the Tenant, and to be subject to the approval of the
Landlord as to design, size and location. Such identification sign and directory
listing shall be installed at the expense of the Tenant, and the Landlord
reserves the right to install them as an Additional Service.
5.11 INSPECTION AND ACCESS
To permit the Landlord at any time and from time to time to enter and to have
its authorized agents, employees and contractors enter the Leased Premises for
the purpose of inspection, window cleaning, maintenance, making repairs,
alterations or improvements to the Leased Premises or the Building, or to have
access to utilities and services (including any underfloor header ducts and
access panels which the
10
15
Tenant agrees not to obstruct) or to determine the electric light and power
consumption by the Tenant in the Leased Premises and the Tenant shall provide
free and unimpeded access for the purpose, and shall not be entitled to
compensation for any inconvenience, nuisance or discomfort caused thereby, but
the Landlord in exercising its rights hereunder shall proceed to the extent
reasonably possible so as to minimize interference with the Tenant's use and
enjoyment of the Leased Premises.
5.12 SHOWING LEASED PREMISES
To permit the Landlord and its authorized agents and employees to show the
Leased Premises to prospective tenants UPON PROVIDING AT LEAST TWENTY-FOUR (24)
HOURS NOTICE TO THE TENANT AND during the Normal Business Hours of the last six
months of the Term.
ARTICLE 6
LANDLORD'S COVENANTS
6.00 LANDLORD'S COVENANTS
The Landlord covenants with the Tenant as follows:
6.01 QUIET ENJOYMENT
The Landlord for itself, its successors and assigns, hereby covenants with the
Tenant, its successors and assigns that it and they, paying the rent hereby
reserved, and performing the covenants on its and their part contained, shall
and may peaceably possess and enjoy the Leased Premises for the Term hereby
granted, without any interruption or disturbance from the Landlord, its
successors, or assigns, or any other persons lawfully claiming by, from,
through, or under it, or any of them.
6.02 INTERIOR CLIMATE CONTROL
To provide to the Leased Premises during Normal Business Hours, by means of a
system for heating and cooling, filtering and circulating air, processed air in
such quantities, at such temperatures as shall maintain in the Leased Premises
conditions of reasonable temperature and comfort in accordance with good
standards of interior climate control generally pertaining at the date of this
Lease applicable to similar buildings based on normal occupancy of premises for
office purposes, but the Landlord shall have no responsibility for any
inadequacy of performance of the system if the Leased Premises depart from the
design criteria for such system, namely that the occupancy will not exceed one
person for every 000 xxxxxx xxxx xx xxxxx xxxx, that the electrical power
consumed in the Leased Premises for all purposes shall not exceed 3.0 xxxxx per
square foot of floor area, that the Tenant shall not have installed partitions
or other installations in locations which interfere with the proper operation of
the system, that the window coverings on exterior windows shall be fully closed
while such windows are exposed to direct sunlight, and that the Landlord shall
have no responsibility to provide for the removal of smoke, dust or odors which
originate from within the Leased Premises. If the use of the Leased Premises
does not accord with the design criteria and changes in the system are feasible
and desirable to accommodate such use the Landlord may, and at the written
request of the Tenant shall, make such changes and the entire expense of such
changes will be reimbursed by the Tenant to the Landlord.
6.03 ELEVATORS
Subject to the supervision of the Landlord, to furnish for use by the Tenant and
its employees and invitees in common with other persons entitled thereto
passenger elevator service to the Leased Premises, and to furnish for the use of
the Tenant in common with others entitled thereto at reasonable intervals and at
such hours as the Landlord may select, elevator service to the Leased Premises
for the carriage of furniture, equipment, deliveries and supplies, provided
however, that if the elevators shall become inoperative or shall
11
16
be damaged or destroyed the Landlord shall have a reasonable time within which
to repair such damage or replace such elevator and the Landlord shall repair or
replace the same as soon as reasonably possible, but shall in no event be liable
for indirect or consequential damages or other damages for personal discomfort
or illness during such period of repair or replacement.
6.04 ENTRANCES, LOBBIES, ETC.
To permit the Tenant and its employees and invitees during Normal Business Hours
in common with others entitled thereto to use the common entrances, lobbies,
stairways and corridors of the Building giving access to the Leased Premises
(subject to the Rules and Regulations referred to in section 5.08 and such other
reasonable limitations as the Landlord may from time to time impose).
6.05 WASHROOMS
To permit the Tenant and its employees and invitees in common with others
entitled thereto to use the washrooms in the Building on the floor and floors on
which the Leased Premises are situated.
6.06 JANITOR SERVICE
To cause when reasonably necessary from time to time the floors and windows of
the Leased Premises to be swept and cleaned and the desks, tables and other
furniture of the Tenant to be dusted all in keeping with a first-class office
building but with the exception of the obligation to cause such work to be done,
the Landlord shall not be responsible for any act of omission of commission on
the part of the persons employed to perform such work; such work shall be done
at the Landlord's direction without interference by the Tenant, its servants or
employees.
6.07 MAINTENANCE OF COMMON AREAS
To cause the elevators, common entrances, lobbies, stairways, corridors,
washrooms and other parts of the Building from time to time provided for common
use and enjoyment to be swept, cleaned or otherwise maintained substantially in
keeping with a first-class office building.
ARTICLE 7
REPAIR AND DAMAGE AND DESTRUCTION
7.01 LANDLORD'S REPAIRS
The Landlord covenants with the Tenant:
(a) subject to section 7.03(b), to keep in a good and reasonable state
of repair, and consistent with the general standards of first-class
office buildings in the city in which the Building is located:
(i) the Building (other than the Leased Premises and premises of
other tenants) including the foundation, roof, exterior
walls including glass portions thereof, the systems for
interior climate control, the elevators, entrances,
stairways, corridors and lobbies and washrooms from time to
time provided for use in common by the Tenant and other
tenants of the Building and the systems provided for
bringing utilities to the Leased Premises,
(ii) the structural members or elements of the Leased Premises;
and
(b) to repair defects in construction performed or installations made
by the Landlord in the Leased Premises and Insured Damage.
