LEASE
THIS LEASE made as of the 18th day of May, 1995
PURSUANT TO THE SHORT FORMS OF LEASES ACT
BETWEEN
MENKES OFFICE PARKS LTD. and
INVESTORS GROUP TRUST CO. LTD. as
trustee for INVESTORS REAL PROPERTY FUND
(the "Landlord")
OF THE FIRST PART
- AND -
CHANGEPOINT CORPORATION
(the "Tenant")
OF THE SECOND PART
ARTICLES. For convenience of reference this Lease has been divided
into the following Articles:
Article I - Definitions
Article II - Lease Term and Payments
Article III - Landlord and Tenant Covenants
Article IV - Repair and Damage
Article V - Taxes and Operating Costs
Article VI - Utilities and Additional Services
Article VII - Assigning and Subletting
Article VIII - Fixtures and Improvements
Article IX - Insurance and Liability
Article X - Subordination, Attornment and Certificates
Article XI - Remedies of Landlord on Tenant's Default
Article XII - Events Terminating Lease
Article XIII - Miscellaneous
Article XIV - Other Provisions
LIST OF SCHEDULES. The following schedules form an integral part of this
Lease:
Schedule "A" - Legal Description of Lands
Schedule "B" - Leased Premises
Schedule "C" - Rules and Regulations
Schedule "D" - Landlord's Work
ARTICLE I - DEFINITIONS
1.0 DEFINITIONS. In this Lease the following defined terms shall have the
meanings set forth below.
"ADDITIONAL RENT" means Operating Costs under Section 5.5, Taxes under
5.3, Electricity under 6.2, and Insurance under Article IX and all
other charges, costs and expenses required to be paid by the Tenant
under the terms of this Lease (other than Base Rent) whether payable to
the Landlord or not.
"ADDITIONAL SERVICES" means the services and supervision supplied by
the Landlord to the Leased Premises and Common Area Facilities and
referred to herein or in any other provision hereof as Additional
Services and any other services which from time to time the Landlord
supplies to the Tenant at the Tenant's written request or as the
Landlord deems necessary, acting reasonably and which are additional to
the janitor and cleaning and other services typically supplied in a
first class office building, supervision in connection with the making
of any repairs or alterations by the Tenant affecting the Base
Building, building systems or Leasehold Improvements.
"ATTIC STOCK" means spare fan, pump and cooling tower motors, base
Building light fixtures, fuses, etc.
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"BASE RENT" means the base rent payable by the Tenant in accordance
with Section 2.3.
"BUILDING" means the building municipally known as 0000 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx.
"CAPITAL TAX" is an amount presently or hereafter imposed from time to
time pursuant to Part III of the Corporations Tax Act (Ontario) (the
"Act") upon the Landlord or the owner of the Building and Lands and
payable by the Landlord on account of its interest in the Building and
the Lands or any part thereof, or its interest in or capital employed
in the Building and the Lands, as the case may be.
"COMMENCEMENT DATE" means June 23, 1995.
"COMMON AREA FACILITIES" means all facilities, improvements,
installations, utilities and equipment located in the Building or the
Lands immediately surrounding the Building.
"COMMON AREAS" means those areas, facilities, utilities, improvements,
equipment and installations comprising the Lands and Building and which
are not leased or designated for lease to tenants but are provided to
be used in common by (or by the sublessees, agents, employees,
customers or licensees of) the Landlord, the Tenant, and other tenants
of the Building and other buildings on the Lands, whether or not the
same are open to the general public or a specific tenant of the
Building, and include, but are not limited to, parking areas and all
vestibules for and entrances and exits thereto; driveways, truckways
and related areas; corridors and underground or above ground tunnels or
passageways; stairways, escalators, ramps, and elevators and other
transportation equipment and systems; tenant, common and public
washrooms; telephone, meter, valve, mechanical, mail, storage, service
and janitor rooms; fire prevention, security and communication systems,
any fixtures, chattels, systems, decor, signs, facilities, or
landscaping and planted areas contained therein or maintained or used
in connection therewith.
"COST OF ADDITIONAL SERVICES" shall mean in the case of Additional
Services provided by the Landlord a reasonable charge made therefor by
the Landlord which shall not exceed the cost of obtaining such services
from independent contractors and in the case of Additional Services
provided by independent contractors the Landlord's total cost of
providing Additional Services to the Tenant including the proportionate
cost of all direct labour (including salaries, wages and fringe
benefits) and materials and other direct expenses incurred, the cost of
supervision without duplication or profit and other expenses reasonably
allocated thereto.
"INSURED DAMAGE" means that part of any damage occurring to the Leased
Premises of which the entire cost of repair is actually recovered by
the Landlord under a policy of insurance in respect of fire and other
perils from time to time effected by the Landlord, or for which the
Landlord has self-insured under Section 9.1 herein.
"LAND" means those lands described in Schedule "A" attached
hereto.
"LEASE" means this lease between the Landlord and the Tenant,
and all amendments hereto.
"LEASEHOLD IMPROVEMENTS" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant or by or on behalf
of any other previous occupant in the Leased
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Premises (including the Landlord) with the exception of trade
fixtures, furniture and equipment, (not of the nature of fixtures),
modular office furniture systems, improvements of a cosmetic nature
such as rugs (but not broadloom), decorations and other improvements
moveable without the use of tools, but Leasehold Improvements
include all office partitions however affixed and includes
wall-to-wall and other carpeting with the exception of such
carpeting where laid over vinyl tile or other finished floor and
affixed so as to be readily removable without damage.
"LEASED PREMISES" means approximately 8,504 square feet of Rentable
Area on the 7th floor of the Building as outlined in red on the plans
attached as Schedule "B".
"NORMAL BUSINESS HOURS" means the hours of 7:00 a.m. to 7:00
p.m. Monday to Friday, except public holidays.
"OPERATING COSTS" means the total of all expenses, costs, and outlays
incurred in the complete maintenance, repair and operation of the
Building and Common Area Facilities, whether incurred by or on behalf
of the Landlord.
(i) Operating Costs shall include without limiting the
generality of the foregoing (but subject to certain
deductions as hereinafter provided), the cost of providing
complete cleaning and janitorial services, the cost of
building supplies used in the maintenance of the Building,
Attic Stock, supervisory (if any) and maintenance
services, exterior landscaping, snow removal, garbage and
waste collection and disposal, rental of equipment and
signs, janitorial services to the Common Areas of the
Building, the cost of operating elevators, the cost of
heating, cooling and ventilating all space including both
rentable and non-rentable areas, the cost of providing hot
and cold water, electricity (including lighting), and the
replacement of electric light bulb tubes, starters and
ballasts, telephone and other utilities and services to
both rentable and non-rentable areas, the cost of all
repairs including repairs to the Building or services in
the Building or Common Area Facilities including elevators,
depreciation on the central HVAC systems distribution plant
and associated equipment, depreciation on all fixtures,
equipment and facilities requiring periodic maintenance or
substantial replacement, the cost of window cleaning, and
providing security (if any), the cost of all insurance for
liability or fire or other casualties referred to in
Article 9.1, accounting costs incurred in connection with
maintenance and operation including computations required
for the imposition of charges to tenants and audit charges
required to be incurred for the conclusive determination of
any costs hereunder, legal fees, the amount of all salaries
(only to the extent that such salaries or a proportion
thereof, relate directly to the Building), wages and fringe
benefits, unemployment and workers compensation insurance
premiums, pension plan contributions and other similar
premiums and contributions paid or provided to employees
directly or a reasonable proportion thereof engaged in the
maintenance, repair or operation of the Building, amounts
paid to independent contractors for any services in
connection with such maintenance, repair or operation, the
cost of management fees, and other indirect expenses to the
extent allocable to the maintenance, repair and operation
of the Building and Common Area Facilities and all other
expense of every nature incurred in connection with the
maintenance, repair and operation of the Building and
Common Area Facilities; and
(ii) Operating Costs shall exclude:
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(a) debt service, and all management costs not allocable
to the actual maintenance, repair and operation of
the Building (such as that incurred in connection
with leasing and rental advertising); and
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(b) costs of structural repairs, depreciation on the
building structure and all proceeds of insurance
received by the Landlord or the mortgagee.
"PROPERTY" means the Land and Building.
"PROPORTIONATE SHARE" shall mean the fraction which has as its
numerator the Rentable Area of the Leased Premises and has as its
denominator the total Rentable Area of the Building. The total Rentable
Area of the Leased Premises shall be adjusted from time to time, as may
be reasonably necessary, to give effect to any structural or functional
changes affecting the calculation of total Rentable Areas.
"RENT" means Base Rent and Additional Rent.
"RENTABLE AREA" in this Lease means:
(i) in the case of a single tenancy on a whole floor of the
Building, all areas within the inside finished surface of
the dominant portion of the permanent outer Building walls
and shall be computed by measuring the inside finished
surface of the dominant portion of the permanent outer
Building walls and shall include Service Areas and any
special stairs and/or elevators for the specific sole use
of that floor, but excluding stairs, elevator shafts,
flues, pipe shafts and vertical ducts and the like and
their enclosing walls (the "VERTICAL OPENINGS"), with no
deductions for columns or projections necessary to the
Building plus a gross-up factor for ground floor services
in common with other tenants, including, but not limited to
vestibules, corridors, elevator lobbies, mechanical,
electrical, telephone, mail, garbage and janitor's rooms,
such factor to be based upon a ratio which the ground floor
Service Areas of the Building bears to the gross floor
area, less Vertical Openings of the Building; and
(ii) in the case of a floor of the Building to be occupied by
more than one tenant, all areas from the inside finished
surface of the dominant portion of the permanent outer
Building walls to the Tenant's side of corridors and/or
other permanent interior walls and to the centre of
demising partitions which separate the area occupied from
adjoining rentable premises, herein referred to as the
"USABLE AREA", plus a gross-up factor for the Service Areas
on the floor in common with other tenants on the same
floor, including, but not limited to, corridors, elevator
lobbies, mechanical, electrical, telephone and janitor's
rooms exclusively serving the floor, such factor to be
based upon a ratio which the Service Areas of the floor
bear to the sum of the Usable Area of the floor, plus an
additional gross-up factor for ground floor services in
common with other tenants, including, but not limited to,
vestibules, corridors, elevator lobbies, mechanical,
electrical, telephone, mail, garbage and janitor's rooms,
such factor to be based upon a ratio which the ground floor
Service Areas of the Building bears to the gross floor
area, less Vertical Openings of the Building.
"RULES AND REGULATIONS" means the rules and regulations attached as
Schedule "C".
"SERVICE AREAS" shall mean the area of corridors, elevator, lobbies,
service elevator lobbies, washrooms, air-cooling rooms, fan rooms,
janitor's closets, telephone and electrical closets and other closets
serving the Leased Premises in common with other premises on the same
floor.
