000 XXXXXXXXXX XXXXXX, XXXXXXX
THIS LEASE, dated May 28, 1996, is made by the Landlord and Tenant
named herein who, in consideration of the rents, covenants and agreements herein
contained covenant and agree as follows:
ARTICLE 1
BASIC TERMS, DEFINITIONS, INTERPRETATION
1.01 SUMMARY OF BASIC TERMS.
(a) (i) Landlord: 170 University (Toronto) Partnership
(ii) Address c/o Gentra Canada Investments Inc.
of Landlord: 00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X IS9
Attention: Vice-President, Real Estate
Telecopy: (000) 000-0000
(b) (i) Tenant: Promis Systems Corporation Ltd.
(ii) Address At the Premises
of Tenant:
Attention: President
Telecopy: (000) 000-0000
(c) (i) Indemnifier: N/A
(ii) Address of N/A
Indemnifier:
(d) Premises: All of Floors ten (10), eleven (11),
twelve (12) and thirteen (13)
(e) Rentable Area Approximately 25,086 square feet
of Premises: subject to Section 2.02.
(f) (i) Term: Ten (10) years, subject to Section
3.01 and Section 4.01 of Schedule D
hereto.
(ii) Estimated
Commencement December 1, 1996
Date subject to Article 3
(g) Minimum Rent (Section 4.01):
(i) Per Sq. (ii) (iii)
Lease Year Ft./Year Per Year Per Month
---------- -------- -------- ---------
1 - 5 $16.00 $401,376.00 $33,448.00
6 - 10 $19.00 $476,634.00 $39,719.50
(h) Fixturing Period
One Hundred and Twenty (120) days
(i) Special Provisions: Schedule D
The terms set out above are intended to be only a summary of certain basic terms
of this Lease. In the event of any inconsistency between such terms and the
terms hereinafter set out in this Lease, the latter shall govern.
1.02 DEFINITIONS. In this Lease, unless there is something in the
subject matter or context inconsistent therewith:
(a.) "ACCOUNTING PERIOD" means a calendar year or such
other accounting period, not exceeding sixteen (16)
months, as the Landlord may adopt from time to time
for the Building;
(b.) "ADDITIONAL RENT" means all amounts in addition to
Minimum Rent payable by the Tenant to the Landlord
pursuant to this Lease, including those amounts set
out in Section 4.02, but excluding Goods and Services
Tax;
(c.) "ADMINISTRATIVE CHARGE" means the charge specified as
such in Subsection 4.02(c);
(d.) "APPLICABLE LAWS" means all statutes, laws, by-laws,
regulations, ordinances, orders and requirements of
governmental or other public authorities having
jurisdiction, and all amendments thereto, at any time
and from time to time in force;
(e.) "ARCHITECT" means the architect designated by the
Landlord from time to time, who shall be duly
qualified to practice in Ontario and independent of
the Landlord;
(f.) "BUILDING" means the Lands and the multi-storey
building municipally known as 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxx and all other structures, improvements,
facilities and appurtenances that have been or are
being constructed on the Lands, including or together
with the Building Systems and the Common Areas and
Facilities, all as may be altered, expanded, reduced
or reconstructed from time to time;
(g.) "BUILDING SYSTEMS" means:
(i) the HVAC System and all other systems,
services, installations and facilities from
time to time installed in or servicing the
Building (or any portion thereof),
including, but not limited to, the elevators
and escalators and the following systems,
services, installations and facilities:
mechanical (including plumbing, sprinkler,
drainage and sewage), electrical and other
utilities, lighting, sprinkler, life safety
(including fire prevention, communications,
security and surveillance), computer
(including environmental, security and
lighting control), ice and snow melting,
refuse removal, window washing, and music;
and
(ii) all machinery, appliances, equipment,
apparatus, components, computer software and
appurtenances forming part of or used for or
in connection with any of such systems,
services, installations and facilities
including, but not limited to, boilers,
motors, generators, fans, pumps, pipes,
conduits, ducts, valves, wiring, meters and
controls, and the structures and shafts
housing and enclosing any of them;
(h) "BUSINESS HOURS" means the hours from 7:30 a.m. to
6:30 p.m. Monday to Friday, inclusive, and from 9:00
a.m. to 5:00 p.m. on Saturday of each
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week, excepting holidays (as defined in the
Interpretation Act (Ontario));
(i) "BUSINESS TAXES" means all taxes, rates, duties,
levies, assessments, licence fees and other charges
in respect of the use or occupancy of, or any
business carried on, by tenants or other occupants of
the Building and includes, without limitation,
business taxes levied or assessed pursuant to the
Assessment Act (Ontario);
(j) "CHANGE OF CONTROL" means, in the case of any
corporation or partnership, the transfer or issue by
sale, assignment, subscription, transmission on
death, mortgage, charge, security interest, operation
of law or otherwise (including, without limitation,
any change in the constitution of a partnership), of
any shares, voting rights or interest which would
result in any change in the effective control of such
corporation or partnership, unless (i) such change
occurs as a result of trading in the shares of a
corporation listed on The Toronto Stock Exchange or
Montreal Stock Exchange; and (ii) the Landlord
receives assurances reasonably satisfactory to it
that such change will not detrimentally affect the
financial capacity of such corporation or the ability
of such corporation to conduct business;
(k) "COMMENCEMENT DATE" means the date determined
pursuant to Section 3.01;
(l) "COMMON AREAS AND FACILITIES" means (A) those areas,
facilities, improvements, installations and equipment
in or around the Building that (i) are neither rented
nor designated nor intended by the Landlord to be
rented and (ii) are provided or designated from time
to time by the Landlord for the benefit or use of
more than one (1) tenant or component of the Building
including, but not limited to, entrances, lobbies,
access and service corridors, stairways, indoor and
outdoor walkways (both open and enclosed), furniture,
furnishings and fixtures, public sidewalks (to the
extent maintained for the benefit of the Building),
public washrooms, indoor and outdoor landscaping and
landscaped areas, passageways or tunnels leading to
the underground public transportation system and to
other buildings or concourses or elsewhere,
mailrooms, electrical, telephone, meter, valve,
mechanical, storage and janitor rooms, shipping and
receiving areas and loading docks, package or
passenger pick-up areas, waste disposal or recycling
facilities, and driveways, laneways and ramps, and
(B) space, facilities and installations that are made
available for community service, public or other use
pursuant to the Municipal and Operating Agreements,
all as may be altered, expanded, reduced,
reconstructed or relocated from time to time;
(m) "CPI" means the Consumer Price Index (All items) for
the Municipality of Metropolitan Toronto, 1981=100,
published by Statistics Canada or its successor,
adjusted for any change in base year, or, if
Statistics Canada or its successor no longer
publishes such index or is no longer operated by the
Government of Canada, such other price index as the
Landlord may substitute acting reasonably; in the
case of any such substitution the Landlord shall be
entitled to make all necessary conversions for
purposes of comparison;
(n) "EVENT OF DEFAULT" means any event specified as such
in Section 14.01;
(o) "EXPERT" means architect, engineer, chartered
accountant, quantity surveyor, or other professional
consultant, in any case appointed by the
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Landlord and, in the reasonable opinion of the
Landlord, qualified to perform the function for which
he or she is retained;
(p) "FIXTURING PERIOD" means the number of days, if any,
specified in Subsection 1.01(h) prior to the
Commencement Date allowed the Tenant to perform its
fixturing of the Premises after the Landlord has
delivered the Premises to it for such purpose;
(q) "GOODS AND SERVICES TAX" means all goods and services
taxes, value added, sales, use, consumption or other
similar taxes of whatever name imposed by the
Government of Canada or by any provincial or local
government;
(r) "HVAC SYSTEM" means all interior climate control
(including heating, ventilating and air-conditioning)
systems, installations, equipment and facilities in
or servicing the Building that are provided or
designated from time to time by the Landlord for the
benefit of more than one (1) tenant or component of
the Building;
(s) "INDEMNIFIER" means the Person, if any, named as
Indemnifier in Subsection 1.01(c) and who has
executed or agreed to execute the indemnity agreement
attached to this Lease as Schedule E, if applicable;
(t) "LANDLORD" means the party named in Subsection
1.01(a) and its successors and assigns;
(u) "LARGE CORPORATIONS TAX" means any tax payable under
Part I.3 of the Income Tax Act (Canada) or any
successor provisions thereto of a similar nature;
(v) "LANDS" means the lands more particularly described
in Schedule A hereto, as they may be altered,
expanded or reduced from time to time;
(w) "LEASE" means this lease as it may be amended from
time to time in accordance with the provisions
hereof;
(x) "LEASEHOLD IMPROVEMENTS" means all fixtures,
improvements, installations, alterations and
additions from time to time made, erected or
installed by or on behalf of the Tenant or any former
occupant in the Premises, including internal
stairways, doors, hardware, partitions (including
moveable partitions) and wall-to-wall carpeting with
the exception of such carpeting where laid over
vinyl, tile or other finished floor and removable
without damage to such floor, but excluding trade
fixtures, drapes, and furniture and equipment not of
the nature of fixtures;
(y) "LEASE YEAR" means, in the case of the first Lease
Year, the period beginning on the Commencement Date
and ending on the last day of the 12th consecutive
full month after the expiry of the calendar month in
which the Commencement Date occurs (except that if
the Commencement Date occurs on the first day of a
calendar month, the first Lease Year shall end on the
day prior to the first anniversary of the
Commencement Date) and, in the case of the second and
each subsequent Lease Year, means consecutive periods
each of twelve (12) consecutive full months, with the
second Lease Year commencing immediately after the
first Lease Year;
(z) "MINIMUM RENT" means the rent payable pursuant to
Section 4.01;
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(aa) "MORTGAGE" means any mortgage, charge or security
instrument (including a deed of trust or mortgage
securing bonds) and all extensions, modifications and
renewals thereof which may now or hereafter affect
the Lands;
(bb) "MORTGAGEE" means the mortgagee, chargee or secured
party or trustee for bondholders, as the case may be,
who from time to time holds a Mortgage;
(cc) "MUNICIPAL AND OPERATING AGREEMENTS" means
collectively (i) any and all agreements made pursuant
to Section 36 or Section 40 of the Planning Act, 1983
(Ontario) and any other similar or successor
provisions, (ii) development, site plan, landscaping,
sidewalk improvement, tunnel, lane closing, building
conservation, restoration or heritage agreements and
(iii) any other agreements with The Corporation of
the City of Toronto, the Municipality of Metropolitan
Toronto and others (including the owners of the
various parts of the development, other real estate
projects and the Toronto Transit Commission) relating
to the development, construction, use and/or
operation and/or shared access to the Building or
other adjacent developments, or any part or parts
thereof, in each case whether now or hereafter
entered into and as the same may be amended from time
to time;
(dd) "OPERATING COSTS" means all costs, expenses, fees,
rentals, disbursements and outlays as specified in
Section 7.07 but excluding or deducting therefrom
such costs, expenses, fees, rentals, disbursements
and outlays specified as exclusions or deductions, as
the case may be, in Sections 7.08 and 7.09;
(ee) "PERSON", according to the context, includes any
person, corporation, firm, partnership or other
entity, any group of persons, corporations, firms,
partnerships or other entities, or any combination
thereof;
(ff) "PREMISES" means that part of the Building identified
in Subsection 1.01(d) and approximately as shown
cross-hatched on the floor plan(s) attached as
Schedule B; notwithstanding the definition of
Rentable Area the boundaries of the Premises are as
follows: (i) the interior face of all exterior walls,
doors and windows; (ii) the interior face of all
interior walls, doors and windows separating the
Premises from Common Areas and Facilities; (iii) the
centre line of all interior walls separating the
Premises from adjoining leasable premises; and (iv)
the top surface of the structural subfloor and the
bottom surface of the structural ceiling; provided
that any Building Systems which are located in the
Premises do not form part of the Premises;
(gg) "PRIME" means the annual rate of interest announced
from time to time by the Landlord's bank (which shall
be a Canadian chartered bank listed in Schedule I to
the Bank Act designated by the Landlord from time to
time) as the daily rate of interest used by such bank
as a reference rate in setting rates of interest for
commercial loans of Canadian dollars and commonly
referred to by such bank as its Canadian "prime
rate";
(hh) "PROPERTY TAXES" means all taxes, rates, duties,
levies, fees, charges (including local improvement
charges) and assessments whatsoever, imposed,
assessed, levied, rated or charged against the
Building or any part thereof from time to time by any
lawful taxing authority whether school, municipal,
regional, provincial, federal, or otherwise and any
taxes or other amounts which are imposed in lieu of,
or in addition to, any of the foregoing whether or
not in existence at the commencement of the Term and
whether of the foregoing character or not and any
such taxes levied
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against the Landlord or any owner on account of its
ownership of the Building or its interest therein or
the rents payable to any such Person by tenants or
other occupants of the Building but excluding taxes
on the income or profits of the Landlord except to
the extent that they are levied in lieu of the
foregoing and excluding Goods and Services Tax;
(ii) "PROPORTIONATE SHARE" means a fraction which has (i)
as its numerator the Rentable Area of the Premises
and (ii) as its denominator the Rentable Area of the
Building;
(jj) "RENT" means all Minimum Rent and Additional Rent
payable pursuant to this Lease;
(kk) "RENTABLE AREA", in the case of the Premises or any
other premises included in the Rentable Area of the
Building, means the area expressed in square feet, as
verified by the Architect or the Surveyor, of all
floors of such premises, determined as follows:
(i) in the case of premises on a floor above the
street entrance level floor occupied
entirely by one (1) tenant, the Rentable
Area shall be all the floor area within the
exterior walls calculated by measuring from
the inside face of the glass of the exterior
walls, without deduction for columns and
projections, and including elevator lobbies,
service corridors, washrooms, electrical,
telephone, meter, valve, mechanical, storage
and janitor rooms and any internal or
special stairways and/or elevators for the
specific use of the particular tenant but
excluding other stairways, elevator shafts,
flues, pipe shafts and vertical ducts; and
(ii) in the case of premises on a floor above the
street entrance level floor occupied by more
than one (1) tenant, the Rentable Area shall
be the aggregate of (A) all floor area
within the exterior walls of such premises
calculated by measuring from the inside face
of the glass of the exterior walls to the
finished surface of the corridor side of the
corridor partitions and to the centre line
of demising partitions, without deduction
for columns and projections, but excluding
elevator lobbies, service corridors,
washrooms, electrical, telephone, meter,
valve, mechanical, storage and janitor
rooms, stairways and elevator shafts
supplied by the Landlord for use in common
with other tenants within the relevant
floors; and (B) a share of the area of
Common Areas and Facilities located on such
floor, such share to be in the same
proportion to such area that the area of the
space referred to in clause (A) above is to
the total Rentable Area of such floor
determined without reference to this clause
(B); and (C) any service areas or corridors
which are for the exclusive use of the
particular tenant, and including internal or
special stairways and elevators; and
(iii) in the case of premises on or below the
street entrance level floor, the Rentable
Area shall be determined pursuant to clauses
(A) and (C) of paragraph 1.02(kk)(ii) above
without reference to clause (B) thereof;
it being acknowledged that the Rentable Area of the Premises
or the Building or any other space will be adjusted from time
to time to reflect any alteration, expansion, reduction,
construction or relocation;
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(ll) "RENTABLE AREA OF THE BUILDING" means the aggregate
of the Rentable Area of all premises in the Building
that are rented, or designated or intended by the
Landlord to be rented, for offices or business
purposes (whether actually rented or not) and, for
greater certainty, excludes Storage Areas;
(mm) "RULES AND REGULATIONS" means the rules and
regulations made by the Landlord from time to time
pursuant to Section 8.04; the Rules and Regulations
existing as at the Commencement Date are those
annexed hereto as Schedule C;
(nn) "SALES TAXES" means all sales taxes, Goods and
Services Tax and other taxes, rates, duties, levies,
fees, charges and assessments whatsoever,
whether or not in existence at the commencement of
the Term, imposed, assessed, levied, rated or charged
on the Tenant or the Landlord in respect of the Rent
payable by the Tenant to the Landlord or the rental
of the Premises or the provision of any goods,
services or utilities whatsoever by the Landlord to
the Tenant under this Lease;
(oo) "STORAGE AREAS" means those areas in the Building, if
any, which are designated or intended from time to
time by the Landlord to be rented to tenants or other
occupants for storage purposes;
(pp) "SURVEYOR" means the professional land or quantity
Surveyor for the Building designated by the Landlord
from time to time, who shall be duly qualified to
practice in Ontario and who shall be independent of
the Landlord;
(qq) "TENANT" means the party named in Subsection 1.01(b)
and its heirs, executors, administrators and
permitted successors and assigns;
(rr) "TERM" means the period specified in Section 3.01, as
it may be extended or renewed by the Tenant pursuant
to the options given to the Tenant to extend or renew
this Lease, if any;
(ss) "TRANSFER" means an assignment of this Lease in whole
or in part, a sublease of all or any part of the
Premises, any transaction whereby the rights of the
Tenant under this Lease or to the Premises are
transferred to another Person, any transaction by
which any right of use or occupancy of all or any
part of the Premises is conferred upon any Person,
any mortgage, charge or encumbrance of this Lease or
the Premises or any part thereof or other arrangement
under which either this Lease or the Premises become
security for any indebtedness or other obligations
and includes any transaction or occurrence whatsoever
(including, but not limited to, expropriation,
receivership proceedings, seizure by legal process
and transfer by operation of law), which has changed
or might change the identity of the Person having
lawful use or occupancy of any part of the Premises;
(tt) "TRANSFEREE" means the Person to whom a Transfer is
or is to be made; and
(uu) "UNAVOIDABLE DELAY" means any cause beyond the
control of the party affected thereby which prevents
the performance by such party of any obligation
hereunder and not caused by its default or act of
commission or omission and not avoidable by the
exercise of reasonable care, including, without
limitation, strikes, lockouts or other labour
disputes, the enactment, amendment or repeal of any
Applicable Laws, and shortages or
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unavailability of labour or materials, but excluding
lack of funds or financial inability.