12
17
7.02 TENANTS REPAIRS
The Tenant covenants with the Landlord:
(a) to keep in a good and reasonable state of repair and consistent
with the general standards of first-class office buildings in the
city in which the Building is located, but subject to section
7.03(b) the Leased Premises including all Leasehold Improvements
and all trade fixtures therein and all glass therein including
glass portions of exterior walls thereof, but with the exception of
structural members or elements of the Leased Premises and defects
in construction performed or installations made by the Landlord and
Insured Damage therein;
(b) that the Landlord may enter and view the state of repair, and that
the Tenant will repair according to notice in writing, and that the
Tenant will leave the Leased Premises in a good and reasonable
state of repair, subject always to the exceptions referred to in
section 7.02(a); and
(c) that if any part of the Building including the systems for interior
climate control and for the provision of utilities becomes out of
repair, damaged or destroyed through the negligence or misuse of
the Tenant or its employees, invitees or others over which the
Tenant can reasonably be expected to exercise control, the expense
of repairs or replacements thereto necessitated thereby shall be
reimbursed to the Landlord promptly upon demand.
7.03 ABATEMENT AND TERMINATION
It is agreed between the Landlord and the Tenant that:
(a) in the event of damage to the Leased Premises or to the Building
and if the damage is such that the Leased Premises or any
substantial part thereof are rendered not reasonably capable of use
and occupancy by the Tenant for the purposes of its business for
any period of time in excess of ten days, then:
(i) unless the damage was caused by the fault or negligence of
the Tenant of its employees, invitees or others under its
control, from and after the date of occurrence of the damage
and until the Leased Premises are again reasonably capable
of use and occupancy as aforesaid, Rent shall xxxxx from
time to time in proportion to the part or parts of the
Leased Premises not reasonably capable of use and occupancy;
and
(ii) unless this Lease is terminated as hereinafter provided, the
Landlord or the Tenant, as the case may be (according to the
nature of the damage and their respective obligations to
repair as provided in sections 7.01 and 7.02 hereof) shall
repair such damage with all reasonable diligence, but to the
extent that any part of the Leased Premises is not
reasonably capable of such use and occupancy by reason of
damage which the Tenant is obligated to repair hereunder,
any abatement of rent to which the Tenant is otherwise
entitled hereunder shall not extend later than the time by
which, in the reasonable opinion of the Landlord, repairs by
the Tenant ought to have been completed with reasonable
diligence; and
(b) if either:
(i) the Leased Premises; or
(ii) premises whether of the Tenant or other tenants of the
Building comprising in the aggregate half or more of the
Rentable Area of the Building;
13
18
are substantially damaged or destroyed by any cause to the extent
such that in the reasonable opinion of the Landlord they cannot be
repaired or rebuilt within 240 days after the occurrence of the
damage or destruction, the Landlord may at its option, exercisable
by written notice to the Tenant given 30 days after the occurrence
of such damage or destruction, terminate this Lease, in which event
neither the Landlord nor the Tenant shall be bound to repair as
provided in sections 7.01 and 7.02 hereof, and the Tenant shall
instead deliver up possession of the Leased Premises to the
Landlord with reasonable expedition but in any event within 60 days
after the delivery of such notice of termination, and rent shall be
apportioned and paid to the date upon which possession is so
delivered up (but subject to any abatement to which the Tenant may
be entitled under section 7.03(a) by reason of the Leased Premises
having been rendered in whole or in part not reasonably capable of
use and occupancy), but otherwise the Landlord or the Tenant as the
case may be (according to the nature of the damage and their
respective obligations to repair as provided in sections 7.01 and
7.02) shall repair such damage with such reasonable diligence.
ARTICLE 8
TAXES AND OPERATING COSTS
8.01 LANDLORD'S TAX OBLIGATIONS
The Landlord covenants with the Tenant subject to the provisions of section
8.02, to pay to the taxing authority or authorities having jurisdiction, all
Taxes.
8.02 TENANT'S TAX OBLIGATIONS
The Tenant covenants with the Landlord:
(a) to pay when due, all taxes, business taxes, business licence fees,
and other taxes, rates, duties or charges levied, imposed or
assessed by lawful authority in respect of the use and occupancy of
the Leased Premises by the Tenant, the business or businesses
carried on therein, or the equipment, machinery or fixtures brought
therein by or belonging to the Tenant, or to anyone occupying the
Leased Premises with the Tenant's consent, or from time to time
levied, imposed or assessed in the future in lieu thereof, and to
pay to the Landlord upon demand the portion of any tax, rate, duty
or charge levied or assessed upon the Land and Building that is
attributable to any equipment, machinery or fixtures on the Leased
Premises which are not the property of the Landlord, or which may
be removed by the Tenant;
(b) to pay promptly to the Landlord when demanded or otherwise due
hereunder all Taxes in respect of all Leasehold Improvements in the
Leased Premises;
(c) to pay to the Landlord in the manner specified in section 4.02(b)
the Tenant's Share of the Tax Cost.
8.03 TENANT'S TAX COST
After the commencement of the Term of this Lease and prior to the commencement
of each calendar year thereafter which commences during the Term the Landlord
may estimate the Tax Cost for the ensuing calendar year or (if applicable)
broken portion thereof, as the case may be, to become payable under Section
8.02, and notify the Tenant in writing of such estimate. When the Tax Cost for
the calendar year or broken portion of the calendar year in question becomes
finally determined the Landlord shall recalculate the same.
14
19
If the Tenant has overpaid the Tenant's Share of Tax Cost, the Landlord shall
refund any excess paid but if any balance remains unpaid, the Landlord shall fix
monthly instalments for the then remaining balance of such calendar year or
broken portion thereof such that, after giving credit for instalments paid by
the Tenant hereunder on the basis of such estimate, the Tenant's Share of the
Tax Cost will have been entirely paid during such calendar year or broken
portion thereof. If for any reason the Tax Cost is not finally determined within
such calendar year or broken portion thereof, the parties shall make the
appropriate readjustment when such Tax Cost becomes finally determined. Any
report of the Landlord's auditor as to the Tax Cost shall be conclusive as to
the amount thereof for any period to which such report relates.
8.04 POSTPONEMENT, ETC. OF TAXES
The Landlord may postpone payment of any Taxes payable by it pursuant to section
8.01 and the Tenant may postpone payment of any Taxes, rates, duties, levies and
assessments payable by it under sections 8.02(a) and (b), in each case to the
extent permitted by law and if prosecuting in good faith any appeal against the
imposition thereof, and provided in the case of a postponement by the Tenant
that if the Building or any part thereof or the landlord shall become liable to
assessment, prosecution, fine or other liability the Tenant shall have given
security in a form and of an amount satisfactory to the Landlord in respect of
such liability and such undertakings as the Landlord may reasonably require to
ensure payment thereof.
8.05 RECEIPTS, ETC.
Whenever requested by the Landlord the Tenant will deliver to it receipts for
payment of all taxes, rates, duties levies and assessments payable by the Tenant
pursuant to sections 8.02(a) and (b) hereof and furnish such other information
in connection therewith as the Landlord may reasonably require.
