EXHIBIT 6.2
Lease
BY THIS dated 28th day of February, 2000.
Marine Building Holdings Ltd. and OMERS Realty Corporation, collectively
as LANDLORD upon and in consideration of the covenants, terms, and conditions
contained in the LEASE and which are implied, hereby demises and leases to
XxxxxxxXxx.xxx Systems Inc.
as TENANT those PREMISES outlined in red on Schedule 1 attached, in the BUILDING
known as the Marine Building constructed (or being constructed -- this portion
struck out of original) on LAND described as:
Parcel Identifier 000-000-000, Lot "1", Except Part in Plan 18529, Xxxxx 0,
Xxxxxxxx Xxx 000, Xxxx 00, xxx
Xxxxxx Identifier 000-000-000, Lot "2", Except Part in Plan 18529, Xxxxx 0,
Xxxxxxxx Xxx 000, Xxxx 92,
- agreed to contain a Rentable Area of 4,920 square feet/metres on the
third (3rd) floor(s) of said BUILDING
- FOR A term of five (5) years
- from a COMMENCEMENT DATE of April 1, 2000
- and expiring on March 31, 2005
- for an ANNUAL RENT of
- $16.00 per rentable square foot per annum net for the period April 1,
2000 to March 31, 2002
- $18.00 per rentable square foot per annum net for the period April 1,
2002 to March 31, 2005
- [with review and adjustment (if any) at the commencement of the
years of the TERM] - this portion struck out of original
- and other payments in accordance with the LEASE
Use of Premises
The Premises shall be used and occupied only as business offices for the
business of Tenant as initially conducted in the Premises, or for such other
purpose as Landlord may specifically authorize in writing.
The following appendices are attached to and form part of the Lease:
Schedule 1 - Plan of Premises
Schedule 2 - Project Supplement with definitions.
ARTICLE 1
GRANT OF LEASE
1.01 Demise
Landlord leases the Premises to Tenant, and Tenant leases the Premises from
Landlord, to have and to hold during the Term, subject to the provisions hereof
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1.02 Covenants
Landlord covenants to keep, observe and perform all of the terms and conditions
to be kept, observed and performed by Landlord under this Lease. Tenant
covenants to pay the Rent when due, and to keep, observe and perform all of the
terms and conditions to be kept, observed and performed by Tenant under this
Lease.
1.03 Quiet Enjoyment
Landlord shall warrant and defend Tenant in the quiet enjoyment and possession
of the Premises during the Term, subject to the provisions of this Lease.
1.04 Use of Common Areas
During Normal Business Hours, Tenant, its employees, customers, invitees and
others requiring communication with Tenant in connection with the operation of
its business shall have the use in common with others entitled thereto of the
Common Areas, provided that the Common Areas shall at all times be subject to
the exclusive control of Landlord.
1.05 Use of Premises
The Premises shall be used and occupied for the use and purpose identified on
page 1 of this Lease, or for such other purpose as Landlord may specifically
authorize in writing.
1.06 Consent
Unless otherwise provided, whenever consent or approval of Landlord or Tenant is
required under the provisions of this Lease, such consent or approval shall not
be unreasonably withheld or delayed.
1.07 Compliance with Laws
Tenant shall at all times, use and occupy the Premises in accordance and
compliance with all laws, by-laws, regulations, directions and orders of every
governmental authority having jurisdiction and with all requirements of the
insurers of the Project and their advisory organizations, and Tenant's insurers,
and shall not commit, suffer or permit any act or omission which shall breach
any thereof. If any such governmental authorities or insurers or insurers'
advisory organizations require changes, Tenant shall make same at its own
expense, but subject to such approvals of Landlord as are required pursuant to
the provisions of this Lease.
1.08 Nuisance
Tenant shall not cause or maintain any nuisance in or about the Premises, and
shall keep the Premises free of debris, rodents, vermin and anything of a
dangerous, noxious or offensive nature, or which could create a fire hazard
(through undue load on electrical circuits or otherwise) or cause undue
vibration, heat or noise.
1.09 Abandonment
Tenant shall not vacate or abandon the Premises at any time during the Term.
ARTICLE 2
RENT
2.01 Payment of Rent
(a) Tenant acknowledges and agrees that the Annual Rent shall be
completely net to Landlord, and Tenant shall, to the complete
indemnification of Landlord, pay all costs and expenses relating or
attributable to the Premises and the conduct of business therein,
without limitation including Tenant's Proportionate Share of Operating
Costs for the Building, and Other Charges.
(b) All amounts payable by Tenant to Landlord under this Lease (without
limitation including Tenant's Proportionate Share of Operating Costs
for the Building, and Other Charges) shall constitute and be deemed to
be Rent and shall be payable and recoverable as Rent, and shall be
payable, when due, in legal tender of Canada, without deduction or
rights of set-off, and without demand or, where so specified, upon
notice or invoice, at such place as Landlord from time to time may
designate, and Landlord shall have all rights against Tenant for
default in any payment as in the case of arrears of Annual Rent.
Tenant's obligation to pay Rent shall survive the expiration or
earlier termination of this Lease, until fully discharged.
(c) Tenant shall make payments required under this Lease within the period
of time specified, or if a time period is not specified, within a
reasonable period of time.
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2.02 Early Occupancy
If Tenant begins to conduct business in any portion of the Premises before the
Commencement Date, Tenant shall not be obliged to pay to Landlord on the
Commencement Date a rental in respect of the portion so used for the period from
the date Tenant begins to conduct business therein to the Commencement Date,
[which rental shall be that proportion of Annual Rent for the first year of the
Term which the number of days in such period bears to 365, and which the area of
the portion so used bears to the area of the Premises. The - this portion struck
out of original] All other terms and provisions of this Lease shall be
applicable during such period. [ , without limitation including that Tenant
shall, mutatis mutandis proportionately contribute to Operating Costs for the
Building during such period. - this portion struck out of original]
2.03 Delayed Occupancy
If Landlord is delayed in giving possession of the Premises to Tenant, then,
unless such delay is principally caused by or attributable to Tenant, its
servants, agents or contractors, Tenant shall take possession of the Premises on
the date when Landlord delivers such possession, and this Lease shall commence
on the first day of the month next following and shall thenceforth ensue until
the date of expiration aforesaid. This Lease shall not be void or voidable nor
shall Landlord be liable to Tenant for any loss or damage resulting from any
delay in delivering such possession to Tenant, but no Rent shall be payable by
Tenant for the period prior to such deferred commencement date except pursuant
to Section 2.02. If the delay is principally caused by or attributable to
Tenant, its servants, agents or contractors, then Tenant shall pay Rent pursuant
to the provisions of this Lease from the Commencement Date without reduction,
abatement or deferral.
2.04 Payment of Annual Rent
Annual Rent shall be paid to Landlord in equal monthly instalments payable in
advance on the first day of each calendar month, with the first instalment to be
paid on the Commencement Date.
2.05 Payment of Operating Costs
(a) Tenant shall pay its Proportionate Share of Operating Costs for the
Building as next provided.
(b) On or about the Commencement Date, and the beginning of each Fiscal
Year thereafter, Landlord shall compute and deliver to Tenant a bona
fide estimate of Tenant's Proportionate Share of Operating Costs for
the Building for the appropriate period and, without further notice.
Tenant shall pay to Landlord equal monthly instalments of such
estimate of Tenant's Proportionate Share of Operating Costs for the
Building simultaneously with instalments of Annual Rent during such
period.
(c) Unless delayed by causes beyond Landlord's reasonable control,
Landlord shall deliver to Tenant within 120 days after the end of each
Fiscal Year a statement certified to be correct by Landlord, (the
"Statement") setting out in reasonable detail the amount of Operating
Costs for the Building for such Fiscal Year and Tenant's Proportionate
Share thereof. If the aggregate of instalments of Tenant's
Proportionate Share of Operating Costs for the Building actually paid
by Tenant to Landlord during such Fiscal Year differs from the amount
of Tenant's Proportionate Share of Operating Costs for the Building
for such Fiscal Year in accordance with the Statement, Tenant shall
pay or Landlord shall credit the difference without interest within 30
days after the date of delivery of the Statement.
(d) If Tenant disagrees with the accuracy of the Operating Costs for the
Building or Tenant's Proportionate Share thereof as set forth in the
Statement, Tenant shall nevertheless make payment in accordance with
the Statement, but Tenant shall, within 30 days of delivery of the
Statement, advise Landlord thereof and the disagreement shall
immediately be referred by Landlord for prompt decision by a public
accountant, architect, insurance broker or other professional
consultant who in the opinion of Landlord, acting reasonably, is best
qualified to assess and determine the matter and who shall be deemed
to be acting as an expert(s) and not as an arbitrator(s) and whose
determination shall be final and binding on Landlord and Tenant,
unless within 21 days of the determination either party elects to
submit the matter to arbitration pursuant to applicable law. The cost
of the expert(s) and of any arbitration shall be borne equally by
Landlord and Tenant. Any adjustment required to any previous payment
made by Tenant or Landlord by reason of any final decision shall be
made, without interest, within 30 days thereof.
(e) Neither party may claim a re-adjustment in respect of Operating Costs
for a period if based upon any error or computation or allocation
except by notice delivered to the other party within 6 months after
the date of delivery of the Statement.
(f) If the Term expires or the Lease is otherwise terminated on a date
other than the last day of the Fiscal Year, Tenant's Proportionate
Share of Operating Costs for the Building shall be adjusted on a per
diem basis, based on and calculated at the time of delivery of the
next Statement after such date. If the aggregate of instalments of
Operating Costs actually paid by Tenant to Landlord during the period
up to and including the expiry or earlier termination date differs
from the amount of Tenant's Proportionate Share of Operating Costs for
the Building payable for the period up to such date, Tenant shall pay
or Landlord shall refund the difference without interest within 30
days after the date of delivery of the Statement.
2.06 Payment of Other Charges
Tenant shall make payments to Landlord of Other Charges which pursuant hereto
are the responsibility of Tenant.
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ARTICLE 3
OPERATION OF THE PROJECT
3.01 Standards
During the Term, Landlord shall operate and maintain the Project in accordance
with all applicable laws and regulations, and with high standards of efficient
and prudent property management from time to time prevailing for buildings in a
project similar in use, type, and location.
3.02 Services to Premises
Landlord shall (with participation by Tenant by payment of Tenant's
Proportionate Share of Operating Costs for the Building) provide in the
Premises:
(a) heat, ventilation and air conditioning as required for the comfortable
use and occupancy of the Premises during Normal Business Hours;
(b) janitorial services, including window washing, but excluding
dry-cleaning of drapes and shampooing of carpets, to keep the Premises
in a clean and tidy condition, provided that Tenant shall leave the
Premises in a reasonably tidy condition at the end of each business
day;
(c) replacement of building standard fluorescent tubes, light bulbs,
ballasts, and starters as required from time to time as a result of
normal usage; and
(d) electric power for normal lighting and small business office
equipment.
3.03 Building Services
Landlord shall (with participation by Tenant by payment of Tenant's
Proportionate Share of Operating Costs for the Building) provide in the Project:
(a) hot and cold or tempered running water and necessary supplies in
public washrooms sufficient for the normal use thereof;
(b) elevator or escalator service for access to and egress from the
Premises;
(c) heat, ventilation, air conditioning, lighting, electric power, and
janitorial services in the Common Areas; and
(d) a general directory board, under the exclusive control of Landlord, on
which Tenant shall be entitled to have its name shown.