1.03 NUMBER, GENDER, LIABILITY. The grammatical changes required to
make the provisions of this Lease apply in the plural sense
where the Tenant or Indemnifier comprises more than one Person
and to corporations, firms, partnerships, or individuals, male
or female, will be assumed as though in each case fully
expressed. If the Tenant consists of more than one Person, the
covenants of the Tenant shall be deemed to be joint and
several covenants of each such Person. If the Tenant is a
partnership each Person who is presently a member of such
partnership, and each Person who becomes a member of any
successor partnership, shall be and continue to be liable
jointly and severally for the performance of this Lease,
whether or not such Person ceases to be a member of Such
partnership or successor partnership.
1.04 NO LIMITATION. Whenever a statement or provision in this Lease
is followed by words denoting inclusion or example (such as
"including" or "such as") and then a list of, or reference to,
specific matters or items, such list or reference shall not be
read so as to limit or restrict the generality of such
statement or provision, even though words such as "without
limitation" or "without limiting the generality of the
foregoing" do not precede such list or reference.
1.05 HEADINGS AND CAPTIONS. The table of contents, Article numbers,
Article headings, Section numbers and Section headings are
inserted for convenience of reference only and are not to be
considered when interpreting this Lease.
1.06 OBLIGATIONS AS COVENANTS. Each obligation of the Landlord or
the Tenant expressed in this Lease shall be a covenant for all
purposes.
1.07 ENTIRE AGREEMENT. This Lease contains all the representations,
warranties, covenants, agreements, conditions and
understandings between the parties concerning the Premises and
the subject matter of this Lease and may be amended only by an
agreement in writing signed by the Landlord and the Tenant.
1.08 GOVERNING LAW. This Lease shall be interpreted under and is
governed by the laws of the Province of Ontario.
1.09 CURRENCY. All Rent and other amounts of money in this Lease
are expressed in and refer to Canadian dollars and shall be
paid in the lawful currency of Canada.
1.10 SEVERABILITY. If any provision of this Lease is illegal or
unenforceable it shall be considered severable from the
remaining provisions of this Lease, which shall remain in
force.
1.11 SUCCESSORS AND ASSIGNS. This Lease and everything herein
contained shall benefit and bind the successors and assigns of
the Landlord and the heirs, executors, administrators and
permitted successors and assigns of the Tenant.
1.12 SCHEDULES. The Schedules shall form part of this Lease and are
as follows:
Schedule A - Description of Lands
Schedule B - Floor Plan
Schedule C - Rules and Regulations
Schedule D - Special Provisions
Schedule E - Indemnity Agreement (Intentionally Deleted)
Schedule F - Lease Takeover Provisions
1.13 TIME OF THE ESSENCE. Time is of the essence of this Lease and
every part thereof.
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ARTICLE 2
GRANT OF LEASE
2.01 DEMISE. The Landlord hereby leases the Premises to the Tenant
to have and to hold during the Term. The Tenant takes the
Premises on lease from the Landlord and covenants to pay the
Rent and to observe and perform all the covenants and
obligations to be observed and performed by the Tenant
pursuant to this Lease.
2.02 RENTABLE AREA. The estimated Rentable Area of the Premises is
set out in Subsection 1.01(e). The Rentable Area of the
Premises shall be conclusively determined by the Architect or
the Surveyor in accordance with the BOMA standard of
measurement and shall be verified by the Architect or the
Surveyor, a copy of which shall be given to the Tenant. Such
determination shall be binding upon both the Landlord and the
Tenant. The Architect or the Surveyor will recalculate the
Rentable Area of the Premises whenever required because of a
rearrangement of partitions or other changed condition on the
floor or floors on which the Premises are located.
2.03 EXAMINATION OF PREMISES. The Tenant shall examine the Premises
before taking possession and notify the Landlord prior to
taking possession of any defect in the condition thereof. The
Tenant agrees that there is no promise, representation and
undertaking by or binding upon the Landlord with respect to
any alteration, remodelling or decoration of the Premises or
with respect to the installation of equipment or fixtures in
the Premises, except as expressly provided in this Lease.
ARTICLE 3
TERM
3.01 TERM. The Term of this Lease shall commence on the
Commencement Date, which will be December 1, 1996, and shall
end on the last day of the calendar month after the expiry of
the period set out in paragraph 1.01(f)(i), unless terminated
earlier pursuant to this Lease.
3.02 CERTIFICATE AS TO COMMENCEMENT DATE. The determination of the
Commencement Date pursuant to Section 3.01 will be made by the
Landlord or, in the event of a dispute, by an Expert. The
Landlord and the Tenant will execute a certificate confirming
the Commencement Date if either party requests such a
certificate.
3.03 EARLY OCCUPANCY. The Tenant shall be permitted to perform the
Tenant's Work (as hereinafter defined) during the Fixturing
Period provided the Tenant shall comply with all of the terms
and conditions contained in this Lease to be performed by the
Tenant save for the payment of Minimum Rent and Additional
Rent during such period.
ARTICLE 4
RENT
4.01 MINIMUM RENT. The Tenant shall pay to the Landlord, in and for
each Lease Year, Minimum Rent in the amount per square foot of
the Rentable Area of the Premises set out in paragraph
1.01(g)(i) for the respective Lease Year, by equal consecutive
monthly instalments in advance on the first day of each month
in the amount set out in paragraph 1.01(g)(iii) for such Lease
Year, subject to the adjustment provisions of Section 4.05. If
the Commencement Date is not the first day of a calendar
month, the Tenant shall pay, on such Commencement Date, as
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Minimum Rent, for the period from the Commencement Date to the
last day of the relevant calendar month, inclusive, an amount
calculated by multiplying the annual Minimum Rent for the
first Lease Year by the number of days during such period and
dividing by three hundred and sixty-five (365), and the first
regular instalment of Minimum Rent for such first Lease Year
shall be paid on the first day of the calendar month next
following the Commencement Date.
4.02 ADDITIONAL RENT. The Tenant shall also pay to the Landlord
throughout the Term as Additional Rent:
(a) the Tenant's share of Property Taxes and other taxes
payable to the Landlord in accordance with Article 7;
(b) the Tenant's Proportionate Share of Operating Costs,
which Operating Costs shall be as specified in
Article 7; and
(c) the aggregate of:
(i) costs of utilities in accordance
with Sections 6.02 and 6.03;
(ii) costs of any additional services in
accordance with Section 6.05; and
(iii) such other costs, charges, amounts
and expenses as are required to be
paid by the Tenant to the Landlord
under this Lease (other than those
referred to in subsections 4.02(a)
and (b), above);
plus, in respect of each such cost, charge, amount or expense
referred to in this subsection 4.02(c), an administrative
charge of fifteen percent (15%) thereof.
Except as otherwise provided in this Lease, all Additional Rent shall be payable
within fifteen (15) days of receipt by the Tenant of an invoice, statement or
demand therefor from or on behalf of the Landlord.
4.03 PAYMENT OF ADDITIONAL RENT. Before the commencement of each
Accounting Period the Landlord shall notify the Tenant of the
estimated amount for such Accounting Period of:
(a) the Tenant's share of Property Taxes and other taxes
payable to the Landlord;
(b) the Tenant's Proportionate Share of Operating Costs;
and
(c) such other items of Additional Rent as the Landlord
may estimate in advance.
The Tenant shall pay such estimated amount in monthly instalments, as notified
by the Landlord to the Tenant, in advance on the first day of each month during
such Accounting Period. The Landlord may from time to time during an Accounting
Period re-estimate any items of Additional Rent and may fix monthly instalments
for the then remaining balance of the Accounting Period so that such items will
have been entirely paid during such Accounting Period. Within one hundred and
twenty (120) days after the end of such Accounting Period the Landlord shall
determine and provide the Tenant with a statement in reasonable detail for the
relevant Accounting Period of the Tenant's Proportionate Share of Operating
Costs, the Tenant's share of Property Taxes and such other items of Additional
Rent as the Landlord estimated in advance. If the total of the monthly
instalments paid by the Tenant in respect of estimated Additional Rent for such
Accounting Period is less than the amount of Additional Rent payable for such
Accounting Period shown on such statement, the Tenant shall pay the difference
to the
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Landlord. If the total of such monthly instalments paid is greater than
the amount of the Additional Rent payable for such Accounting Period, the
difference shall either, at the option of the Landlord, be repaid to the Tenant
with such statement, be applied in payment of other amounts owing by the Tenant,
or be applied in reduction of future payments due under this Lease. The Landlord
shall provide the Tenant as soon as reasonably possible following each Lease
year with a certificate of the Landlord's auditor confirming the fairness of the
Landlord's determination of Operating Costs, which shall be binding upon the
parties.
4.04 ACCRUAL OF RENT. Rent shall be considered as accruing from day
to day hereunder from the Commencement Date and where it
becomes necessary for any reason to calculate such Rent for an
irregular period during the relevant Lease Year or Accounting
Period an appropriate apportionment and adjustment shall be
made on a per diem basis based upon the relevant Lease Year or
Accounting Period.
4.05 ADJUSTMENT OF RENT. If and whenever the Rentable Area of the
Premises is revised in accordance with Section 2,02, the
Minimum Rent for any Lease Year or relevant portion thereof,
affected by such revision, shall be recalculated by
multiplying such revised Rentable Area by the amount per
square foot of Rentable Area of the Premises set out in
paragraph 1.0 1 (g)(i) for such Lease Year and the amount of
the annual Minimum Rent for such Lease Year, or relevant
portion thereof, and the equal monthly instalments for such
Lease Year, or relevant portion thereof, shall be amended
accordingly. There shall be a corresponding recalculation of
the Tenant's Proportionate Share and amounts payable as
Additional Rent. Upon any such recalculation, the Landlord and
the Tenant shall make the appropriate adjustments in respect
of earlier payments of Minimum Rent and Additional Rent
affected by any such recalculation.
4.06 PAYMENTS GENERALLY. Payments by the Tenant to the Landlord of
whatsoever nature required or contemplated by this Lease
shall:
(a) be made when due hereunder, without prior demand
therefor and without any abatement, set-off,
compensation or deduction whatsoever (except for any
abatement under Section 11.02), at the office of the
Landlord as set out in Subsection 1. 0 1 (a) or at
such other place as the Landlord may designate from
time to time to the Tenant;
(b) be applied towards amounts then outstanding hereunder
in such manner as the Landlord determines;
(c) bear interest daily from the due date to the date of
payment, calculated daily, at the rate per annum
which is five percent (5%) above Prime;
(d) in addition to all amounts payable by the Tenant
under this Lease as Rent, the Tenant shall pay, at
the earlier of the time provided for in applicable
legislation or at the time such Rent is required to
be paid under this Lease, all Goods and Services
Taxes calculated on or in respect of amounts payable
by the Tenant as Rent under this Lease and,
notwithstanding that Goods and Services Taxes are not
Additional Rent under this Lease, the Landlord shall
have the same rights and remedies for the recovery of
such amounts payable as Goods and Services Tax as it
has for amounts payable as Additional Rent under this
Lease.
4.07 NET LEASE. The Tenant acknowledges and agrees that it is
intended that this Lease shall be a completely carefree net
lease for the Landlord 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 Premises, whether foreseen or unforeseen and whether or
not within the contemplation of the parties at the
commencement of the Term, except as shall be otherwise
expressly provided in this Lease
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4.08 THIRTEENTH FLOOR OPERATING COSTS. The Landlord acknowledges
and agrees that during the Term and any renewals or extensions
thereof, the Tenant shall not be responsible for the Tenant's
share of Property Taxes or the Tenant's Proportionate Share of
Operating Costs in respect of the entire Rentable Area of the
Premises located on the thirteenth floor of the Building,
being approximately 1,817 square feet.
ARTICLES
CONTROL AND OPERATION OF BUILDING BY LANDLORD
5.01 OPERATION OF THE BUILDING BY THE LANDLORD. Subject to the
other provisions of this Lease, the Landlord or its agents
will operate the Building as would a prudent owner of a
comparable development of similar age, size and location in
the City of Toronto and will maintain, clean, light, heat,
ventilate and air condition the Common Areas and Facilities as
may be appropriate during Business Hours or at such other
times as the Landlord may deem necessary or the Landlord may
agree to provide such services to the Tenant in accordance
with Article 6. Subject to Article 11, if there should be an
interruption in any of the Building Systems that are essential
to the effective operation of the Building the Landlord shall
proceed with reasonable diligence to end such interruption
(such repair not to unreasonably interfere with the Tenant's,
permitted use of the Premises) but in no event will the Tenant
be entitled to any compensation or to any abatement or
repayment of Rent,
5.02 RIGHT TO USE COMMON AREAS AND FACILITIES. The Tenant shall be
entitled, subject to the terms of this Lease, to the
non-exclusive benefit or use (as may be appropriate) of the
Common Areas and Facilities, in common with the other tenants
or occupants of the Building and with all others entitled
thereto.
5.03 CONTROL OF THE BUILDING BY THE LANDLORD. The Landlord has at
all times exclusive control of the Building and its management
and operation, but not so as to deny the Tenant access to the
Premises except in an emergency. Without limiting the
generality of the foregoing, at any time and from time to
time, the Landlord may:
(a) close all or part of the Building to the extent
necessary, in the opinion of the Landlord's legal
counsel, to prevent the public or any Person from
obtaining rights therein other than the rights that
would ordinarily accrue to tenants in respect of
their leased premises under a lease such as this;
(b) retain contractors and employ all personnel,
including supervisory personnel and managers, that
the Landlord considers necessary for the effective
maintenance, repair, operation, administration or
management of the Building;
(c) temporarily obstruct or close off all or any part of
the Building (except the Premises) or the Common
Areas and Facilities for the purpose of maintenance,
repair, replacement or construction of any component
or phase of the Building or for the purpose of
integrating components of the Building or integrating
the Building with any other components or phases of
other adjacent developments provided that the
Landlord shall not block or interfere with the
Tenant's means of access to the Premises during
Business Hours except in the event of an emergency as
determined by the Landlord, acting reasonably;
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(d) make, modify and terminate agreements pertaining to
the use, maintenance, repair, operation,
administration and management of all or any part of
the Building and the Common Areas and Facilities
including the Municipal and Operating Agreements and
other agreements with the owner or owners of any
components of any other developments; and
(e) do and perform such other acts in and to the Building
or its component parts as the Landlord determines to
be advisable for the proper and efficient operation
of the Building.