8.06 ALLOCATION OF TAXES
If a separate allocation of Taxes is not issued by the relevant taxing authority
with respect to any Leasehold Improvements, the Landlord or the Tenant may from
time to time apply to the taxing authority for a determination of the portion of
Taxes attributable to such Leasehold Improvements, which determination shall be
conclusive for the purposes of this Article. In the event that no such
determination may be obtained from the taxing authority, the Landlord shall
establish the portion of Taxes attributable to such Leasehold Improvements using
the then current established principles of assessment used by the taxing
authority or such other method which is fair, reasonable and equitable as
determined by the Landlord.
8.07 OPERATING COST
During the Term of the Lease, the Tenant shall pay to the Landlord in the manner
set forth in this section the Tenant's Particular Share of the Operating Cost
allocated pursuant to section 8.08 to that portion of the Building in which the
Leased Premises are located. Prior to the commencement of the Term of this Lease
and the commencement of each fiscal period selected by the Landlord thereafter
which commences during the Term, the Landlord shall estimate the amount of
Operating Cost for the ensuing fiscal period or (if applicable) broken portion
thereof, as the case may be, and notify the Tenant in writing of such estimate.
The Landlord may from time to time alter the fiscal period selected, in which
case, and in the case where only a broken portion of a fiscal period is included
within the Term, the appropriate adjustment in monthly payments shall be made.
From time to time during a fiscal period the Landlord may re-estimate the amount
of Operating Cost in which event the Landlord shall notify the Tenant in writing
of such re-estimate and fix monthly instalments for the then remaining balance
of such fiscal period or broken portion thereof such that, after giving credit
for instalments paid by the Tenant on the basis of the previous estimate or
estimates, the Operating Cost will have been paid during such fiscal period or
broken potion thereof. As soon as practicable after the expiration of each
fiscal period, the Landlord shall make a final determination of Operating Cost
for such fiscal period or (if applicable) broken portion thereof and notify the
Tenant and the parties shall make the appropriate readjustment and any monies
owing by or to one party by the other upon final determination shall be paid to
the other within ten days of the final determination. Notices by the
15
20
Landlord stating the amount of any estimate, re-estimate or determination of
Operating Cost, or monthly instalments payable need not include particulars of
Operating Cost; provided however, the Operating Cost shall be reported by the
Landlord's auditor and a copy of such report shall be furnished to the Tenant
upon request. Any report of the Landlord's auditor as to the Operating Cost
shall be conclusive as to the amount thereof for any period to which such report
relates.
8.08 ALLOCATION OF OPERATING COST
For any period of operation determined by the Landlord, the Landlord may
allocate all or any portion of the Operating Cost (or the individual items
making up the Operating Cost) between the Office Portion of the Building and
Retail Portion of the Building in such a manner which reasonably reflects the
use by and benefit to such tenants of the Operating Cost or item of Operating
Cost. The Tenant shall pay, in the manner set out in section 8.07, the Tenant's
Particular Share of the Operating Cost allocated to that portion of the Building
in which the Leased Premises are located. The provisions of section 8.07,
including those dealing with the re-estimate, adjustment and reporting of
Operating Cost, shall apply to the allocation of Operating Cost pursuant to this
section, of the Building, to the extent that those provisions are not
inconsistent with the provisions of this section.
8.09 ALLOCATION TO PARTICULAR TENANT
Notwithstanding any of the foregoing, whenever in the Landlord's reasonable
opinion, any Operating Cost or item of Operating Cost properly relates to a
particular tenant or tenants within the Building, the Landlord may allocate such
Operating Cost or item of Operating Cost to such tenant or tenants. Without
limitation, if in the Landlord's reasonable opinion the Tenant's consumption of
utilities is greater than the normal or average consumption by tenants of the
Building, the Landlord shall have the right either:
(a) to install meters at the Tenant's expense to measure the Tenant's
consumption of such utilities; or
(b) to retain a qualified consultant to determine the rate by which the
Tenant's consumption exceeds the normal or average consumption by
tenants of the Building.
Based upon the metered consumption or the consultant's report, as applicable,
the Landlord may allocate to the Tenant the amount by which the cost of the
utilities consumed by the Tenant exceeds the cost of utilities normally or on
average consumed by tenants of the Building. Any amount allocated by the
Landlord to the Tenant pursuant to this section shall be payable by the Tenant
forthwith upon demand.
ARTICLE 9
UTILITIES AND ADDITIONAL SERVICES
9.01 WATER AND TELEPHONE
The Landlord shall furnish ducts for bringing telephone services to the Leased
Premises and shall provide water to washrooms available for the Tenant's use in
common with others entitled thereto.
9.02 ADDITIONAL SERVICES
The Landlord, if it shall from time to time so elect, shall have the exclusive
right, by way of Additional Services, to provide or have its designated agents
or contractors provide any janitor or cleaning services to the Leased Premises
required by the Tenant, including the Additional Services which the Landlord
agrees to provide by arrangement and to supervise the moving of furniture or
equipment of the Tenant and the making of repairs or alterations conducted
within the Leased Premises, and to supervise or make deliveries
16
21
to the Leased Premises. The Cost of Additional Services (including the
Landlord's administration fee as in section 1.01(g) hereof) provided to the
Tenant, whether the Landlord shall be obligated hereunder or shall elect to
provide them as Additional Services, shall be paid to the Landlord by the Tenant
from time to time promptly upon receipt of invoices therefor from the Landlord.
Cost of Additional Services charged directly to the Tenant and other tenants
shall be credited in computing Operating Cost to the extent that they would
otherwise have been included.
9.03 EXTRA OPERATING COSTS
The Tenant will pay to the Landlord in the manner in which Operating Cost is
paid from time to time hereunder any and all additional costs and expenses of
the Landlord which may arise in respect of the use by the Tenant of the Leased
Premises for business hours that do not coincide with Normal Business Hours for
the Building generally or that may arise in respect of extra heating,
ventilating and air conditioning supply, electrical supply and other services
which are required to be provided to tenants of the Building or outside of
Normal Business Hours. The Landlord reserves the right to install at the
Tenant's expense meters to check the Tenant's consumption of electricity, water
or other utilities.