3.04 Maintenance, Repair and Replacement
Landlord shall (with participation by Tenant by payment of Tenant's
Proportionate Share of Operating Costs for the Building) operate, maintain,
repair and replace the systems, facilities, and equipment necessary for the
proper operation of the Project and for the provision of services under this
Article (except as such may be installed by or be the property or responsibility
of Tenant), and shall be responsible for and shall expeditiously maintain and
repair the foundations, structures, exteriors, and roofs of the Project and,
pursuant to Article 7, repair damage to the Project which Landlord is obligated
to insure against under this Lease, provided that:
(a) if all or part of such systems, facilities and equipment are destroyed,
damaged or impaired, Landlord shall have a reasonable time in which to
complete the necessary repair or replacement, and during that time shall be
required only to maintain such services as are reasonably possible in the
circumstances;
(b) following initial installation and any significant alteration of
partitioning or installations, proper operation of heating and air handling
systems will require balancing and rebalancing;
(c) Landlord may temporarily discontinue such services or any of them at such
times as may be necessary due to causes (except lack of funds) beyond the
reasonable control of Landlord;
(d) Landlord shall use reasonable diligence in carrying out its obligations
under this Article, but shall not be liable under any circumstances for any
consequential damage to any person or property for any failure to do so;
(e) Landlord shall not be liable for damage to any person or property,
fixtures, furnishings, or equipment or claims for loss of business, or
other loss or damage suffered or caused by failure of the mechanical or
electrical systems of the Project, or interruption in the supply of power
or other services, or malfunction of the sprinkler system, or bursting or
leaking of sewer pipes or of gas, steam, or water, or leakage of any type;
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(f) no reduction or discontinuance of services under this Article shall be
construed as an eviction of Tenant, or a breach of the covenant of quiet
enjoyment, or release Tenant from any of its obligations under this Lease;
(g) nothing contained herein shall derogate from the provisions of Article 7;
and
(h) Landlord shall be deemed to have observed and performed the terms and
conditions to be performed by Landlord under this Lease, including those
relating to the provision of utilities and services, if in so doing it acts
in accordance with a directive, policy or request of a governmental or
quasi-governmental authority serving the public interest in the fields of
energy, environment, conservation or security.
3.05 Additional Services
(a) If from time to time requested in writing by Tenant and to the extent
that it is reasonably able to do so, Landlord shall provide in the
Premises services in addition to those set out in this Article, except
that Tenant shall be solely responsible for the cost thereof and shall
within 10 days of receipt of an invoice for any such additional
service pay Landlord therefor at such reasonable rates as Landlord may
from time to time establish.
(b) Tenant shall not, without Landlord's prior written consent, install or
permit in the Premises, equipment (including telephone equipment)
which generates sufficient heat to affect the temperature otherwise
maintained in the Premises by the air conditioning system as normally
operated. If Tenant should do so, Landlord may install supplementary
air conditioning units, facilities or services in the Premises, or
modify its air conditioning system, as may in Landlord's reasonable
opinion be required to maintain proper temperature levels, and Tenant
shall pay Landlord for all Outlays within 10 days of receipt of an
invoice therefor.
(c) If Landlord shall from time to time reasonably determine that the use
of electricity or any other utility or service in the Premises is
materially disproportionate to the use of other tenants, Landlord may
separately charge Tenant for the excess costs attributable to such
disproportionate use and Tenant shall pay Landlord the amount thereof
within 10 days of receipt of an invoice therefor. Tenant may and, at
Landlord's request, Tenant shall, install and maintain at Tenant's
expense, metering devices for checking the use of such utility or
service in the Premises.
3.06 Alterations by Landlord
Landlord may from time to time:
(a) make repairs, replacements, changes or additions to the structure,
systems, facilities and equipment in the Premises or the Project where
necessary to serve the Premises or the Project;
(b) make changes in or additions to any part of the Project not in or
forming part of the Premises; and
(c) change or alter the location of the Common Areas;
provided that in doing so, Landlord shall not disturb or interfere with Tenant's
use of the Premises and operation of its business any more than is reasonably
necessary in the circumstances and shall repair any damage to the Premises
caused thereby.
3.07 Access by Landlord
Tenant shall permit Landlord to enter the Premises outside Normal Business
Hours, and during Normal Business Hours where such entry will not unreasonably
disturb or interfere with Tenant's use of the Premises and operation of its
business, to examine, inspect, and show the Premises to persons wishing to lease
them, to provide services or make repairs, replacements, changes or alterations
as set out in this Lease, and to take such steps as Landlord may deem necessary
for the safety, improvement or preservation of the Premises or the Project.
Landlord shall, whenever possible, consult with or give reasonable notice to
Tenant prior to such entry, and shall use its best efforts to observe security
and safety measures reasonably requested by Tenant from time to time, but such
entry shall not be construed as an eviction of Tenant, or a breach of the
covenant of quiet enjoyment, and shall not release Tenant from any of its
obligations under this Lease.
3.08 Name of Building
Landlord may determine and specify one or more names, numbers, or like
designations, by which the Building or Project (or any component thereof) shall
be known and identified. Landlord shall have the right after 30 days' notice to
Tenant, to change any such name, number or designation of the Building or
Project, without liability to Tenant.
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ARTICLE 4
MAINTENANCE OF THE PREMISES
4.01 Condition of Premises
Tenant shall (subject to fair wear and tear, provided that nothing herein shall
require Landlord to remedy such fair wear and tear) maintain the Premises and
all improvements therein in good order and condition, including, without
limitation:
(a) repainting and redecorating the Premises and dry-cleaning drapes and
shampooing of carpets at reasonable intervals as needed; and
(b) making repairs, replacements and alterations as needed.
4.02 Failure to Maintain Premises
If Tenant fails to perform any obligation under this Article, then on not less
than 10 days' notice to Tenant, (except in the event of an emergency as
determined by Landlord, acting reasonably, in which case entry may be made
immediately) Landlord may enter the Premises and perform or cause performance of
such obligation without liability to Tenant for any loss or damage to Tenant
thereby occasioned, and Tenant shall pay Landlord for all Outlays plus 20% of
such for overhead and supervision, within 10 days of receipt of an invoice
therefor, and the entry and performance of such obligations by Landlord shall
not be construed as an eviction of Tenant, or a breach of the covenant of quiet
enjoyment, and shall not release Tenant from any of its obligations under this
Lease. Tenant shall not be entitled to any compensation for any inconvenience,
nuisance or discomfort occasioned by such entry.
4.03 Alterations by Tenant
(a) Tenant may from time to time at its own expense make changes,
additions and improvements in the Premises to better adapt the
Premises to its business, provided that any such change, addition or
improvement shall:
(i) comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction;
(ii) be made only with the prior written consent of Landlord;
(iii) be equal or exceed the then current building standard for
the Project as established by Landlord; and
(iv) be carried out only by persons selected by Tenant and
approved in writing by Landlord, who shall, if required by
Landlord, deliver to Landlord before commencement of the
work, an authorized building permit from the applicable
municipality, performance and payment bonds, and proof of
workers' compensation and public liability and property
damage insurance coverage, with Landlord named as an
additional insured, with companies and in amounts and with
coverages and in form reasonably satisfactory to Landlord,
and which shall remain in effect during the entire period in
which the work will be carried out and for a reasonable
period of time thereafter.
(b) Subject to compliance with such reasonable rules and regulations as
Landlord may make from time to time, Tenant and its contractors shall
have access to the Building and the Premises for purposes of
undertaking the work approved pursuant to sub-section (a), provided
such work shall be undertaken and completed with all reasonable
diligence; and such work shall, save as Landlord acting reasonably may
otherwise require or direct that same be done by Landlord's
contractors at Tenant's expense, be done by contractors selected by
Tenant, provided that there shall be no conflict caused thereby with
any union or other contract to which Landlord or its contractor(s) may
be a party, and in the event that Tenant's contractors or workmen
cause such conflict Tenant shall forthwith remove them from the
Project.
(c) It is understood and agreed that Landlord shall have no responsibility
or liability whatsoever with respect to any such work or attendant
materials left or installed in the Project, and shall be reimbursed
for any Outlays, and for any delays caused Landlord or its
contractor(s) directly or indirectly as a result thereof. Tenant shall
be solely responsible for the removal of any and all construction
refuse or debris resulting from such work with such removal to occur
only after Normal Business Hours.
(d) Any increase in Taxes, fire or casualty insurance premiums for the
Project attributable to such change, addition or improvement shall be
borne by Tenant. Tenant shall promptly repair at its own expense any
damage to the Premises or the Project, without limitation including
the property of others, resulting from such changes, additions or
improvements.
4.04 Builders' Liens
Tenant shall pay before delinquency all costs for work done, without limitation
including materials supplied, or caused to be done by Tenant in the Premises
which could result in any lien or encumbrance on Landlord's interest in the
Project or any part thereof, and shall keep the title to the Project and every
part thereof free and clear of any lien, certificate of lis pendens or
encumbrance in respect of such work or material, and shall
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indemnify and hold harmless Landlord against all Outlays. Tenant shall
immediately notify Landlord of any charge, lien, claim of lien or other action
of which it has or reasonably should have knowledge and which affects the title
to the Project or any part thereof, and shall cause the same to be removed
within 15 days (or such additional time as Landlord may allow in writing),
failing which Landlord may take such action as Landlord deems necessary to
remove the same and Tenant shall pay Landlord for all Outlays within 10 days of
receipt of an invoice therefor.
4.05 Signs
All signs shall be at Tenant's expense and any sign, or lettering or design of
Tenant which is visible from the exterior of the Premises shall be subject to
approval by Landlord, and shall conform to the uniform pattern of identification
or signs for tenants in the Project as prescribed by Landlord. Tenant shall not
inscribe or affix any sign, lettering or design in the Premises or Project which
is visible from the exterior of the Project.
4.06 Tenant's Property
(a) Tenant may install in the Premises its usual trade fixtures and
personal property in a proper manner, provided that no such
installation shall interfere with or damage the mechanical or
electrical systems or the structure of the Building. If Tenant is not
then in default hereunder. Tenant's Property installed in the Premises
by Tenant may be removed from the Premises
(i) from time to time in the ordinary course of Tenant's
business or in the course of reconstruction, renovation, or
alteration of the Premises by Tenant, and
(ii) during a reasonable period prior to the expiration of the
Term, provided that Tenant shall promptly repair at its own
expense any damage to the Premises or the Project resulting
from such installation or removal.
(b) For purposes of this Lease the expression "Tenant's Property" (whether
owned or leased by Tenant and whether or not affixed to the Premises)
shall mean personal property, trade fixtures and fittings, furniture
and furnishings, supplies, inventories and merchandise, and equipment
and systems from time to time installed, provided and used by Tenant
in the Premises for the conduct of its business.
4.07 Leasehold Improvements
(a) Provided that nothing in this Section shall inhibit Tenant's rights
pursuant to Section 4.03 to make alterations or pursuant to Section
4.06 to install and replace Tenant's Property, all Leasehold
Improvements in or about the Premises shall upon the completion
thereof, whether by or at the instance or cost of Landlord or Tenant,
forthwith and without more be and become the absolute property of
Landlord without compensation therefor, but without Landlord having or
thereby accepting any responsibility in respect of the maintenance,
repair, replacement or removal thereof (other than pursuant to
Articles 6 and 7 hereof) which shall be Tenant's responsibility.
(b) For purposes of this Lease the expression "Leasehold Improvements"
shall include, without limitation, all improvements, installations,
alterations and additions from time to time made, erected or installed
in the Building by or for or on behalf of Tenant, or any previous or
other occupant of the Premises including, without limitation, all
partitioning, doors and hardware, mechanical, electrical and utility
installations, light fixtures, floor and window coverings,
decorations, finishes and fixtures, howsoever affixed and whether
movable or immovable, excepting only Tenant's Property.
ARTICLE 5
TAXES
5.01 Landlord's Taxes
Landlord shall (with participation by Tenant by payment of Tenant's
Proportionate Share of Operating Costs for the Building) pay Taxes, (except any
payable by Tenant) before delinquency Landlord may to the fullest extent
permitted by law and provided it diligently prosecutes any contest or appeal of
Taxes, defer payment of Taxes or defer compliance with any statute, by-law, or
regulation in connection with the levying and payment of Taxes.
5.02 Allocation
If there are not separate assessments of Taxes for the Premises or Building,
Landlord shall allocate Taxes to the Building and any other of the Project
Components covered by or included in an assessment covering the Land or the
Building, on an equitable basis having regard, without limitation, to the
various uses and values of the subject Project Components, any separate
assessments that may have been rendered by the taxing authority, and any
assessment principles known, or prescribed by any lawful taxing authority.