5.04 LANDLORD'S ALTERATIONS. At any time and from time to time, the
Landlord may:
(a) dedicate or convey portions of the Building to any
governmental or public authority or other Person and
grant easements, rights-of-way, restrictive covenants
or other interests in the Building; and
(b) construct in or adjoining the Building such
improvements as it deems appropriate in its absolute
discretion and make alterations or additions to, or
change the location of, or expand or reduce any part
of any buildings, facilities, improvements and areas
from time to time in the Building, other than the
Premises, but including, without limitation, the
Common Areas and Facilities, or permit any such
action to be taken.
5.05 NO LIABILITY. Neither the exercise by the Landlord of its
rights under this Article 5 nor any noise, dust, vibration or
other consequences of construction, alteration, expansion,
reduction or reconstruction from time to time of the various
parts or components of the Building or of improvements on
adjoining properties shall entitle the Tenant to any reduction
in Rent, result in any liability of the Landlord to the Tenant
or in any other way affect this Lease or the Tenant's
obligations hereunder.
ARTICLE 6
HVAC, UTILITIES AND OTHER SERVICES
6.02 HEATING, VENTILATING AND AIR CONDITIONING.
(a) The Landlord shall provide processed air in
such quantities and at such temperatures as
shall maintain in the Premises conditions of
reasonable temperature and comfort during
Business Hours. If the Tenant requests the
provision of processed air outside Business
Hours, the Landlord shall provide such
processed air at the Tenant's cost
determined in accordance with the Landlord's
standard rate schedule for such additional
service in effect from time to time.
(b) If the Tenant requests interior climate
control services that, in the Landlord's
reasonable opinion, differ in any material
respect from the standard services provided
by the Landlord to office tenants in the
Building (such as, for example, special
requirements for computer installations),
the Landlord will provide such services if
the Landlord determines, in its sole
discretion, that the provision of such
services is within the capacity of the HVAC
System, would not affect the operation,
aesthetics or structure of the Building,
would not reduce the efficiency of the
existing interior climate control services
provided to other tenants or parts of the
Building, and is otherwise feasible. The
Tenant will pay to the Landlord all costs,
both non-recurring and recurring, of
providing such services. Such costs will be
determined by the Landlord in a reasonable
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manner and the Landlord may use an Expert to
assist it in determining such costs. The
Landlord may discontinue such services if
this becomes necessary to maintain or
provide an equitable standard of service to
all tenants of the Building.
(c) Notwithstanding Subsection 6.01(a) the
Landlord shall not be responsible for
inadequate performance of the HVAC System
(i) if this is attributable to any
construction or installation done by or on
behalf of the Tenant, any arrangement of
partitioning in the Premises or changes
therein, the failure to shade windows which
are exposed to the sun, the production by
the Tenant of smoke, odours or contaminated
air which the HVAC System is not designed to
accommodate, or any use of electrical power
by the Tenant which exceeds the standard of
normal use as determined by the Landlord
acting reasonably, (ii) if the occupancy
level of the Premises exceeds one person to
every two hundred (200) square feet of
Rentable Area of the Premises on an open
floor basis, or (iii) if the Tenant does not
keep the heating, ventilation or air
conditioning vents or air returns free and
clear of all obstructions.
(d) The interior office layout or partitioning
of the Premises shall be modified by the
Tenant, if necessary, in accordance with the
reasonable requirements of the Landlord to
secure maximum efficiency of the HVAC System
serving the Premises. The Tenant shall
comply with all the Rules and Regulations
pertaining to the operation and regulation
of those portions of the HVAC System within
and serving the Premises, failing which the
Landlord shall be entitled to take such
steps as it deems advisable including,
without limitation, entering upon the
Premises and taking the necessary corrective
action, and the Tenant will pay to the
Landlord all costs incurred by the Landlord
in so doing as Additional Rent.
6.02 ELECTRICITY AND OTHER UTILITIES.
(a) The Landlord will provide and permit the
Tenant to use the electricity, domestic
water, sewage disposal and other utility
services serving the Building. Such services
will be provided in such quantities as the
Landlord, acting reasonably, from time to
time determines to constitute normal use for
office tenants in the Building. The Tenant
shall not in any event overload the capacity
of any such service. The Tenant shall not
bring onto the Premises any installations,
appliances or business machines which are
likely to consume significant amounts of
electricity or other utilities or which
require special venting without the prior
written consent of the Landlord, such
consent not to be unreasonably withheld.
(b) The Landlord shall replace building standard
and, at the Landlord's election,
non-standard electric light fixtures,
ballasts, tubes, starters, lamps, light
bulbs and controls in the Premises. In
carrying out its obligation, the Landlord
may adopt a system of periodic group
relamping in accordance with sound building
management practices.
(c) Costs relating to the use by the Tenant of
electricity and other utility services in
quantities which is normal use for office
tenants in the Building, as determined by
the Landlord, acting reasonably, will form
part of Operating Costs or be paid by the
Tenant to the
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Landlord separately as
Additional Rent, as and to the extent that
the Landlord may elect from time to time.
6.03 SPECIAL UTILITIES AND EXCESS QUANTITIES. If the Tenant
requests electricity, water or other utility services of a
type or in quantities that exceed normal use by office tenants
in the Building, as determined by the Landlord, acting
reasonably, the Landlord shall supply such special utilities
or excess quantities if the Landlord determines, in its sole
discretion, that the provision of such special utilities or
excess quantities is within the capacity of the Building
Systems, would not affect the operation, aesthetics or
structure of the Building would not reduce the efficiency of
the existing utility Services supplied to other tenants or
parts of the Building, and is otherwise feasible. The Tenant
will pay to the Landlord all costs, both non-recurring and
recurring, of providing all such special utilities or excess
quantities. Such cost shall be determined by the Landlord in a
reasonable manner, which may include installation at tile
Tenant's expense of separate meters or other measuring devices
in the Premises or elsewhere and the Landlord may use an
Expert to assist it in determining such costs. The Landlord
may discontinue the provision of any such special utilities or
excess quantities at any time if this becomes necessary to
maintain or provide an equitable standard of service to all
tenants or parts of the Building.
6.04 JANITORIAL SERVICES. The Landlord shall provide janitorial
services as reasonable required to keep the Premises in a
clean and wholesome condition, provided that the Tenant shall
leave the Premises in a reasonably tidy condition at the end
of each business day and provided that all curtains, carpets,
rugs or drapes of any kind in the Premises shall be cleaned
and maintained by the Tenant. In no event will the Landlord be
liable for any act or omission of any Person employed or
engaged by the Landlord to provide such services, or for any
loss thereby sustained by the Tenant, its agents, officers,
employees, customers, invitees, licensees or any other Person
who may be upon the Premises. The Tenant shall not engage any
Person to provide janitorial services to the Premises without
the written approval of the Landlord. The Tenant shall grant
access necessary for the performance of the janitorial
services and shall leave the Premises in a reasonably tidy
condition at the end of each day to permit the performance of
such services.
6.05 ADDITIONAL SERVICES OF THE LANDLORD. The Tenant shall pay to
the Landlord the costs of all services provided by the
Landlord or its agent to the Tenant, other than services
supplied by the Landlord and charged as Operating Costs. Such
services shall include:
(a) services performed at the Tenant's request including,
without limitation, heating, ventilating and
air-conditioning services outside Business Hours
pursuant to Subsection 6. 0 1 (a) or pursuant to
Subsection 6. 01 (b), replacement of non-standard
electric light fixtures, ballasts, tubes, starters,
lamps, light bulbs and controls pursuant to
Subsection 6.02(c), special utilities or excess
quantities of utilities pursuant to Section 6.03,
maintenance, repair, special janitorial or cleaning
services, construction after the Commencement Date of
Leasehold Improvements, and electrical or other
services provided during hours other than Business
Hours;
(b) optional services provided exclusively for the
Tenant's benefit at the Landlord's reasonable
discretion including, without limitation, supervising
and approving any optional work performed pursuant to
Article 10, operating elevators for the sole benefit
of the Tenant and supervising the movement of
furniture, equipment, freight and supplies for the
Tenant; and
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(c) performance by the Landlord on behalf of the Tenant
of any of the Tenant's obligations set out in this
Lease which the Tenant fails to perform, provided
that nothing herein shall obligate the Landlord to
perform any such obligations.
6.06 SERVICES BY OTHER PERSONS. The Tenant shall be solely
responsible for obtaining all services used or consumed in or
provided to the Premises by Persons other than the Landlord,
including, without limitation, cleaning of curtains, carpets,
rugs or drapes and telephone and other communications
services, and shall pay all costs related thereto. Provided,
however, it is understood and agreed that certain of the
services referred to in the preceding sentence may be provided
by the Landlord at the Tenant's expense. In no event will the
Landlord be responsible for any failure or interruption in the
supply of such services by Persons other than the Landlord.
6.07 SIGNS. In addition to the signage rights granted pursuant to
Section 12.01 of Schedule "D" herein, the Landlord shall at
the request and expense of the Tenant supply and install, on
or near the entrance door of the Premises a sign bearing the
name of the Tenant in accordance with the Landlord's uniform
scheme for the Building. Any tenant occupying at least a full
floor in the Building may, subject to having received the
Landlord's prior written approval as to design, location,
material and method of installation (such approval not to be
unreasonably withheld), supply and install its own sign in the
elevator lobby of each full floor occupied by it.
6.08 DIRECTORY BOARD. The Landlord shall install a directory board
for the Building identifying tenants of space in the Building
and the Tenant shall be entitled to have one name shown upon
such directory board in accordance with the Landlord's uniform
scheme for lettering and space allocation on such directory
board.
6.09 ENERGY CONSERVATION. The Tenant shall comply with any
practices or procedures that the Landlord or any governmental
or public authority may from time to time introduce to
conserve or to reduce consumption of energy or to reduce or
control other Operating Costs and shall pay as Additional Rent
the cost of the additional energy consumed by reason of
non-compliance as determined by the Landlord in a reasonable
manner and the Landlord may use an Expert to assist it in
making such determination. The Tenant shall also convert to
whatever system or units of measurement of energy consumption
the Landlord may from time to time adopt.
ARTICLE 7
TAXES AND OPERATING COSTS
7.01 PROPERTY TAXES PAYABLE BY THE LANDLORD. The Landlord shall pay
all Property Taxes, subject to Section 7.02, but it may defer
such payments or compliance to the fullest extent permitted by
law so long as it pursues in good faith any contest or appeal
of any such Property Taxes with reasonable diligence.
7.02 PROPERTY TAXES PAYABLE BY THE TENANT.
(a) The Tenant shall pay as Additional Rent
directly to the Landlord in each Accounting
Period during the Term the Tenant's share
(as determined pursuant to Subsection
7.02(b)) of Property Taxes.
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(b) The Tenant's share of the Property Taxes
payable pursuant to Subsection 7.02(a) shall
be the amount which is the aggregate,
without duplication, of:
(i) the amount obtained by multiplying
the appropriate commercial mill
rate or rates for the Accounting
Period by the assessed value of the
Premises as determined by a lawful
public authority; provided that if
for any Accounting Period such
assessed value of the Premises is
not available then the Landlord
shall determine the assessed value
on an equitable basis using such
information and data as is
available; and
(ii) the Tenant's Proportionate Share of
that portion, if any, of the
Property Taxes that is not charged
or chargeable to the Tenant and
other tenants of the Building
pursuant to paragraph (i) of this
Subsection 7.02(b) and similar
provisions in the leases of such
other tenants (provided, however,
that such portion of the Property
Taxes shall not include Property
Taxes allocable to portions of the
Building designated or intended by
the Landlord to be rented for
offices or business purposes
(whether actually rented or not));
provided that if the basis and principles upon which assessed values as of the
date of this Lease are abandoned or varied, or if any Property Taxes are
imposed, assessed, levied, rated or charged which are not based on assessed
values, as such term is applied with respect to Property Taxes as of the date of
this Lease, the Tenant's share shall be its Proportionate Share of the Property
Taxes.
(c) If the Landlord so requests, the Tenant shall provide
the Landlord with a copy of any separate tax xxxx or
separate assessment notice that it receives for the
Premises or any part thereof'. If, as a result of
change in existing Applicable Laws, in any Accounting
Period the Tenant is prohibited by law from making
payments of Property Taxes directly to the Landlord,
then it shall pay to the appropriate taxing
authorities all Property Taxes payable in respect of
the Premises and promptly deliver to the Landlord
receipts evidencing such payment. In such event, the
Landlord and the Tenant will make an adjustment
within thirty (30) days after the final tax bills are
issued for such Accounting Period and the Tenant will
pay to the Landlord the amount by which the Tenant's
share of Property Taxes for such Accounting Period
exceeds the amount of Property Taxes actually paid by
the Tenant or the Landlord will pay to the Tenant the
amount by which the Property Taxes actually paid
exceed the Tenant's share, as the case may be.
7.03 BUSINESS TAXES AND OTHER TAXES OF THE TENANT. The Tenant shall
pay promptly when due to the taxing authorities or to the
Landlord, if it so directs, as Additional Rent, all taxes,
rates, duties, levies and assessments whatsoever, whether
municipal, parliamentary or otherwise, levied, imposed or
assessed in respect of operations at, occupancy of, or conduct
of business in or from the Premises by the Tenant or any other
permitted occupant, including the Tenant's Business Taxes. The
Tenant shall also pay to the Landlord promptly on demand as
Additional Rent an amount equal to any or all of the following
Property Taxes that the Landlord may determine to recover from
the Tenant, and any amounts so paid by the Tenant to the
Landlord (and by other tenants under similar provisions in
other leases) shall be excluded in the determination of
Property Taxes:
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(a) all Property Taxes charged in respect of Leasehold
Improvements; and
(b) if the Premises, or any part of them, by reason of
the act, election or religion of the Tenant or any
other occupant shall be assessed for the support of
separate schools, the amount by which the Property
Taxes so payable exceed those which would have been
payable if the Premises had been assessed for the
support of public schools.
If and so long as the Landlord elects not to determine separately and collect
from the tenants of the Building directly amounts which would otherwise be
payable by the Tenant under Subsections 7.03(a) or (b) above (and by other
tenants of the Building under comparable provisions of their leases), then such
amounts shall form part of Property Taxes, without prejudice to the right of the
Landlord to make any such determination in the future, either generally or in
the case of the Tenant or any other tenant.
7.04 APPEAL OF BUSINESS TAXES. The Tenant may appeal the imposition
of any taxes, rates, duties, levies and assessments payable
directly by it to the taxing authorities pursuant to Section
7.03 and may postpone payment thereof to the extent permitted
by law if the Tenant is diligently proceeding with an appeal,
provided that (i) such postponement does not render the
Building, or any part thereof, subject to sale or forfeiture
and does not render the Landlord liable to prosecution,
penalty, fine or other liability and (ii) upon final
determination of such appeal, the Tenant promptly pays the
amount determined to be payable.
7.05 TENANT TO DELIVER RECEIPTS. Whenever requested by the
Landlord, the Tenant shall deliver to the Landlord copies of
receipts for payment of all Business. Taxes and other taxes,
rates, duties, levies and assessments payable by the Tenant
under this Article and furnish such other information in
connection therewith as the Landlord may reasonably require.
7.06 ASSESSMENT APPEALS. The Landlord alone shall be entitled to
appeal any governmental assessment or determination of the
value of the Building or any portion thereof whether or not
the assessment or determination affects the amount of Property
Taxes or other taxes, rates, duties, levies or assessments to
be paid by the Tenant.