9.04 ENERGY CONSERVATION
The Tenant covenants with the Landlord:
(a) that the Tenant will cooperate with the Landlord in the
conservation of all forms of energy in the Building, including
without limitation the Leased Premises;
(b) that the Tenant will comply with all laws, by-laws, regulations and
orders relating to the conservation of energy and affecting the
Leased Premises or the Building;
(c) that the Tenant will at its own cost and expense comply with all
reasonable requests and demands of the Landlord made with a view to
such energy conservation provided that such requests are made in
accordance with good management practice; and
(d) that any and all costs and expenses paid or incurred by the
Landlord in complying with such laws, by-laws, regulations and
orders, so far as the same shall apply to or reasonably be
apportioned to the Building by the Landlord, shall be included in
the Landlord's Operating Cost for the purposes of section 1.01(o).
The Landlord shall not be liable to the Tenant in any way for any loss, costs,
damages or expenses, whether direct or consequential, paid, suffered or incurred
by the Tenant as a result of any reduction in the services provided by the
Landlord to the Tenant or to the Building as a result of the Landlord's
compliance with such laws, regulations or orders.
17
22
ARTICLE 10
LICENSES, ASSIGNMENTS AND SUBLETTINGS
10.01 LICENSES, ETC.
The Tenant shall not suffer or permit any part of the Leased Premises to be used
or occupied by any persons other than the Tenant, any subtenants permitted under
Section 10.02 and the employees of the Tenant and any such permitted subtenant
or suffer or permit any part of the Leased Premises to be used or occupied by
any licensee, franchisee or concessionaire, or suffer or permit any persons to
be upon the Leased Premises other than the Tenant, such permitted subtenants and
their respective employees, customers and others having lawful business with
them.
10.02 ASSIGNMENT AND SUBLETTING
The Tenant shall not assign this Lease or sublet the whole or any part of the
Leased Premises, unless (1) it shall have received or procured a bona fide
written offer to take an assignment or sublease which is not inconsistent with,
and the acceptance of which would not breach any provision of this Lease if this
section is complied with and which the Tenant has determined to accept subject
to this section being complied with, and (2) it shall have first requested and
obtained the consent in writing of the Landlord thereto. Any request for such
consent shall be in writing and accompanied by a true copy of such offer, and
the Tenant shall furnish to the Landlord all information available to the Tenant
and requested by the Landlord as to the responsibility, reputation, financial
standing and business of the proposed assignee or subtenant. Within 30 days
after the receipt by the Landlord of such request for consent and of all
information which the Landlord shall have requested hereunder (and if no such
information has been requested, within 30 days after receipt of such request for
consent) the Landlord shall have the right upon written notice to the Tenant, if
the request is to assign this Lease or sublet the whole of the Leased Premises,
to cancel and terminate this Lease, or if the request is to sublet a part of the
Leased Premises only, to cancel and terminate this Lease with respect to such
part, in each case of a termination date to be stipulated in the notice of
termination which shall not be less than 60 days or more than 90 days following
the giving of such notice, and in such event the Tenant shall surrender the
whole or part, as the case may be, of the Leased Premises in accordance with
such notice and rent shall be apportioned and paid to the date of surrender and,
if a part only of the Leased Premises is surrendered, rent payable under section
4.01 shall thereafter xxxxx proportionately. If the Landlord shall not exercise
the foregoing right of cancellation then the Landlord's consent to the Tenant's
request for consent to assign or sublet shall not be unreasonably withheld and
if such consent shall be given, the Tenant shall assign or sublet, as the case
may be, only upon the terms set out in the offer submitted to the Landlord as
aforesaid and not otherwise. The Tenant further agrees that if the Landlord
consents to any such assignment or subletting, the Tenant shall be responsible
for and shall hold the Landlord harmless from any and all capital costs for
Leasehold Improvements and all other expenses, costs and charges in respect to
or arising out of any such assignment or subletting. Notwithstanding any such
consent being given by the Landlord and such assignment or subletting being
effected, the Tenant hereunder shall remain bound to the Landlord for the
fulfilment of all the terms, covenants, conditions and agreements herein
contained.
10.03 CONDITIONS OF CONSENT
The Landlord may require as a condition of its consent that the proposed
assignee or subtenant agree with the Landlord to observe and perform all the
obligations of the Tenant under this Lease and the Tenant agrees with the
Landlord that:
(a) in the case of an assignment, if the Tenant is to receive from any
assignee, either directly or indirectly, consideration in any form
whatsoever for the assignment of this Lease, the Tenant shall
forthwith pay an amount equal to such consideration to the
Landlord; and
18
23
(b) if the Tenant sublets and receives consideration in any form
whatsoever from the subtenant, either directly or indirectly, at a
rate which is in excess of the Annual Rent payable under this Lease
(on a per square foot basis) for the sublet area, the Tenant shall
pay any such excess to the Landlord in addition to all Rent payable
hereunder.
10.04 CHANGE IN CONTROL OF TENANT
(a) If the Tenant is a private corporation and if by the sale or other
disposition, bequest or operation of law of its shares or securities the control
or the beneficial ownership of such corporation is changed at any time during
the Term of this Lease, such change shall be deemed to be an assignment of the
Lease within the meaning of section 10.02. If such control or beneficial
ownership is changed without the prior written consent of the Landlord, (WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD), the Landlord may, at its option,
cancel the Lease and the Term hereby granted upon the giving of 60 days notice
to the Tenant of its intention to cancel and this Lease and the Term shall
thereupon be cancelled.
(b) If the Tenant is a partnership and, if at any time during the term
of this Lease, any person who at the time of the execution of this Lease owns a
partner's interest who ceases to own such partner's interest or there is a
material change in the ownership, in the opinion of the Landlord, in such
partner's interest, such cessation or change of ownership shall constitute as
assignment of this Lease for all purposes of this Article.
ARTICLE 11
FIXTURES AND IMPROVEMENTS
11.01 INSTALLATION OF FIXTURES AND IMPROVEMENTS
The Tenant will not make, erect install or alter any Leasehold Improvements or
trade fixtures in the Leased Premises without having requested and obtained the
Landlord's prior written approval, which the Landlord shall not unreasonably
withhold. In making, erecting, installing or altering any Leasehold Improvements
or trade fixtures the Tenant shall comply with the tenant construction
guidelines as established by the Landlord and shall obtain all required building
and occupancy permits and shall not alter or interfere with any installations
which have been made by the Landlord without the prior written approval of the
Landlord, and in no event shall alter or interfere with window coverings
installed by the Landlord on exterior windows. The Tenant's request for any
approval hereunder shall be in writing and accompanied by an adequate
description of the contemplated work and, where appropriate, working drawings
and specifications thereof. Any out of pocket expense incurred by the Landlord
in connection with any such approval shall be deemed incurred by way of
Additional Service. All work to be performed in the Leased Premises shall be
performed by competent contractors and subcontractors of whom the Landlord shall
have approved (such approval not to be unreasonably withheld, but provided that
the Landlord may require that the Landlord's contractors and subcontractors be
engaged for any mechanical or electrical work) and by workmen whose labour union
affiliations are compatible with those of workmen employed by the Landlord and
its contractors and subcontractors. All such work shall be subject to inspection
by and the reasonable supervision of the Landlord as an Additional Service and
shall be performed in accordance with any reasonable conditions or regulations
imposed by the Landlord and completed in good and workmanlike manner in
accordance with the description of the work approved by the Landlord.