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5.03 Tenant's Taxes
Tenant shall pay before delinquency every tax, assessment, license fee, excise
fee and other charge (excluding income tax), however described, which is
imposed, levied, assessed or charged by any governmental or quasi- governmental
authority having jurisdiction and which is payable in respect of the Term or
upon or on account of:
(a) separate assessments of or in respect of the Premises;
(b) operations at, occupancy of, or conduct of business in or from the
Premises by or with the knowledge of Tenant;
(c) Tenant's Property or fixtures or personal property in the Premises
which do not belong to Landlord;
(d) the Rent paid or payable by Tenant to Landlord for the Premises or for
the use and occupancy of all or any part thereof; and (e) any tax or
duty imposed upon Landlord which is measured by or based in whole or
in part directly upon the Rent payable under this Lease whether
existing at the date hereof or hereafter imposed by any governmental
authority including, without limitation, goods and services tax, value
added tax, business transfer tax, retail sales tax, federal sales tax,
excise taxes or duties or any tax similar to the foregoing.
provided that if Landlord so elects by notice to Tenant, Tenant shall add any
amounts payable under this Section to the monthly instalments of Annual Rent
payable and Landlord shall remit such amounts to the appropriate authorities.
5.04 Right to Contest
Tenant shall have the right to contest in good faith the validity or amount of
any tax, assessment, licence fee, excise fee or other charge which it is
responsible to pay under Section 5.03 or 5.05, provided that no contest by
Tenant may involve the possibility of forfeiture, sale or disturbance of
Landlord's interest in the Premises or Project and that upon the final
determination of any contest by Tenant, Tenant shall immediately pay and satisfy
the amount found to be due, together with any costs, penalties and interest.
5.05 Additional Taxes
If by reason of any act or election of Tenant, or any subtenant, licensee or
occupant of the Premises (except Landlord after election by Landlord of any
right to sublease pursuant to this Lease), the Project, Building or Premises or
any part thereof shall be assessed an increased rate or assessment, Tenant shall
pay before delinquency the amount by which the resulting Taxes exceed those
which would otherwise have been payable.
ARTICLE 6
INSURANCE
6.01 Landlord's Insurance
(a) During the Term, Landlord shall maintain (with participation by Tenant
by payment of Tenant's Proportion-ate Share of Operating Costs for the
Building) insurance on the Project and all property and interest of
Landlord in the Project, including, without limitation, Leasehold
Improvements, but excluding Tenant's Property, with coverage and in
amounts and in respect of risks which are from time to time acceptable
to a prudent owner of a project similar in age, use, type, and
location and from time to time insurable at reasonable premiums. When
obtainable without payment of additional premium (or if Tenant shall
pay any such additional premium) all policies for such insurance shall
waive any right of subrogation against Tenant and its officers,
directors, partners and employees. Landlord shall review its insurance
in consultation with an independent, professional insurance broker not
less frequently than every three years and may on the recommendation
of such insurance broker effect insurance subject to reasonable
deductibles to be borne by the insured in the event of a claim
arising. Nothing herein shall preclude Landlord effecting so-called
"all risks" property insurance, or effecting blanket insurance in
respect of the Project and any other properties of which Landlord is
the owner or tenant, or in which Landlord has an insurable interest.
Landlord shall allocate (in circumstances where the insurer or the
insurer's agent fails to do so) the cost of premiums to the Building
and any other of the Project Components (and such other properties as
may be appropriate), covered by the insurance policy on an equitable
basis having regard, without limitation, to the various uses and
values of the subject Project Components, and any other properties so
included, and the recommendation of Landlord's insurance broker.
(b) Provided that:
(i) if in the opinion of Landlord any Leasehold Improvements do
not constitute a finishing of the Premises in a manner which
would have general utility but are specially or peculiarly
adapted for Tenant's use, or if the insuring of any of the
Leasehold Improvements in the Premises involves, or would in
the opinion of Landlord's insurance broker involve a premium
exceeding that for the insuring of Leasehold Improvements
normal in the Building, or any special stipulations or
conditions of a policy of insurance are imposed or involved
in the
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insurance thereof, Landlord may from time to time elect, by
written notice to Tenant, not to insure or cause to be
insured any such Leasehold Improvements, in which event
Landlord shall not be required to insure such Leasehold
Improvements;
(ii) if from time to time the insuring of the Leasehold
Improvements in the Premises (other than those which
Landlord may have elected not to insure or cause to be
insured as aforesaid) requires a premium or an allocated
part of a premium, as established either by the insurer or
by the estimate of Landlord's insurance broker, which
exceeds the average premium cost per unit of area for
insuring Leasehold Improvements normal to the Building,
Landlord may from time to time charge the excess premium
cost to Tenant and Tenant shall make prompt payment therefor
upon receipt of invoices from Landlord.
(c) Upon the request of Tenant from time to time Landlord will furnish a
statement as to the perils in respect of which and the amounts to
which the Building and the Leasehold Improvements in the Premises have
been insured, and Tenant shall be entitled at reasonable times upon
reasonable notice to Landlord to inspect copies of the relevant
portions of all policies of insurance in effect and a copy of any
relevant opinions of Landlord's insurance broker.
6.02 Tenant's Insurance
During the Term Tenant shall maintain at its own expense:
(a) comprehensive general public liability insurance (including bodily
injury, death and property damage) on an occurrence basis with respect
to the business carried on or in or from the Premises and Tenant's use
and occupancy thereof, which insurance shall contain a cross liability
clause, and include Landlord as an additional insured and shall
protect Landlord in respect of claims by or through Tenant as if
Landlord was separately insured; and shall be for not less than
$2,000,000 inclusive limits for personal injury or property damage in
respect of each occurrence, or such higher limits as Landlord's
insurance broker may reasonably require from time to time;
(b) insurance in respect of fire and other perils as are from time to time
defined in the usual endorsement covering Tenant's Property and such
Leasehold Improvements (if any) as Landlord may have elected not to
insure, which insurance shall include Landlord as a named insured as
its interests may appear with respect to insured Leasehold
Improvements and provide that any proceeds recoverable in the event of
loss to Leasehold Improvements shall be payable to Landlord (but
Landlord agrees to make available such proceeds towards the repair or
replacement of the insured property if this Lease is not terminated
pursuant to any other provision hereof);
(c) water damage and such other insurance of the Premises, its contents
and appurtenances, and the business conducted as Tenant deems
necessary without limitation in respect of damage or deprivation
contemplated in Section 3.04 (e), or as would, in the opinion of
Landlord acting reasonably, be carried by a prudent operator of
premises similar in use, type, and location.
All such policies of insurance shall provide Landlord with 30 days' prior notice
of material amendment or cancellation and to any additional extent required
waive any right of subrogation against Landlord and its directors, officers and
employees.
6.03 Use of Proceeds
Tenant agrees that in the event of damage or destruction to the Premises covered
by insurance required to be taken out by Tenant pursuant to Section 6.02 or
otherwise, Tenant shall use the proceeds of such insurance for the purpose of
repairing or restoring such damage or destruction. In the event of damage to or
destruction of the Project or the Building entitling Landlord to terminate the
Lease pursuant to this Lease, then, if the Premises have been damaged or
destroyed, Tenant shall pay to Landlord all of its insurance proceeds relating
to any Leasehold Improvements in the Premises which Tenant was required to
insure and if the Premises have not been damaged or destroyed, Tenant shall
deliver to Landlord, in accordance with the provisions of the Lease, all
Leasehold Improvements and the Premises.
6.04 Landlord May Place Insurance
If requested by Landlord, Tenant shall from time to time promptly deliver to
Landlord evidence that insurance pursuant to Section 6.02 is in effect. If
Tenant fails to take out or to keep in force any insurance referred to in
Section 6.02, or should any such insurance not be approved by either Landlord or
a mortgagee, and Tenant shall not diligently rectify the deficiency within 2
business days after notice by Landlord to Tenant (stating, if Landlord or the
mortgagee does not approve of such insurance, the reasons therefor), Landlord
shall have the right, without assuming any obligation in connection therewith,
to effect such insurance at the sole cost of Tenant and Tenant shall pay
Landlord for all Outlays within 10 days of receipt of an invoice therefor.
6.05 Increase in Insurance Premiums
Tenant shall not permit, keep, use, sell or offer for sale in or upon the
Premises or Project any article which may be prohibited by any fire insurance
policy in force from time to time covering the Premises or the Project. If (a)
the occupancy of the Premises, (b) the conduct of business in the Premises, or
(c) any acts or omissions of Tenant in the Project or any part thereof, causes
or results in any increase in premiums for the insurance carried from time to
time by Landlord with respect to the Project, Tenant shall pay Landlord for any
such increase within 10 days of
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receipt of an invoice for such additional premiums from Landlord. In determining
whether increased premiums are caused by or result from the use or occupancy of
the Premises, a schedule issued by the organization computing the insurance rate
on the Project showing the various components of such rate, shall be conclusive
evidence of the several items and charges which make up such rate. Tenant shall
comply promptly with all requirements of the insurer's advisory organizations
now or hereafter in effect or of the insurers pertaining to or affecting the
Premises or the Project.
6.06 Cancellation of Insurance
If any insurance policy upon the Project or any part thereof shall be cancelled
or shall be threatened by the insurer to be cancelled, or the coverage
thereunder reduced in any way by the insurer by reason of the use or occupancy
of or any article, material or equipment brought upon or stored or maintained in
the Premises or any part thereof by Tenant or by any assignee or subtenant of
Tenant, or by anyone permitted by Tenant to be upon the Premises, (other than
Landlord or an agent, representative or designate of Landlord), and if Tenant
fails to remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within 2 business days after notice
thereof by Landlord, Landlord may, at its option, either (a) re-enter and take
possession of the Premises forthwith by leaving upon the Premises a notice in
writing of its intention so to do and thereupon Landlord shall have the same
rights and remedies as are contained in this Lease for events of default, or (b)
enter upon the Premises and remedy the condition giving rise to such
cancellation, threatened cancellation or reduction, without limitation or
restriction including removal of any offending article, and
Tenant shall pay Landlord for all Outlays within 10 days of receipt of an
invoice therefor. Landlord shall not be liable for any damage or injury caused
to any property of Tenant or of others located on the Premises as a result of
such entry. Subject to this Section, any such entry by Landlord shall not be
construed as an eviction of Tenant or a breach of the covenant of quiet
enjoyment and shall not release Tenant from any of its obligations under this
Lease.
ARTICLE 7
DAMAGE BY FIRE
7.01 Limited Damage to Premises
If all or part of the Premises are rendered untenantable by damage from fire or
other casualty which, in the reasonable opinion of the Architect, can be
substantially repaired under applicable laws and governmental regulations within
180 days from the date of such casualty (employing normal construction methods
without overtime or other premium), Landlord shall forthwith at its expense
repair such damage exclusive of damage to Tenant's Property.
7.02 Major Damage to Premises
If all or part of the Premises are rendered untenantable by damage from fire or
other casualty whether to the Premises, the Building, or the Project which, in
the reasonable opinion of the Architect, cannot be substantially repaired under
applicable laws and governmental regulations within 180 days from the date of
such casualty (employing normal construction methods without overtime or other
premium), then either Landlord or Tenant may elect to terminate this Lease as of
the date of such casualty by notice delivered to the other not more than 10
working days after receipt of the Architect's opinion, failing which, Landlord
shall forthwith at its expense, repair such damage other than damage to Tenant's
Property.
7.03 Abatement
The Rent payable by Tenant hereunder shall be proportionately reduced to the
extent that the Premises are untenantable by Tenant for its business, from the
date of such casualty until the earlier of:
(a) 5 days after completion by Landlord of the repairs to the Premises (or
part thereof rendered untenantable) or the end of such extended period
as in the opinion of the Architect, Tenant, acting diligently and
expeditiously, would reasonably require to repair other improvements
which Tenant may have installed (to the extent same may have been
damaged) or,
(b) Tenant again uses the Premises (or part thereof rendered untenantable)
in its business;
provided however that Rent payable by Tenant hereunder shall not be reduced if
the damage is caused by any act or omission of Tenant, its agents, servants,
employees or any other person entering upon the Premises under express or
implied invitation of Tenant.