"TAXES" means all taxes, rates, duties, levies and assessments
whatsoever, whether municipal, parliamentary or otherwise,
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levied, imposed or assessed against the Building, Common Areas or
Common Area Facilities or upon the Landlord in respect thereof
including Capital Tax and commercial concentration tax, or from time
to time levied, imposed or assessed in the future in lieu thereof,
or in addition thereto, whether now contemplated or not, and those
levied, imposed or assessed for education, schools and local
improvements and including all costs and expenses (including legal
and other professional fees and interest and penalties on deferred
payments), incurred by the Landlord in good faith in contesting,
resisting or appealing any taxes, rates, duties, levies or
assessments, but excluding taxes and license fees in respect of any
business carried on by tenants and occupants of the Building
(including the Landlord) to the extent such taxes are not levied in
lieu of taxes, rates, duties, levies and assessments against the
Building or upon the Landlord in respect thereof, and shall also
include any and all taxes which may in future be levied in lieu of
taxes as hereinbefore defined, and also including Large Corporations
Tax or any similar or successor tax in lieu thereof or in addition
thereto assessed upon the Landlord.
"TERM" means the term of the Lease stipulated in paragraph 2.2.
"UTILITIES" means electricity as described in Article 6.2, natural gas
and any other utility required in the operation of the Building.
ARTICLE II - LEASE TERM AND PAYMENTS
2.1 DEMISE. In consideration of the rents, covenants and agreements
hereinafter reserved and contained, the Landlord hereby leases to the
Tenant, for the exclusive use of the Tenant, the Leased Premises for
the Term.
2.2 TERM. The Lease shall have a term of five (5) years commencing on the
23rd day of June, 1995 and ending the 22nd day of June, 2000, unless
such term shall be sooner terminated as hereinafter provided.
2.3 It is understood and agreed that for the purposes of calculating the
Base Rent and Additional Rent payable during the first six (6) months
of the Term, the Leased Premises shall be divided into Area A being
6,000 square feet and Area B being 2,504 square feet.
After the first six (6) months of the Term there shall be no further
need to designate separate areas and the Leased Premises shall be
deemed one Rentable Area of 8,504 square feet.
AREA A
BASE RENT. The Tenant shall pay for Area A from June 23, 1995 until
December 22, 1995 of the within Term, the sum of $31,500.00 of lawful
money of Canada in six (6) equal monthly installments of $5,250.00 in
advance, the first of such installment to become due and payable on
June 23, 1995. The aforesaid Base Rent is calculated at the rate of
$10.50 per square foot of Rentable Area per annum calculated on 6,000
square feet.
AREA B
The Tenant shall not be obligated to pay Base Rent or Additional Rent
for Area B for the first two (2) months of the Term.
BASE RENT. The Tenant shall pay for Area B from August 23,
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1995 until December 22, 1995 of the within Term, the sum of
$10,959.16 of lawful money of Canada in four (4) equal monthly
installments of $2,739.79 in advance, the first of such
installment to become due and payable on August 23, 1995. The
aforesaid Base Rent is calculated at the rate of $13.13 per square foot
of Rentable Area per annum calculated on 2,504 square feet.
AREA A TOGETHER WITH AREA B
BASE RENT. The Tenant shall pay for Area A and Area B, yearly and every
year from December 23, 1995 until June 22, 2000 of the within Term, the
sum of $44,646.00 of lawful money of Canada in six (6) equal monthly
installments of $7,441.00 in advance, the first of such installment to
become due and payable on June 23, 1996. The aforesaid Base Rent is
calculated at the rate of $10.50 per square foot of Rentable Area per
annum calculated on 8,504 square feet.
It is understood and agreed that the Tenant shall not be obligated to
pay Base Rent for the Leased Premises for the period of December 23rd
through June 22nd of each year of the Original Term of the Lease.
During the Base Rent free periods, the Tenant shall be responsible for
the payment of all Additional Rent attributable to the Leased Premises.
IF THE TERM COMMENCES on any day other than the first or ends on any
day other than the last day of the month, the Base Rental and
additional rental for the fractions of a month at the commencement and
at the end of the Term shall be adjusted pro rata. All Base Rental
payments shall be payable on the first of each month.
2.4 PREPAID RENT. The Landlord acknowledges receipt of the sum of
$15,000.00, including GST, representing payment towards the first Rents
due under the Lease.
2.5 POST-DATED CHEQUES
The Tenant shall deliver to the Landlord, prior to the Tenant taking
possession of the Premises, twelve (12) post-dated cheques each in
the amount equal to the monthly Base Rent plus the Additional Rent
payments required under this Lease. One month prior to the first and
subsequent anniversaries of the Lease, the Tenant agrees to deliver
twelve (12) post-dated cheques to the Landlord.
ARTICLE III - LANDLORD AND TENANT COVENANTS
3.1 LANDLORD COVENANTS. The Landlord covenants with the Tenant:
(a) QUIET ENJOYMENT. To provide for quiet enjoyment.
(b) INTERIOR CLIMATE CONTROL. To provide to the Leased Premises
during Normal Business Hours, processed air by means of a
system for heating and cooling, filtering and circulating,
processed in such quantities, and at such temperatures as
shall be reasonable in accordance with good standards of
interior climate control generally pertaining to normal
occupancy of premises for office purposes. The Landlord shall
have no responsibility for inadequacy of the performance of
the said system if the Leased Premises depart from the design
criteria.
(c) ELEVATORS. Subject to the supervision of the Landlord and
except when repairs are being made thereto, to furnish for use
by the Tenant and its employees and invitees in common with
other persons entitled thereto reasonable standards of
passenger elevator service to the
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Leased Premises. The Tenant shall be responsible for any
damages caused to the elevator as a result of taking
possession or giving up possession of the Leased Premises
and shall pay such costs forthwith upon demand as
Additional Rent.
(d) ENTRANCES LOBBYS, ETC.. To permit the Tenant and its employees
and invitees to have the use in common with others entitled
thereto of the common entrances, lobbies, stairways, elevators
and corridors of the Building giving access to the Leased
Premises (subject to the Rules and Regulations and such other
reasonable limitations as the Landlord may from time to time
impose).
(e) WASHROOMS. To permit the Tenant and its employees and
invitees, in common with others entitled thereto to use the
washrooms available to the Leased Premises on each floor of
the Building upon which any part of the Leased Premises is
located.
(f) JANITOR SERVICE. To cause when reasonably necessary from time
to time the floors and windows of the Leased Premises to be
swept and cleaned and the desks, tables and other furniture of
the Tenant to be dusted, all in keeping with a first-class
office building, such work shall be done at the Landlord's
direction without interference by the Tenant, its servants or
employees.
(g) MAINTENANCE OF COMMON AREAS. To cause the elevators, common
entrances, lobbies, stairways, corridors, washrooms and other
parts of the Building from time to time provided for common
use and enjoyment to be swept, cleaned or otherwise maintained
substantially in keeping with a first-class office building.
(h) OPERATION OF BUILDING. Subject to chargeback to the Tenant as
may be permitted under the terms of this Lease, to operate,
maintain, repair and replace the Building including the
structure, roof, foundation, the systems, equipment and
facilities thereon in order to ensure the proper operation of
an office building consistent with a first-class nature.
3.2 TENANT COVENANTS. The Tenant covenants with the Landlord:
(a) RENT. To pay Base Rent and Additional Rent.
(b) PERMITTED USE. To use the Leased Premises only for the purpose
of a business office and not to use or permit to be used the
Leased Premises or any part thereof for any other purpose or
business.
(c) WASTE AND NUISANCE. Not to commit or permit any waste, damage
or injury to the Leased Premises including the Leasehold
Improvements and trade fixtures therein, reasonable wear and
tear excluded, any overloading of the floors thereof, any
nuisance therein or any use or manner of use causing
unreasonable annoyance to other tenants and occupants of the
Building.
(d) CONDITION. Not to permit the Leased Premises to become
hazardous or permit unreasonable quantities of waste or refuse
to accumulate therein and at the end of each business day to
leave the Leased Premises in a condition such as to reasonably
facilitate the performance of the Landlord's janitor and
cleaning services referred to herein.
(e) BY-LAWS. To comply at its own expense with all municipal,
federal, provincial, sanitary, fire, building and safety
statutes, laws, by-laws, regulations, ordinances, orders or
regulations pertaining to the operation and use
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of the Leased Premises, the condition of the Leasehold
Improvements, trade fixtures, furniture and equipment
installed by the Tenant therein and the making by the
Tenant of any repairs, changes or improvements therein.
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(f) FIRE EXIT DOORS. To permit the installation by the Landlord of
all doors in the exterior wall of the Leased Premises
necessary to comply with the requirements of any statute, law,
by-law, regulation, ordinance, order or regulation.
(g) RULES AND REGULATIONS. To observe and to cause its employees,
invitees and others over whom the Tenant can reasonably be
expected to exercise control, the Rules and Regulations and
such further and other reasonable rules and regulations and
amendments and changes therein as may hereafter be made by the
Landlord and notified to the Tenant.
(h) OVERHOLDING. That in the event that the Tenant remains in
possession of the Leased Premises after the termination of
the original Term hereby created, without other special
agreement, it shall be at the monthly base rent equal to
the Base Rent and Additional Rent payable during the last
month of the Term hereof, times two, payable on the first
day of each and every month and subject in other respects
to the terms of this Lease, including those provisions
requiring the payment of Base Rent and Additional Rent in
monthly installments.
3.3 SIGNS AND DIRECTORY. The Tenant covenants not to permit, paint,
display, inscribe, place or affix any sign, symbol, notice or lettering
of any kind anywhere outside the Leased Premises (whether on the
outside or inside of the Building) or within the Leased Premises so as
to be visible from the outside of the Leased Premises, with the
exception only of an identification sign at or near the entrance to the
Leased Premises and a directory listing in the main lobby of the
Building, in each case containing only the name of the Tenant and to be
subject to the approval of the Landlord as to size, location, content
and design criteria as established by the Landlord. Such identification
sign and directory listing shall be installed by the Landlord at the
expense of the Tenant, which expense shall be the invoice cost plus 15%
for an administration fee. The Landlord's acceptance of any name for
listing upon the directory will not be deemed, nor will it substitute
for the Landlord's consent if required by this Lease to any sublease,
assignment or other occupancy of the Leased Premises.