11.02 Liens and Encumbrances on Fixtures and Improvements
In connection with the making, erection, installation or alteration of Leasehold
Improvements and trade fixtures and all other work or installations made by or
for the Tenant in the Leased Premises the Tenant shall comply with all the
provisions of the Construction Lien Act and other statutes from time to time
19
24
applicable thereto (including any provision requiring or enabling the retention
of portions of any sums payable by way of holdbacks) and except as to any such
holdback shall promptly pay all accounts relating thereto. The Tenant shall not
create any mortgage, conditional sale agreement or other encumbrance in respect
of its Leasehold Improvements or trade fixtures or permit any such mortgage,
conditional sale agreement or other encumbrance to attach to the Leased
Premises. If and when any mechanics' or other lien for work, labour, services or
materials supplied to or for the Tenant or for the cost of which the Tenant may
be in any way liable or claims therefor shall arise or be filed or any such
mortgage, conditional sale agreement or other encumbrance shall attach, the
Tenant shall within 20 days after receipt of notice thereof procure the
discharge thereof, including any certificate of action registered in respect of
any lien, by payment or giving security or in such other manner as may be
required or permitted by law, and failing which the Landlord may in addition to
all other remedies hereunder avail itself of its remedy under section 15.01 and
may make any payments required to procure the discharge of any such liens or
encumbrances, shall be entitled to be reimbursed by the Tenant as provided in
section 15.01, and its right to reimbursement shall not be affected or impaired
if the Tenant shall then or subsequently establish or claim that no lien or
encumbrance so discharged was without merit or excessive or subject to any
abatement, setoff or defense.
11.03 REMOVAL OF FIXTURES AND IMPROVEMENTS
All Leasehold Improvements in or upon the Leased Premises shall immediately at
the expiry of the initial term of this Lease be and become the Landlord's
property without compensation therefor to the Tenant. Except to the extent
otherwise expressly agreed by the Landlord in writing, no Leasehold
Improvements, trade fixtures, furniture or equipment shall be removed by the
Tenant from the Leased Premises either during or at the expiration or sooner
termination of the Term except that (1) the Tenant may at the end of the Term
remove its trade Fixtures, (2) the Tenant shall at the end of the Term remove
such of the Leasehold Improvements and trade fixtures as the Landlord shall
require to be removed, and (3) the Tenant shall remove its furniture and
equipment at the end of the Term, and also during the Term in the usual and
normal course of its business where such furniture or equipment has become
excess for the Tenant's purposes or the Tenant is substituting therefor new
furniture and equipment. The Tenant shall, in the case of every removal either
during or at the end of the Term, immediately make good any damage caused to the
Leased Premises by the installation and removal.
ARTICLE 12
INSURANCE AND LIABILITY
12.01 LANDLORD'S INSURANCE
The Landlord shall be deemed to have insured (for which purpose it shall be a
co-insurer, if and to the extent that it shall not have insured) the Building
and all improvements and installations made by the Landlord in the Leased
Premises, except to the extent hereinafter specified, in respect of perils and
to amounts and on terms and conditions which from time to time are insurable at
a reasonable premium and which are normally insured by reasonably prudent owners
of properties similar to the Building, as from time to time determined at
reasonable intervals (but which need not be determined more often than annually
and shall be determined not less often than every three years) by insurance
advisors selected by the Landlord, and whose written opinion shall be
conclusive. Upon the request of the Tenant from time to time the Landlord will
furnish a statement as to the perils in respect of which and the amounts to
which it has insured the Building, and the Tenant shall be entitled at
reasonable times upon reasonable notice to the Landlord to inspect copies of the
relevant portions of policies of insurance in effect and a copy of any relevant
opinions of the Landlord's insurance advisors. The Landlord shall maintain such
other insurance in such amounts and upon such terms as would normally be carried
by a prudent owner.
20
25
12.02 TENANT'S INSURANCE
The Tenant shall take out and keep in force during the Term:
(a) comprehensive general liability (including bodily injury, death and
property damage) insurance on an occurrence basis with respect to
the business carried on, in or from the Leased Premises and the
Tenant's use and occupancy thereof of not less than $2,000,000
which insurance shall include the Landlord as a named insured and
shall protect the Landlord in respect of claims by the Tenant as if
the Landlord were separately insured; and
(b) insurance in such amounts as may be reasonably required by the
Landlord in respect of fire and such other penis, including
sprinkler leakage as are from time to time defined in the usual
extended coverage endorsement covering the Tenant's trade fixtures
and the furniture and equipment of the Tenant and (except as to
Insured Damage) all Leasehold Improvements of the Tenant, and which
insurance shall include the Landlord as a named insured as the
Landlord's interest may appear with respect to the insured
Leasehold Improvements and provided that any proceeds recoverable
in the event of loss to Leasehold Improvements shall be payable to
the Landlord but the Landlord agrees to make available such
proceeds toward the repair or replacement of the insured property
if this Lease is not terminated pursuant to any other provision
hereof;
and if the Landlord shall require the same from time to time then also:
(c) Tenant's fire legal liability insurance in an amount not less than
the actual cash value of the Leased Premises.
All insurance required to be maintained by the Tenant hereunder shall be on
terms and with insurers to which the Landlord has no reasonable objection and
shall provide that such insurers shall provide to the Landlord thirty (30) days'
prior written notice of cancellation or material alteration of such terms. The
Tenant shall furnish to the Landlord certificates or other evidence acceptable
to the Landlord as to the insurance from time to time required to be effected by
the Tenant and its renewal or continuation in force. If the Tenant shall fail to
take out, renew and keep in force such insurance the Landlord may do so as the
agent of the Tenant and the Tenant shall repay to the Landlord any amounts paid
by the Landlord as premiums forthwith upon demand.