7.04 Major Damage to Building
If all or a part (whether or not including the Premises) of the Building or the
Project is rendered untenantable by damage from fire or other casualty to such a
material or substantial extent that, in the opinion of Landlord, the Building
should be totally or partially demolished, whether or not to be reconstructed in
whole or in part, Landlord may elect to terminate this Lease as of the date of
such casualty (or on the date of notice if the Premises are unaffected by such
casualty) by notice delivered to Tenant not more than 60 days after the date of
such casualty and thereupon Tenant shall have 60 days within which to vacate the
Premises.
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7.05 Reconstruction by Landlord
If all or any part of the Premises are at any time rendered untenantable as set
out in this Article, and neither Landlord or Tenant elect to terminate this
Lease in accordance with the rights granted herein, Landlord shall, following
such destruction or damage, commence diligently to reconstruct, rebuild or
repair that part of the Project or the Premises or the Building which was
damaged or destroyed, but only to the extent required above. If Landlord elects
to repair, reconstruct or rebuild, Landlord may repair, reconstruct or rebuild
according to plans and specifications and working drawings other than those used
in the original construction of the Project. The Premises, as repaired or
re-built, will have reasonably similar facilities and services to those in the
Premises prior to the damage or destruction having regard, however, to the age
of the Project at such time. 7.06 Architect's Certificate
Whenever for any purpose of this Article an opinion or certificate of the
Architect is required, the same shall be given in writing to both Landlord and
Tenant. Landlord covenants that it shall request such opinion or certificate
promptly following the event which gives need for same and shall cause the
Architect to act diligently and expeditiously. The certificate of the Architect
shall bind the parties:
(a) whether or not the Premises are untenantable and the extent of such
untenantability; and
(b) the time required for and the date upon which the Landlord's work or
Tenant's work of reconstruction or repair is commenced or completed or
substantially completed and the date when the Premises are rendered
tenantable.
7.07 Limitation of Landlord's Liability
Except as specifically provided in this Article, there shall be no reduction or
abatement of Rent and Landlord shall have no liability to Tenant by reason of
any injury to or interference with Tenant's business or property arising from
fire or other casualty, howsoever caused, or from the making of any repairs
resulting therefrom in or to any portion of the Building, Project, or Premises.
ARTICLE 8
INJURY TO PERSON OR PROPERTY
8.01 Indemnity of Landlord
(a) Tenant agrees that Landlord shall not be liable for any bodily injury
or death of, or loss or damage to any property belonging to, Tenant or
its employees, contractors, invitees or licensees or any other person
in, on or about the Project unless resulting from the actual fault,
privity or negligence of Landlord, but in no event shall Landlord be
liable:
(i) for any damage caused or occasioned through smoke or water,
or by steam, gas, rain or snow which may leak into, issue or
flow from any part of the Project or from the pipes or
plumbing works, without limitation including the sprinkler
system, therein or from any other place or quarter or for
any damage caused by or attributable to the condition or
arrangement of any electric or other wiring or of sprinkler
heads or for any damage caused by anything done or omitted
by any other tenant;
(ii) without limitation for any act or omission (including theft,
malfeasance or negligence) on the part of any agent,
contractor or person from time to time employed by it to
perform janitor services, security services, delivery
services, supervision or any other work in or about the
Premises or the Project; or
(iii) for loss or damage, however caused, to money, securities,
negotiable instruments, books, files, papers or other
valuables of Tenant.
(b) Tenant shall indemnify and save harmless Landlord in respect of:
(i) all claims for bodily injury or death, property damage or
other loss or damage arising from the conduct of any work by
or any act or omission of Tenant or any assignee, subtenant,
agent, employee, contractor, invitee or licensee of Tenant,
and in respect of all costs, expenses and liabilities
incurred by Landlord in connection with or arising out of
all such claims, without limitation including the expenses
of any action or proceeding pertaining thereto;
(ii) any loss, cost expense or damage suffered or incurred by
Landlord arising from any breach by Tenant of any of its
obligations under this Lease; and
(iii) all costs, expenses and Outlays that may be incurred or paid
by Landlord in enforcing against Tenant the covenants,
agreements and representations of Tenant set out in the
Lease.
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ARTICLE 9
ASSIGNMENT AND SUBLETTING BY TENANT
9.01 Conditions
(a) Except as specifically provided in this Article, Tenant shall not
assign or transfer this Lease or any interest therein, or in any way
part with possession of all or any part of the Premises, or permit all
or any part of the Premises to be used or occupied by any other
person. Any assignment , transfer, or subletting or purported
assignment, transfer, or subletting except as specifically provided
herein shall be null and void and of no force and effect and shall
render null and void as at and from the time thereof any options or
rights to renew this Lease, any options or rights to additional space
and any options or rights to parking space.
(b) If and whenever Tenant shall wish or purport or propose to assign this
Lease, or sublet all or part of the Premises, Tenant shall furnish
Landlord all such information, particulars and documents as Landlord
may reasonably require.
(c) Landlord may withhold its consent to an assignment of this Lease or a
sublease of all or part of the Premises by Tenant to any tenant in a
building which is owned or managed by Landlord or any affiliate of
Landlord; or
to an assignee, subtenant, occupier, or other person whatsoever,
inconsistent, in the opinion of Landlord, with the character of the
Building, the Project, or its other tenants; or if Section 9.04 has
not been complied with; or to any assignee or subtenant which does not
propose to occupy and use the Premises for the conduct therein of its
own business.
(d) The rights and interests of Tenant under this Lease shall not be
assignable by operation of law without Landlord's written consent,
which consent may be withheld in Landlord's discretion.
(e) No assignment, transfer, or subletting (or use or occupation of the
Premises by any other person) whether or not permitted under this
Article shall in any way release or relieve Tenant of its obligations
under this Lease unless such release or relief is specifically granted
by Landlord to Tenant in writing.
(f) Landlord's consent to an assignment, transfer, or subletting (or use
or occupation of the Premises by any other person) shall not be deemed
to be a precedent or a consent to any subsequent assignment, transfer,
subletting, use, or occupation.
(g) Landlord's expenses and Outlays incurred in the consideration of any
assignment or subletting, or any request therefor, and any
documentation attendant on any consent of Landlord, shall be borne by
Tenant.
9.02 Assignment
Tenant may not assign this Lease or in any manner transfer or convey all or any
part of its interest in this Lease or the Premises without the prior written
consent of Landlord, which shall not be unreasonably withheld if the same is:
(a) to an assignee who is a purchaser of all of the business of Tenant
that is conducted in the Premises, a parent, or wholly owned
subsidiary company of Tenant, a company which results from the
reconstruction, consolidation, amalgamation or merger of Tenant, or a
partnership in which Tenant (or not less than one-half of the
principals thereof) has a substantial interest, if such assignee shall
covenant with Landlord to observe and perform and comply with each and
every covenant, term and condition in this Lease imposed on Tenant, or
undertaken, made, or assumed by Tenant; or
(b) to any other assignee if Section 9.04 has been complied with, and
Landlord has not exercised its rights thereunder.
9.03 Subletting
Tenant, with Landlord's prior written consent and subject to Section 9.01 and
Section 9.04, may sublet all or any part of the Premises to a sublessee who will
not be inconsistent with the character of the Building, the Project, and its
other tenants.
9.04 First Offer to Landlord
If Tenant wishes to assign this Lease (except as set out in Sub-section (a) of
Section 9.02) or sublet all or any part of the Premises, Tenant shall first
offer in writing to assign or sublet (as the case may be) to Landlord for the
same period and upon the same conditions except that the last day of the Term
shall be excluded, that Landlord shall pay no consideration for the assignment
or sublease, and that every assignment or sublease to Landlord shall be without
profit to Tenant, and the Rent payable by Landlord shall be the Rent payable
hereunder apportioned pro tanto to the portion(s) of the Premises affected plus
only a reasonable allowance in respect of improvements and equipment in such
portion(s) as agreed between the parties or failing agreement determined by
arbitration pursuant to applicable law. Notwithstanding the foregoing Tenant
may, in respect of expansion space taken by Tenant to accommodate future
requirements of Tenant, sublet space, not exceeding in aggregate 30% of the area
of the Premises, without first offering such expansion space to Landlord if the
rent payable by the subtenant shall not be less than the rate then being asked
by Landlord for space in the Building, and the term of the subtenancy shall not
be more than 3 years.
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9.05 Corporate Control
If and while Tenant is a corporation whose shares are not listed on any
recognized stock exchange or which has less than 25 shareholders, in the event
at any time during the Term it is proposed that any part or all of the shares or
the voting rights of shareholders be transferred by any means whatsoever, or
treasury shares be issued, or any such transfer or issue shall occur, so as to
result in a change of the control of said corporation, such a transfer or
issuance shall be deemed to be an assignment of this Lease and all of the
provisions of this Article and all of the provisions of the Lease relating to
assignment, default and termination shall apply mutatis mutandis. Tenant shall
make available to Landlord, or its lawful representatives, all corporate books
and records of Tenant for inspection at all reasonable times in order to
ascertain whether there has been any change in the control of Tenant.
9.06 Relocation
Landlord shall have the right at any time and from time to time during the Term
to change the location of the Premises and to move Tenant to other similar space
in the Building of equivalent or better area and finish, provided that all costs
of the move shall be borne by Landlord; the Rent for such alternative space
shall be no greater than the Rent payable for the Premises hereunder; and the
provisions of this Lease shall, except where clearly inappropriate, continue in
all respects save only that such alternative space shall be substituted as the
Premises hereunder.
ARTICLE 10
SALE AND MORTGAGE BY LANDLORD
10.01 Transfers by Landlord
(a) Subject to the rights of Tenant under this Lease, nothing in this
Lease shall restrict the right of Landlord to sell, convey, assign or
otherwise deal with all or a part of the Land, Building, or the
Project.
(b) A sale, conveyance, or assignment of the Land, Building, or the
Project shall, to the extent they are assumed by the transferee or
assignee, operate to release Landlord of liability from and after the
effective date thereof upon all of the covenants, terms, and
conditions of this Lease express or implied, except as such may relate
to the period prior to such effective date, and Tenant shall to the
extent aforesaid, thereafter look solely to Landlord's successor in
interest in and to this Lease. This Lease shall not be affected by any
such sale, conveyance, or assignment, and Tenant shall attorn to
Landlord's successor in interest thereunder.
10.02 Subordination and Attornment
(a) This Lease and all the rights of Tenant hereunder are subject and
subordinate to all mortgages and deeds of trust and all instruments
similar or supplemental thereto creating a charge or encumbrance and
now or hereafter existing on or which now or hereafter may affect the
Project or the Building, and to all renewals, modifications,
consolidations, replacements and extensions thereof and to every
charge or lien resulting or arising therefrom and to every advance
made or to be made thereunder (collectively referred to herein as a
"Mortgage") and Tenant, whenever requested by Landlord or any
mortgagee, or any trustee under a deed of trust or mortgage or any
holder of a charge of encumbrance or any purchaser, their successors
or assigns (collectively referred to herein as a "Mortgagee"), shall
acknowledge the same and attorn to the Mortgagee as a tenant upon all
the terms of this Lease and give further assurances as may be
necessary.
(b) Landlord shall use all reasonable efforts to obtain an agreement from
the Mortgagee, in form binding on the Mortgagee, that so long as no
default exists nor any event has occurred which has continued to exist
for such period of time (after notice, if any, required by the Lease)
as would entitle Landlord to terminate the Lease, or would cause,
without further action of Landlord, the termination of the Lease, or
would entitle Landlord to dispossess Tenant thereunder, the Lease
shall not be terminated nor shall Tenant's use, possession, or
enjoyment of the Premises be interfered with, nor shall the leasehold
estate granted by the Lease be affected in any manner in any
foreclosure or any action or proceeding instituted under or in
connection with the Mortgage, or at law, and this Lease shall remain
effective as against the Mortgagee who shall be bound by the terms of
this Lease.
(c) Upon attornment, this Lease shall continue in full force and effect as
a direct lease between Mortgagee and Tenant, upon all of the same
covenants, terms, and conditions as set forth in this Lease except
that, after such attornment, the Mortgagee shall not be:
(i) liable for any act or omission of any prior landlord; or
(ii) subject to any offsets or defenses which Tenant might have
against any prior landlord; or
(iii) bound by any prepayment by Tenant of more than one month's
instalment of Rent, or by any previous modification of this
Lease, unless such prepayment or modification shall have
been approved in writing by the Mortgagee, or such
prepayment shall have been made pursuant to the provisions
of this Lease.