3.4 INSPECTION AND ACCESS. The Landlord shall be permitted to enter and to
have its authorized agents, employees and contractors enter the Leased
Premises, for the purpose of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements
to the Leased Premises or the Building, or to have access to utilities
and services and access panels which the Tenant agrees not to obstruct,
or to determine the electric light and power consumption by the Tenant
in the Leased Premises and the Tenant shall provide free and unhampered
access for such purposes and, subject to the following, the Tenant
shall not be entitled to compensation for any inconvenience, nuisance,
discomfort or loss caused thereby, but the Landlord, in exercising its
rights hereunder, shall proceed to the extent reasonably possible so as
to minimize interference with the Tenant's use and enjoyment of the
Leased Premises and the Landlord shall be responsible for any damage
caused to the Leased Premises or the Tenant's goods by such inspection
and/or access.
3.5 EXHIBITING PREMISES. The Landlord and its authorized agents and
employees shall be permitted entry to the Leased Premises during the
last six (6) months of the term for the purpose of exhibiting them to
prospective tenants or at any time for the purposes of arranging
financing for the Building.
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3.6 LANDLORD'S CONTROL. The Tenant acknowledges that the Common Area
Facilities are at all times subject to the exclusive control and
operation of the Landlord, and the Landlord shall have the right to
construct improvements, alterations and additions thereto and to
relocate the various facilities thereon.
3.7 FINANCIAL STATEMENTS. The Tenant will, at the request of the Landlord,
supply copies of his financial statements in confidence to the
mortgagees, if any, on the said lands or a prospective mortgagee.
ARTICLE IV - REPAIR AND DAMAGE
4.1 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep the Leased Premises in good and reasonable state
of repair and consistent with the general standards of
first-class office buildings in Metropolitan Toronto, to
perform all repairs and replacements as a prudent tenant
would do (reasonable wear and tear, structural repairs,
damage covered by the Landlord's insurance and damage
caused by reason of the negligence of the Landlord or
those for whom the Landlord is in law responsible,
excepted) to the Leased Premises including all Leasehold
Improvements and all trade fixtures therein and all glass
therein.
(b) that the Landlord may enter and view the state of repair from
time to time and that the Tenant will repair if required to do
so pursuant to the terms of this Lease, according to notice in
writing and that the Tenant will leave the Leased Premises in
a good and reasonable state of repair.
(c) that if any part of the Building other than the Leased
Premises becomes out of repair, damaged or destroyed through
the negligence or misuse of the Tenant or its employees,
invitees or others over whom the Tenant can reasonably be
expected to exercise control, the expense of repairs or
replacements thereto necessitated thereby shall be the
responsibility of the Tenant.
4.2 ABATEMENT AND TERMINATION. It is agreed between the Landlord and the
Tenant that:
(a) In the event of damage to the Leased Premises or to the
Building affecting access or services essential to the
conduct of business in the Leased Premises and if the
damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and
occupancy by the Tenant for the purposes of its business
for any period of time in excess of 10 days, then
(i) unless the damage was caused by the misuse, fault,
negligence of the Tenant or its employees,
invitees or others under its control, from and
after the date of occurrence of the damage and
until the Leased Premises are again reasonably
capable of use and occupancy as aforesaid, Base
Rent (but not any other payments required to be
made by the Tenant hereunder) shall xxxxx from
time to time in proportion to the part or parts of
the Leased Premises not reasonably capable of such
use and occupancy, and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case may
be (according to the nature of the damage and
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their respective obligations to repair as provided
herein, it being understood that the Tenant shall
have the obligation to repair and replace all
Leasehold Improvements and all Tenant's trade
fixtures) shall repair such damage with all
reasonable diligence, but to the extent that any
part of the Leased Premises is not reasonably
capable of such use and occupancy by reason of
damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the
Tenant is otherwise entitled hereunder shall not
extend later than the time by which repairs by the
Tenant ought to have been completed with reasonable
diligence; and
(b) if either the entire or substantially all of the Leased
Premises, or premises whether of the Tenant or other
tenants of the Building comprising in the aggregate 50% or
more of the Rentable Area of the Building are substantially
damaged or destroyed by any cause to such an extent in the
reasonable opinion of the Landlord cannot be repaired or
rebuilt within 180 days after the occurrence of the damage
or destruction, the Landlord may at its option, exercisable
by written notice to the Tenant given within 30 days after
the occurrence of such damage or destruction terminate this
Lease in which event neither the Landlord nor the Tenant
shall be bound to repair as provided herein and the Tenant
shall instead deliver up possession of the Leased Premises
to the Landlord with reasonable expedition but in any event
within 60 days after delivery of such notice of termination
and rent shall be apportioned and paid to the date upon
which possession is so delivered up (but, subject to any
abatement to which the Tenant may be entitled under
paragraph (a) of this clause 4.2 by reason of the Leased
Premises having been rendered in whole or in part not
reasonably capable of use and occupancy), but otherwise the
Landlord or the Tenant as the case may be (according to the
nature of the damage and their respective obligations to
repair described in 4.2 (a) (ii)) shall repair such damage
with reasonable diligence.
ARTICLE V - TAXES AND OPERATING COSTS
5.1 NET NET LEASE. The Tenant acknowledges and agrees that it is intended
that this Lease is a completely carefree net net lease to the Landlord,
except as expressly herein set out, that the Landlord is not
responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Leased
Premises, or the use and occupancy thereof, or the contents thereof or
the business carried on therein, except as expressly set out herein,
and the Tenant shall pay all charges, impositions, costs and expenses
of every nature and kind relating to the Leased Premises.
5.2 LANDLORD'S TAX OBLIGATIONS. The Landlord covenants with the Tenant,
subject to the provisions herein, to pay all Taxes promptly when due to
the taxing authority or authorities having jurisdiction.
5.3 TENANT'S TAX OBLIGATIONS. The Tenant covenants with the
Landlord:
(i) to pay promptly when due to the taxing authority or
authorities having jurisdiction all taxes, rates, duties,
levies and assessments whatsoever, whether municipal,
parliamentary or otherwise, levied, imposed or assessed
in respect of any and every business carried on by the
Tenant, subtenants, licensees, or other occupants of the
Leased Premises or in respect of the use or occupancy
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thereof (including licence fees); and
14
(ii) to pay promptly to the Landlord when demanded or otherwise due
hereunder:
(1) all Taxes charged in respect of all Leasehold
Improvements and trade fixtures and all furniture and
equipment made, owned or installed by or on behalf of
the Tenant in the Leased Premises as Additional Rent;
(2) if by reason of the act, election or religion of the
Tenant or any subtenant, licensee or occupant of the
Leased Premises, the Leased Premises or any part of
them shall be assessed for the support of Separate
Schools, the amount by which the Taxes so payable
exceed those which would have been payable if the
Leased Premises had been assessed for the support of
Public Schools; and
(3) the Tenant's Proportionate Share of Taxes as
Additional Rent in the manner stipulated herein.
(iii) notwithstanding any other provisions of this Lease to the
contrary, the Tenant shall pay to the Landlord, at such
times and in such manner as the Landlord may direct,
without duplication, an amount equal to all goods and
service taxes, sales taxes, value-added taxes or any other
taxes imposed with respect to Base Rent, Additional Rent or
other amounts payable by the Tenant to the Landlord under
this Lease, howsoever such taxes are characterized. The
amount payable by the Tenant hereunder shall not be deemed
to be Base Rent or Additional Rent but the Landlord shall
have all of the same rights and remedies for recovery of
same as it has for recovery of Base Rent and Additional
Rent hereunder.
Whenever requested by the Landlord the Tenant will deliver to it
receipts for payment of all taxes, rates, duties, levies and
assessments payable by the Tenant hereof and furnish such other
information in connection therewith as the Landlord may reasonably
require.
5.4 METHOD OF PAYMENT OF TAXES. The Tax payments required to be made by the
Tenant to the Landlord under the provisions of 5.3 (ii) herein shall be
estimated by the Landlord, and the Tenant shall pay to the Landlord in
addition to the monthly payments of Base Rent hereinbefore reserved,
one-ninth of the estimated annual tax payments in the months of January
to September, both inclusive, in each calendar year with an adjustment
being made when the property tax xxxx respecting the Building is
received by the Landlord for each year. The Tenant shall within sixty
(60) days of being invoiced pay to the Landlord such additional sums as
may be required in order that out of such monthly additional payments,
the Landlord may pay the whole amount of the annual taxes as the
installments thereof fall due; and if the monthly additional payments
so paid by the Tenant to the Landlord exceed in total the Tenant's
Proportionate Share of the annual property tax xxxx with respect to the
Building and Lands of which the Leased Premises form part, then the
excess shall be adjusted by the Landlord in favour of the Tenant by
applying such excess on account of the next ensuing rental payments due
(following the issue of the yearly statement) and such next ensuing
rental payments shall be reduced by such excess accordingly. The
Landlord shall forward to the Tenant copies of all notices or tax bills
relating to the imposition of property taxes or other charges required
hereunder to be paid as to part or all thereof by the Tenant. In the
event that the Landlord is unable to obtain or determine a separate
allocation of taxes payable by the Tenant under this Lease, the
Landlord shall have the right to make an allocation, but shall be
obligated to act reasonably and not arbitrarily.
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5.5 OPERATING COSTS. During the Term of this Lease, the Tenant shall pay
to the Landlord its Proportionate Share of Operating Costs. Prior to
the commencement of the Term of this Lease and the commencement of
each fiscal period selected by the Landlord thereafter which
commences during the Term the Landlord shall estimate the amount of
Operating Costs and the Tenant's Proportionate Share thereof for the
ensuing fiscal period or (if applicable) broken portion thereof, as
the case may be, and notify the Tenant in writing of such estimate.
The amount so estimated shall be payable in equal monthly
installments in advance over the fiscal period or broken portion
thereof in question, each such instalment being payable on each
monthly rental payment date provided in clause 2.3. The Landlord may
from time to time alter the fiscal period selected, in which case,
and in the case where only a broken portion of a fiscal period is
included with the Term, the appropriate adjustment in monthly
payments shall be made. From time to time during a fiscal period the
Landlord may re-estimate the amount of Operating Costs and the
Tenant's Proportionate Share thereof, in which event the Landlord
shall notify the Tenant in writing of such re-estimate and fixed
monthly installments for the then remaining balance of such fiscal
period or broken portion thereof such that, after giving credit for
installments paid by the Tenant on the basis of the previous
estimate or estimates, the Tenant's entire Proportionate Share of
Operating Costs will have been paid during such fiscal period or
broken period thereof. As soon as practicable after the expiration
of each fiscal period the Landlord shall make a final determination
of Operating Costs and the Tenant's Proportionate Share thereof for
such fiscal period or (if applicable) broken portion thereof and
shall provide a statement to the Tenant and the parties shall make
the appropriate readjustment. Each 12 month period ending December
31st shall be deemed to be an accounting year for adjusting the said
Operating Costs and within 120 days after the end of each such
accounting year, the Landlord shall compute the said costs for such
accounting year and the Proportionate Share of the Tenant therefor
and shall submit to the Tenant a statement to reflect the Operating
Costs specifically permitted under this Lease, and the said
Proportionate Share thereof shall be borne by the Tenant. To the
extent that the Tenant's Proportionate Share of such costs for such
accounting year shall be greater than the total amount actually paid
by the Tenant by said monthly payments in respect of such year the
difference shall be paid by the Tenant to the Landlord within thirty
(30) days after receipt by the Tenant of such statement. Any excess
payments shall be applied by reducing the next ensuing rental
payment(s) by the amount of such excess. The said accounting period
may be modified by the Landlord if reasonably necessary. The Tenant
may not claim a readjustment in respect to the Tenant's
Proportionate Share of Operating Costs based upon any error of
assessment, determination or calculation thereof unless claimed in
writing prior to the expiration of one year after the fiscal period
to which the Operating Costs relate.