7.07 OPERATING COSTS. Subject to the exclusions and deductions
stipulated in Sections 7.08 and 7.09 in this Lease "Operating
Costs" means the total, without duplication, of the costs,
expenses, fees, rentals, disbursements and outlays (in
Sections 7.07, 7.08 and 7.09 referred to collectively as
"costs") of every kind paid, payable or incurred by or on
behalf of the Landlord on an accrual basis (or on a cash basis
to the extent that the Landlord determines is reasonable) in
the maintenance, repair, operation, administration and
management of the Building, together with the total costs of
the type described in this Section 7.07 paid, payable or
incurred pursuant to the Municipal and Operating Agreements
and other agreements with the owners of other adjacent
developments; and without limiting the generality of the
foregoing Operating Costs shall include:
(a) all salaries, wages, fringe benefits, severance pay
and termination payments paid to or for all
personnel, including supervisory personnel and
managers, and all costs of obtaining such personnel,
to the extent that they are employed by the Landlord
(or a Person with which it does not deal at arm's
length) in connection with the maintenance, repair,
operation, administration or management of the
Building or any part of it, and amounts paid to
professionals and independent contractors, including
any management companies, for any services provided
in connection with the
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maintenance, repair, operation, administration or
management of the Building or any part of it;
(b) costs of providing security, supervision, traffic
control, janitorial, landscaping, window cleaning,
waste collection, disposal and recycling, and snow
removal services and the costs of machinery,
supplies, tools, equipment and materials used in
connection with the Building or any rentals thereof;
(c) costs of providing electric light and power, fuel,
heat, processed air, water, telephone, steam, gas,
sewage disposal and other utilities and costs of
replacing building standard electric light fixtures,
ballasts, tubes, starters, lamps, light bulbs and
controls;
(d) costs of all insurance which the Landlord is
obligated or permitted to obtain under this Lease;
(e) Sales Taxes and excise or other taxes on goods and
services provided by or on behalf of the Landlord in
connection with the maintenance, repair, operation,
administration or management of the Building;
(f) Property Taxes to the extent not charged to the
Tenant pursuant to Subsection 4.02(a) and to other
tenants of the Building pursuant to lease provisions
similar to Subsection 4.02(a); and costs (including
legal and other professional fees and interest and
penalties on deferred payments) incurred by the
Landlord in contesting, resisting or appealing any
Property Taxes;
(g) capital tax (including without limitation Large
Corporations Tax), if applicable, being the
applicable amount (as hereinafter defined) of any tax
or taxes levied against the Landlord and owners of
the Building by any governmental authority having
jurisdiction based upon or computed by reference to
the paid-up capital or place of business of the
Landlord and owners of the Building or the taxable
capital employed in Canada by the Landlord or owners
of the Building as determined for the purposes of
such tax or taxes; and for the purpose of this
paragraph the phrase "applicable amount" of such tax
or taxes means the amount of tax that, in the
Landlord's discretion, is attributable to the
Building, as if the Building was the only building of
the Landlord and such other owners of the Building;
(h) a reasonable amount, as determined by the Landlord
from time to time, of costs incurred by or on behalf
of tenants in the Building with whom the Landlord may
have agreements whereby in respect of their premises
those tenants perform any cleaning, maintenance or
other work or services which, if directly incurred by
the Landlord, would have been included in Operating
Costs to the extent that such costs are actually
incurred by the Landlord;
(i) costs of repairs and replacements (including those
required to comply with Applicable Laws or the
requirements of the Landlord's insurers which become
effective or are imposed after substantial completion
of the original construction of the relevant
structure) to the extent of, in the case of any
particular item of repair or replacement made in the
given Accounting Period, the lesser of the portion of
the cost thereof allocated to the Building and Two
Hundred and Fifty Thousand Dollars ($250,000) (such
amount of Two Hundred and Fifty Thousand Dollars
($250,000) to be adjusted by the Landlord on the
first day of each Accounting Period to reflect
increases in CPI over the prior Accounting Period);
and amortization of the cost of any repairs or
replacements except to the extent charged in
accordance with the foregoing provisions of this
paragraph, in the case of each item of repair or
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replacement to be calculated on a straight line basis
over such period the Landlord determines is
reasonable having regard to the nature of the repair
or replacement or fifteen (15) years, whichever is
lesser;
(j) depreciation (excluding depreciation on the costs of
original components of the Building Systems installed
as part of the original construction of the Building)
of the costs of machinery, equipment, facilities,
furniture, furnishings, systems and property
(individually and collectively in this paragraph of
this Section 7.07 called "machinery") installed in or
used in connection with the Building (except to the
extent that the costs are charged fully in the
Accounting Period in which they are incurred):
(i) if a principal purpose of such
machinery is to conserve energy,
reduce the cost of other items
included in Operating Costs or
comply with Applicable Laws or
requirements of the Landlord's
insurers which become effective or
are imposed after substantial
completion of the Building, or such
machinery is used for normal
maintenance of the Building; or
(ii) if, as in the case of the Building
Systems, such machinery by its
nature requires periodic or
substantial replacement;
in the case of each item of machinery to be calculated on a
straight line basis over its useful life or fifteen (15)
years, whichever is lesser;
(k) interest on the unamortized or undepreciated portion
of the costs referred to in paragraphs (i) and of
this Section 7.07, calculated monthly, from the date
on which the relevant costs were incurred, at an
annual rate of interest that is one percent (1%)
above Prime in effect on the first day of the
Accounting Period in which the relevant costs were
incurred (the applicable rate of interest to be
adjusted by the Landlord on the first day of each
Accounting Period to the annual rate of interest that
is one percent (1%) above Prime then in effect);
(l) the fair market rental value (having regard to rent
being charged for similar space including additional
rent for operating costs and property taxes) of space
used by the Landlord, acting reasonably, in
connection with the maintenance, repair, operation,
administration and management of the Building;
(m) management fees or management agent fees and
administrative charges of a management company, if
any, for the Building or any part of it or, if the
Landlord chooses to manage the Building or any part
of it through itself or through a company or other
Person with whom it does not deal at arm's length, a
management fee to the Landlord in an amount
comparable to that which would be charged by a first
class real estate management company for management
of similar buildings in the City of Toronto; and
(n) amounts payable by the Landlord to the lessor a
ground of the Lands or the Building, if any, in
respect and to the extent (but only to the extent) of
costs which the Landlord would itself have incurred
if the Landlord were the owner of the Building,
including costs of the type described in the
foregoing provisions of this Section 7.07 but, for
greater certainty, excluding basic annual grand rent.
7.08 EXCLUSIONS FROM OPERATING COSTS. The following shall be
excluded from Operating Costs as determined pursuant to
Section 7.07:
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(a) depreciation on the costs of the original components
of the Building Systems installed as part of the
construction, reconstruction or material renovation
of the Building;
(b) the cost of any repair to, or replacement or
maintenance of, the structure of the Building;
(c) the cost of any repair, replacement or maintenance,
of the structure of the Building;
(d) the costs of enforcing leases of other tenants of the
Building;
(e) any fines or penalties that the Landlord incurs in
connection with any failure to perform obligations;
(f) the costs of acquisition of the Lands and Building,
development of the Lands and Building and the cost of
original construction of the Building, adding new
improvements to the Building;
(g) any costs included in Operating Costs representing an
amount paid to any Person or other entity related to
the Landlord (other than the management and
administration fee referred to in Subsection 7.7(l)
above) which are in excess of the amounts which would
have been paid had the Landlord acted as a reasonable
and prudent manager and administrator;
(h) debt service costs;
(i) basic annual ground rent payable by the Landlord to
the lessor under a ground lease, if any, of the Lands
or the Building;
(j) any taxes on the income or profits of the Landlord to
the extent that they are not imposed in lieu of
Property Taxes or Sales Taxes; and
(k) costs incurred by the Landlord in leasing the
Building, including commissions, advertising costs
and tenant inducement payments.
7.09 DEDUCTIONS FROM OPERATING COSTS. The following shall be
deducted from Operating Costs as determined pursuant to
Section 7.07:
(a) net recoveries by the Landlord from the tenants of
the Building in respect of and to the extent (but
only to the extent) of costs which have been charged
directly to the relevant tenants pursuant to
Operating Costs other than recoveries from the Tenant
pursuant to lease provisions similar to Sections
6.01, 6.03 and 6.05;
(b) net insurance proceeds received by the Landlord to
the extent (but only to the extent) that such
proceeds reimburse the Landlord for costs of repair
and replacement which have been charged as Operating
Costs;
(c) net recoveries by the Landlord in respect of
warranties or guarantees relating to the construction
of the Building to the extent (but only to the
extent) that the repair costs in respect of the work
covered by such warranties or guarantees have been
charged as Operating Costs; and
(d) any input tax credits, refunds, rebates or other
similar reduction of Sales Taxes to the extent that
the Landlord is entitled to such input tax credits,
refunds, rebates or other reductions under the
applicable federal, provincial or municipal
legislation.
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7.10 ADJUSTMENT OF OPERATING COSTS. In computing Operating Costs,
if less than one hundred percent (100%) of the Rentable Area
of the Building is completed or occupied during any period for
which a computation must be made the amount of Operating Costs
will be increased by the amount of the additional costs
determined by the Landlord, acting reasonably, that would have
been incurred had one hundred percent (100%) of the Rentable
Area of the Building been completed or occupied during that
period. In addition, if the Landlord enters into agreements
with any tenants of the Building whereby such tenants perform
any cleaning, maintenance or other work or services the cost
of which, but for such agreement with the Landlord, would have
been incurred by the Landlord directly and included in
Operating Costs, the Landlord in computing Operating Costs may
include a reasonable amount determined by the Landlord from
time to time of such costs to the extent that the Landlord's
costs for cleaning, maintenance and similar services for the
Building as a whole are not proportionally reduced by such
arrangements with tenants.
ARTICLE 8
USE OF PREMISES
8.01 PERMITTED BUSINESS AND USE.
(a) The Tenant shall use the Premises solely as
business offices in a first-class and
reputable manner. The Tenant shall not in
any event use or allow the use of the
Premises, or any part thereof, for any other
purpose.
8.02 NUISANCE. The Tenant shall not carry on any business or do or
suffer any act or thing which constitutes a nuisance or which
is offensive or an annoyance to the Landlord or other
occupants of the Building.
8.03 COMPLIANCE WITH LAWS. The Tenant shall promptly comply with
and conform to all Applicable Laws affecting the Premises or
the Leasehold Improvements therein. If any obligation to
modify, extend, alter or replace any part of the Premises or
any Leasehold Improvements, trade fixtures, furniture or
equipment in the Premises is imposed upon the Landlord, the
Landlord may at its option either do the necessary work, at
the expense of the Tenant, or forthwith give notice to the
Tenant to do such work within the requisite period of time and
the Tenant shall thereupon do such work within the requisite
period of time. The Tenant shall pay to the Landlord the costs
of any work done by the Landlord.
8.04 COMPLIANCE WITH RULES AND REGULATIONS. The Tenant shall comply
and cause every Person over whom it has control to comply with
the Rules and Regulations annexed hereto as Schedule C. The
Landlord shall have the right from time to time during the
Term to make reasonable amendments, deletions and additions to
such Rules and Regulations in the interests of the Building.
Such Rules and Regulations, together with all amendments,
deletions and additions made thereto by the Landlord, acting
reasonably, and of which notice shall have been given to the
Tenant, shall be deemed to be part of this Lease, provided
that, in the event of a conflict with any other provisions of
this Lease, the other provisions of this Lease shall govern.
8.05 NAMES. The Building shall be known and identified by such
other name as designated by the Landlord from time to time. In
the event the Tenant utilizes the name of the Building in its
stationery or other materials, the Tenant shall only use such
name in referring to the Building unless and until the
Landlord otherwise directs.
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8.06 DISFIGURATION, OVERLOADING. The Tenant shall not commit, do or
suffer any waste, damage, disfiguration or injury to the
Premises and shall not permit or suffer any overloading of the
floors thereof or the bringing into any part of the Building,
including the Premises, any articles or fixtures that by
reason of their weight, use or size might damage or endanger
the structure or any of the Building Systems.
8.07 REMEDIAL ACTION. If the Tenant is in breach of any of the
provisions of this Article 8, the Landlord may, in addition to
any other remedies that it may have hereunder, enter upon the
Premises and take such remedial action as is necessary to
remedy the breach and repair any damage caused thereby and the
Tenant shall pay to the Landlord the Landlord's costs incurred
in connection therewith.
ARTICLE 9
INSURANCE, LIABILITY AND INDEMNITY
9.01 TENANT'S INSURANCE. The Tenant shall effect and maintain
during the Term:
(a) "all risks" insurance upon all property owned by the
Tenant or installed by or on behalf of the Tenant
which is located in the Building including, without
limitation, Leasehold Improvements, trade fixtures,
furniture and equipment in the Premises in an amount
not less than the replacement cost thereof;
(b) broad form boiler and machinery insurance with limits
for each accident in an amount not less than the full
replacement cost of all Leasehold Improvements and of
all boilers, pressure vessels, heating, ventilating
and air-conditioning equipment and miscellaneous
electrical apparatus owned or operated by the Tenant
or by others (other than the Landlord) on behalf of
the Tenant in the Premises, or relating to or serving
the Premises;
(c) comprehensive general liability insurance against
claims for bodily injury (including death), personal
injury and property damage in or about the Premises
in amounts satisfactory from time to time to the
Landlord acting reasonably but in any event in an
amount not less than Five Million Dollars
($5,000,000.00) per occurrence;
(d) business interruption insurance for a minimum period
of twenty-four (24) months in an amount that will
reimburse the Tenant for direct or indirect loss of
earnings and extra expense attributable to all perils
insured against in Subsection 9.01(a) or attributable
to prevention of access to the Premises or the
Building as a result of any of such perils;
(e) "all risks" tenants' legal liability insurance for
the replacement value of the Premises including the
loss of the use of the Premises; and
(f) any other form of insurance that the Landlord or any
Mortgagee may reasonably require from time to time in
form, amounts and for insurance risks acceptable to
the Landlord and any Mortgagee.
The Landlord further agrees that the Tenant may self-insure with respect to any
insurance requirements contained in the Lease with the exception of any
comprehensive general liability insurance required to be maintained by the
Tenant pursuant to the provision contained in this Lease.
9.02 FORM OF POLICIES.
(a) Each policy required pursuant to Section 9.01 shall
be in form and with insurers acceptable to the
Landlord any Mortgage and any other Persons with an
interest in the Building. The insurance described in
Subsections
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9.01 (a) and (b) shall name as loss payee the
Landlord and anyone else with an interest in the
Building from time to time designated in writing
by the Landlord. The insurance described in
Subsections 9.01(c) and (d) shall name as an
additional named insured the Landlord and any
other Persons with an interest in the Building
from time to time designated in writing by the
Landlord. All property damage and liability
insurance shall contain provisions for
cross-liability and severability of interests as
between the Landlord and the Tenant. Each policy
maintained pursuant to Subsections 9.01(a), (b),
(c) and (d) shall contain a waiver of any rights
of subrogation which the insurer may have against
the Landlord and those for whom the Landlord is in
law responsible whether the damage is caused by
the act, omission or negligence of the Landlord or
such other Persons.
(b) The insurance described in Subsections 9.01(a) and
(b) shall provide that any proceeds recoverable in
the event of damage to Leasehold Improvements shall
be payable to the Landlord. The Landlord agrees to
make available such proceeds toward repair or
replacement of the insured property if this Lease is
not terminated pursuant to any other provision of
this Lease.
(c) Each policy required pursuant to Section 9.01 shall
provide that the insurer must notify the Landlord and
any Mortgagee in writing at least thirty (30) days
prior to any material change or cancellation thereof
and that the policy shall not be invalidated in
respect of the interests of the Landlord and any
Mortgagee by reason of any breach or violation of any
warranties, representations, declarations or
conditions contained in such policies, and the policy
will be considered as primary insurance and shall not
call into contribution any other insurance that may
be available to the Landlord.