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10.03 Execution of Instruments
Tenant shall, upon request, execute and deliver any and all instruments further
evidencing such subordination and (where applicable hereunder) such attornment
notwithstanding any previous subordination, postponement or attornment that may
have been given.
10.04 Status Statement
Each of Landlord and Tenant shall at any time and from time to time, at the
expense of the party requesting the statement, forthwith after 20 days' notice
from the other, execute, acknowledge, and deliver a written statement which may
be relied upon by a prospective transferee or encumbrancee of all or any part of
the Project, or the leasehold estate created hereby, certifying:
(a) that this Lease is in full force and effect, subject only to such
modifications (if any) as may be set out in such statement;
(b) whether Tenant is in possession of the Premises and paying Rent as
provided in this Lease;
(c) the dates (if any) as to which Rent is paid; and
(d) there are not, to such party's knowledge, any uncured defaults on the
part of the other party hereunder, or specifying such defaults if any
are claimed.
ARTICLE 11
EXPROPRIATION
11.01 Definitions
In this Article,
(a) "Expropriated" means the taking of property for any public or
quasi-public use under any statute or by any right of expropriation or
condemnation or purchased under threat of such taking.
(b) "Expropriation Date" means the date on which the pertinent authority
takes possession of property which has been Expropriated.
11.02 Total Taking of Premises
If during the Term, all of the Building or the Project shall be Expropriated,
this Lease shall automatically terminate on the Expropriation Date.
11.03 Partial Taking of Premises
If any portion of the Premises (but less than the whole thereof) is
Expropriated, and no rights of termination herein conferred are timely
exercised, the Term shall terminate with respect to the portion so taken on the
Expropriation Date. In such event, the Rent payable hereunder with respect to
such portion so taken shall xxxxx and the Rent thereafter payable with respect
to the remainder not so taken shall be adjusted pro rata by Landlord in order to
account for the resulting reduction in the area of the Premises from the
Expropriation Date.
11.04 Partial Taking of Project
If during the Term, part of the Building or the Project is Expropriated, then:
(a) if in the reasonable opinion of Landlord substantial alteration or
reconstruction of the Building is necessary or desirable as a result
thereof, whether or not the Premises are or may be affected, Landlord
shall have the right to terminate this Lease by giving the Tenant 30
days' notice of such termination; and
(b) if more than one-third of the area of the Premises is Expropriated
Landlord and Tenant shall each have the right to terminate this Lease
by giving the other 30 days' notice thereof; and
(c) if either party exercises its right of termination hereunder, this
Lease shall terminate on the date stated in the notice, provided,
however, that no termination pursuant to notice hereunder may occur
later than 90 days after the Expropriation Date.
11.05 Surrender
On any such Expropriation Date under this Article, Tenant shall immediately
surrender to Landlord the Premises or portion thereof as the case may be and all
interest therein under this Lease. Landlord may re-enter and take possession of
the Premises or such portion thereof and remove
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Tenant therefrom, and the Rent shall xxxxx on the date of termination, except
that if the Expropriation Date differs from the date of termination. Rent shall
xxxxx on the former date in respect of the portion taken. After such
termination, and on notice from Landlord stating the Rent then owing (if any),
Tenant shall forthwith pay Landlord such Rent.
11.06 Awards
If the Project or any part thereof is Expropriated, Landlord shall be entitled
to receive and retain the entire award or consideration for the affected lands
and improvements, and Tenant shall not have, nor advance any claim against
Landlord for the value of its property or its leasehold estate or the unexpired
Term, or for costs of removal or relocation, or business interruption expense or
any other damages arising out of such taking or purchase, but nothing herein
shall give Landlord any interest in or preclude Tenant from seeking and
recovering on its own account from the pertinent authority any award or
compensation attributable to the taking or purchase of Tenant's Property,
chattels or trade fixtures, or the removal or relocation of its business and
effects, or the interruption of its business. If any award made or compensation
paid to either party specifically includes an award or amount for the other, the
party first receiving the same shall promptly account therefor to the other.
ARTICLE 12
RULE AND REGULATIONS
12.01 General Purpose
Subject to Section 12.04, Landlord may from time to time make and from time to
time modify by amendment, deletion, addition, recission or replacement, rules
and regulations for the safety, use, care, and cleanliness of the Project, the
comfort and convenience of tenants and other persons in the Project, the
preservation of good order and efficient management, and the control of Common
Areas, Delivery Facilities, Parking Facilities, Retail Concourse, any Project
Component, construction activities, movement in and out of the Project, delivery
and shipping, and other services and functions.
12.02 Loading and Delivery
(a) Landlord may from time to time pursuant to this Article make and
modify regulations for the orderly and efficient operation of the
Delivery Facilities, and may require the payment of reasonable charges
for storage and for delivery services provided by Landlord.
(b) The delivery and shipping of merchandise, supplies, fixtures, and
other materials or goods of whatsoever nature to or from the Premises
and all loading, unloading and handling thereof shall in any event be
done only at such times, in such areas, by such means, and through
such elevators, entrances, malls and corridors, as are designated by
Landlord.
(c) Landlord accepts no liability and is hereby relieved and released by
Tenant in respect of the operation of the Delivery Facilities, or the
adequacy thereof, or of the acts or omissions of any person or persons
engaged in the operation thereof, or in the acceptance, holding,
handling, delivery or dispatch of any goods for or on behalf of
Tenant. or for any claim of Tenant by reason of damage, loss, theft,
or acceptance, holding, handling, delivery or dispatch, or failure of
any acceptance, holding, handling or dispatch, or any error,
negligence or delay therein.
12.03 Construction Procedures
Landlord may from time to time pursuant to this Article make and modify
regulations for the orderly, efficient and expeditious conduct of alterations
pursuant to Section 4.03 and other construction work. Without limiting the
generality of the foregoing, such regulations may prescribe reasonable
provisions for:
(a) submission, examination and approval of drawings, plans and
specifications and standards to be observed;
(b) supervision and co-ordination of such work with any work of Landlord
and other work proceeding and avoidance of undue noise and vibration;
(c) protection of property, preservation of warranties, compliance with
pertinent by-laws and codes, and procuring of permits; (d) deliveries,
access, hours of work, material and equipment hoisting and storage,
use of power, heating, and washroom facilities, clean-up and
screening; and
(e) customary insurance and charges relating to above.
12.04 Repugnancy
Such rules and regulations aforesaid shall:
(a) not conflict with and negate the terms of this Lease;
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(b) be reasonable and conform to good standards of property management;
(c) have general application to the Project other than tenants whose use
is different to that of Tenant;
(d) not impose charges, fees or costs which are not customary or
competitive; and
(e) be effective only upon delivery of a copy thereof to Tenant at the
Premises.
12.05 Observance
Tenant shall at all times comply with, and shall cause its employees, agents,
contractors, licensees and invitees to comply with the rules and regulations
from time to time in effect. 12.06 Non-Compliance
Landlord shall use reasonable efforts (but shall not be required to institute
legal proceedings) to secure compliance by all tenants and other persons with
the rules and regulations from time to time in effect, but shall not be
responsible to Tenant for failure of any person to comply with such rules and
regulations.
ARTICLE 13
COMMUNICATION
13.01 Notices
Any notice from one party to the other shall be in writing and shall be deemed
duly served if delivered to a responsible employee of the party being served, or
dispatched by telegraph, telex, telecopier, facsimile or like electronic means
(provided dispatch, receipt and content thereof can be established and
evidenced) or if mailed by registered or certified mail addressed to Tenant at
the Premises (or if Tenant has departed from, vacated or abandoned the Premises
by attaching a copy to the main door thereof) or to Landlord at the place from
time to time established for the payment of Rent. Any notice shall be deemed to
have been given at the time of delivery or, if mailed, 7 days after the date of
mailing thereof. Either party shall have the right to designate by notice, in
the manner established in this Section, a change of address or one additional
address to which copies of notices are to be mailed. For purpose of this
Section, the expression "Notice" shall, without limitation, include any request,
response, statement, or other communication to be given by one party to the
other.
13.02 Authority for Action
Landlord may act in any matter provided for herein by its property manager.
Tenant may (and, if required by Landlord, shall) designate in writing one or
more persons to act on its behalf in any matter relating to this Lease and may
from time to time change, by notice to Landlord, such designation. In the
absence of any such designation, the person with whom the Landlord's property
manager customarily deals shall be deemed to be authorized to so act on behalf
of Tenant.
13.03 Withholding of Consent
A party's sole remedy if the other unreasonably withholds or delays any consent
or approval required by the provisions hereof shall be an action for specific
performance, and the other party shall not be liable for damages.
ARTICLE 14
DEFAULT
14.01 Force Majeure
Notwithstanding anything to the contrary contained in this Lease, if either
party hereto is bona fide delayed or hindered in or prevented from the
performance of any term, covenant or act required hereunder by reason of
strikes, labour troubles, inability to procure materials or services, power
failure, restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, act of God, or other reasons whether of a like nature
or not, which is not the fault of the party delayed in performing work or doing
acts required under the terms of this Lease, nor due to that party's failure or
inability to make payment, then performance of such term, covenant, or act, is
excused for the period of the delay, and the party so delayed shall be entitled
to perform such term, covenant or act within the appropriate time period after
the expiration of the period of such delay. The provisions of this Article shall
not operate to excuse Tenant from the prompt payment of Rent, or any other
payments required by this Lease.
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14.02 Events of Default
If and whenever:
(a) part or all of the Rent hereby reserved is not paid when due, and such
default continues (inclusive of and not in addition to any period or
days of grace by law or custom prescribed or allowed) for 7 days after
notice thereof; or
(b) the Term, or any goods, chattels, or equipment of Tenant on the
Premises are taken or exigible in execution or in attachment, or if a
writ of execution is issued against any thereof; or
(c) Tenant becomes insolvent or commits an act of bankruptcy or becomes
bankrupt, or takes the benefit of any statute that may be in force for
bankrupt or insolvent debtors, or becomes involved in voluntary or
involuntary winding-up proceedings, or if a receiver shall be
appointed for any business, property, affairs, or revenues of Tenant;
or
(d) Tenant makes a bulk sale of its goods, or moves or commences,
attempts, or threatens to move its goods, chattels, inventories or
equipment out of the Premises (other than in the normal course of its
business), or ceases to conduct business from the Premises; or
(e) Tenant shall or shall purport or attempt to assign this Lease or
sublet all or part of the Premises in contravention of Article 9, or,
without the prior consent of Landlord, the Premises shall be used or
occupied by any persons other than Tenant or its permitted assigns or
subtenants, or for any use other than that for which they are leased,
or if the Premises shall be vacated or abandoned, or remain unoccupied
for 15 days or more while capable of being occupied; or
(f) Tenant fails to observe, perform and keep each and every of the
covenants, terms and conditions herein contained or otherwise to be
observed, performed and kept by Tenant (other than payment of Rent)
and persists in such failure after 10 days' notice by Landlord
requiring that Tenant remedy, correct, desist or comply (or if any
such breach would reasonably require more than 10 days to rectify,
unless Tenant commences rectification within the 10 days' notice
period and thereafter promptly and effectively and continuously
proceeds with the rectification of the breach);
then, and in any of such cases, at the option of Landlord, the full
amount of the current month's and the next ensuing three months'
instalments of Annual Rent shall immediately become due and payable
and Landlord may immediately distrain for the same, together with any
arrears then unpaid, and Landlord may, without notice or any form of
legal process, forthwith re-enter upon and take possession of the
Premises or any part thereof in the name of the whole and remove and
sell Tenant's goods, chattels, and equipment therefrom, any rule of
law or equity to the contrary notwithstanding, and Landlord may seize
and sell such goods, chattels and equipment of Tenant as are in the
Premises or have been removed therefrom and may apply the proceeds
thereof to all Rent to which Landlord is then entitled under this
Lease. Any such sale may be effected in the discretion of Landlord by
public auction or otherwise, and either in bulk or by individual item,
or partly by one means and partly by another, all as Landlord in its
entire discretion may decide. If any of the Tenant's Property is
disposed of as provided in this Article, 10 days' prior notice to
Tenant of disposition shall be deemed to be commercially reasonable.