5.6 PAYMENT OF ADDITIONAL RENT. Any Additional Rent provided for under this
Lease unless otherwise provided herein, shall become due with each
instalment of monthly Base Rent.
ARTICLE VI- UTILITIES AND ADDITIONAL SERVICES
6.1 WATER AND TELEPHONE. The Landlord shall furnish appropriate openings
for bringing telephone services to the Leased Premises and shall
provide hot and cold water to washrooms in the Leased Premises and to
washrooms available for the Tenant's use in common with others entitled
thereto.
6.2 ELECTRICITY. The Tenant shall pay throughout the Term promptly to the
Landlord (unless paid directly to Hydro authorities pursuant to
separate billing) as Additional Rent
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when demanded:
(i) The cost of electric light and power supplied to the Leased
Premises monthly based on the electric light and power
requirements of the Tenant on a Proportionate Share basis as
determined from time to time during the Term by the Landlord
acting reasonably; and
(ii) The cost of cleaning, maintaining and servicing in all
respects all electric lighting fixtures in the Leased
Premises including the cost of replacement of electric
light bulbs, tubes, starters and ballasts used to replace
those installed at the commencement of the Term. Such
cleaning, maintaining, servicing and replacement shall be
within the exclusive right of the Landlord. It is
understood and agreed that the costs described in this
sub-section (ii) shall be included as part of Operating
Costs.
6.3 ADDITIONAL SERVICES. The Landlord, if it shall from time to time so
elect, shall have the exclusive right, by way of Additional Services,
to provide or have its designated agents or contractors provide any
janitor or cleaning service to the Leased Premises and Common Area
Facilities required by the Tenant which are additional to those
required to be provided by the Landlord hereunder, including the
Additional Services which the Landlord agrees to provide by
arrangement, and to supervise the moving of furniture or equipment of
the Tenant in and out of the Building where such moving of furniture or
equipment would be disruptive to the normal business of the Building,
and the making of repairs or alterations conducted within the Leased
Premises affecting base building, building systems or Leasehold
Improvements. The reasonable cost of Additional Services provided to
the Tenant, whether the Landlord shall be obligated hereunder or shall
elect to provide them as Additional Services, shall be paid to the
Landlord by the Tenant from time to time within thirty (30) days
following receipt of invoices therefor from the Landlord. Costs of
Additional Services charged directly to the Tenant and other tenants
shall be credited in computing Operating Costs.
ARTICLE VII- ASSIGNING AND SUBLETTING
7.1 ASSIGNMENTS AND SUBLETTINGS. The Tenant covenants with the Landlord
that it will not assign, sublet, licence or part with the possession of
the Leased Premises or any part thereof, or share the occupation of the
Leased Premises, or any part thereof, without the consent of the
Landlord in writing first had and obtained such consent not to be
unreasonably or arbitrarily withheld or delayed. Provided that as a
condition of the granting of its consent, the Landlord may require any
assignee, subtenant, licensee or occupant of the Leased Premises to
execute an agreement whereby he, it or they attorn to and become the
tenants of the Landlord as if he, it or they had executed this Lease,
or, except in the case of an absolute assignment of this Lease, to
execute an acknowledgement that all the sublessee's or undertenant's
estate, right and interest in and to the Leased Premises absolutely
terminates upon the surrender, release, disclaimer or merger of this
Lease notwithstanding the provisions of the Landlord and Tenant Act of
Ontario, X.X.X. 0000, XX.0 and amendments thereof with specific
reference to Paragraphs 21 and 39 (2) thereof, or other similar
statute. The Tenant shall furnish to the Landlord copies of any
assignment, sublease, licence or other agreement herein contemplated.
Notwithstanding any other provision in this section, no assignment,
subletting, licensing or parting with possession of the Leased Premises
shall in any way release or be deemed to release the Tenant (or any
guarantor hereof) from their obligations under the terms of this Lease.
Provided further that the proposed
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assignee, subtenant, licensee or occupant of the Leased Premises
shall be required to provide financial statements or other financial
information as the Landlord may require. It is agreed that the
Landlord may consider in determining whether to grant consent among
other matters, the following: the personal and business history of
the proposed assignee, occupant, sublessee and its key employees.
The Tenant agrees to pay the reasonable legal fees of the Landlord's
solicitor relating to the preparation of the Landlord's consent, and
determination as to whether to give the consent.
If by sale, transfer or other disposition of its shares, the control of
the Tenant is altered so that 51% of the shares are transferred in any
manner, then same shall be deemed as an assignment and the provisions
of this paragraph shall apply. The Tenant covenants and agrees to
advise the Landlord forthwith if such a transfer is contemplated.
In the event of any sub-letting by the Tenant by virtue of which the
Tenant receives rent in the form of cash, goods, services or other
considerations from the sub-tenant which is higher than the rent
payable hereunder to the Landlord for the premises so sub-let, the
Tenant shall pay any such excess to the Landlord, in addition to all
rent and other costs payable hereunder, for the period of time during
which the said subtenant remains in possession of the premises sub-let
to it.
If the Tenant herein shall receive from any assignee of this lease,
either directly or indirectly, any consideration for the assignment of
this lease, either in the form of cash, goods or services, the Tenant
shall forthwith pay an amount equivalent to such consideration to the
Landlord and same shall be deemed to be further Additional Rent
hereunder.
In the event of any proposed assignment or subletting of the Leased
Premises by the Tenant, the Landlord shall not be obligated to consider
such a proposal nor be required to consent to same, unless the base
rent payable by the proposed assignee or sublessee is, in the sole
discretion of the Landlord, at the then current market rate for similar
space in the immediate and surrounding area. In no event shall the
Tenant be required to sublease or assign this Lease at a base rental
rate in excess of the Base Rent payable hereunder.
In calculating whether there is any additional consideration payable by
an assignee or sublessee as hereinbefore provided, no deduction shall
be made for any commission payable to any agent or other party.
If the Landlord has granted to the Tenant, named on page 1 of this
Lease, any first rights of refusal, exclusive rights or options to
lease additional space or to purchase, it is agreed and understood that
upon the Tenant assigning, subletting, licensing or parting with
possession of the Leased Premises or any part thereof, the aforesaid
rights referred to shall automatically become null and void.
Notwithstanding the above provisions, within ten (10) business days
after the receipt by the Landlord of such request for consent and of
all information which the Landlord shall have requested hereunder, the
Landlord shall have the right upon written notice of termination
submitted to the Tenant to, if the request is to assign this Lease or
sublet the whole of the Leased Premises, cancel and terminate this
Lease, or to, if the request is to sublet a part of the Leased Premises
only, cancel and terminate this Lease with respect to such part, in
each case as of a termination date to be stipulated in the notice of
termination which shall be ninety (90) days following giving of such
notice. In such event the Tenant shall surrender the whole or part, as
the case may be, of the Leased Premises in accordance with such notice
of termination and Base Rent and Additional Rent shall be apportioned
and paid to the date of surrender and, if only a part of the Leased
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Premises is surrendered, Base Rent and Additional Rent shall, after
the date of surrender, xxxxx proportionately. If the Landlord does
not elect to terminate as aforesaid and if consent to sublease or
assign will be granted, the Tenant may assign or sublet, as the case
may be, only upon the terms and to the party set out in the offer
submitted to the Landlord as aforesaid.
ARTICLE VIII- FIXTURES AND IMPROVEMENTS
8.1 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant shall not make,
erect, install or alter any Leasehold Improvements in the Leased
Premises without having requested and obtained the Landlord's prior
written approval which the Landlord shall not unreasonably delay or
withhold. In making, erecting, installing or altering any Leasehold
Improvements the Tenant will not alter or interfere with any
installations which have been made by the Landlord without the prior
written approval of the Landlord and in no event shall it alter or
interfere with window coverings (if any) installed by the Landlord on
exterior windows. The Tenant's request for any approval hereunder shall
be in writing and accompanied by an adequate description of the
contemplated work and, where appropriate, working drawings and
specifications thereof. All work to be performed in the Leased Premises
shall be performed by reputable contractors approved by the Landlord.
The Landlord reserves the right to require the Tenant to utilize the
contractor(s) of the Landlord where base building, building systems
and/or warranties may be affected provided the Landlord agrees that
charges by such contractors shall be in keeping with that which an arms
length contractor would charge. The cost of all such work shall be
estimated by the Landlord in advance and such estimate approved by the
Tenant prior to work commencing. All such work shall be performed at
the Tenant's expense and the Tenant shall be responsible for
application and payment of all fees in connection with any permits
required. All such work shall be subject to inspection by and the
reasonable supervision of the Landlord, as an Additional Service, and
shall be performed in accordance with any reasonable conditions or
regulations imposed by the Landlord and completed in a good and
workmanlike manner in accordance with the description of the work
approved by the Landlord. The Landlord shall be entitled to supervise
the work and charge the Tenant a supervision fee. The Landlord shall
also be entitled to charge reasonable fees for examining plans
respecting the proposed work. The Tenant shall be obligated to pay any
reasonable consultant's fees incurred by the Landlord for review and
approval of plans for construction of any nature after the Commencement
Date as Additional Rent.
8.2 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In connection with
the making, erection, installation or alteration of Leasehold
Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the
provisions of the Construction Lien Act (Ontario) and other statutes
from time to time applicable thereto and shall promptly pay all
accounts relating thereto. The Tenant will not create or cause to be
created any mortgage, conditional sale agreement or other encumbrance
in respect of its Leasehold Improvements or permit any such mortgage,
conditional sale agreement or other encumbrance to attach to the Leased
Premises or to the Building and Common Area Facilities. If and whenever
any construction or other lien for work, labour, services or materials
supplied to or for the Tenant for the cost of which the Tenant may be
in any way liable or claims therefor shall arise or be filed or any
such mortgage, conditional sales agreement or other encumbrance shall
attach, the Tenant shall within ten (10) days after receipt of notice
thereof procure the discharge thereof, including any certificate of
action registered in respect of any lien, by payment or giving security
or in such other
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manner as may be required or permitted by law failing which the
Landlord may in addition to all other remedies hereunder avail
itself of its remedy hereunder and may make any payments required to
procure the discharge of any such liens or encumbrances and shall be
entitled to be reimbursed by the Tenant as provided herein and its
right to reimbursement shall not be affected or impaired if the
Tenant shall then or subsequently establish or claim that any lien
or encumbrance so discharged was without merit or excessive or
subject to any abatement, set-off or defense.