(d) The Tenant shall furnish to the Landlord any
Mortgagee and any other Persons with an interest in
the Building, prior to the commencement of the Term,
evidence satisfactory to the Landlord, Mortgagee or
other Persons that each policy required by Section
9.01 has been obtained, The Tenant shall provide
written evidence of the continuation of such policies
not less than ten (10) days prior to their respective
expiry dates. Upon request of the Landlord, the
Tenant shall provide certified copies of all such
policies. The cost or premium for each and every such
policy shall be paid by the Tenant. If the Tenant
fails to maintain such insurance the Landlord shall
have the right, but not the obligation, to do so, and
to pay the cost or premium therefor, and in such
event the Tenant shall repay to the Landlord, as
Additional Rent, forthwith on demand the amount so
paid.
9.03 LANDLORD'S INSURANCE. The Landlord shall effect and maintain
during the Term:
(a) "all risks" insurance which shall insure the Building
for an amount not less than the replacement cost
thereof from time to time (excluding foundations at
the Landlord's option), against loss or damage by
perils now or hereafter from time to time embraced by
or defined in a standard all risks insurance policy
including fire, explosion, impact by aircraft or
vehicles, lightning, riot, vandalism or malicious
acts, smoke, leakage from fire protective equipment,
windstorm or hail, collapse or earthquake;
(b) broad form boiler and machinery insurance on objects
defined in a standard broad form boiler and machinery
policy against accidents as defined therein, with
limits of not less than Ten Million Dollars
($10,000,000.00) which coverage shall include,
without limitation, loss or damage of whatsoever kind
or nature by reason of explosion or collapse by
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vacuum or cracking, burning, or bulging of any steam
or hot water boilers, pipes and accessories and loss
of rental income;
(c) "all risks" rent and rental value insurance in an
amount sufficient to replace all Minimum Rent and
Additional Rent payable under the provisions of this
Lease for an indemnity period of one (1) year or such
other period as the Landlord may determine;
(d) comprehensive general liability insurance against
claims for bodily injury (including death); personal
injury and property damage arising out of all
operations in connection with the management and
administration of the Building, in an amount not less
than Five Million Dollars ($5,000,000.00) inclusive
of any one occurrence; and
(e) such other coverage, or increases in the amount of
coverage specified above in this Section 9.03, as any
Mortgagee or as the lessors under any ground lease
may require from time to time or as the Landlord may
deem prudent from time to time, with such reasonable
deductions and exclusions as the Landlord deems
appropriate from time to time. At the request of the
Tenant, the Landlord shall provide the Tenant with
evidence of such insurance. The Landlord agrees that
at its sole cost each such policy shall contain a
waiver of the insurer's subrogation rights as against
the Tenant and those claiming through and under the
Tenant.
9.04 INSURANCE RISKS. The Tenant shall not do, omit to do, or
permit to be done or omitted to be done upon the Premises
anything that may contravene or be prohibited by any of the
Landlord's insurance policies in force from time to time
covering or relevant to any part of the Building or which
would prevent the Landlord from procuring such policies with
companies acceptable to the Landlord. If the occupancy of the
Premises, the conduct of business in the Premises or any acts
or omissions of the Tenant in the Premises or any other
portion of the Development causes or results in any increase
in premiums for any of the Landlord's insurance policies, the
Tenant shall pay any such increase as Additional Rent upon
receipt of an invoice of the Landlord for such additional
premiums.
9.05 LIMITATION OF LANDLORD'S LIABILITY. The Landlord, its agents,
officers, employees and other Persons for whom the Landlord is
legally responsible shall not be liable for:
(a) damage to or destruction or loss of (i) any property
of the Tenant entrusted to the care or control of the
Landlord, or any of them, or (ii) the Premises
(including Leasehold Improvements) or any property in
or upon the Premises; or
(b) any bodily injury (including death), personal injury,
damages for personal discomfort or illness or
consequential injury or damage (including, without
limitation, loss of business income) sustained by the
Tenant or any of its agents, officers, employees,
customers, invitees or licensees or any other Person
who may be in or upon the Premises or any other part
of the Building; whether or not caused by (i) the
negligence of the Landlord, its agents, officers,
employees or other Persons for whom the Landlord is
legally responsible, (ii) the operation, faulty
operation, interruption or breakdown of any of the
Building Systems or services to be provided by the
Landlord under Article 6 including, without
limitation, electricity interruption, "xxxxx-outs" or
surges, or (iii) any act or omission of any other
tenant or occupant of space in the Building.
9.06 INDEMNITY BY TENANT. The Tenant shall indemnify and
save harmless the Landlord against any and all
claims, actions, damages, losses, liabilities and
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expenses (including, without limitation, those in
connection with bodily injury (including death),
personal injury or damage to property) arising from
or out of the occupancy or use by the Tenant of the
Premises or any other part of the Building or the
Development or occasioned wholly or in part by any
act or omission of the Tenant, its officers,
employees, agents, contractors, invitees, licensees
or by any Person permitted by the Tenant to be on the
Premises or due to or arising out of any breach by
the Tenant of this Lease.
9.07 INDEMNITY BY LANDLORD. The Landlord shall indemnify and save
harmless the Tenant against any and all claims, actions,
damages, losses, liabilities and expenses (including, without
limitation, those in connection with bodily injury (including
death), personal injury or damage to property) arising from
any act or omission of the Landlord or those for whom the
Landlord is in law responsible.
ARTICLE 10
MAINTENANCE, REPAIR AND ALTERATIONS
10.01 MAINTENANCE BY LANDLORD.
(a) Subject to Article 11, the Landlord
covenants to keep or cause to be kept in
good repair the following as would a prudent
owner of a comparable development of similar
age, size and location in the City of
Toronto:
(i) the footings, foundations,
structural columns and beams,
structural subfloors, bearing walls,
exterior walls, windows and roofs of
the Building;
(ii) the Building Systems; and
(iii) the Common Areas and Facilities.
If any repairs or any alterations to the Building or Building Systems are
required by any Applicable Laws due to the business carried on by the Tenant,
then the full cost of such repairs or alterations shall be paid by the Tenant to
the Landlord. In carrying out repairs, maintenance or replacements, the Landlord
need not use the same material or equipment as used originally but may use
different material or equipment of at least comparable quality.
(b) The Landlord and its agents, employees and
contractors may, upon twenty-four (24)
hours' prior notice to the Tenant (except in
an emergency, when no notice shall be
required), enter the Premises to provide
maintenance, to make repairs or alterations
or to gain access to the Building Systems;
in exercising its rights hereunder the
Landlord shall use reasonable efforts to
schedule major or noisy work outside
Business Hours or with reasonable advance
notice to Tenant.
(c) If the Tenant fails to carry out any
maintenance, repairs or work required to be
carried out by it under this Lease to the
reasonable satisfaction of the Landlord, the
Landlord may at its option carry out such
maintenance, repairs or work without any
liability for any resulting damage to the
Tenant's property or business. The cost of
such maintenance, repairs or work shall be
paid by the Tenant to the Landlord.
10.02 MAINTENANCE BY TENANT. The Tenant shall at its sole cost
maintain and repair the Premises and all Leasehold
Improvements therein to a standard consistent with comparable
premises in a development of similar age, size and location in
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the City of Toronto, comparable to the Building, with the
exception only of those repairs which are the obligation of
the Landlord under this Lease and subject to Article 11. The
Landlord may enter the Premises at all reasonable times to
view their condition and the Tenant shall maintain and repair
according to notice in writing from the Landlord. At the
expiration or earlier termination of the Term the Tenant shall
surrender the Premises to the Landlord in as good condition
and repair as the Tenant is required to maintain the Premises
throughout the Term.
10.03 APPROVAL OF TENANT'S ALTERATIONS.
(a) The Tenant will not require approval of the
Landlord for any alterations, improvements,
repairs or replacements to the Premises
after the commencement of the Term which do
not affect the structure of the Building,
any exterior wall, windows or roof thereof,
the ground floor lobby or any of the
Building Systems or the aesthetics of the
Building and which do not require a building
permit, provided the Tenant has given
written notice with reasonable detail of the
proposed work to the Landlord in advance.
All other alterations, improvements, repairs
or replacements after the commencement of
the Term will require the Landlord's prior
written approval (not to be unreasonably
withheld).
(b) The Tenant shall submit to the Landlord
details of the proposed work and a
reasonable number (as required by the
Landlord) of copies of drawings and
specifications for such work prepared by
qualified architects or engineers. The
Tenant shall pay to the Landlord its then
current charge and all disbursements
incurred by the Landlord for the review of
such drawings and specifications. The
Landlord shall respond to any request for
approval within fifteen 15 days of receipt
of all required details, drawings and
specifications and provide details of any
changes required. The Tenant shall
incorporate such changes into such drawings
and specifications and resubmit them for
approval. The Tenant shall not apply for a
building permit prior to receiving the
Landlord's approval of the drawings and
specifications.
(c) All alterations, improvements, repairs and
replacements shall be performed:
(i) at the sole cost of the Tenant;
(ii) by contractors and workmen approved
by the Landlord, acting reasonably,
and compatible with the labour
affiliation, if any, of the
Landlord's contractors and workmen,
provided that if the alterations,
improvements, repairs or
replacements would affect any of
the structural components, exterior
walls, windows or roofs of the
Building or any of the Building
Systems or the aesthetics of the
Building, such work shall, at the
option of the Landlord, be
performed at the Tenant's cost by
the Landlord or by contractors and
workmen designated by the Landlord
in its sole discretion;
(iii) in a good and workmanlike manner;
(iv) in accordance with the drawings and
specifications approved by the
Landlord;
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(v) in accordance with all Applicable
Laws, any ground lease of the Lands
or the Building, the Municipal and
Operating Agreements and
requirements of the Landlord's
insurers;
(vi) subject to the reasonable
regulation, supervision, control
and inspection of the Landlord; and
(vii) subject to such indemnification
against liens and expenses as the
Landlord reasonably requires.
(d) If the Tenant installs Leasehold
Improvements or makes alterations,
improvements, repairs or replacements which
depart from the standard for the Building,
and which restrict access by the Landlord to
any of the Building Systems or Common Areas
or Facilities, or which restrict the
installation of the leasehold
improvements of any other tenant in the
Building, then the Tenant shall be
responsible for all costs incurred by the
Landlord in obtaining access to such
Building Systems or Common Areas and
Facilities or in installing such other
tenant's leasehold improvements.
10.04 REPAIR WHERE TENANT AT FAULT. Subject to Section 9.06,
notwithstanding any other provisions of this Lease, if any
part of the Building is damaged or destroyed or requires
repair, replacement or alteration as a result of the act or
omission of the Tenant, its employees, agents, contractors,
invitees, licensees or other Person for whom it is in law
responsible, the cost of the resulting repairs or alterations
shall be paid by the Tenant to the Landlord.
10.05 REMOVAL OF IMPROVEMENTS AND FIXTURES. All Leasehold
Improvements shall immediately upon their placement become the
Landlord's property without compensation to the Tenant. Except
as otherwise agreed by the Landlord in writing, no Leasehold
Improvements or trade fixtures shall be removed from the
Premises by the Tenant either during or at the expiry or
earlier termination of the Term except that the Tenant may,
during the Term, in the usual course of its business, remove
its trade fixtures, provided that the Tenant is not in default
under this Lease.
For greater certainty, the Tenant shall not be required to remove or replace its
Leasehold Improvements, trade fixtures, or other approved alterations made in
the Premises at any time during the Term or an extension thereof or at the
expiry or termination of the Lease, and the Tenant shall be entitled to leave
the Premises in an "as is" condition subject only to the Tenant being required
to keep the Premises in the condition that the Tenant is required to maintain
the Premises during the Term.
10.06 LIENS. The Tenant shall promptly pay for all materials
supplied and work done in respect of the Premises so as to
ensure that no lien or claim of lien is registered against any
portion of the Lands or Building or against the Landlord's or
Tenant's interest therein. If a lien or claim of lien is
registered or filed, the Tenant shall discharge it at its
expense with seven (7) days after notice from the Landlord,
failing which the Landlord may at its option discharge the
lien or claim of lien by paying the amount claimed to be due
into court or directly to the lien claimant and the amount so
paid and all expenses of the Landlord including legal fees (on
a solicitor and client basis) shall be paid by the Tenant to
the Landlord.
10.07 NOTICE BY TENANT. The Tenant shall promptly notify the
Landlord of any accident, defect, damage or deficiency which
occurs or exists in any part of the Premises, the Building
Systems within the Premises or the Common Areas and Facilities
located
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on the floor(s) on which the Premises are located and which
comes to the attention of the Tenant.
ARTICLE 11
DAMAGE BY FIRE OR OTHER CASUALTY
11.01 DAMAGE TO PREMISES. Subject to Section 11.03, if all or part
of the Premises are rendered unfit for use by damage from any
cause, the Landlord shall with reasonable diligence repair
such damage, other than damage to the trade fixtures,
furniture, equipment and personal property which do not belong
to the Landlord and to the Leasehold Improvements, and the
Tenant shall with reasonable diligence repair damage to all
Leasehold Improvements, trade fixtures, furniture, equipment
and personal property in the Premises.
11.02 ABATEMENT. There shall be no abatement or reduction of Rent
where the Landlord's repairs to the Premises take less than
ten (10) days after the damage occurs to complete. If the
Landlord's repairs take ten (10) or more days to complete,
then the Minimum Rent and Additional Rent payable under
Subsections 4.02(a) and (b), and also paragraph 4.02(c)(i) to
the extent utilities are not billed to the Tenant directly,
shall be proportionately reduced in the proportion that the
Rentable Area of the part of the Premises thereby rendered
unfit for use by the Tenant in its business and not in fact so
used bears to the Rentable Area of the Premises from the date
of such damage until the earlier of:
(a) substantial completion by the Landlord of its
necessary repairs to the Premises (or the part
thereof rendered unfit for use) (during which period
of time the Tenant shall with reasonable diligence
make such repairs as are necessary for the Tenant to
again use the Premises (or the part thereof rendered
unfit for use) in its business; and
(b) the day on which the Tenant again uses the Premises
(or the part thereof rendered unfit for use) for its
business (with abatement continuing as aforesaid in
respect of the parts remaining unfit for use and not
actually used).
11.03 MAJOR DAMAGE TO BUILDING. Notwithstanding Section 11.01, if:
(a) the Premises;
(b) premises, whether of the Tenant or other tenants of
the Building, comprising in the aggregate fifty
percent (50%) or more of the Rentable Area of the
Building; or
(c) any part or parts of the Building, the Building
Systems or the Common Areas and Facilities required
for the proper operation of the Building;
are damaged or destroyed by any cause to the extent that, in the reasonable
opinion of the Landlord, the damage or destruction cannot be repaired within one
hundred and twenty (120) days after the occurrence of such damage or
destruction, then:
(d) the Landlord or the Tenant may at its option,
exercisable by notice to the other party given within
sixty (60) days after the occurrence of such damage
or destruction, terminate this Lease.
If the Lease is terminated the Tenant shall forthwith deliver up possession of
the Premises to the Landlord and Rent shall be apportioned and paid to the date
upon which possession is so delivered up, subject to any abatement to which the
Tenant may be entitled under Section 11.02.
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11.04 Certificate of Architect. The certificate of the Architect
shall be binding upon the Landlord and the Tenant as to
whether or not the Premises are unfit for use, the percentage
of the Premises rendered unfit for use, the date upon which
the Premises or relevant part thereof became unfit for use,
what constitutes a reasonable period of time under Subsection
11.02(a) and the state of completion of any work or repair of
either the Landlord or the Tenant.
11.05 LANDLORD'S RIGHTS ON REBUILDING. In repairing or rebuilding
the Building or the Premises the Landlord may use drawings,
designs, plans and specifications other than those used in the
original construction and may alter or relocate the Building,
the Common Areas and Facilities or any part thereof, and may
alter or relocate the Premises, provided that the Premises as
altered or relocated shall be of substantially the same size
and have substantially the same attributes as the original
Premises.