14.03 Interest and Costs
Tenant shall pay to Landlord interest calculated and payable at a rate equal to
the lesser of the prime commercial lending rate of the chartered bank with which
Landlord conducts its banking for the Project from time to time plus five per
cent per annum on a per diem basis, or the maximum rate permitted by applicable
law, upon all Rent required to be paid hereunder from the due date for payment
thereof until the same, including this interest, is fully paid and satisfied.
Tenant shall indemnify Landlord against and shall pay on demand all Outlays
incurred in enforcing payment thereof, and in obtaining possession of the
Premises after default of Tenant or upon expiration or earlier termination of
the Term, or in enforcing any covenant, term or condition herein contained.
14.04 Landlord's Right to Perform Covenants
All covenants, terms and conditions to be performed by Tenant under any of the
provisions of this Lease shall be performed by Tenant, at Tenant's sole cost and
expense, and without any abatement of Rent. If Tenant shall fail to perform any
act on its part to be performed hereunder, and such failure shall continue for
10 days after notice thereof from Landlord (or immediately in the case of an
emergency of which Tenant has knowledge), Landlord may (but shall not be
obligated so to do) perform such act without waiving or releasing Tenant from
any of its obligations relative thereto. Tenant shall pay Landlord on demand for
all Outlays, together with interest thereon at the rate set out in this Article
from the date each such payment was made or each such cost was incurred by
Landlord, until paid in full.
14.05 Waiver of Exemption and Redemption
Notwithstanding anything contained in any statute now or hereafter in force
limiting or abrogating the right of distress, none of Tenant's goods, chattels
or equipment on the Premises at any time during the continuance of the Term
shall be exempt from levy by distress for Rent in arrears, and upon any claim
being made for such exemption by Tenant or in a distress made by Landlord, this
Article may be pleaded as an estoppel against Tenant in any action brought to
test the right to the levying upon any such goods, chattels or equipment as are
named as exempted in any such statute. Tenant hereby waiving all and every
benefit that could or might have accrued to Tenant under and by virtue of any
such statute but
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for this Lease. Landlord may seize Tenant's goods, chattels or equipment at any
place to which Tenant or any other person may have removed them from the
Premises in the same manner as if such goods, chattels or equipment had remained
in the Premises. Tenant hereby expressly waives any and all rights of redemption
being granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the Premises by reason of the violation by Tenant of any
of the covenants, terms or conditions of this Lease or otherwise.
14.06 Termination
If and whenever Landlord is entitled to or does re-enter, Landlord may:
(a) terminate this Lease by giving notice thereof, or
(b) relet the Premises or any part thereof (for a term or terms shorter or
longer than the remainder of the Term) as agent of Tenant and receive
rent therefor,
and in such event Tenant shall forthwith vacate and surrender the Premises.
14.07 Payments
If the Landlord shall re-enter or if this Lease shall be terminated, Tenant
shall pay to Landlord on demand:
(a) Rent up to the time of re-entry or termination, whichever shall be the
later, plus accelerated Annual Rent as in Section 14.02 provided; and
(b) as damages for the loss of income of Landlord expected to be derived
from the Premises:
(i) the amounts (if any) by which the Rent which would have been
payable under this Lease exceeds the payments (if any)
received by Landlord from other tenants in the Premises,
payable on the first day of each month during the period
which would have constituted the unexpired portion of the
Term had it not been terminated; or
(ii) if elected by Landlord by notice to Tenant at or after
re-entry or termination, a lump sum amount equal to the Rent
which would have been payable under this Lease from the date
of such election during the period which would have
constituted the unexpired portion of the Term had it not
been terminated, reduced by the rental value of the Premises
for the same period, established by reference to the terms
and conditions upon which Landlord re-lets them if such
re-letting is accomplished within a reasonable period after
termination, and otherwise established by reference to all
market and other relevant circumstances, such Rent and
rental value being reduced to present worth at an assumed
interest of 10% per annum on the basis of Landlord's
estimates and assumptions of fact which shall govern unless
shown to be erroneous.
14.08 Remedies Cumulative
No reference to nor exercise of any specific right or remedy by Landlord shall
preclude Landlord from exercising or invoking any remedy without limitation
including any rights to require specific performance, to obtain an injunction,
and to recover damages, whether allowed at law or in equity or expressly
provided for herein. No such remedy shall be exclusive or dependent upon any
other remedy, but Landlord may from time to time exercise any one or more of
remedies independently or in combination.
ARTICLE 15
SURRENDER AND TERMINATION
15.01 Surrender of Possession
Upon the expiration or earlier termination of the Lease, Tenant shall
immediately quit and surrender possession of the Premises in substantially the
condition in which Tenant is required to maintain the Premises excepting only
reasonable wear and tear, and damage covered by Landlord's insurance. Upon such
surrender, all right, title and interest of Tenant in the Premises shall cease.
15.02 Tenant's Property, Personal Property and Improvements
Subject to Tenant's rights under Section 4.06, after the expiration or earlier
termination of the Lease, all of Tenant's Property, personal property and
improvements remaining in the Premises shall be deemed conclusively to have been
abandoned by Tenant and may be appropriated, sold, destroyed or otherwise
disposed of by Landlord without notice or obligation to compensate Tenant or to
account therefor, and Tenant shall pay Landlord for all Outlays within 10 days
of receipt of an invoice therefor. Landlord may at its option, require Tenant to
remove all or part of the Leasehold Improvements, partitioning or other tenant
improvements made or installed in the Premises, and may require Tenant to
restore the Premises to their original condition before the making or
installation of the partitioning or other tenant improvements.
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15.03 Merger
The voluntary or other surrender of this Lease by Tenant or the sublease of
space by Tenant to Landlord or the cancellation of this Lease by mutual
agreement of Tenant and Landlord shall not operate as a merger, but shall, at
Landlord's option, terminate all or any subleases and subtenancies or operate as
an assignment to Landlord of all or any subleases or subtenancies. Landlord's
options hereunder shall be exercised by notice to Tenant and all known
subtenants in the Premises or any part thereof.
15.04 Payments After Expiration or Termination
No payments of money by Tenant to Landlord after the expiration or earlier
termination of the Lease or after the giving of any notice (other than a demand
for payment of money) by Landlord to Tenant, shall reinstate, continue or extend
the term or make ineffective any notice given to Tenant prior to the payment of
such money. After the service of notice or the commencement of a suit, or after
final judgement granting Landlord possession of the Premises, Landlord may
receive and collect any sums of Rent due, and the payment thereof shall not make
ineffective any notice, or in any manner affect any pending suit or any
judgement theretofore obtained.
15.05 Holding Over
(a) If Tenant remains in possession of the Premises after the expiration
or earlier termination of the Lease, a tenancy from year-to-year shall
not be created, and Tenant shall be deemed to be occupying the
Premises on a month-to-month tenancy only, at a monthly rental equal
to the Rent, which is payable or accrues hereunder on an instalment or
monthly or periodic basis, but nothing contained in this Article shall
be construed to limit or impair any of Landlord's rights of re-entry
or eviction or constitute a waiver thereof.
(b) Any such month-to-month tenancy may be terminated by Landlord or
Tenant on the last day of any calendar month by delivery of 30 days'
advance notice of termination to the other.
(c) Any such month-to-month tenancy shall be subject to all other terms
and conditions of this Lease except any right of extension or renewal,
and except any right of Tenant to require, after the expiration or
earlier termination of the Lease, any reconciliation, adjustment or
repayment of amounts paid or payable on an estimated or contingent
basis, which amounts, or any thereof, may, at the option of Landlord,
be deemed final payments or accruals in respect of the month for which
they are paid or due.
ARTICLE 16
AMENDMENT AND WAIVER
16.01 Amendment or Modification
No amendment, modification, or supplement to this Lease shall be valid or
binding unless set out in writing and executed by the parties hereto in the same
manner as the execution of this Lease.
16.02 No Implied Surrender or Waiver
No provisions of this Lease shall be deemed to have been waived by a party
unless such waiver is in writing signed by that party. A party's waiver of a
breach of any term or condition of this Lease shall not prevent a subsequent act
or Waiver or omission which would have originally constituted a breach, from
having all the force and effect of any original breach. Landlord's receipt of
Rent with knowledge of a breach by Tenant of any term or condition of this Lease
shall not be deemed a waiver of such breach. Landlord's failure to enforce
against Tenant or any other tenant any rule or regulation made under Article 12
shall not be deemed a waiver of such rule and regulation. No act or thing done
by Landlord, its agents or employees during the Term, without limitation
including inspection, repair, re-entry, or sale or leasing (or attempts thereat)
of all or any part of the Premises shall be deemed a constructive termination of
this Lease or an acceptance of a surrender of the Premises, or an eviction of
Tenant or a breach of the covenant of quiet enjoyment and no agreement to accept
a surrender of the Premises shall be valid, unless in writing signed by
Landlord. The delivery of keys to any of Landlord's agents or employees shall
not operate as a termination of this Lease or a surrender of the Premises. No
payment by Tenant, or receipt by Landlord, of a lesser amount than the Rent due
hereunder shall be deemed to be other than on account of the earliest stipulated
Rent, nor shall any endorsement or statement on any cheque or any communication
accompanying any cheque, or payment of Rent, be deemed an accord and
satisfaction, and Landlord may accept such cheque or payment without prejudice
to Landlord's right to recover the balance of such Rent or pursue any other
remedy available to Landlord. The acceptance by Landlord of Rent or any
instalment or proportion of Rent from any person other than Tenant shall not be
construed as a recognition or acceptance of the right of such person to use or
occupy the Premises, nor as a waiver of any of Landlord's rights hereunder.
ARTICLE 17
INTERPRETATION
17.01 Time
Time is of the essence of this Lease and every part hereof and schedule hereto.
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17.02 Obligations as Covenants
Each obligation of Landlord or Tenant expressed in this Lease, even though not
expressed as a covenant, is considered to be a covenant for all purposes.
17.03 Severability
Should any provision of this Lease be or become invalid, void, illegal or not
enforceable, it shall be considered separate and severable from the Lease and
the remaining provisions shall remain in force and be binding upon the parties
hereto as though such provision had not been inserted.
17.04 Governing Law
This Lease shall be interpreted under and is governed by the laws of the
Jurisdiction in which the Land is located.
17.05 Grammatical Conformance
The necessary grammatical changes required to make the provisions of this Lease
apply to all genders and to corporations, associations, partnerships, or
individuals, and in the plural sense where a party may comprise more than one
entity, will be assumed in all cases as though in each case so fully expressed.
17.06 Headings and Captions
The indices, article headings, and section headings are inserted for convenience
of reference only and are not to be considered when interpreting this Lease.
17.07 Extended Meanings
The words "hereof", "herein" and similar expressions used in any Article,
Section or paragraph of this Lease relates to the whole of this Lease and not to
that Article, Section or paragraph only, unless otherwise expressly provided.
ARTICLE 18
CONTRACTUAL
18.01 Entire Agreement
This Lease contains the entire agreement between Landlord and Tenant concerning
the Premises and the subject matter of this Lease, and Tenant acknowledges that
it has not relied upon any representations, warranties, covenants, agreements,
conditions or understandings except such as are set out in this Lease.
18.02 Relationship of Parties
Nothing contained in this Lease shall create any relationship between the
parties hereto other than that of lessor and lessee, and it is acknowledged and
agreed that Landlord does not in any way or for any purpose become a partner of
Tenant in the conduct of its business, or a joint venturer, or a member of a
joint or common enterprise with Tenant.
18.03 Joint and Several Liability
If Tenant hereunder comprises more than one person or corporation then all
representations, warranties, conditions, covenants and undertakings on the part
of Tenant hereunder shall be joint and several representations, warranties,
conditions, covenants, agreements and undertakings of each and all such persons
and corporations.
18.04 Successors Bound
Except as otherwise provided, the covenants, terms and conditions contained in
this Lease shall apply to the benefit of and bind the heirs, executors,
administrators, successors, and assigns of the parties hereto.