8.3 REMOVAL OF FIXTURES AND IMPROVEMENTS. All Leasehold Improvements in or
upon the Leased Premises shall immediately upon termination of this
lease be and become the Landlord's property without compensation
therefor to the Tenant. Except to the extent otherwise expressly agreed
by the Landlord in writing no Leasehold Improvements, trade fixtures,
furniture or equipment shall be removed by the Tenant from the Leased
Premises either during or at the expiration or earlier termination of
the Term except that (1) the Tenant shall at the end of the Term remove
its trade fixtures, and (2) the Tenant shall remove its furniture and
equipment at the end of the Term and may remove its furniture and
equipment during the Term in the usual and normal course of its
business where such furniture or equipment has become excess for the
Tenant's purposes or the Tenant is substituting therefor new furniture
and equipment. It is understood that the Tenant, as of the termination
of this Lease, will surrender the Leased Premises free from any
obligation to remove or demolish the original existing, as of the
Commencement Date, leasehold improvements. The Tenant shall, in the
case of every removal either during or at the end of the Term, make
good any damage caused to the Leased Premises by the installation and
removal. Provided that upon the termination of this Lease, the Tenant,
if requested by the Landlord, shall restore any subsequent alterations
to its former condition immediately prior to the installation of such
subsequent alterations or changes, including the restoration of such
standard fixtures as may have been installed by the Landlord, and if
not so requested, any such changes or alterations shall become the
property of the Landlord, or alternatively, the Tenant shall install
such comparable fixtures and materials as may then be in use.
8.4 OCCUPATIONAL HEALTH AND SAFETY. The Tenant covenants and agrees that it
will ensure that a comprehensive and rigorous health and safety program
to protect workers in the Leased Premises is implemented to ensure that
no accidents or injuries occur in connection with the performance of
any Tenant's work. The Tenant will indemnify the Landlord in respect of
all claims, infractions, prosecutions, alleged infractions, losses,
costs and expenses and any fines or proceedings relating to fines or
other offences under all occupational health and safety and any similar
legislation that might be brought, or imposed against or suffered by
the Landlord or any of its officers, directors and employees in
connection with the performance of any Tenant's work. Without limiting
the obligations set out above in this Section 8.4, the Tenant will do
at least the following:
(a) ensure that all obligations imposed by statute, law or
regulation on "constructors" or other persons completing or
co-ordinating any Tenant's work are diligently and properly
completed;
(b) co-operate with the Landlord in having any Tenant's work
designated as a separate project so that the Landlord does not
incur any obligations as a constructor or obligations similar
to those of a constructor at law or by regulation imposed in
connection with the performance of any Tenant's work;
(c) comply with all directions that the Landlord may give to
21
the Tenant in connection with the performance of any Tenant's
work having regard to construction health and safety
requirements; and
22
(d) provide to the Landlord whatever rights of access, inspection,
and whatever information, documents and other matters the
Landlord requires in order to ensure that the Tenant's
obligations under this Section are complied with.
ARTICLE IX- INSURANCE AND LIABILITY
9.1 LANDLORD'S INSURANCE. The Tenant will during the whole of the Term
hereby granted as part of Operating Costs, pay its Proportionate Share
of all premiums with respect to insurance to be placed by the Landlord
and described in this Section 9.1. The Landlord agrees to maintain
during the Term, insurance coverages as follows:
(i) Property of Every Description (Building and Equipment) against
the perils of "All-Risks", under form providing coverage at
least equivalent to Commercial Building Broad Form I.A.O. Form
No. 700 including "Building By-Laws Endorsements", and to be
insured for the Replacement Value, without allowance for
depreciation and Stated Amount, and with no co-insurance
requirement.
(ii) "Rental Income" for the gross annual rental income on
"All-Risks" basis, as provided under Commercial Building Broad
Form I.A.O. Form 700 including "Building By-Laws
Endorsements", providing coverage at least equivalent to
I.A.O. Profits Form No. 551 with an eighteen (18) month
indemnity period.
(iii) Broad Form Boiler and Machinery Policy on a blanket and
replacement basis with limits for each accident in an
amount not less than the replacement cost of the Building
containing the Leased Premises and which shall cover all
boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus owned by the Landlord
and which shall include PCB coverage. It shall also
include "Rental Income" for the full gross annual income
equivalent to I.A.O. Profits Form No. 551 with a eighteen
(18) month indemnity period. This policy should also
provide "Building By-Laws Endorsements".
(iv) "General Liability Insurance" on a Comprehensive Form and on
an "occurrence" basis without deductible with retroactive
coverage against claims for Personal and Bodily Injury and
Death and/or Property Damage occurring upon or about the
Leased Premises and for a limit no less than $5,000,000.00
inclusive for one occurrence.
(v) Such other insurance coverage or coverages as a prudent owner
of a first class office building would obtain for protection
respecting loss of, or damage to the Building, the Lands or
the Leased Premises, or liability arising therefrom.
All such insurance coverages shall be kept and maintained by the
Landlord, and in no event shall the coverage be less than the amount
required by any institution then holding a mortgage on the Building and
Common Area Facilities. The Tenant shall pay to the Landlord, as part
of Operating Costs, its Proportionate Share of the Landlord's
Insurance. The Tenant shall not do or permit to be done any act or
thing whereby insurance coverage, premiums or any of them hereinbefore
contemplated, may be increased or cancelled by the insurer, or the
Leased Premises shall be rendered uninsurable, and if by reason of any
act done or permitted or omission, as the case may be, by the Tenant,
the said insurance coverage, premiums or any of them shall be
increased, then the Tenant, if it shall fail to rectify the event
giving rise to the increased premium after written notice thereof from
the Landlord, shall be liable to pay all of such increase in premium,
with respect
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to the entire coverages, and this notwithstanding that the Tenant
occupies only a portion of the Building covered by such insurance
coverages, and if the Leased Premises shall be rendered uninsurable,
or if the said insurance coverages, or any of them, shall be
cancelled by reason of any act or omission as the case may be by the
Tenant and shall not be susceptible of being replaced, after the
Landlord's reasonable efforts under the circumstances to do so, then
the Landlord, after giving the Tenant at least fourteen (14) days
written notice within which to replace insurance coverage or
coverages shall, at its absolute discretion, have the right to
determine that the term hereof has expired and in such event the
Tenant shall deliver up possession of the Leased Premises as if the
Term of this Lease had expired.
PROVIDED that no act required to be done by the Tenant nor any payment
required to be made by the Tenant, including reimbursements of
insurance premiums paid by the Landlord, shall relieve the Tenant from
any liability for damage incurred by the Landlord as result of any act
or omission of the Tenant.
If any other tenant of the Building has his own insurance premiums
increased by his insurers as a result of the use or occupation by the
Tenant herein of the within Leased Premises, the Tenant covenants and
agrees with the Landlord after written notice thereof, to pay the
additional cost forthwith upon demand as Additional Rent.
The Landlord's insurance policy shall contain a waiver of subrogation
in favour of the Tenant or those for whom the Tenant is in law
responsible.
9.2 AGENTS. The Tenant acknowledges, covenants and agrees that every right,
exemption from liability, defence and immunity of whatsoever nature
applicable to the Landlord or to which the Landlord is entitled
hereunder shall also be available and shall extend to protect every
such agent of the Landlord acting (in the course of or in connection
with his employment or otherwise) and for the purposes of all of the
foregoing provisions of this clause, the Landlord is or shall be deemed
to be acting as agent or trustee on behalf of and for the benefit of
persons who are or might be his servants, employees or agents from time
to time.
9.3 TENANT'S INSURANCE. The Tenant covenants to insure and to keep insured
during the whole of the Term, with an insurance company or companies in
good standing and upon terms and conditions all satisfactory to the
Landlord:
(i) "All-Risks" insurance upon all property owned by the Tenant
or for which it is legally liable or installed or affixed
by or on behalf of the Tenant and which is located in the
Building including, without limitation, furniture,
fittings, installations, alterations, additions, partitions
and fixtures or anything in the nature of a Leasehold
Improvement made or installed by or on behalf of the Tenant
in an amount equal to the full replacement cost thereof; if
there is a dispute as to the amount which comprises full
replacement cost the decision of the Landlord's Architect
shall be conclusive.
(ii) All parties hereto on a Comprehensive Form for bodily
injury and property damage, general liability coverage
arising out of the use, maintenance or repair of the Leased
Premises and/or the business of the Tenant or any
sub-tenant, licensees or occupiers of the Leased Premises;
such insurance shall be for a limit of not less than
$2,000,000.00 inclusive for any one occurrence, or such
higher limits as the Landlord, acting reasonably, or any
mortgagee requires from time to time, and shall contain a
severability of interest clause, and a cross liability
clause.
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25
(iii) Glass coverage for the replacement of all glass broken,
cracked or damaged in, on and about the Leased Premises.
(iv) Any other form of insurance that the Landlord or any mortgagee
may reasonably require, from time to time in form, amounts and
for insurance risks acceptable to the Landlord and any
mortgagee.
The Tenant covenants and agrees to provide the Landlord with evidence
of insurance as required under this provision. Such evidence shall be
by way of a certified copy of the policy if available in timely fashion
or failing which a certificate of insurance at such time or times as
the Landlord may require. The Tenant agrees to provide same to the
Landlord forthwith after notice has been given by the Landlord to the
Tenant of its request. The Tenant's policy shall contain a waiver of
subrogation in favour of the Landlord and those for whom the Landlord
is in law responsible.
9.4 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that:
(i) the Landlord shall not be liable for any bodily injury or
death of, or loss or damage to any property belonging to
the Tenant or its employees, invitees, or licensees or
any other person in, on or about the Building and Common
Area Facilities howsoever occurring, unless caused by the
negligent act or omission of the Landlord or those for
whom the Landlord is in law responsible, and in no event
shall the Landlord be liable for:
(1) any damage which is caused by steam, water, rain or
snow which may leak into, issue or flow from any part
of the Building or Common Area Facilities or from the
pipes or plumbing works thereof or from any other
place or quarter or for any damage caused by or
attributable to the condition or arrangement of any
electric or other wiring or for any damage caused by
anything done or omitted by any other tenant; and
(2) 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, maintenance,
supervision or any other work in or about the Leased
Premises or the Building or Common Area Facilities;
and
(3) loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of
the Tenant; and
(ii) the Landlord shall have no responsibility or liability
for the failure to supply interior climate control or
elevator service when prevented from doing so by strikes,
the necessity of repairs, any order or regulation of any
body have jurisdiction, the failure of the supply of any
utility required for the operation thereof or any other
cause beyond the Landlord's reasonable control, and shall
not be held responsible for any bodily injury, death or
damage to property arising from the use of, or any
happening in or about, any elevator.