ARTICLE 12
TRANSFERS
12.01 TRANSFERS. The Tenant shall not enter into, consent to, or
permit any Transfer without the prior written consent of the
Landlord in each instance, which consent shall not be
unreasonably withheld but shall be subject to the Landlord's
rights under Section 12.02. The Tenant shall pay to the
Landlord its then current reasonable charge and all reasonable
disbursements incurred by the Landlord for its review of the
proposed Transfer. Notwithstanding any statutory provision to
the contrary, it shall not be considered unreasonable for the
Landlord to withhold its consent if, without limiting any
other factors or circumstances which the Landlord may
reasonably take into account:
(a) the Tenant is then in default under this Lease;
(b) the proposed Transfer would be or could result in
violation or breach of any covenants or restrictions
made or granted by the Landlord to other tenants or
occupants, or prospective tenants or occupants, of
the Building, the lessors under any ground lease of
the Lands or the Building, any Mortgagee or any other
Person;
(c) in the Landlord's reasonable opinion, the financial
background, business history and capability of the
proposed Transferee is not satisfactory;
(d) the proposed Transfer is to an existing tenant of the
Building; or
(e) the Landlord at that time has or will have in the
next ensuing three-month period, other premises
elsewhere in the Building which might be suitable for
the needs of the Transferee; or
(f) the Transfer is a mortgage, charge or debenture
(floating or otherwise) of, or in respect of this
Lease or the Leased Premises or any part thereof or
the Tenant's interest therein; or
(g) the minimum and additional rent payable by the
proposed Transferee, if less than the Minimum Rent
and Additional Rent payable by the Tenant hereunder,
will, in the Landlord's opinion arrived at in good
faith, detrimentally affect the leasing program for
the Building; or
(h) the use of the Premises by the proposed Transferee,
in the Landlord's opinion arrived at in good faith,
(i) could result in excessive use of the
-31-
elevators or other Building Systems or services, (ii)
is illegal, (iii) might harm or tend to harm the
business or reputation of the landlord or the image
and standards of the Building or (iv) could expose
the Landlord or the occupants of the Building to risk
of harm, damage or interference with their use and
enjoyment thereof.
Any consent by the Landlord to a Transfer shall not constitute a waiver of the
necessity for such consent to any subsequent Transfer. This prohibition against
Transfer shall include a prohibition against any Transfer by operation of law.
Notwithstanding the foregoing, no consent of Landlord shall be required (but the
Tenant shall provide the Landlord with prior written notice) in the event that
the Tenant assigns the Lease or sublets or parts with or shares possession of
the whole or any portion of the Premises to a Related Party. For the purposes of
this Lease a "Related Party" means an affiliate (as such term is defined in the
Canada Business Corporations Act as of the date hereof) of Promis Systems
Corporation Ltd.. In no event will an assignment or subletting, parting with or
sharing possession of the whole or any part of the Premises by Tenant or a
request for permission to assign or sublet or part with or share possession of
the whole or any part of the Premise result in an increase in or addition to any
rental charge stipulated to be payable in the Lease, or entitle Landlord to
cancel the Lease, or entitle Landlord to any consideration received by Tenant in
connection with any assignment, subletting or parting with or sharing possession
of all or any part of the Premises, except for reasonable out of pocket expenses
which costs shall not exceed One Thousand Dollars ($1,000.00).
12.02 LANDLORD'S RIGHT TO TERMINATE. [INTENTIONALLY DELETED.]
12.03 CONDITIONS OF TRANSFER.
(a) If there is a permitted Transfer, the
Landlord may collect Rent from the
Transferee and apply the amount collected to
the Rent payable under this Lease but no
acceptance by the Landlord of any payments
by a Transferee shall be deemed to be a
waiver of the Tenant's covenants or any
acceptance of the Transferee as a tenant or
a release of the Tenant from the further
performance by the Tenant of its obligations
under this Lease. Any consent by the
Landlord shall be subject to the Tenant and
Transferee executing, prior to the Transfer
being made, an agreement with the Landlord
agreeing that the Transferee will be bound
by all of the terms of this Lease, and
except in the case of a sublease, that the
Transferee will be so bound as if it had
originally executed this Lease as tenant.
(b) Notwithstanding any Transfer permitted or
consented to by the Landlord, the Tenant
shall remain liable under this Lease and
shall not be released from performing any of
the terms of this Lease.
(c) If the Transfer in respect of which consent
has been given is not completed within sixty
(60) days of the date of such consent, then
such consent shall, at the Landlord's
option, become void.
(d) Notwithstanding the effective date of any
permitted Transfer as between the Tenant and
the Transferee, all Rent for the month in
which such effective date occurs shall be
paid in advance by the Tenant so that the
Landlord will not be required to accept
partial payments of Rent for such month from
either the Tenant or Transferee.
(e) The agreements referred to in this Section
12.03 and any document evidencing the
Landlord's consent to any Transfer shall, at
the
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Landlord's option, be prepared by the
Landlord or its solicitors at the Tenant's
cost, which costs shall not exceed One
Thousand Dollars ($1,000.00).
12.04 CHANGE OF CONTROL. [INTENTIONALLY DELETED.]
12.05 NO ADVERTISING. The Tenant shall not advertise that the whole
or any part of the Premises are available for a Transfer and
shall not permit any broker or other Person to do so unless
the text and format of such advertisement is approved in
writing by the Landlord. No such advertisement shall contain
any reference to the rental rate of the Premises.
12.06 ASSIGNMENT BY LANDLORD. The Landlord shall have the
unrestricted right to sell, transfer, lease, charge or
otherwise dispose of all or any part of its interest in the
Building or any interest of the Landlord in this Lease. In the
event of any sale, transfer, lease, charge or other
disposition to the extent that the assignee from the Landlord
agrees with the Landlord to assume the obligations of the
Landlord under this Lease, the Landlord shall thereupon, and
without further agreement, be released of all liability under
this Lease.
12.07 EXHIBITING PREMISES. The Landlord and its agents, upon 24
hours' prior written notice to the Tenant, may exhibit the
Premises during Business Hours to prospective purchasers or
Mortgagees of the Building. In addition, during the last six
months of the Term, the Landlord or its agent, upon 24 hours'
prior written notice to the Tenant, may exhibit the Premises
during Business Hours to prospective tenants for such space.
ARTICLE 13
STATUS CERTIFICATES, SUBORDINATION, ATTORNMENT
13.01 STATUS CERTIFICATES. The Tenant shall at any time and from
time to time execute and deliver to the Landlord or as the
Landlord, may direct within five (5) business days after it is
requested a statement in writing, in the form supplied by the
Landlord, certifying that this Lease is unmodified and in full
force and effect (or if modified, stating the modification and
stating that the Lease is in full force and effect as
modified), the Commencement Date, the amount of the Minimum
Rent and other Rent then being paid hereunder, the dates to
which such Rent hereunder has been paid, whether or not there
is any existing default on the part of the Landlord of which
the Tenant is aware and any other particulars that the
Landlord may reasonably request.
13.02 SUBORDINATION AND ATTORNMENT. This Lease and the rights of the
Tenant hereunder shall be subject and subordinate to all
existing or future Mortgages and to all renewals,
modifications, consolidations, replacements and extensions
thereof. Whenever requested by the Landlord or a Mortgagee,
the Tenant shall, within five (5) business days after such
request, enter into an agreement with the Mortgagee whereby
the Tenant postpones or subordinates this Lease to the
interest of any stipulated Mortgagee and agrees that whenever
requested by such Mortgagee it shall attorn to and become the
tenant of such Mortgagee, or any purchaser from such Mortgagee
in the event of the exercise by the Mortgagee of its power of
sale, for the then unexpired residue of the Term upon all the
terms and conditions of this Lease. The Tenant shall, at the
request of the Landlord or any lessor under any ground lease
affecting the Building, enter into an agreement with such
lessor to the effect that it shall attorn to and become the
tenant of such lessor, or any successor or assign, if the
lessor or any successor or assign should take possession of
the Building as a result of a default tinder any ground lease
for
-33-
the then unexpired residue of the Term upon all the terms
and conditions of this Lease. Upon written request by the
Tenant, the Landlord shall use its best efforts (provided this
shall not involve any expense) to obtain written assurances
from the lessor under any ground lease of the Lands or the
Building or any Mortgagee with an interest in the Building
prior to that of the Tenant to the effect that so long as the
Tenant is not in default under this Lease such owner or
Mortgagee will recognize the Tenant's rights under this Lease
and not disturb the Tenant's occupancy of the Premises.
13.03 NON-DISTURBANCE AGREEMENT. On the execution of this Lease, the
Landlord, at Tenant's expense, shall use its best efforts to
obtain a written agreement in a form acceptable to any
Mortgagee and the Tenant, each acting reasonably, from any
mortgagee, chargee or any encumbrancer of all or any part of
the lands in the complex of which the Building forms part
having priority over the Tenant to the effect that provided
Tenant complies with the terms of the Lease, the Tenant shall
be permitted to remain in quiet possession of the Premises
pursuant to the terms of the Lease without interruption or
disturbance from such Mortgagee.
ARTICLE 14
REMEDIES OF LANDLORD
14.01 EVENTS OF DEFAULT. Any of the following constitutes an Event
of Default under this Lease:
(a) any Rent is in arrears and is not paid within five (5) days
after written demand by the Landlord;
(b) the Tenant has breached any of its obligations in this Lease
and, if such breach is capable of being remedied and is not
otherwise listed in this Section 14.01, after notice in
writing from the Landlord:
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(i) the Tenant fails to remedy such breach within fifteen
(15) days (or such shorter period as may be provided
in this Lease); or
(ii) if such breach cannot reasonably be remedied within
15 days or such shorter period, the Tenant fails to
commence to remedy such breach within such fifteen
(15) days or shorter period or thereafter fails to
proceed diligently to remedy such breach;
(c) the Tenant or any Indemnifier becomes bankrupt or insolvent or
takes the benefit of any statute for bankrupt or insolvent
debtors or makes any proposal, an assignment or arrangement
with its creditors, or any steps are taken or proceedings
commenced by any Person for the dissolution, winding-up or
other termination of the Tenant's existence or the liquidation
of its assets;
(d) a trustee, receiver, receiver/manager, or a Person acting in a
similar capacity is appointed with respect to the business or
assets of the Tenant or any Indemnifier;
(e) the Tenant or any Indemnifier makes a sale in bulk of all or a
substantial portion of its assets other than in conjunction
with a Transfer approved by the Landlord;
(f) this Lease or any of the Tenant's assets are taken under a
writ of execution and such writ is not stayed or vacated
within fifteen (15) days after the date of such taking;
(g) the Tenant makes a Transfer other than in compliance with the
provisions of this Lease;
(h) the Tenant abandons or attempts to abandon the Premises or the
Premises become vacant or substantially unoccupied for a
period of ten (10) consecutive days or more without the prior
written consent of the Landlord;
(i) the Tenant moves or commences, attempts or threatens to move
its trade fixtures, chattels or equipment out of the Premises
other than in the routine course of its business;
(j) an Indemnifier, if any, fails to execute and deliver to the
Landlord before the commencement of the Fixturing Period an
indemnity agreement in the form attached hereto as Schedule F
or at any time denies liability under any such indemnity
agreement;
(k) any event of default occurs under any lease or agreement
relating to other premises in the Building leased to or
occupied by the Tenant (save and except the letter agreement
between the Landlord and Tenant executed contemporaneously
with this Lease); or
(1) any insurance policy covering any part of the Building is, or
is threatened to be, cancelled or adversely changed (including
a substantial premium increase) as a result of any action or
omission by the Tenant or any Person for whom it is legally
responsible.
14.02 DEFAULT AND REMEDIES. If and whenever an Event of Default
occurs, then without prejudice to any other rights which it
has pursuant to this Lease or at law, the Landlord shall have
the following rights and remedies, which are cumulative and
not alternative:
(a) to terminate this Lease by notice to the Tenant or to
re-enter the Premises and repossess them and, in
either case, enjoy them as of its former estate, and
the Landlord may remove all Persons and property from
the Premises
-35-
and store such property at the expense and risk of
the Tenant or sell or dispose of such property in
such manner as the Landlord sees fit without notice
to the Tenant;
(b) to enter the Premises as agent of the Tenant and to
relet the Premises for whatever length, and on such
terms as the Landlord in its discretion may determine
and to receive the rent therefor and as agent of the
Tenant to take possession of any property of the
Tenant on the Premises, to store such property at the
expense and risk of the Tenant or to sell or
otherwise dispose of such property in such manner as
the Landlord sees fit without notice to the Tenant;
to make alterations to the Premises to facilitate
their reletting; and to apply the proceeds of any
such sale or reletting first, to the payment of any
expenses incurred by the Landlord with respect to any
such reletting or sale second, to the payment of any
indebtedness of the Tenant to the Landlord other than
Rent and third, to the payment of Rent in arrears,
with the residue to be held by the Landlord and
applied to payment of future Rent as it becomes due
and payable; provided that the Tenant shall remain
liable for any deficiency to the Landlord;
(c) to remedy or attempt to remedy any default of the
Tenant under this Lease for the account of the Tenant
and to enter upon the Premises for such purposes; and
no notice of the Landlord's intention to remedy or
attempt to remedy such default need be given the
Tenant unless expressly required by this Lease; and
the Landlord shall not be liable to the Tenant for
any loss, injury or damages caused by acts of the
Landlord in remedying or attempting to remedy such
default and the Tenant shall pay to the Landlord all
expenses incurred by the Landlord in connection
therewith;
(d) to recover from the Tenant all damages, costs and
expenses incurred by the Landlord as a result of any
default by the Tenant including, if the Landlord
terminates this Lease, any deficiency between those
amounts which would have been payable by the Tenant
for the portion of the Term following such
termination and the net amounts actually received by
the Landlord during such period of time with respect
to the Premises; and
(e) to recover from the Tenant the full amount of the
current month's Rent together with the next three
months' instalments of Rent, all of which shall
accrue on a day to day basis and shall immediately
become due and payable as accelerated rent.
14.03 DISTRESS. Notwithstanding any provision of this Lease or any
provision of applicable legislation, none of the goods and
chattels of the Tenant on the Premises at any time during the
Term shall be exempt from levy by distress for Rent in
arrears, and the Tenant waives any such exemption. If the
Landlord makes any claim against the goods and chattels of the
Tenant by way of distress this provision may be pleaded as an
estoppel against the Tenant in any action brought to test the
right of the Landlord to levy such distress.
14.04 COSTS. The Tenant shall pay to the Landlord all damages, costs
and expenses (including, without limitation, all legal fees on
a solicitor and client basis) incurred by the Landlord in
enforcing the terms of this Lease, or with respect to any
matter or thing which is the obligation of the Tenant under
this Lease, or in respect of which the Tenant has agreed to
insure or to indemnify the Landlord.
14.05 SURVIVAL OF OBLIGATIONS. The indemnity provisions of this
Lease and the Landlord's rights in respect of any failure by
the Tenant to perform any of its obligations under this Lease
shall remain in full force and effect notwithstanding the
expiration or earlier termination of the Term.
-36-
14.06 REMEDIES CUMULATIVE. Notwithstanding any other provision of
this Lease, 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, by statute or common law, all of
which rights and remedies are intended to be cumulative and
not alternative, and 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 the general law.
ARTICLE 15
MISCELLANEOUS
15.01 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall
be given by facsimile or other means of electronic
communication or by hand delivery as hereinafter provided. Any
such notice other communication, if sent by facsimile or other
means of electronic communication, shall be deemed to have
been received on the date of sending if sent during normal
business hours on a Business Day, and otherwise on the first
Business Day following the date of sending, or if delivered by
hand shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the
individual designated below or to an individual at such
address having apparent authority to accept deliveries on
behalf of the addressee. Notice of change of address or
telecopier number shall also be governed by this Section
15.01. Notices and other communications shall be addressed as
follows:
(a) in the case of notice to the Landlord, to it
at the address or telecopier number set out
in paragraph 1.01(a)(ii); and
(b) in the case of notice to the Tenant, to it
at the Premises or the telecopier number set
out in paragraph 1.01(b)(ii).