18.05 Registration
Neither Tenant nor anyone on Tenant's behalf or claiming under Tenant shall
register this Lease or any assignment or sublease of this Lease or any document
evidencing any interest of Tenant in the Lease or the Premises, against the Land
or any part thereof.
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18.06 Division of Project
(a) Landlord shall be entitled to sever the Land into separate parcels, or
to consolidate the Land with other parcels, and after completion of
such severance or consolidation the definitions of "Land" and
"Project" shall be read to correspond to such change. The separate
parcels of the Land on severance may be owned by or may be treated as
if they were owned by separate entities other than Landlord. Landlord
may in its discretion create and grant rights and easements among
separate parcels or Project Components and may register same as
encumbrances.
(b) (i) Landlord may from time to time, if in the opinion of
Landlord more efficient or economical operation of the
Project or more equitable distribution of Operating Costs
will result, establish Project Components (of which the
Building shall be one) and divide, apportion, and allocate
Operating Costs among such Project Components.
(ii) In any such division, apportionment and allocation of
Operating Costs, Landlord shall charge any item which
relates exclusively to one of the Project Components
directly to that Project Component only, and, in respect of
items which do not exclusively relate to any single Project
Component, Landlord shall divide, apportion and allocate
same to all Project Components affected thereby, on an
equitable basis having regard, without limitation, to the
various uses and values of the subject Project Components,
to prudent practices of property management, to the
provisions of this Lease, and to generally accepted
accounting and engineering principles. The aggregate so
directly charged or divided, apportioned and allocated to
the Building is herein called the "Operating Costs for the
Building".
(iii) If such treatment would result in a more equitable and
compatible recognition of the cost of their respective
usage, Landlord may similarly, mutatis mutandis, charge,
divide, apportion and allocate Operating Costs, or Operating
Costs for the Building, among office, retail and other
differing elements of the Building.
Tenant hereby accepts this Lease of the Premises, to be held by it as Tenant
subject to the covenants, conditions, and restrictions set forth herein and
implied. Tenant's taking of possession of all or any portion of the Premises
shall be conclusive evidence as against Tenant that the Premises or such portion
thereof of which possession is taken are in satisfactory condition on the date
of taking possession, subject only to latent defects and to deficiencies (if
any) listed in writing in a notice delivered by Tenant to Landlord not more than
30 days after the later of the date of taking possession or the Commencement
Date.
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IN WITNESS WHEREOF, LANDLORD AND TENANT HAVE EXECUTED AND DELIVERED THIS LEASE
BY AUTHORIZED SIGNATURES, AND BY AFFIXING CORPORATE SEALS WHEN APPLICABLE,
EFFECTIVE THE DATE INDICATED ON PAGE 1 OF THIS LEASE AGREEMENT.
TENANT
XxxxxxxXxx.xxx Systems Inc.
------------------------------ Per: -------------------------------------
Witness (if not a corporation)
Title: -----------------------------------
Per: -------------------------------------
Title: -----------------------------------
LANDLORD
MARINE BUILDING HOLDINGS LTD. and
OMERS REALTY CORPORATION
by their Agent
SDM REALTY ADVISORS LTD.
Per: -------------------------------------
Title: -----------------------------------
Per: -------------------------------------
Title: -----------------------------------
PROJECT SUPPLEMENT
PART ONE - DEFINITIONS
1. In this Lease, unless the context or content otherwise requires:
"Annual Rent" means the amount so identified on Page 1 of this Lease.
"Architect" means such firm of independent professional architects or
engineers engaged by Landlord from time to time in regard to the Project,
including any consultant appointed by the Landlord or Architect.
"Article" means an Article of this Lease.
"Building" means that building so identified on Page 1 of this Lease, being
the Project Component in which the Premises are situated.
"Clause" means a numbered subdivision of a Part of this Schedule.
"Commencement Date" means the date so identified on Page 1 of this Lease.
"Common Areas" means at any time those portions of the Project which are
not leased or designated for lease by Landlord to tenants but are provided
(and which may be changed from time to time) to be used in common by
Landlord, Tenant, and other tenants of the Project (or by the sublessees,
agents, employees, customers or licensees of Landlord, Tenant and such
other tenants) whether or not the same are open to the general public, and
shall, without limiting the generalities aforesaid, include all
improvements, fixtures, chattels, equipment, systems, decor, signs,
facilities, utilities, or landscaping contained therein or maintained or
used in connection therewith, and also all pedestrian and vehicular exits
and entrances, and all malls, courtyards, passageways, hallways, stairways
and public washrooms, and any elevators and escalators, and any pedestrian
walkway system, park, bus stop, transportation facility or other public
facility for which Landlord is subject to obligations from time to time in
its capacity as owner of the Project.
"Delivery Facilities" means those portions of the Common Areas on or below
street level of the Project as are from time to time designated by Landlord
as facilities to be used in common by Landlord, tenants of the Project, and
others, for the purposes of loading, unloading, delivery, dispatch and
holding of merchandise, goods, and materials entering or leaving the
Project and giving vehicular access thereto.
"Fiscal Year" means a twelve-month period from time to time determined by
Landlord at the end of which Landlord's financial statements for the
Project are prepared and audited.
"Land" means the land on which the Building is constructed, as so
identified on Page 1 of this Lease, subject to the provisions of Section
18.06 of this Lease.
"Landlord" means that party or parties so identified on Page 1 of this
Lease.
"Lease" means this lease document (including without limitation all of its
schedules, attachments and appendices) and every properly executed
instrument which by its terms amends, modifies, or supplements it.
"Leasehold Improvements" has the meaning prescribed in Section 4.07(b) of
the Lease.
"Normal Business Hours" means the hours from 8:00 a.m. to 6:00 p.m. Monday
through Friday, excluding days which are legal or statutory holidays in the
jurisdiction where the Project is located, or such other reasonable hours
as Landlord may stipulate from time to time in respect of one or more or
all Project Components.
"Operating Costs" has the meaning defined, distinguished, prescribed or
identified in Clause 1 of Part Two of this Schedule.
"Operating Costs For the Building" has the meaning prescribed in Section
18.06 of the Lease.
"Other Charges" means all amounts other than Annual Rent and Operating
Costs, which are payable by Tenant under this Lease, without limitation
including Outlays.
"Outlays" means any and all costs of any nature or kind whatsoever,
incurred by Landlord as a direct or indirect result of failure by Tenant to
perform its obligations under this Lease, or for account of Tenant pursuant
to this Lease.
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"Parking Facilities" means that part of the Project containing parking
facilities with vehicular access thereto without limitation including
parking spaces, ramps, circulation space, vehicular entrances and exits,
the structural elements thereof and services, facilities and systems
contained in or servicing the Parking Facilities.
"Premises" means the space so identified on Page 1 of this Lease
(approximately shown in outline on Schedule 1), having the agreed area
shown on Page 1, but specifically excluding any part of the roof or
exterior of the Project.
"Project" means the Land, and all improvements and buildings (without
limitation including the Building and any other Project Components) and all
equipment and facilities erected thereon or situate therein from time to
time together with all such other land, easements, licenses, leases or
rights (if any) contiguous, convenient, adjacent or appurtenant to the
Land, and like improvements, buildings, equipment and facilities thereon or
therein, which Landlord may from time to time own, develop, or operate as
an entity integrated with the Building.
"Project Components" means the segments of the Project (of which the
Building shall be one and which together comprise the whole Project) which
may be designated by Landlord from time to time
"Proportionate Share" has the meaning prescribed in Clause 2 of Part Two of
this Schedule.
"Rent" means the aggregate of all amounts payable by Tenant to Landlord
under this Lease for and relating to but not limited to:
(a) Annual Rent;
(b) Operating Costs;
(c) Other Charges; and
(d) Percentage Rent in leases of space in the Retail Concourse and other
leases which provide therefor.
"Rentable Area" has the meaning determinable from Clause 3 of Part Two of
this Schedule.
"Retail Concourse" means the floors or areas (if any) of the Project
whether located on the ground level, or any upper or lower level as
designated from time to time by Landlord for occupation and use as retail
stores, service or financial outlets, restaurants, cafeterias, kiosks and
like commercial purposes (sometimes called retail space) together with all
improvements, equipment, facilities, escalators, Installations, systems and
services and all public areas in or adjacent to the Retail Concourse or
which serve or are for the benefit of the Retail Concourse, and any
alteration, expansion or reduction thereto or thereof.
"Section" means any numbered subdivision of an Article.
"Taxes" means the aggregate of all taxes, duties and imposts, without
limitation including property, school, and local improvement taxes, rates,
charges, levies, assessments and capital taxes, payable by Landlord and
imposed by any competent governmental authority upon or in respect of the
Project and all improvements thereon or services therein or on account of
its ownership thereof, and any other amounts which are imposed in lieu of,
or in addition to any such Taxes, whether of the foregoing character or not
and whether in existence at the Commencement Date or not, together with all
expenses incurred by Landlord in contesting in good faith the imposition,
amount or payment of any of them, but excluding any income, profits. excess
profits, and business tax imposed upon the income of Landlord and any other
impost of a similar nature charged or levied against Landlord, except to
the extent that such is levied in lieu of taxes, rates, charges, or
assessments in respect of the Project or improvements thereon, or the
ownership or operation thereof by Landlord.
"Tenant" means that party or parties so identified on Page 1 of this Lease.
"Tenant Property" has the meaning prescribed in Section 4.06(b) of this
Lease.
"Term" means the period of time so identified on Page 1 of this Lease.
"Use" means that permitted and restricted usage identified on Page 1 of
this Lease,
2. (a) "Unit of Area" means a conventional component of expressing or
measuring the aggregate area of space, denoted either in square metres
(metric system) or square feet (imperial system) or computed in the
equivalent relationship or conversion of one to the other, in all
cases limited to two decimal figures.
(b) Landlord may for any purpose of this Lease, without limitation
including any measurement of Rentable Area or any formula prescribed
in this Lease, substitute. or convert on or more or all unit(s) of
area using conversion factors of .0929 square feet to square metres
and 10.7639 square metres to square feet.
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PART TWO - OPERATING COSTS
1. For purposes of this Lease and subject to the provisions of Section 18.06:
"Operating Costs" means the aggregate amount, without duplication, of all
costs and charges incurred by or on behalf of Landlord during the Fiscal
Year in operating, supervising, securing, repairing, managing, and
maintaining the Project in good repair as a first class facility, as
established in accordance with generally accepted accounting principles and
confirmed in a certificate of Landlord, including, without limitation:
(a) all costs, charges, wages, salaries and expenses which are
attributable to the operation, management, supervision, security,
repair, and maintenance of the Project, including, without limitation,
wages, salaries, and other amounts paid or payable to and for all
on-site personnel; and Taxes (except where same are paid by individual
tenants pursuant to Section 5.03 and 5.05 of the Lease);
(b) the applicable and equitable amortization (properly allocable to such
fiscal year) of all costs incurred after the date any space in the
Building was first occupied by any tenant for:
(i) any capital improvement to the Project required by any
change in the laws, rules, regulations or orders of any
governmental or quasi-governmental authority having
jurisdiction, or incurred by Landlord principally to reduce
Operating Costs, or
(ii) any replacement not charged to Operating Costs in the year
in which incurred of any equipment, floor covering or system
in the Building, or
(iii) any repairs, including without limitation structural repairs
and repairs to the exterior, roof or equipment of the
Building not charged to operating costs in the year in which
incurred,
which costs shall be amortized over the useful life of the subject
capital improvement, replacement or repair plus interest on the
unamortized balance at the prime commercial lending rate of the
chartered bank with which Landlord conducts its banking for the
Project from time to time or such higher rate as Landlord may be
required to pay on borrowed funds;
(c) all other costs of repairs, maintenance and replacements to the
Project, without limitation including painting, renovations, repair
and replacement of carpet, snow clearing, and gardening and
landscaping;
(d) the total of the costs and amounts paid for all gas, steam or other
fuel used in heating and cooling the Project, all electricity
furnished to the Project (except for electricity furnished to and paid
for by individual tenants), all hot and cold water, telephone and
other utility costs used in the operation, supervision, repair,
security and maintenance of the Project (except where any of these is
chargeable to individual tenants by reason of their extraordinary
consumption);
(e) all costs of insuring the Project and the improvements, equipment, and
other property in the Project and such other insurance in respect of
the Project as Landlord from time to time reasonably determines;
(f) audit fees and the cost of accounting services incurred in the
preparation of the Statements required to be furnished by Landlord
pursuant to this Lease, and in the computation of Rent and other
charges payable by tenants of the Project; and
(g) a charge for onsite or offsite administration and management
including, without limitation, the fair market rental value of onsite
premises or the rent paid by Landlord for offsite premises at which
such functions are performed,
but the following costs shall be specifically excluded:
(i) Outlays;
(ii) Capital improvements, replacements, additions, or
alterations to the Project or its equipment except as
provided in sub-clause (b) above;
(iii) repair and replacement resulting from inferior or deficient
design, workmanship, or materials in the initial
construction of the Project or for which Landlord is
reimbursed by insurers or pursuant to warranties;
(iv) interest on and capital retirement of debt;
(v) repair or maintenance done for the direct account of other
tenants and of unleased space; and
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(vi) tenant improvements, tenant allowances and leasing
commissions.