9.5 INDEMNITY OF LANDLORD. Save and except for the negligent act or
omission of the Landlord or those for whom the Landlord is in law
responsible, the Tenant agrees to indemnify and save harmless the
Landlord in respect of all claims for bodily injury or death, property
damage or other loss or damage arising from the conduct of any work by
or any act or omission of the Tenant or any assignee, subtenant, agent,
employee, contractor, invitee or licensee of the Tenant, and in respect
of all costs, expenses and liabilities incurred by the Land-
26
lord in connection with or arising out of all such claims, including
the expenses of any action or proceeding pertaining thereto, and in
respect of any loss, cost, expense or damage suffered or incurred by
the Landlord arising from any breach by the Tenant of any of its
covenants and obligations under this Lease.
ARTICLE X-SUBORDINATION, ATTORNMENT AND CERTIFICATES
10.1 SUBORDINATION AND ATTORNMENT. The Tenant agrees that this Lease and all
the rights of the Tenant hereunder are subject and subordinate to all
mortgages now or hereafter existing (including deeds of trust and all
instruments supplemental thereto) which may now or hereafter affect the
Building or Common Area Facilities and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided such
mortgagee has provided a non-disturbance agreement to the Tenant;
provided that the Tenant whenever requested by any mortgagee (including
any trustee under a deed of trust and mortgage) shall attorn to such
mortgagee as the Tenant upon all the terms of this Lease. Subject to
the foregoing, the Tenant agrees to execute promptly whenever requested
by the Landlord or by such mortgagee such instrument of subordination
or attornment, as the case may be, as may be required of it.
10.2 CERTIFICATES. The Tenant shall promptly whenever requested by the
Landlord from time to time execute and deliver to the Landlord (and if
required by the Landlord, to any mortgagee [including any trustee under
a deed of trust and mortgage] designated by the Landlord) a certificate
in writing as to the then status of this Lease, including as to whether
it is in full force and effect, is modified or unmodified, confirming
the rent payable hereunder and the state of the accounts between the
Landlord and Tenant, the existence or non-existence of defaults, and
any other matters pertaining to this Lease as to which the Landlord
shall request a certificate.
ARTICLE XI-REMEDIES OF LANDLORD ON TENANT'S DEFAULT
11.1 REMEDYING BY LANDLORD. In addition to all rights and remedies of the
Landlord available to it in the event of any default hereunder by the
Tenant either by any other provision of this Lease or by statute or the
general law, the Landlord, subject to the respective notice periods as
required under Section 11.3 below:
(1) shall have the right at all times after the required written
notice of an event of default has been given to the Tenant, to
make any payments due by the Tenant to third parties and may
enter upon the Leased Premises to do any work or other things
therein, as may be reasonably necessary, and in such event all
expenses of the Landlord in remedying or attempting to remedy
such default shall be payable by the Tenant to the Landlord
forthwith upon demand;
(2) shall have the same rights and remedies in the event of any
non-payment by the Tenant of any amounts payable by the Tenant
under any provision of this Lease as in the case of a
non-payment of Rent; and
(3) if the Tenant shall fail to pay any Rent or other amount from
time to time payable by it to the Landlord hereunder promptly
when due, shall be entitled, to interest thereon at a rate of
3% per annum in excess of the minimum lending rate to prime
commercial borrowers from time to time current at The Bank of
Nova Scotia in Toronto from the date upon which the same was
due until actual payment thereof.
27
28
11.2 REMEDIES CUMULATIVE. The Landlord, subject to 11.3 hereof, may from
time to time resort to any or all of the rights and remedies available
to it in the event of any default hereunder by the Tenant, either by
any provision of this Lease or by statute or the general law, all of
which rights and remedies are not to be interpreted as excluding any
other or additional rights and remedies available to the Landlord by
statute or the general law.
11.3 RIGHT OF RE-ENTRY DEFAULT OR TERMINATION. It is expressly agreed that
if and whenever the Base Rent or Additional Rent hereby reserved,
remains unpaid, or if the Tenant shall breach or fail to observe or
perform any of the other covenants, agreements, provisoes, conditions,
reasonable rules or regulations and other obligations on the part of
the Tenant to be kept, observed or performed hereunder, provided the
Landlord has first delivered notice to the Tenant explaining the
non-monetary breach and has allowed the Tenant fifteen (15) days to
rectify such non-monetary breach, or if this Lease shall have become
terminated pursuant to any provision hereof, then and in every such
case it shall be lawful for the Landlord thereafter to enter into and
upon the Leased Premises or any part thereof and to have again,
repossess and enjoy the same as of its former estate, anything in this
Lease contained to the contrary notwithstanding. Five (5) days notice
shall be required in the event of monetary breach.
11.4 TERMINATION RE-ENTRY. If and whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease,
the Landlord, in addition to all other rights and remedies, shall have
the right to terminate this Lease forthwith by leaving upon the Leased
Premises notice in writing of such termination.
11.5 PAYMENT ON TERMINATION. Upon the giving by the Landlord of a notice in
writing terminating this Lease, pursuant to 11.4 or 11.3 of this Lease,
this Lease and the Term shall terminate, rent and any other payments
for which the Tenant is liable under this Lease shall be computed,
apportioned and paid in full to the date of such termination, and the
Tenant shall immediately deliver up possession of the Leased Premises
to the Landlord, and the Landlord may re-enter and take possession of
them.
11.6 RENUNCIATION. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's right
of distress.
11.7 RE-LETTING. Whenever the Landlord becomes entitled to re-enter upon the
Leased Premises under 11.3 or 11.4 hereof of this Lease the Landlord in
addition to all other rights it may have shall have the right as agent
of the Tenant to enter the Leased Premises and re-let them and to
receive the rent therefor and as the agent of the Tenant to take
possession of any furniture or other property thereon and to sell the
same at public or private sale without notice and to apply the proceeds
thereof and any rent derived from re-letting the Leased Premises upon
account of the rent due and to become due under this Lease and the
Tenant shall be liable to the Landlord for the deficiency if any.
ARTICLE XII-EVENTS TERMINATING LEASE
12.1 CANCELLATION OF INSURANCE. If any policy of insurance upon the Building
and Common Area Facilities from time to time effected by the Landlord
shall be cancelled or about to be cancelled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or any
assignee, sub-tenant or licensee of the Tenant or anyone permitted by
the Tenant to be upon the Leased Premises and the Tenant after receipt
of notice in
29
writing from the Landlord and a reasonable time allowed, to
reinstate such insurance or avoid cancellation, shall have failed to
take such immediate steps in respect of such use or occupation as
shall enable the Landlord to reinstate or avoid cancellation (as the
case may be) of such policy of insurance, the Landlord may at its
option terminate this Lease by leaving upon the Leased Premises
notice in writing of such termination.
12.2 PROHIBITED OCCUPANCY, BANKRUPTCY, ETC. If, without the written consent
of the Landlord the Leased Premises shall be used by any persons other
than the Tenant, its employees, invitees and customers or its permitted
assigns or sub-tenants or for any purpose other than that for which
they were leased, or occupied by any persons whose occupancy is
prohibited by this Lease, or if the Leased Premises shall be vacated or
abandoned, or remain unoccupied for 7 days or more while capable of
being occupied, or if the Term or any of the goods and chattels of the
Tenant shall at any time be seized in execution or attachment, or if
the Tenant shall make any assignment for the benefit of creditors,
become bankrupt or insolvent or take the benefit of any statute now or
hereafter in force for bankrupt or insolvent debtors or (if a
corporation) shall take any steps or suffer any order to be made for
its winding-up or other termination of its corporate existence, then in
any such case the Landlord may at its option, subject to compliance
with the procedures set forth in Section 11.3, terminate this Lease by
leaving upon the Leased Premises notice in writing of such termination
and thereupon, in addition to the payment by the Tenant of Rent and
other payments for which the Tenant is liable under this Lease, Rent
for the current month and the next ensuing 3 (three) months' Rent shall
immediately become due and be paid by the Tenant.
ARTICLE XIII-MISCELLANEOUS
13.1 REGISTRATION. The Tenant agrees with the Landlord not to register this
Lease, but nevertheless if the Tenant desires to register a notice of
this Lease, the Landlord agrees to execute a notice or acknowledgement,
if required, sufficient for the purpose in such form as the Landlord
and Tenant mutually approve provided in no event shall rental rates of
this Lease be shown.
13.2 NOTICE. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either
delivered to an executive officer of the Landlord or by facsimile
transmission or mailed by prepaid registered mail addressed to the
Landlord at 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxx #000, Xxxxx Xxxx
(Xxxxxxx), Xxxxxxx, X0X 0X0, and if to the Tenant, either delivered to
the Tenant (or to an officer of the Tenant if the Tenant is a firm or
corporation) or by facsimile transmission or mailed by prepaid
registered mail addressed to the Tenant at the Leased Premises. Every
such notice shall be deemed to have been given when delivered or, if
mailed as aforesaid in Canada, upon the day when it was mailed. The
Landlord may from time to time by notice in writing to the Tenant
designate another address in Canada as the address to which notices are
to be mailed to it.
13.3 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions
expressed or implied relating to this Lease or the Leased Premises save
as expressly set out in this Lease and in any agreement to Lease in
writing between the Landlord and the Tenant pursuant to which this
Lease has been executed. This Lease may not be modified except by an
agreement in writing executed by the Landlord and the Tenant.
30
13.4 CONSTRUCTION. All of the provisions of this Lease are to be
construed as covenants and agreements. If any provision of this
Lease is illegal or unenforceable it shall be considered separate
and severable from the remaining provisions of this Lease, which
shall remain in force and be binding as though the said provision
had never been included. The headings and marginal sub-headings of
clauses and sub-clauses are for convenience of reference and are not
intended to limit, enlarge or otherwise affect their meanings.
13.5 NON-WAIVER. No condoning, excusing or overlooking by the Landlord of
any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, agreement, proviso or condition
herein contained shall operate as a waiver of the Landlord's rights
hereunder in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of
the Landlord in respect of any such continuing or subsequent default or
breach and no waiver shall be inferred or implied by anything done or
omitted by the Landlord save only express waiver in writing.