15.02 REGISTRATION OF LEASE. Neither the Tenant nor anyone on the
Tenant's behalf or claiming under the Tenant shall register
this Lease or any other instrument pertaining to this Lease
against the Lands. If the Landlord or the Tenant intends to
register a document for the purpose only of giving notice of
this Lease or of any dealing with it, then, upon request of
such party, the other party shall join in the execution of a
short form or notice of this Lease solely for the purpose of
supporting an application for registration of notice of this
Lease or any subsequent dealing therewith. At the Landlord's
option, the form of such documentation shall be prepared by
the Landlord's solicitors at the requesting party's expense;
otherwise the Tenant shall pay the Landlord's reasonable legal
costs of reviewing the documentation presented by the Tenant.
15.03 RELOCATION. Intentionally Deleted.
15.04 OVERHOLDING - NO TACIT RENEWAL. It is the Landlord's policy
not to permit tenants to overhold. If the Tenant nevertheless
remains in possession of the Premises after the end of the
Term with the consent of the Landlord but has not executed and
delivered a new lease, there shall be no tacit renewal of this
Lease or the Term, notwithstanding any statutory provisions or
legal presumption to the contrary, and the Tenant shall be
deemed to be occupying the Premises as a tenant from month to
month at a monthly Minimum Rent payable in advance on the
first day of each month equal to the monthly amount of Minimum
Rent payable during the last month of the Term and otherwise
upon the same terms, covenants and
-37-
conditions as are set forth in this Lease insofar as these are
applicable to a monthly tenancy but, for greater certainty,
including liability for all Additional Rent.
15.05 UNAVOIDABLE DELAY. If and to the extent that either the
Landlord or the Tenant shall be prevented, delayed or
restricted by reason of Unavoidable Delay in the fulfilment of
any obligation hereunder, then either the Landlord or the
Tenant, as the case may be, shall be deemed not to be in
default in the performance of such covenant or obligation and
any period for the performance of such obligation shall be
extended accordingly and the other party to this Lease shall
not be entitled to compensation for any loss, inconvenience,
nuisance or discomfort thereby occasioned, provided that in no
event will the Tenant be relieved of its obligation to pay
Rent as it becomes due.
15.06 WAIVER. If either the Landlord or Tenant excuses or condones
any default of the other of any obligation under this Lease,
no waiver of such obligation shall be implied as a result of
any continuing or subsequent default.
15.07 PARTIAL PAYMENT OF RENT. Acceptance by the Landlord of a
lesser amount than the monthly payment of Rent herein
stipulated and any endorsement or statement on any check or
documentation accompanying any payment of Rent shall not be
deemed an acknowledgment of full payment or an accord and
satisfaction, and the Landlord may accept such payment without
prejudice to the Landlord's right to recover the balance of
such Rent or to pursue any other remedy provided in this
Lease.
15.08 PLANNING ACT. This Lease is expressly conditional upon
compliance with the Planning Act (Ontario) and any amendments
thereto.
15.09 METRIC CONVERSION. The Landlord may express any measurement in
this Lease in metric measure in which case the following
conversion factors apply: 1 meter = 3.2808 feet; 1 square
meter = 1.7636 square feet; 1 foot =.3048 metres; and 1 square
foot =.0929 square metres.
15.10 DECISION OF EXPERT.The decision of any Expert whenever
provided for under this Lease and any certificate related
thereto (provided such decision is reasonably arrived at in
accordance with the standards of his or her profession) shall
be final and binding on the parties hereto and there shall be
no further right of dispute or appeal.
15.11 POWER, CAPACITY, AUTHORITY. The Landlord and the Tenant
covenant, represent and warrant to one another respectively
that they have the power, capacity and authority to enter into
this Lease and to perform their obligations hereunder and that
the Person(s) who have executed this Lease on their behalf
have the authority to bind them.
15.12 BANKRUPTCY AND INSOLVENCY ACT. The Tenant hereby irrevocably
waives any right it may have under section 65.2(l) of the
Bankruptcy and Insolvency Act, S.C. 1992, or any successor or
similar legislation, to repudiate this Lease, and any such
purported repudiation of this Lease shall be of no force or
effect.
15.13 PRIOR COMMITMENTS. The Tenant represents and warrants that
there are no covenants, restrictions or commitments given by
the Tenant to any other landlords, tenants in other
developments, its mortgagees or any other third party which
would prevent or inhibit the Tenant from entering into this
Lease.
15.14 QUIET ENJOYMENT. If the Tenant pays the Rent, fully performs
all its obligations under this Lease and there has been no
Event of Default, then the Tenant shall be
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entitled, subject to the provisions of this Lease, to peaceful
and quiet enjoyment of the Premises for the Term without
interruption or interference by the Landlord or any Person
claiming through the Landlord.
IN WITNESS WHEREOF the parties hereto have executed this Lease under seal.
PROMIS SYSTEMS CORPORATION LTD.
-----------------------------------------
Name:
Title:
-----------------------------------------
Name:
Title:
We have authority to bind the Corporation
170 UNIVERSITY (TORONTO)
PARTNERSHIP, by its asset manager,
Gentra Canada Investments Inc.
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
-----------------------------------------
Name: Ryk Stryland
Title: Senior Vice President
We have authority to bind the Corporation
A-1
SCHEDULE A to the Lease dated May 28, 1996, between 170 University (Toronto)
Partnership (Landlord) and Promis Systems Corporation Ltd. (Tenant).
LEGAL DESCRIPTION OF LANDS
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Parcel 2-1, Section A-736E
Land Titles Division of Metropolitan Toronto (No. 66) at Toronto
In the City of Toronto, in the Municipality of Metropolitan Toronto, being
composed of Lot 2 on Registered Plan 736-E, designated as part 1 on Reference
Plan 66R-16016.
The boundaries of the south side of Adelaide Street West and the west side of
University Avenue were confirmed under the BOUNDARIES ACT (Ontario) by Plan
BA-1325, registered as Instrument CT308070.
B-1
SCHEDULE B to the Lease dated May 28, 1996, between 170 University (Toronto)
Partnership (Landlord) and Promis Systems Corporation Ltd. (Tenant).
PLAN OF XXX 00XX XXXXX XX XXX XXXXXXXX
X-0
SCHEDULE B to the Lease dated May 28, 1996, between 170 University (Toronto)
Partnership (Landlord) and Promis Systems Corporation Ltd. (Tenant).
PLAN OF XXX 00XX XXXXX XX XXX XXXXXXXX
X-0
SCHEDULE B to the Lease dated May 28, 1996, between 170 University (Toronto)
Partnership (Landlord) and Promis Systems Corporation Ltd. (Tenant).
PLAN OF XXX 00XX XXXXX XX XXX XXXXXXXX
X-0
SCHEDULE B to the Lease dated May 28, 1996, between 170 University (Toronto)
Partnership (Landlord) and Promis Systems Corporation Ltd. (Tenant).
PLAN OF THE 13TH FLOOR OF THE BUILDING
C-1
SCHEDULE C to the Lease date May 28, 1996, between 170 University (Toronto)
Partnership and Promis Systems Corporation Ltd. (Tenant).
RULES AND REGULATIONS
1.01 LIFE SAFETY.
(a) If any emergency situation arises the Tenant shall cause all
occupants of the Premises to vacate the Building if directed to do so by the
Landlord or any public authority, in the manner prescribed by the Landlord or
such public authority.
(b) No inflammable, explosive or dangerous materials shall be stored or
used in the Premises and the Tenant shall not do, or omit to do, anything which
may in any way breach Applicable Laws, increase the risk of fire or obstruct or
interfere with the rights of other occupants of the Building.
2.01 SECURITY.
(a) The Landlord may require that any Person entering and leaving the
Building at any time other than Business Hours identify himself and satisfy
security measures prescribed by the Landlord from time to time. The Landlord may
prevent any Person from entering the Premises unless that Person possesses a
key, pass or other authorization satisfactory to the Landlord, and may prevent
any Person removing any goods therefrom without written authorization. The
Landlord may institute a photo-identification or other security system, in which
case identification cards or other necessary security devices must be obtained
from the Landlord at the expense of the Tenant.
(b) All entrance doors to the Premises must be kept locked when the
Premises are not in use. Except as provided for below, all locks within the
Premises and on the access doors to the Premises will permit access by the
Landlord's master key or access cards. The Tenant shall not install any locks,
bolts or other security devices affecting access to the Premises, or any part
thereof, without the Landlord's prior written consent, which may be granted on a
conditional basis. No change may be made to existing locks or locking mechanism
within the Premises or on the access doors to the Premises without the
Landlord's consent and co-ordination.
3.01 HOUSEKEEPING.
(a) The Tenant shall keep the Premises tidy and free from rubbish,
which shall be deposited in receptacles designated by the Landlord for waste.
(b) The entrance, lobbies, elevators, staircases and other such
facilities of the Building shall be used only for access to the Premises; the
Tenant shall not obstruct or damage such facilities, or permit them to be
obstructed or damaged by its agents, employees, officers, invitees or others
under its control.
(c) The Tenant shall not obstruct access to main header ducts, janitor
and electrical closets and other Building Systems.
(d) The Tenant shall, at its expense and at such reasonable intervals
as the Landlord requires, exercise such pest control measures as directed by the
Landlord using contractors designated by the Landlord, failing which the
Landlord shall have the right, at its option, to exercise such pest control
measures for the Premises, at the expense of the Tenant.
4.01 RECEIVING, SHIPPING, MOVEMENT OF ARTICLES.
(a) No heavy equipment, safe or other items shall be moved by or for
the Tenant except with the prior written consent of the Landlord, which may be
arbitrarily withheld. Any such item shall be moved upon the appropriate
steel-bearing plates, skids, or platforms, subject always to direction by the
Landlord, and shall take place at such times and by such persons as the Landlord
shall have approved.
C-2
(b) No equipment, freight, office materials or supplies, furnishings or
bulky matter shall be moved in or out of the Premises or carried on the
escalators or elevators of the Building except during such hours as the Landlord
shall have approved. Hand trucks and similar appliances shall be equipped with
rubber tires, rubber bumpers and other safeguards approved by the Landlord, and
shall be used only by prior arrangement with the Landlord.
(c) The Tenant shall receive, ship and take delivery of, and require
shippers and others to deliver and take delivery of, equipment, freight, office
materials and supplies, and furnishings only through the appropriate service and
delivery facilities and elevators provided in the Building and subject to such
further regulations as the Landlord may from time to time impose. The service
elevators in the Building shall not be used for the movement of any such item
without the prior written consent of the Landlord and shall be left in clean
condition following use.
5.01 PREVENTION OF INJURY TO PREMISES.
(a) The Tenant shall not misuse or damage the Premises or any of the
improvements or facilities therein, or unreasonably deface or xxxx any walls or
other parts of the Premises.
(b) The Tenant shall not: (a) install or use any radio, television or
other similar device in the Premises which may in any manner constitute a
disturbance or an annoyance to any other tenant in the Building, (b) install in
the Premises or elsewhere in the Building any transmitting radio communications
equipment without the Landlord's prior written consent; or (c) operate an
electrical device from which may emanate electrical waves that may interfere
with or impair radio or television broadcasting or reception from or in the
Building. The Tenant shall not in any case erect or cause to be erected any
aerial anywhere in the Building.
6.01 WINDOWS.
(a) No curtains, blinds or other window coverings shall be installed by
the Tenant without the prior written consent of the Landlord. Window coverings
that are installed shall comply with the uniform scheme of the Building.
(b) The Tenant shall not interfere with any window coverings installed
upon exterior windows of the Building, and shall close such window coverings
during such hours as the Landlord may require, and shall not install or operate
any interior drapes installed by the Tenant so as to interfere with the exterior
appearances of the Building or the climate control system of the Building.
7.01 WASHROOMS. The water closets and other water apparatus shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substance shall be placed therein. The
Tenant shall be responsible for any damages resulting from misuse caused by it
or by its agents, employees, officers, licensees or invitees. The Tenant shall
not let the water run unless it is then being used.
9.01 Use of PREMISES.
(a) No cooking or preparation of food which requires venting or
produces odours shall be permitted in the Premises and no electrical apparatus
likely to cause overloading of electrical circuits shall be used therein.
(b) The tenant shall not use or permit use of the Premises in such
manner as to create any noises or odours objectionable or offensive to the
Landlord or any other tenant of the Building or other nuisance or hazard or
to breach the provisions of Applicable Laws or any requirement of the
insurers of the Building.
(c) No Person shall use the Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or articles other
than those required for business purposes.
(d) No musical instruments or sound producing equipment or amplifiers
which may be heard outside the Premises shall be played or operated on the
Premises.
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9.01 CANVASSING, SOLICITING, PEDDLING. The Tenant shall not perform, patronize
or permit anyone under its control to perform any canvassing, soliciting or
peddling in the Building and shall not install in the Premises any machines
vending or dispensing refreshments or merchandising, except with the prior
written consent of the Landlord.
10.01. BICYCLES. Bicycles or other vehicles shall not be brought or left in or
upon any part of the Building except in such area or areas as are designated by
the Landlord from time to time.
11.01 SIGNS. If pursuant to Section 6.07 of the Lease the Tenant is permitted to
erect, affix or instal any sign or lettering which may be seen outside the
Premises it shall at its own expense erect and maintain in good condition and
repair any such sign or lettering and shall observe and comply with Applicable
Laws, including the payment of license or other fees.
12.01 GENERAL. These rules and regulations, together with all amendments,
deletions and additions, are not necessarily intended for uniform application,
but may be waived in whole or in part in respect of other tenants of the
Building without affecting their enforceability with respect to the Tenant and
the Premises, and may be waived in whole or in part with respect to the Premises
without waiving them as to future application to the Premises. The imposition of
such rules and regulations shall not create or imply any obligation of the
Landlord to enforce them or create any liability of the Landlord for any such
lack of enforcement.
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SCHEDULE D to the Lease dated May 28, 1996 between 170 University (Toronto)
Partnership (Landlord) and promis Systems Corporation Ltd. (Tenant).
SPECIAL PROVISIONS
1.01 FAIR MARKET RENT. In this Schedule "D", the term "Fair Market Rent" means
the rent charged for a similar term for space comparable to the Premises within
the Building or other developments of similar age, size, and location in the
City of Toronto for the purposes of determining Minimum Rent under Section 2.01
of this Schedule "D", Fair Market Rent shall be determined based upon the
assumptions that: (a) all improvements to the Premises required to enable the
Tenant to conduct business in the Premises in accordance with the provisions of
this Lease, including the Leasehold Improvements, have been constructed and
installed in the Premises as of the date of determination of Minimum Rent; and
(b) a Fair Market Allowance (as hereinafter defined) has been previously paid to
the Tenant by the Landlord. For the purpose of determining, Minimum Rent under
Sections 5.01 and 7.01 of this Schedule "D", tenant inducements, including
leasehold allowances, if any, payable as of the date of determination of Fair
Market Rent in respect of leases of such comparable space having a similar term
(collectively the "Fair Market Allowance") shall be taken into account in
determining Fair Market Rent.
2.01 ARBITRATION PROCEDURE. In the event of any dispute which this Lease
expressly provides shall be resolved by arbitration, the following procedures
shall apply:
(a) The party wishing to have the issues submitted to arbitration
shall give notice to the other party specifying the
particulars of the matter or matters in dispute and proposing
the name of the person it wishes to be the single arbitrator.
Within fifteen (15) days thereafter, the other party shall
give notice to the initiating party advising whether such
party accepts the arbitrator proposed by the initiating party.
If such notice is not given within such fifteen (15) day
period, the other party shall be deemed to have accepted the
arbitrator proposed by the initiating party. Failing agreement
of the parties on a single arbitrator within such fifteen (15)
day period, either party may apply to a judge of the Supreme
Court of Ontario under the Arbitrations Act (Ontario) for the
appointment of a single arbitrator on two (2) clear days'
notice to the other party. Each party shall propose up to
three (3) candidates for the position of arbitrator to the
said judge who, upon receiving submissions of the parties with
respect to the matter, shall select the arbitrator from
amongst the candidates so named.
(b) Within thirty (30) days of the establishment of the
arbitrator, the party initiating the arbitration (the
"Claimant") shall send the other party (the "Respondent") a
statement of claim setting out in sufficient detail the facts
and the contentions of law on which it relies and the relief
it claims.