2. For purposes of this Lease:
"Proportionate Share"
(a) means a fraction, which has as its numerator the Rentable Area of the
Premises, and has as its denominator the total Rentable Area of the
Project, calculated by Landlord in accordance with the method of
measurement described in Clause 3 below.
(b) Provided that, if and whenever pursuant to Section 18.06 of the Lease,
Landlord shall have established and designated Project Components, in
respect of operating costs which pertain only to a Project Component,
the denominator aforesaid shall be the total Rentable Area of such
areas as comprise that Project Component.
(c) If and whenever the Building shall have been established and
designated a Project Component, "Operating Costs for the Building"
shall have the meaning indicated in Section 18.06, and sub-clause (b)
above shall govern apportionment thereof.
(d) In calculating Operating Costs for the Building for any Fiscal Year,
if and while less than 95% of the Building is occupied by tenants,
then the amount of Operating Costs shall be deemed for the purposes of
this Schedule to be increased to an amount equal to Operating Costs
which normally would be expected to have been incurred had occupancy
of the Building been 95% during period(s) when vacancies existed, to
the intent that, after allowing for a periodic vacancy factor of 5%,
the cost of services actually provided by Landlord to the Premises
will be recovered by Landlord from Tenant, while Landlord will absorb
the costs incurred in or attributable to Rentable Areas which are not
occupied.
3. Method of Measurement of Rentable Area. If not specified herein or
otherwise or by agreement determined, Rentable Areas shall be measured as
below prescribed.
(a) For Office Space - Single Tenancy Floors
The Rentable Area for premises on a single tenancy floor in the
Building (if any), shall be calculated (from dimensioned Architect's
drawings) to the inside face of the glass, whenever the area of the
exterior Building walls, as measured from the interior between the
floor and finished ceiling, is at least 50% glass or, if not, to the
inside finish of permanent exterior Building walls. It shall include
all space within exterior building walls except for stairs, elevator
shafts, flues, pipe shafts, and vertical ducts forming part of the
basic Building service areas and their enclosing walls. No deduction
shall be made for washrooms, janitor closets, air conditioning rooms,
fan closets, or electrical or telephone cupboards within and servicing
that floor, or for any mail conveyor chutes or other rooms, corridors,
stairways, or areas available to the subject lessee on that floor for
its use, furnishings, or personnel, or for any columns, whether
internal, corner or perimeter columns, located wholly or partially
within that space, or for reveals, or for any enclosures around the
periphery of the Building used for the purpose of cooling, heating, or
ventilating.
(b) For Office Space - Multiple Tenancy Floors
The Rentable Area for premises on a multiple tenancy floor in the
Building (if any), shall be calculated (from dimensioned Architect's
drawings) from the inside face of the glass or permanent exterior
walls as described in subclause (a) for a single tenancy floor, to the
face of permanent interior walls, or, as the case may be, to the
centre line of demising partitions. If contained within the subject
premises no deduction shall be made for washrooms, columns, janitor
closets, air conditioning rooms, fan closets, or electrical or
telephone cupboards, or for any mail conveyor chutes or other rooms,
corridors, stairways, or areas exclusively available to the subject
lessee for its use, furnishings, or personnel, or for reveals, or for
any enclosures around the periphery of the Building used for the
purpose of cooling, heating, or ventilating. There shall be added to
the-area so measured an area equal to the product of multiplying.
(i) a fraction in which the numerator is the Rentable Area of
the subject premises, so calculated, and the denominator is
the aggregate of all Rentable Areas, measured according to
this sub-clause (b), of space on that floor; by
(ii) the area obtained when such denominator is deducted from the
Rentable Area of the subject floor if measured according to
sub-clause (a).
(c) For Retail Space
The Rentable Area of retail space in the Building (if any), shall be
calculated (from dimensioned Architect's drawings) from the inside
face of permanent exterior walls, to the centre line of demising
partitions, or, as the case may be, to the face of permanent interior
walls, or to the centre line of a predetermined lease line (usually
referred to as the storefront line) in the case of retail space facing
onto either an interior public mall or corridor or onto a public
street or lane. No deduction shall be made for vestibules inside the
permanent exterior Building walls or inside the pre-determined lease
line or for
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washrooms, columns, janitor closets, air conditioning rooms, fan
closets, or electrical or telephone cupboards within the subject
premises; or for any other rooms, corridors, or areas exclusively
available to the subject lessee for its use, furnishings, or
personnel, or for any enclosures around the periphery of the Building
used for the purpose of cooling, heating or ventilating.
(d) Total Area of the Building
The total Rentable Area of the Building shall be calculated (from
dimensioned Architect's drawings) and shall be the aggregate area of
the Building rentable as office or retail space, excluding all storage
and parking areas. The area for offices shall be calculated as if the
Building were entirely occupied by tenants renting single tenancy
floors on each floor of the Building. The total Rentable Area of the
Building shall be adjusted from time to time to give effect to any
structural, functional, or other changes affecting the Building.
TABLE OF CONTENTS
ARTICLE 1 GRANT OF LEASE..........................................................................................1
1.01 Demise...................................................................................................1
1.02 Covenants................................................................................................2
1.03 Quiet Enjoyment..........................................................................................2
1.04 Use of Common Areas......................................................................................2
1.05 Use of Premises..........................................................................................2
1.06 Consent..................................................................................................2
1.07 Compliance with Laws.....................................................................................2
1.08 Nuisance.................................................................................................2
1.09 Abandonment..............................................................................................2
ARTICLE 2 RENT....................................................................................................2
2.01 Payment of Rent..........................................................................................2
2.02 Early Occupancy..........................................................................................3
2.03 Delayed Occupancy........................................................................................3
2.04 Payment of Annual Rent...................................................................................3
2.05 Payment of Operating Costs...............................................................................3
2.06 Payment of Other Charges.................................................................................3
ARTICLE 3 Operation of the Project................................................................................4
3.01 Standards................................................................................................4
3.02 Services to Premises.....................................................................................4
3.03 Building Services........................................................................................4
3.04 Maintenance, Repair and Replacement......................................................................4
3.05 Additional Services......................................................................................5
3.06 Alterations by Landlord..................................................................................5
3.07 Access by Landlord.......................................................................................5
3.08 Name of Building.........................................................................................5
ARTICLE 4 MAINTENANCE OF THE PREMISES.............................................................................6
4.01 Condition of Premises....................................................................................6
4.02 Failure to Maintain Premises.............................................................................6
4.03 Alterations by Tenant....................................................................................6
4.04 Builders' Liens..........................................................................................6
4.05 Signs....................................................................................................7
4.06 Tenant's Property........................................................................................7
4.07 Leasehold Improvements...................................................................................7
ARTICLE 5 TAXES...................................................................................................7
5.01 Landlord's Taxes.........................................................................................7
5.02 Allocation...............................................................................................7
5.03 Tenant's Taxes...........................................................................................8
5.04 Right to Contest.........................................................................................8
5.05 Additional Taxes.........................................................................................8
ARTICLE 6 INSURANCE...............................................................................................8
6.01 Landlord's Insurance.....................................................................................8
6.02 Tenant's Insurance.......................................................................................9
6.03 Use of Proceeds..........................................................................................9
6.04 Landlord May Place Insurance.............................................................................9
6.05 Increase in Insurance Premiums...........................................................................9
6.06 Cancellation of Insurance...............................................................................10
ARTICLE 7 DAMAGE BY FIRE.........................................................................................10
7.01 Limited Damage to Premises..............................................................................10
7.02 Major Damage to Premises................................................................................10
7.03 Abatement...............................................................................................10
7.04 Major Damage to Building................................................................................10
7.05 Reconstruction by Landlord..............................................................................11
7.06 Architect's Certificate.................................................................................11
7.07 Limitation of Landlord's Liability......................................................................11
ARTICLE 8 INJURY TO PERSON OR PROPERTY...........................................................................11
8.01 Indemnity of Landlord...................................................................................11
ARTICLE 9 ASSIGNMENT AND SUBLETTING BY TENANT....................................................................12
9.01 Conditions..............................................................................................12
9.02 Assignment..............................................................................................12
9.03 Subletting..............................................................................................12
9.04 First Offer to Landlord.................................................................................12
9.05 Corporate Control.......................................................................................13
9.06 Relocation..............................................................................................13
ARTICLE 10 SALE AND MORTGAGE BY LANDLORD.........................................................................13
10.01 Transfers by Landlord...................................................................................13
10.02 Subordination and Attornment............................................................................13
10.03 Execution of Instruments................................................................................14
10.04 Status Statement........................................................................................14
ARTICLE 11 EXPROPRIATION.........................................................................................14
11.01 Definitions.............................................................................................14
11.02 Total Taking of Premises................................................................................14
11.03 Partial Taking of Premises..............................................................................14
11.04 Partial Taking of Project...............................................................................14
11.05 Surrender...............................................................................................14
11.06 Awards..................................................................................................15
ARTICLE 12 RULE AND REGULATIONS..................................................................................15
12.01 General Purpose.........................................................................................15
12.02 Loading and Delivery....................................................................................15
12.03 Construction Procedures.................................................................................15
12.04 Repugnancy..............................................................................................15
12.05 Observance..............................................................................................16
12.06 Non-Compliance..........................................................................................16
ARTICLE 13 COMMUNICATION.........................................................................................16
13.01 Notices.................................................................................................16
13.02 Authority for Action....................................................................................16
13.03 Withholding of Consent..................................................................................16
ARTICLE 14 DEFAULT...............................................................................................16
14.01 Force Majeure...........................................................................................16
14.02 Events of Default.......................................................................................17
14.03 Interest and Costs......................................................................................17
14.04 Landlord's Right to Perform Covenants...................................................................17
14.05 Waiver of Exemption and Redemption......................................................................17
14.06 Termination.............................................................................................18
14.07 Payments................................................................................................18
14.08 Remedies Cumulative.....................................................................................18
ARTICLE 15 SURRENDER AND TERMINATION.............................................................................18
15.01 Surrender of Possession.................................................................................18
15.02 Tenant's Property, Personal Property and Improvements...................................................18
15.03 Merger..................................................................................................19
15.04 Payments After Expiration or Termination................................................................19
15.05 Holding Over............................................................................................19
ARTICLE 16 AMENDMENT AND WAIVER..................................................................................19
16.01 Amendment or Modification...............................................................................19
16.02 No Implied Surrender or Waiver..........................................................................19
ARTICLE 17 INTERPRETATION........................................................................................19
17.01 Time....................................................................................................19
17.02 Obligations as Covenants................................................................................20
17.03 Severability............................................................................................20
17.04 Governing Law...........................................................................................20
17.05 Grammatical Conformance.................................................................................20
17.06 Headings and Captions...................................................................................20
17.07 Extended Meanings.......................................................................................20
ARTICLE 18 CONTRACTUAL...........................................................................................20
18.01 Entire Agreement........................................................................................20
18.02 Relationship of Parties.................................................................................20
18.03 Joint and Several Liability.............................................................................20
18.04 Successors Bound........................................................................................20
18.05 Registration............................................................................................20
18.06 Division of Project.....................................................................................21