12.03 LIMITATION OF LANDLORD'S LIABILITY
The Tenant agrees that:
(a) the Landlord shall not be liable for any bodily injury or death
of, or loss or damage to any property belonging to, the Tenant or
its employees, invitees, or licensees or any other person in, on
or about the Building unless resulting from the actual fault or
negligence of the Landlord, but in no event shall the Landlord be
liable;
(i) for any damage other than Insured Damage which is caused
by steam, water, rain or snow which may leak into, issue
or flow from any part of the Building or from the pipes
or plumbing works thereof or from any other place or
quarter or for any damage caused by or attributable to
the condition or arrangement of any electric or other
wiring or for any damage caused by anything done or
omitted by any other tenant;
(ii) for any act or omission (including theft, malfeasance or
negligence) on the part of any agent, contractor or
person from time to time employed by it to perform
janitor
21
26
services, security services, supervision or any other
work in or about the Leased Premises or the Building; or
(iii) for loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of the
Tenant; and
(b) the Landlord will have no responsibility or liability for the
failure to supply interior climate control or elevator service when
prevented from doing so by strikes, the necessity of repairs, any
order or regulation or anybody having jurisdiction, the failure of
the supply of any utility required for the operation thereof or any
other cause beyond the Landlord's reasonable control, and shall not
be held responsible for any bodily injury, death or damage to
property arising from the use of, or any happening in or about, any
elevator.
12.04 LIMITATION OF TENANT'S LIABILITY
The Landlord releases the Tenant from all claims or liabilities in respect of
any damage which is Insured Damage, to the extent of the cost of repairing such
damage, but not from injury, loss or damage which is consequential thereto or
which arises therefrom where the Tenant is negligent or otherwise at fault.
12.05 INDEMNITY OF LANDLORD
Except as provided in section 12.04, the Tenant agrees to indemnify and save
harmless the Landlord in respect of all claims for bodily injury or death,
property damage or other loss or damage arising from the conduct of any work by
or any act or omission of the Tenant or any assignee, subtenant, agent,
employee, contractor, invitee or licensee of the Tenant, and in respect of all
costs, expenses and liabilities incurred by the Landlord in connection with or
arising out of all such claims, including the expenses of any action or
proceeding pertaining thereto, and in respect of any loss, costs, expense or
damage suffered or incurred by the Landlord arising from any breach by the
Tenant of any of its covenants and obligations under this Lease.
ARTICLE 13
SUBORDINATION, ATTORNMENT, REGISTRATION AND CERTIFICATES
13.00 TENANT'S COVENANTS
The Tenant agrees with the Landlord that:
13.01 SALE OR FINANCING OF BUILDING
The rights of the Landlord under this Lease may be mortgaged, charged,
transferred or assigned to a purchaser or purchasers or to a mortgagee, or
trustee for bond holders and in the event of a sale or of default by the
Landlord under any mortgage, trust deed or trust indenture by the purchaser,
mortgagee or trustee, as the case may be, duly entering into possession of the
Building or the Leased Premises, the Tenant agrees to attorn to and become the
tenant of such purchaser or purchasers, mortgagee or trustee under the terms of
this Lease.
13.02 SUBORDINATION AND ATTORNMENT
This Lease and all rights of the Tenant hereunder (if required by any mortgagee
or the holder of any trust deeds or trust indentures), shall be subject and
subordinate to all mortgages, trust deeds or trust indentures now or hereafter
existing which may now or hereafter affect the Building and to all renewals,
modifications, affect the Building and to all renewals, modifications,
consolidations, replacements and extensions thereof; provided that the Tenant
whenever required by any mortgagee (including any trustee under a trust deed or
trust indenture) shall attorn to such mortgagee as the Tenant upon all of the
terms of this Lease. The Tenant
22
27
agrees to execute promptly whenever requested by the Landlord or by such
mortgagee an instrument of subordination or attornment, as the case may be, as
may be required of it, provided that the mortgagee shall agree in writing not to
disturb the Tenant's possession hereunder so long as it is observing and
performing the covenants and the conditions on its behalf contained in this
Lease.
13.03 REGISTRATION
The Tenant agrees with the Landlord not to register this Lease, provided that
the Tenant at the request of the Landlord and at the cost and expense of the
Tenant, will cause this Lease to be registered; provided that the Tenant may at
its own expense register notice of this Lease subject to prior approval by the
Landlord of the form of such notice. Notwithstanding the provisions of section
13.02, in the event the Landlord requires this Lease to be registered in
priority to any mortgage, trust deed or trust indenture which may now or any
time hereafter affect in whole or in part the Leased Premises or the Building
and whether or not any such mortgage, trust deed or trust indenture shall affect
only the Leased Premises or the Building or shall be a blanket mortgage, trust
deed or trust indenture affecting other premises as well, the Tenant covenants
and agrees with the Landlord that the Tenant shall execute promptly upon request
by the Landlord any certificate, priority agreement, or other instrument which
may from time to time by requested to give effect thereto.
13.04 CERTIFICATES
The Tenant agrees with the Landlord that the Tenant shall promptly whenever
requested by the Landlord from time to time execute and deliver to the Landlord
(and if required by the Landlord, to any mortgagee (including any trustee under
a trust deed or trust indenture) or purchaser designated by the Landlord) a
certificate in writing as to the then status of this Lease, including as to
whether it is in full force and effect, is modified or unmodified, confirming
the rental payable hereunder and the state of the accounts between the Landlord
and Tenant, the existence or non-existence of defaults, and any other matters
pertaining to this Lease as to which the Landlord shall request a certificate.
13.05 ASSIGNMENT BY LANDLORD
In the event of a sale by the Landlord of the Building or a portion thereof
containing the Leased Premises or the assignment by the Landlord of this Lease
or any interest of the Landlord hereunder, and to the extent that such purchaser
or assignee has assumed the covenants and obligations of the Landlord hereunder,
the Landlord shall, without further written agreement, be freed and relieved of
liability upon such covenants and obligations.
ARTICLE 14
OCCURRENCE OF DEFAULT
14.01 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 fulfilment of any obligations hereunder in respect of the supply or
provision of any service or utility, the making of any repair, the doing of any
work or any other thing (other than the payment of Rent) by reason of strikes or
work stoppages, or being unable to obtain any material, service, utility or
labour required to fulfil such obligation or by reason of any statute, law or
regulation of or inability to obtain any permission from any governmental
authority having lawful jurisdiction preventing, delaying or restricting such
fulfilment, or by reason of other unavoidable occurrence other than lack of
funds, the time for fulfilment of such obligation shall be extended during the
period in which such circumstance operates to prevent, delay or restrict the
fulfilment thereof, and the other party to this Lease shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby
23
28
occasioned; but nevertheless the Landlord will use its best efforts to maintain
services essential to the use and enjoyment of the Leased Premises.