(c) Within thirty (30) days of the receipt of the statement of
claim, the Respondent shall send the Claimant a statement of
defence stating in sufficient detail which of the facts and
contentions of law in the statement of claim it admits or
denies, on what grounds, and on what other facts and
contentions of law it relies.
(d) Within thirty (30) days of receipt of the statement of
defence, the Claimant may send the Respondent a statement of
reply.
(e) All statements of claim, defence and reply shall be
accompanied by copies (or, if they are especially voluminous,
lists) of all essential documents on which the party concerned
relies and which have not previously been submitted by any
party, and (where practicable) by any relevant samples.
(f) After submission of all the statements, the arbitrator will
give directions for the further conduct of the arbitration.
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(g) Meetings and hearings of the arbitrator shall take place in
the City of Toronto, or in such other place as the Claimant
and the Respondent shall agree upon in writing and such
meetings and hearings shall be conducted in the English
language unless otherwise agreed by such parties and the
arbitrator. Subject to the foregoing the arbitrator may at any
time fix the date, time and place of meetings and hearings in
the, arbitration, and will give all the parties adequate
notice of these. Subject to any adjournments which the
arbitrator allows, the final hearing will be continued on
successive working days until it is concluded.
(h) All meetings and hearings will be in private unless the
parties otherwise agree.
(i) Any party may be represented at any meetings or hearings by a
legal practitioner.
(j) The arbitrator will make its decision in writing and, unless
both the parties otherwise agree, its reasons will be set out
in the decision.
(k) The arbitrator will send its decision to the parties as soon
as practicable after the conclusion of the final hearing.
(1) The decision shall be final and binding on the parties and
shall not be subject to any appeal or review procedure
provided that the arbitrator has followed the rules provided
herein in good faith and has proceeded in accordance with the
principles of natural justice.
(m) By submitting to arbitration under the foregoing rules, the
parties shall be taken to have conferred on the arbitrator the
following jurisdiction and powers, to be exercised by it so
far as the relevant law allows, and in its absolute and
unfettered discretion, if it shall judge it to be expedient
for the purpose of ensuring the just, expeditious, economical
and final determination of the dispute referred to it.
(n) The arbitrator shall have jurisdiction to:
(i) determine any question of law arising in the
arbitration;
(ii) determine any question as to its own jurisdiction;
(iii) determine any question of good faith, dishonesty or
fraud arising in the dispute;
(iv) order any party to furnish such further details of
the party's case, in fact or in law, as it may
require;
(v) proceed in the arbitration notwithstanding the
failure or refusal of any party to comply with these
Rules or with its orders or directions, or to attend
any meeting or hearing, but only after giving that
party written notice that it intends to do so;
(vi) receive and take into account such written or oral
evidence as it shall determine to be relevant,
whether or not strictly admissible in law;
(vii) hold meetings and hearings and make its decision
(including the final decision) in Ontario or
elsewhere with the concurrence of the parties
thereto; and
(viii) order the parties to produce to it and to each other
for inspection and to supply copies of any document
or classes of documents in their possession or power
which it determines to be relevant.
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(o) In addition, the arbitrator shall have such further
jurisdiction and powers as may be allowed to it by the laws of
Ontario, the contract between the parties, the arbitration
agreement, the submission or reference to arbitration, and the
laws of any place in which it holds hearings or in which
witnesses attend before it, and of any place in which it gives
any directions or makes any orders or any award.
(p) Notwithstanding the parties' intention that the arbitrator be
able to act free of court proceedings as set forth herein, the
parties consent to the decision of the arbitrator being
entered in any court having jurisdiction for the purposes of
enforcement. In addition, any party may apply to an
appropriate court for such relief and it is expressly agreed
that the making of any such application or the grant of such
relief by a court shall not be deemed to be in derogation of
the parties' intention that the dispute be the subject of
final and binding arbitration as set forth herein.
(q) Notwithstanding any other provision contained herein, the
costs of such arbitration shall be shared equally by the
Landlord and the Tenant.
3.01 RIGHT OF FIRST OFFER. The Landlord grants to the Tenant an option to lease
all or any part of the ninth (9th) floor (the "First Offer Premises") of the
Building which becomes available to lease at any time following the date the
first lease for such premises is entered into by the Landlord, on the following
terms and conditions:
(a) The Landlord shall give notice (the "Notice") in writing to
the Tenant that the First Offer Premises are available, which
notice shall state the rental rate per square foot of Rentable
Area, any cash allowances or inducements to be granted with
respect thereto and any rent free periods available in
connection with the First Offer Promises. The Tenant shall
have fourteen (14) business days (the "Option Period") after
receipt of the Notice to exercise its option to lease the
First Offer Premises. If the Tenant elects to lease the First
Offer Premises within the Option Period, then the lease of the
First Offer Premises shall be upon the terms set out in the
Notice, shall be for a term commencing on the date specified
in the Notice and expiring on the date of expiry of the Term
or the Extended Term, as the case may be, and shall otherwise
be on the same terms and conditions as this Lease (including
without limitation, the rights to extend the Term under
Section 3.01). If the Tenant shall fail to elect to lease the
First Offer Premises within Option Period, then the Landlord
shall be free to lease the First Offer Premises to any third
party at a rental and upon terms which in the aggregate are
not more favourable to the tenant than those offered to the
Tenant in the Notice. It is acknowledged that the Lease to a
third party may be for a term which is longer or shorter than
the term of the Lease for spare to the Tenant and the tenant
allowance, if any, provided for in the Notice will be
adjusted, if necessary, to take into account the different
term.
(c) For greater certainty, it is understood and agreed that the
option granted herein is a continuing option and shall
continue to apply as the First Offer Premises become available
to lease from time to time during the term, as extended.
(d) The Landlord and Tenant shall enter into a lease amending
agreement prepared by the Landlord at the Tenant's expense to
give effect to the provisions of this Section 6.01.
4.01 EXTENSION OF TERM. If:
(a) the Tenant is Promis Systems Corporation Ltd. or a Related
Party of Promis Systems Corporation Ltd. and is not then in
default under this Lease; and
D-4
(b) the Tenant gives the Landlord not less than nine (9) months
notice prior to the expiration of the Term (the "Notice of
Extension") of the Tenant's intention to extend the Term, then
the Landlord will grant the Tenant the right to extend the
Term for the Premises on an "as is" basis for a further period
of five (5) years (the "Extended Term") commencing upon the
expiration of the Term, and the Extended Term shall be on the
same terms and conditions as are contained in this Lease
except that:
(i) there shall be no further right to extend the Term;
(ii) the Tenant shall enter into an Extension Agreement
prepared by the Landlord at the Tenant's expense to
give effect to the Extended Term; and
(iii) the Minimum Rent payable during each Lease Year
during the Extended Term shall be the Fair Market
Rent to be agreed upon between the Tenant and
Landlord within thirty (30) days of the delivery of
the Notice of Extension failing agreement, determined
by arbitration pursuant to Section 3.01.
If Tenant fails to give the Notice of Extension then this Section 4.01 shall be
null and void and of no further force or effect. If the Tenant gives the Notice
of Extension the Tenant will forthwith execute the documentation submitted by
the Landlord pursuant to subsection (ii) of this Section 4.01.
It is further understood and agreed that the right of the Tenant to extend the
Term of this Lease pursuant to this Section 4.01 shall apply to all of the
Premises occupied by the Tenant on expiration of the initial Term,
5.01 PARKING SPACES. So long as the ownership of 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx and 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx remain the same, the
Tenant shall have the right throughout the Term and any extensions thereof, to
use up to three (3) reserved parking spaces and twelve (12) unreserved parking
spaces in the parking garage of the Building municipally known as 000 Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx. The present parking rates for reserved parking is
Three Hundred and Fifteen Dollars ($315.00) per month (plus applicable Goods and
Services Tax) and Two Hundred and Ten Dollars ($210.00) per month (plus
applicable Goods and Services Tax) for unreserved spaces. The said parking rates
will be based upon the current market rates designated by the Landlord and are
subject to change from time to time.
6.01 REASONABILITY. Save where a contrary intention is expressly stated, any
allocation of any cost, charge or expense which is to be determined by the
Landlord under this Lease shall be done on a reasonable and equitable basis.
7.01 SIGNAGE. The Tenant shall be entitled to prominently install at its sole
cost and expense (including the maintenance and repair thereof) its corporate
logo or signage to the top facia of the north side of the Building. The said
signage shall be of a design and quality selected by the Tenant acting
reasonably and befitting the image of the Building and shall be further subject
to the consent of the Landlord, such consent not to be unreasonably delayed or
withheld. The Landlord shall not grant any prominent external building
identification rights on the top facia of the Building to any third party tenant
during the Term and any renewal thereof.
The Tenant shall further be entitled to prominently install at its sole cost and
expense (including the maintenance and repair), its corporate name and/or logo
above the main entrance to the Building. The said signage shall be of a design
and quality selected by the Tenant acting reasonably and befitting the image of
the building and shall be subject to the consent of the Landlord such consent
not to the unreasonably withheld.
D-5
All of the rights granted by the Landlord pursuant to this Section 7.01 shall be
personal to the Tenant and shall not be assignable by the Tenant and shall be
further subject to compliance with all applicable by-laws and regulations.
The Tenant agrees to pay as Additional Rent an amount equal to Sixteen Thousand
Dollars ($16,000.00) per annum in equal monthly payments in the manner
prescribed in Article 4 of the Lease for the initial Term of the Lease for the
signage rights granted by the Landlord pursuant to this Section 7.01, provided,
however, in the event that the Tenant extends the lease pursuant to Section 4.01
of this Schedule "D", there will be no further charge for the signage granted
pursuant to this Section 7.01.
The Tenant agrees to be responsible throughout the Term and any renewals or
extensions thereof for the cost of all maintenance and repair of all signage
installed pursuant to this Section 7.01.
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SCHEDULE E to the Lease dated , between 170 University (Toronto) Partnership
(Landlord) and Promis Systems Corporation Ltd. (Tenant).
INDEMNITY AGREEMENT - INTENTIONALLY DELETED
THIS AGREEMENT dated
BETWEEN:
(the "Indemnifier")
OF THE FIRST PART
- and -
(the "Landlord")
OF THE SECOND PART
WHEREAS the Indemnifier and the Tenant have requested the Landlord to
enter into a lease (the "Lease") dated __, 19__, between it as landlord and
__________ as tenant (the "Tenant") relating to premises in the building known,
or to be known, as __________ and the Landlord has agreed to do so only if the
Indemnifier executes and delivers this agreement under seal in favour of the
Landlord;
NOW THEREFORE for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the Indemnifier), the
Indemnifier hereby agrees with the Landlord as follows:
(a) the Indemnifier shall indemnify and save the Landlord harmless
from all damages and costs incurred by the Landlord if, during
the period which is expressed by Section 3.01 of the Lease to
be its term, or any renewal thereof, the Landlord does not
receive any amount payable by the Tenant under the Lease for
such period which, if the Lease were in full force and effect
and good standing, would be payable under the Lease;
(b) if the Tenant defaults in the payment of any amount payable
under the Lease or in the due performance of any other
obligation of the Tenant under the Lease the Indemnifier shall
forthwith upon demand by the Landlord pay to the Landlord any
amount so payable and all damages that may arise upon the
default by the Tenant in the payment thereof or in the due
performance of any such obligation;
(c) the Indemnifier shall be jointly and severally bound with the
Tenant to the Landlord for the performance of the obligations
of the Tenant under the Lease, and its liability shall be that
of a direct and primary obligor and not merely that of a
surety;
(d) if the Tenant defaults under the Lease the Landlord may
proceed against the Indemnifier as if it were the Tenant,
without waiving any of its rights against the Tenant and
without any requirement that the Landlord shall first have
proceeded against the Tenant or had recourse to or exhausted
any of its remedies against the Tenant;
(e) the obligations of the Indemnifier and the rights of the
Landlord hereunder shall not be affected or in any way
prejudiced or impaired by any delay, neglect or forbearance
by the Landlord in enforcing performance by the Tenant of its
obligations under the Lease or by the granting by the Landlord
to the Tenant of any extension of time or by any waiver by the
Landlord of any of the Tenant's obligations or by any
assignment or sublease or other dealing by the Tenant with
E-2
the Lease or the premises whether with or without the consent
of the Landlord or by any want of notice to the Indemnifier or
by any dealing between the Landlord and the Tenant with or
without notice to the Indemnifier or by any dealing between
the Landlord and the Tenant with or without notice to the
Indemnifier whereby the respective obligations and rights of
either the Landlord or the Tenant are amended including any
amendment of the Lease or by any other act or failure to act
by the Landlord which would release, discharge or affect the
obligations of the Indemnifier if it were a mere surety, and
with the intent that this indemnity shall not be released or
affected or the rights of the Landlord hereunder in any way
impaired until such time as all the obligations of the Tenant
under the Lease have been fully performed and satisfied;
(f) the obligations of the Indemnifier hereunder shall not be
released, discharged or affected by the bankruptcy or
insolvency of the Tenant or any disclaimer by any trustee in
bankruptcy of the Tenant or by the Tenant ceasing to exist
(whether by winding-up, forfeiture, cancellation or surrender
of charter, or any other circumstance) or by any event
terminating the Lease including a re-entry or termination
pursuant to Section 14.02 of the Lease; if a re-entry or
termination shall occur under any such provisions the Landlord
may requi re the Indemnifier to enter into a lease of the
premises as a tenant upon the terms and conditions of the
Lease for the unexpired residue of the term of the Lease;
(g) the obligations of the Indemnifier hereunder may be assigned
by the Landlord, will benefit and be enforceable by the
successors and assigns of the Landlord and shall bind the
heirs, executors and legal representatives and the successors
and assigns of the Indemnifier; and
(h) the grammatical changes required to make the provisions of
this agreement apply in the plural sense where the Indemnifier
comprises more than one person and to corporations, firms,
partnerships, or individuals male or female, will be assumed
as though in each case fully expressed, and if the Indemnifier
consists of more than one person, the agreements of the
Indemnifier shall be deemed to be joint and several agreements
of each such person; and
(i) this agreement shall be governed by the laws of the Province
of Ontario.
The Indemnifier acknowledges receipt of a copy of the Lease
and covenants, represents and warrants that it has full power, capacity and
authority to enter into this agreement and to perform its obligations
hereunder and that the person(s) who have executed this agreement on behalf
of the Indemnifier have the authority to bind the Indemnifier. Whenever any
reference is made herein to the Lease or the obligations of the Tenant
thereunder, such reference shall be deemed to include all amendments and
modifications to the Lease and any change of or increase in the Tenant's
obligations thereunder, including without limitation those which result from
the exercise by the Tenant of any option to lease additional premises or the
exercise by the Tenant of any right to extend or renew the term of the Lease
as provided therein, any and all agreements and instruments executed by the
Tenant concurrently with the Lease or pursuant thereto and which relate to
the Premises, and shall be deemed to include the Tenant's obligations under
such agreements and instruments, including without limitation any agreement
with respect to the work to be performed by the Tenant or by the Landlord on
its behalf with respect to the construction of leasehold improvements and
fixtures in the Premises, any parking agreement, any agreement with respect
to storage facilities and any agreement with respect to the assumption by the
Landlord of the Tenant's existing lease obligations elsewhere.
In witness whereof the Indemnifier has executed this
agreement under seal.
Per: _____________________
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CERTIFICATE
___________________________1, 199__
170 University (Toronto) Partnership, by its Asset Manager
Gentra Canada Investments Inc.
00 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: The Asset Manager, 000 Xxxxxxxxxx Xxxxxx
Dear Sirs:
Re: Promis Systems Corporation Ltd.
LEASE AT 000 XXXXXXXXXX XXXXXX
This letter shall confirm that effective ____________________1, 199_, Promis
Systems Corporation Ltd. (the "Corporation") is not currently in material
default of any of the obligations of the Corporation and does not anticipate a
material default of any obligations of the Corporation in the next 30 days.
Yours truly,
Chief Financial Officer