13.6 ACCORD AND SATISFACTION. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the Base Rent and Additional Rent from
time to time due shall be deemed to be other than on account of the
earliest stipulated Base Rent and Additional Rent due, nor shall any
endorsement or statement on any cheque or any letter accompanying any
cheque or payment of Base Rent or Additional Rent be deemed an accord
and satisfaction, and the Landlord may accept such cheque or payment
without prejudice to the Landlord's right to recover the balance of
such Base Rent or Additional Rent or pursue any other remedy provided
in this Lease.
13.7 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Province of Ontario.
13.8 TIME OF THE ESSENCE. Time shall be of the essence of this Lease and
every part hereof.
13.9 NO PARTNERSHIP. Nothing contained herein shall be deemed or construed
by the parties hereto, nor any third party, as creating the
relationship of principal and agent, or a partnership, or a joint
venture between the parties hereto, it being understood and agreed that
none of the provisions contained herein nor any acts of the parties
hereto shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
13.10 FORCE MAJEURE. Except as herein otherwise expressly provided, if and
whenever and to the extent that the Landlord shall be prevented
delayed or restricted in the fulfilment of any obligations hereunder
in respect of the supply or provision of any service or utility, the
making of any repair, the doing of any work or any other thing by
reason of strikes or work stoppages or being unable to obtain any
material, service, utility or labour required to fulfil such
obligation or by reason of any statute, law or regulation of or
inability to obtain any permission from any governmental authority
having lawful jurisdiction preventing, delaying or restricting such
fulfilment, or by reason of other unavoidable occurrence, the time
for fulfilment of such obligation shall be extended during the
period in which such circumstance operates to prevent, delay or
restrict the fulfilment thereof and the Tenant shall not be entitled
to compensation for any inconvenience, nuisance or discomfort
thereby occasioned.
13.11 CONTRA PROFERENTEM. The Parties acknowledge and agree that both
parties have participated in the drafting of this Lease, and any
rule of law providing that ambiguities shall be
31
construed against the drafting party, shall be of no force or effect.
32
13.12 PLANNING ACT. This Lease is expressly conditional upon compliance
with the land division provisions of the Planning Act R.S.O. 1990
(as it may be amended from time to time), if applicable.
13.13 ACCESS. The Tenant, its employees, invitees and customers and
persons connected with the Tenant (subject and except as in this
Lease provided) shall have the right in common with others entitled
thereto from time to time to use the parking areas, driveways,
walkways, lawns, ramps (if any) and other Common Areas in and about
the Building from time to time. The Tenant shall not unreasonably
block or in any manner hinder the Landlord, other tenants or other
persons claiming through or under them or any of them who may be
authorized by the Landlord to utilize the Common Areas from so
doing. The Landlord may, acting reasonably, from time to time permit
the Tenant to have the exclusive use of portions of the parking area
which forms part of the Common Areas and to permit other tenants or
other persons to have exclusive use of portions thereof.
13.14 TRANSFERS BY THE LANDLORD. The Landlord at any time and from time to
time may sell, transfer, lease, assign or otherwise dispose of the
whole or any part of its interest in the Leased Premises or in the
Building and lands of which the Leased Premises form a part, at any
time and from time to time, may enter into any mortgage of the whole
or any of its interest in the Building and Lands or in the Leased
Premises. If the party acquiring such interest shall have agreed to
assume and so long as it holds such interest, to perform each of the
covenants, obligations and agreements of the Landlord under this
Lease in the same manner and to the same extent as if originally
named as the Landlord in this Lease, the Landlord shall, thereupon
be released from all of its covenants and obligations under this
Lease.
The Landlord may assign its rights under this Lease to a lending
institution as collateral security for a loan. If such assignment is
made and executed by the Landlord and notification thereof is given
to the Tenant by or on behalf of the Landlord this Lease shall not
be cancelled or modified for any reason whatsoever except as
provided for by the terms hereof or by law without the consent in
writing of such lending institution.
13.15 OCCUPANCY PERMIT. Provided further that notwithstanding the
Commencement Date of the Lease as hereinbefore set out, the Tenant
shall not be permitted to enter into possession of the Leased
Premises until the Tenant has obtained at its sole expense, an
occupancy permit from the proper governmental authority. The
Landlord, in its sole discretion, may waive this provision. Provided
further, the Tenant agrees to use its best efforts to obtain same
prior to occupancy.
13.16 LEASED PREMISES. Save and except for any work to be performed by the
Landlord as specifically set out herein, the taking of possession of
the Leased Premises by the Tenant shall be conclusive evidence that
the Tenant accepts the Premises in an "as is" condition and that the
said Leased Premises were in good and satisfactory condition at the
time possession was so taken.
13.17 SUCCESSORS AND ASSIGNS. This Lease and everything herein contained
shall enure to the benefit of and be binding upon the successors and
assigns of the Landlord and the permitted successors and assigns of
the Tenant. References to the Tenant shall be read with such changes
in gender as may be appropriate, depending upon whether the Tenant
is a male or a female person or a firm or corporation, and if the
Tenant is more than one person or entity, the covenants of the
Tenants shall be deemed joint and several. All obligations
33
of the Tenant or the Landlord under this Lease shall be deemed to be
covenants whether or not expressed as same. No rights of the Tenant
in this Lease shall be deemed to be personal, but shall accrue to
the benefit of the Tenant's successors, permitted subtenants and
assigns.
13.18 AREA DETERMINATION. In the event that any calculation or
determination by the Landlord of the Rentable Area of any premises
(including the Demised Premises) or the Building is disputed or
called into question, it shall be calculated or determined by the
Landlord's architect from time to time appointed for the purpose,
whose certificate shall be conclusive and the cost of such
certificate shall be borne by the Tenant.
ARTICLE XIV-OTHER PROVISIONS
14.1 PARKING. The Tenant acknowledges that the Common Area Facilities are at
all times subject to the exclusive control and operation of the
Landlord, and the Landlord shall have the right to construct
improvements, alterations and additions thereto and to relocate the
various facilities thereon. The Tenant further acknowledges that the
parking facilities in the Common Area Facilities are on a non-exclusive
("First Come", "First Serve Basis") and may be altered or diminished
during the term or renewal thereof and the manner in which access is
permitted may be altered.
The Landlord will provide up to 27 unassigned parking spaces in the
parking area of the Building throughout the Term at no charge to the
Tenant.
14.2 WINDOW COVERINGS. The Tenant acknowledges that as at the date of this
Lease the Landlord does not intend to require the Tenant to install and
maintain window coverings. Provided however, that the Landlord shall
have the right at any future time to prescribe a uniform pattern for
window coverings to be utilized in the Leased Premises. In the event
the Landlord so prescribes same, the Tenant shall permit the Landlord
to install window coverings at the cost of the Tenant which cost or the
current portion thereof shall form part of Operating Costs. Until such
time, no window coverings may be installed or utilized by the Tenant
without the written consent of the Landlord, which consent may be
unreasonably or arbitrarily withheld.
14.3 EXTENSION. Provided it is mutually agreed and understood that if the
Tenant duly and regularly pays the Base Rent and Additional Rent and
performs all of the provisos and agreements contained herein on the
part of the Tenant to be performed, and provided further that the
Tenant is not habitually in default under the terms of this Lease and
is not in default at the time of the exercise of the option herein,
then the Landlord shall, at the expiration of the Term hereof, upon
written request of the Tenant, grant to the Tenant an extension of this
Lease for a further period of five (5) years upon the same terms and
conditions as contained herein, save as to the Base Rental rate, and
save as to any further right of extension. Provided always that the
Tenant shall have given to the Landlord 180 days' notice in writing
before the expiration of the Term of its desire to have such extension.
The Base Rental rate for the extension term shall be at the then
current market rate for similar premises in a similar area and as
mutually agreed between the Landlord and the Tenant. In the event that
the Landlord and the Tenant are unable to agree upon the Base Rental
rate for the extension term by 120 days prior to the maturity date, the
matter shall be submitted to arbitration by notice given by either
party to the other. Upon such notice being given, the dispute shall be
determined by the award of 3 arbitrators, or by a majority of them, one
to be named by the Landlord and one by the Tenant
34
within 30 days of the giving of such notice, and the 3rd to be
selected by these 2 arbitrators within 7 days after both have been
nominated. If either the Landlord or the Tenant shall neglect or
refuse to name its arbitrator in the time specified or to proceed
with the arbitration, the arbitrator named by the other party shall
proceed with the arbitration, and the award of such arbitrator shall
be final and binding upon the Landlord and the Tenant. The
Arbitrators shall have all the power given by the Arbitrations Act
of Ontario and may at any time proceed in such manner as they see
fit on such notice as they deem reasonable in the absence of either
party, if such party fails to attend. Each party shall pay its own
costs and shall share equally the costs of arbitration. The award
and determination of the arbitrators shall be final and binding upon
both parties hereto and each party agrees not to appeal any such
award or determination.
In no event shall the Base Rent for the extension period be less than
the highest Base Rent payable under the original Term.
If the award of the arbitrators is not given before the commencement
date of the extension term, then the Tenant shall commence paying rent
at the market rate as determined by the Landlord together with
Additional Rent, which shall be adjusted forthwith after the award of
the arbitrators has become final and binding, to be calculated from the
commencement date of the extension term.
Interest at the rate set out herein shall be calculated monthly on the
difference between the Base Rent paid by the Tenant and the actual
amount awarded by the arbitrators and shall be paid forthwith upon
demand when the arbitrators' decision has been made.
The extension of lease form shall be prepared by the Landlord at the
Tenant's cost and the Tenant covenants and agrees to pay to the
Landlord said costs forthwith upon demand.
14.4 TAXES, OPERATING COSTS AND HYDRO. The Taxes, Operating Costs and Hydro
applicable to the Leased Premises is currently estimated to be $9.47
per square foot per annum for 1995. The Tenant acknowledges that this
is an estimate only and is subject to adjustment when actual costs are
known.
14.5 SPACE PLANNING. The Landlord shall, at its expense, provide preliminary
space planning services consisting of an initial layout and two
revisions by the Tenant.
14.6 LANDLORD'S WORK. Subject to any adjustments as a result of the above
mentioned space planning service, the Landlord shall, at its own
expense, provide the following Landlord's Work to the Leased Premises
to be completed prior to the commencement of the Term, as listed below,
provided this Lease has been mutually executed by May 23, 1995:
(a) construct full height to deck demising walls insulated
for sound as highlighted in yellow on Schedule "D";
(b) relocate the required secondary access door to the location
highlighted in blue on Schedule "D" and reconstruct the
demising wall in said door's former location;
(c) remove the railing and fill-in the existing stairway, as
outlined in orange on Schedule "D";
(d) insure existing plumbing, electrical outlets and light
fixtures are all in working order; and
(e) repair or replace all damaged ceiling tiles throughout the
Leased Premises.