14.02 NO ADMISSION
The acceptance of any rent from or the performance of any obligation hereunder
by a person other than the Tenant shall not be construed as an admission by the
Landlord of any right, title or interest of such person as a subtenant,
assignee, transferee or otherwise in the place and stead of the Tenant.
14.03 PART PAYMENT
The acceptance by the Landlord of a part payment of any sums required to be paid
hereunder shall not constitute waiver or release of the right of the Landlord to
payment in full of such sums.
ARTICLE 15
REMEDIES OR LANDLORD AND TENANT'S DEFAULT
15.01 REMEDYING BY LANDLORD, NON-PAYMENT AND INTEREST
In addition to all the rights and remedies of the Landlord available to it in
the event of any default hereunder by the Tenant either by any other provision
of this Lease or by statute or the general law, the Landlord:
(a) shall have the right at all times to remedy or attempt to remedy
any default of the Tenant, and in so doing may make any payments
due or alleged to be due by the Tenant to third parties and may
enter upon the Leased Premises to do any work or other things
therein and in such event all expenses of the Landlord in
remedying or attempting to remedy such default shall be payable
by the Tenant to the Landlord forthwith upon demand;
(b) shall have the same rights and remedies in the event of any
non-payment by the Tenant of any amounts payable by the Tenant
under any provision of this Lease as in the case of non-payment
of rent; and
(c) if the Tenant shall fail to pay any Rent promptly when due,
shall be entitled, if it shall demand it, to interest thereon at
a rate of three percent per annum in excess of the rate of
interest charged and published from time to time by the main
branch in the City in which the Building is located, of the
Landlord's bank, as its prime rate for loans to creditworthy and
substantial commercial customers, from the date upon which the
same was due until actual payment thereof.
15.02 REMEDIES CUMULATIVE
The Landlord may from time to time resort to any or all of the rights and
remedies available to it in the event of any default hereunder by the Tenant,
either by any provision of this Lease or by statute or the general law, all of
which rights and remedies are intended to be cumulative and not alternative, as
the express provisions hereunder as to certain rights and remedies are not to be
interpreted as excluding any other or additional rights and remedies available
to the Landlord by statute or general law.
15.03 RIGHT OF RE-ENTRY ON DEFAULT OR TERMINATION
Provided and it is expressly agreed that if and whenever the Rent hereby
reserved or other monies payable by the Tenant or any part thereof, whether
lawfully demanded or not, are unpaid and the Tenant shall have failed to pay
such Rent or other monies within five days after the Landlord shall have given
to the Tenant notice requiring such payment, or if the Tenant shall breach or
fail to observe and perform any of the
24
29
covenants, agreements, provisos, conditions, rules or regulations and other
obligations on the part of the Tenant to be kept, observed or performed
hereunder and the Tenant shall fail to cure such breach or failure within IO
days after notice by the Landlord, or if this Lease shall have become terminated
pursuant to any provision hereof, or if the Landlord shall have become entitled
to terminate this Lease and shall have given notice terminating it pursuant to
any provision hereof, then and in every such case it shall be lawful for the
Landlord thereafter to enter into and upon the Leased Premises or any part
thereof and in the name of the whole and the same to have again, repossess and
enjoy as of its former estate, anything in this Lease contained to the contrary
notwithstanding.
15.04 TERMINATION AND RE-ENTRY
If and whenever the Landlord becomes entitled to re-enter upon the Leased
Premises under any provision of this Lease, the Landlord, in addition to all
other rights and remedies, shall have the right to terminate this Lease
forthwith by leaving upon the Leased Premises notice in writing of such
termination.
15.05 PAYMENT OF RENT, ETC. ON TERMINATION
Upon the giving by the Landlord of a notice in writing terminating this Lease,
this Lease and the Term shall terminate, and the Tenant shall immediately
deliver up possession of the Leased Premises to the Landlord and the Landlord
may re-enter and take possession of them. The Landlord, at its option and, in
addition to any other remedies it may have hereunder, may require the Tenant, by
notice, to pay to the Landlord as liquidated damages for the default of the
Tenant in the observance and performance of its covenants under this Lease, all
rent and additional payments reserved or required to be paid and remaining
unpaid by the Tenant under this Lease from the date of default by the Tenant to
and including the expiration of the term of this Lease and, for the purposes
hereof, it is agreed by the Tenant with the Landlord that this Lease constitutes
a commercial contract.
15.06 WAIVER OF DISTRESS
The Tenant waives and renounces the benefit of any present or future statute
taking away or limiting the Landlord's right of distress and covenants and
agrees that notwithstanding any such statute none of the goods and chattels of
the Tenant on the Leased Premises at any time during the Term shall be exempt
for levy by distress for rent in arrears. The Tenant will not sell, dispose of
or remove any of the fixtures, goods or chattels of the Tenant from or out of
the Leased Premises during the Term without the consent of the Landlord, unless
the Tenant is substituting new fixtures, goods or chattels of equal value or is
bona fide disposing of individual items which have become excess for the
Tenant's purposes; and the Tenant will be the owner of its fixtures, goods and
chattels and will not permit them to become subject to any lien, mortgage,
charge or encumbrance.
15.07 RE-LETTING, ETC.
Whenever the Landlord becomes entitled to re-enter upon the Leased Premises
under any provision of this Lease the Landlord in addition to all other rights
it may have shall have the right as agent of the Tenant to enter the Leased
Premises and re-let them and to receive the rent therefor and as the agent of
the Tenant to take possession of any furniture or other property thereon and to
sell the same at public or private sale without notice and to apply the proceeds
thereof and any rent derived from re-letting the Leased Premises upon account of
the rent due and to become due under this Lease and the Tenant shall be liable
to the Landlord for the deficiency, if any.
25
30
ARTICLE 16
EVENTS TERMINATING LEASE
16.01 CANCELLATION OF INSURANCE
If any policy of insurance upon the Building from time to time effected by the
Landlord shall be cancelled or about to be cancelled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or any assignee,
subtenant or licensee of the Tenant or anyone permitted by the Tenant to be upon
the Leased Premises and the Tenant after receipt of notice in writing from the
Landlord shall have failed to take such immediate steps in respect of such use
or occupation as shall enable the Landlord to reinstate or avoid cancellation of
(as the case may be) such policy of insurance, the Landlord may at its option
terminate the Lease by leaving upon the Leased Premises notice in writing of
such termination.
16.02 PROHIBITED OCCUPANCY, BANKRUPTCY, ETC.
In case without the written consent of the Landlord the Leased Premises shall be
used by any other persons than the Tenant or its permitted assigns or
subtenants, or for any purpose other than that for which they were leased, or
occupied by any persons whose occupancy is prohibited by this Lease, or if the
Leased Premises shall be vacated or abandoned, or remain unoccupied for 15 days
or more while capable of being occupied, or if the term or any of the goods and
chattels of the Tenant shall at any time be seized in execution or attachment,
or if the Tenant shall make any assignment for the benefit of creditors or any
bulk sale, become bankrupt or insolvent or take the benefit of any statute now
or hereafter in force for bankrupt or insolvent debtors or (if a corporation)
shall take any steps or suffer any order to be made for its winding-up or other
termination of its corporate existence, then in any such case the Landlord may
at its option terminate this Lease by leaving upon the Leased Premises notice in
writing of such termination and thereupon, in addition to the payment by the
Tenant of Rent and other payments for which the Tenant is liable under this
Lease, Rent shall immediately become due and be paid by the Tenant, or party
then controlling the Tenant's affairs.
ARTICLE 17
MISCELLANEOUS
17.01 NOTICES
Any notice required or contemplated by any provision of this Lease shall be
given in writing, and if to the Landlord, either delivered to an executive
officer of the Landlord or mailed by prepaid registered mail addressed to the
Landlord at:
c/o Brookfield Management Services Western Ltd.
Xxxxx 0000 - 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
and if to the Tenant, addressed to it and either delivered or mailed by prepaid
registered mail to the Leased Premises. Every such notice shall be deemed to
have been given when delivered or, if mailed as aforesaid, upon the third day
after the day of mailing thereof in Canada. Either the Landlord or the Tenant
may from time to time by notice in writing to the other designate another
address in Canada as the address to which notices are to be mailed or delivered
to it.
26
31
17.02 EXTRANEOUS AGREEMENTS
The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions expressed or implied relating to this Lease
of the Leased Premises save as expressly set out in this Lease and in any
agreement to lease in writing between the Landlord and the Tenant pursuant to
which this Lease has been executed. This Lease may not be modified except by an
agreement in writing executed by the Landlord and the Tenant.
17.03 TIME OF ESSENCE
Time shall be of the essence of this Lease.
17.04 AREA DETERMINATION
If any calculation or determination by the Landlord of the Rentable Area of any
premises (including the Leased Premises) or the Building is disputed or called
into question, it shall be calculated or determined by the Landlord's architect
or quantity surveyor from time to time appointed for the purpose, whose
certificate shall be conclusive.
17.05 SUCCESSORS AND ASSIGNS
This Lease and everything herein contained shall enure to the benefit of and be
binding upon the successors and assigns of the Landlord and the successors and
permitted assigns of the Tenant. References to the Tenant shall be read with
such changes in gender as may be appropriate, depending upon whether the Tenant
is a male or female person or a firm or corporation, and if the Tenant is more
than one person or entity, the covenants of the Tenant shall be deemed joint and
several.
17.06 FRUSTRATION
The Landlord and the Tenant agree that notwithstanding the occurrence or
existence of any event or circumstance or the non-occurrence of any event or
circumstance and so often and for so long as the same may occur or continue
which, but for this section, would frustrate or void this Lease, the obligations
and liabilities of the Tenant hereunder shall continue in full force and effect
as if such event or circumstance had not occurred or existed.
17.07 WAIVER
No condoning, excusing or overlooking by the Landlord or Tenant of any default,
breach or non-observance by the Tenant or the Landlord at any time or times in
respect of any covenant, proviso or condition herein contained shall operate as
a waiver of the Landlord's or the Tenant's rights hereunder in respect of any
continuing or subsequent default, breach or non-observance or so as to defeat or
affect in any way the rights of the Landlord or the Tenant herein in respect of
any such continuing or subsequent default or breach and no waiver shall be
inferred from or implied by anything done or omitted by the Landlord or the
Tenant save only express waiver in writing.
17.08 GOVERNING LAW
This Lease shall be governed by and construed in accordance with the laws of the
province in which the Building is located. The Landlord and the Tenant agree
that all of the provisions of this Lease are to be construed as covenants and
agreements as though the words importing such covenants and agreements were
included in each separate section hereof Should any provision or provisions of
this Lease and its remaining provisions shall remain in force and be binding
upon the parties hereto as though the said provision or provisions had never
been included.
27
32
17.09 NET LEASE
The Tenant acknowledges and agrees that it is intended that this Lease shall be
a completely carefree net lease for the Landlord except as shall be otherwise
provided in the specific provisions contained in this Lease, and that the
Landlord shall not be responsible during the Term for any costs, charges,
expenses and outlays of any nature whatsoever arising from or relating to the
Leased Premises, and the Tenant, except as shall be otherwise provided in the
specific provisions contained in this Lease, shall pay all charges, impositions
and costs of every nature and kind relating to the Leased Premises whether or
not referred to herein and whether or not within the contemplation of the
Landlord or the Tenant and the Tenant covenants with the Landlord accordingly.
17.10 CAPTIONS
The captions appearing in this Lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or enlarge the
scope or meaning of this Lease or of any provision thereof.
17.11 ACCEPTANCE
The Tenant does hereby accept this Lease of the above described land, to be held
by it as tenant, and subject to the conditions, restrictions and covenants above
set forth.
ARTICLE 18
SCHEDULES
18.01 SCHEDULES
The following schedules are attached to this Lease and form part hereof:
Schedule A - Floor Plan of the Leased Premises
Schedule B - Legal Description of the Lands
Schedule C - Rules and Regulations
Schedule D - Option to Renew
Schedule E - Special Provisions
28
33
IN WITNESS WHEREOF the Landlord and the Tenant have executed this Lease
as of the day and year first above written.
FOR THE LANDLORD:
THE CORPORATE SEAL OF )
NOVO ESPLANADE LIMITED )
_________________________________________)
was hereto affixed in the presence of: ) C/S
)
/s/ SIGNED )
-----------------------------------------)
Authorized Signatory )
Title: )
-----------------------------------)
FOR THE TENANT:
THE CORPORATE SEAL OF )
PIVOTAL SOFTWARE INC. )
_________________________________________)
was hereto affixed in the presence of: )
)
)
/s/ SIGNED ) C/S
-----------------------------------------)
Authorized Signatory )
)
Title: CFO )
-----------------------------------)
)
)
-----------------------------------------)
Authorized Signatory )
Title: )
-----------------------------------)
29