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14.7 LEASEHOLD IMPROVEMENTS. With the exception of the Landlord's Work
listed above, the Tenant shall lease the Leased Premises on an "as
is" basis. Any Leasehold Improvements deemed necessary by the
Tenant shall be constructed by the Landlord, at the Tenant's
expense, based upon a floor plan designed by the Landlord's space
planner, and approved by the Landlord and the Tenant and initialled
by both parties for identification. As the general contractor for
the Leasehold Improvements, the Landlord shall be compensated with a
fee equal to 10% of the total contract cost of the Leasehold
Improvements. Payment by the Tenant shall be made upon presentation
of cost plus invoices by the 25th day of each month and such
invoices shall be payable net 10 days upon receipt thereof. The
Landlord shall make its best efforts to control the costs of the
Leasehold Improvements and when time permits, seek additional
trade/supply quotes.
14.8 EARLY ACCESS TO LEASED PREMISES. Upon the formal execution of this
Lease, and the Agents receipt of the Deposit, the Tenant shall be
granted access to the Leased Premises for the purpose of co-ordinating
the installation of the Tenant's telephone service, computers, etc.,
whether it be exclusively or in common with one of the Landlord's
employees. During this period, the Tenant shall be bound by all the
provisions of this Lease saving those requiring the payment of Rent.
14.9 CO-TENANCY. This Agreement is not personally binding upon and resort
shall not be had nor shall recourse or satisfaction be sought from the
private property of any of the unit holders of Investors Real Property
Fund (the "FUND"), trustees, officers, directors, employees or agents
of the trustee or manager of the Fund, it being intended and agreed
that only the property of the Fund shall be bound by this Agreement.
Only the co-tenancy interests of Menkes and Investors Group shall be
bound hereby and the obligations hereunder are not binding upon either
of Menkes or Investors Group in any other respect nor shall resort be
had to any other property of any of Menkes or Investors Group. The
rights and obligations of each of Menkes and Investors Group hereunder
shall, in every case, be several and proportionate and not either joint
or joint and several.
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease.
MENKES OFFICE PARKS LTD.
Per:________________________________
(Authorized signing officer)
INVESTORS GROUP TRUST CO. LTD.
as trustee for
INVESTORS REAL PROPERTY FUND
Per:________________________________
(Authorized signing officer)
Per:________________________________
(Authorized signing officer)
CHANGEPOINT CORPORATION
36
Per:________________________________
(Authorized signing officer)
LEASE
THIS LEASE made as of the 4th day of April, 1995
PURSUANT TO THE SHORT FORMS OF LEASES ACT
BETWEEN
MENKES OFFICE PARKS LTD. and INVESTORS
GROUP TRUST CO. LTD. as trustee for
INVESTORS REAL PROPERTY FUND
(the "LANDLORD")
OF THE FIRST PART
- AND -
XXXXXXXX MINWAX (CANADA) LTD.
(the "TENANT")
OF THE SECOND PART
ARTICLES. For convenience of reference this Lease has been divided
into the following Articles:
Article I - Definitions
Article II - Lease Term and Payments
Article III - Landlord and Tenant Covenants
Article IV - Repair and Damage
Article V - Taxes and Operating Costs
Article VI - Utilities and Additional Services
Article VII - Assigning and Subletting
Article VIII - Fixtures and Improvements
Article IX - Insurance and Liability
Article X - Subordination, Attornment and Certificates
Article XI - Remedies of Landlord on Tenant's Default
Article XII - Events Terminating Lease
Article XIII - Miscellaneous
Article XIV - Other Provisions
LIST OF SCHEDULES. The following schedules form an integral part of this
Lease:
Schedule "A" - Legal Description of Lands
Schedule "B" - Leased Premises
Schedule "C" - Rules and Regulations
ARTICLE I - DEFINITIONS
1.0 DEFINITIONS. In this Lease the following defined terms shall have the
meanings set forth below.
"ADDITIONAL RENT" means Operating Costs under Section 5.5, Taxes under
5.3, Electricity under 6.2, and Insurance under Article I and all other
charges, costs and expenses required to be paid by the Tenant under the
terms of this Lease (other than Base Rent) whether payable to the
Landlord or not.
"ADDITIONAL SERVICES" means the services and supervision supplied by
the Landlord to the Leased Premises and Common Area Facilities and
referred to herein or in any other provision hereof as Additional
Services and any other services which from time to time the Landlord
supplies to the Tenant at the Tenant's written request or as the
Landlord deems necessary, acting reasonably, in the event of a default
by the Tenant and which are additional to the janitor and cleaning and
other services typically supplied in a first class office building,
supervision in connection with the making of any repairs or alterations
by the Tenant affecting the Base Building, building systems or
Leasehold Improvements.
"ATTIC STOCK" means spare fan, pump and cooling tower motors, base
Building light fixtures, fuses, etc.
2
"BASE RENT" means the base rent payable by the Tenant in accordance
with Section 2.3.
"BUILDING" means the building municipally known as 0000 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx.
"CAPITAL TAX" is an amount presently or hereafter imposed from time to
time pursuant to Part III of the Corporations Tax Act (Ontario) (the
"Act") upon the Landlord or the owner of the Building and Lands and
payable by the Landlord on account of its interest in the Building and
the Lands or any part thereof, or its interest in or capital employed
in the Building and the Lands, as the case may be.
"COMMENCEMENT DATE" means April 1, 1995.
"COMMON AREA FACILITIES" means all facilities, improvements,
installations, utilities and equipment located in the Building or the
Lands immediately surrounding the Building.
"COMMON AREAS" means those areas, facilities, utilities, improvements,
equipment and installations comprising the Lands and Building and which
are not leased or designated for lease to tenants but are provided to
be used in common by (or by the sublessees, agents, employees,
customers or licensees of) the Landlord, the Tenant, and other tenants
of the Building and other buildings on the Lands, whether or not the
same are open to the general public or a specific tenant of the
Building, and include, but are not limited to, parking areas and all
vestibules for and entrances and exits thereto; driveways, truckways
and related areas; corridors and underground or above ground tunnels or
passageways; stairways, escalators, ramps, and elevators and other
transportation equipment and systems; tenant, common and public
washrooms; telephone, meter, valve, mechanical, mail, storage, service
and janitor rooms; fire prevention, security and communication systems,
any fixtures, chattels, systems, decor, signs, facilities, or
landscaping and planted areas contained therein or maintained or used
in connection therewith.
"COST OF ADDITIONAL SERVICES" shall mean in the case of Additional
Services provided by the Landlord a reasonable charge made therefor by
the Landlord which shall not exceed the cost of obtaining such services
from independent contractors and in the case of Additional Services
provided by independent contractors the Landlord's total cost of
providing Additional Services to the Tenant including the proportionate
cost of all direct labour (including salaries, wages and fringe
benefits) and materials and other direct expenses incurred, the cost of
supervision without duplication or profit and other expenses reasonably
allocated thereto.
"INSURED DAMAGE" means that part of any damage occurring to the Leased
Premises of which the entire cost of repair is actually recovered by
the Landlord under a policy of insurance in respect of fire and other
perils from time to time effected by the Landlord, or for which the
Landlord has self-insured under Section 9.1 herein.
"LAND" means those lands described in Schedule "A" attached
hereto.
"LEASE" means this lease between the Landlord and the Tenant,
and all amendments hereto.
"LEASEHOLD IMPROVEMENTS" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant or by or on behalf
of any other previous occupant in the Leased Premises (including the
Landlord) with the exception of trade
3
fixtures, furniture and equipment, (not of the nature of fixtures),
modular office furniture systems, improvements of a cosmetic nature
such as rugs (but not broadloom), decorations and other improvements
moveable without the use of tools, but Leasehold Improvements include
all office partitions however affixed and includes wall-to-wall and
other carpeting with the exception of such carpeting where laid over
vinyl tile or other finished floor and affixed so as to be readily
removable without damage.
"LEASED PREMISES" means approximately 9,537 square feet of Rentable
Area on the 7th floor of the Building known as suite 701, as outlined
in red on the plans attached as Schedule "B".
"NORMAL BUSINESS HOURS" means the hours of 7:00 a.m. to 7:00
p.m. Monday to Friday, except public holidays.
"OPERATING COSTS" means the total of all expenses, costs, and outlays
incurred in the complete maintenance, repair and operation of the
Building and Common Area Facilities, whether incurred by or on behalf
of the Landlord and calculated without profit (other than the
management fee) or duplication, and subject to Section 14.10, in
accordance with generally accepted accounting principles:
(i) Operating Costs shall include without limiting the
generality of the foregoing (but subject to certain
deductions as hereinafter provided), the cost of
providing complete cleaning and janitorial services, the
cost of building supplies used in the maintenance of the
Building, Attic Stock, maintenance services, exterior
landscaping, snow removal, garbage and waste collection
and disposal, rental of equipment and signs, janitorial
services to the Common Areas of the Building, the cost of
operating elevators, the cost of heating, cooling and
ventilating all space including both rentable and non-
rentable areas, the cost of providing hot and cold water,
electricity (including lighting), and the replacement of
electric light bulb tubes, starters and ballasts,
telephone and other utilities and services to both
rentable and non-rentable areas, the cost of all repairs
including repairs to the Building or services in the
Building or Common Area Facilities including elevators,
the cost of window cleaning, and providing security (if
any), the cost of all insurance for liability or fire or
other casualties referred to in Article 9.1, accounting
costs incurred in connection with maintenance and
operation including computations required for the
imposition of charges to the Tenant and audit charges
required to be incurred for the conclusive determination
of any costs hereunder, reasonable legal fees, the amount
of all salaries (only to the extent that such salaries or
a proportion thereof, relate directly to the Building),
wages and fringe benefits, unemployment and workers
compensation insurance premiums, pension plan
contributions and other similar premiums and
contributions paid or provided to employees directly or
a reasonable proportion thereof engaged in the
maintenance, repair or operation of the Building, amounts
paid to independent contractors for any services in
connection with such maintenance, repair or operation,
the reasonable cost of management fees, and other
indirect expenses to the extent allocable to the
maintenance, repair and operation of the Building and
Common Area Facilities and all other reasonable expense
of every nature incurred in connection with the
maintenance, repair and operation of the Building and
Common Area Facilities; and
(ii) Operating Costs shall exclude debt service, and all management
costs not allocable to the actual maintenance, repair and
operation of the Building (such as that
4
incurred in connection with leasing and rental advertising).
Notwithstanding anything contained herein, Operating Costs shall not
include:
(a) interest and principal payments on outstanding financing
of the Landlord, and any other debt costs of the
Landlord;
(b) payments under any ground lease;
(c) costs or expenses incurred with respect to the acquisition,
development, construction, furnishing and original landscaping
of the Building and any expansion thereof;
(d) depreciation;
(e) save and except as permitted by Section 14.10, costs and
expenses properly chargeable to capital account including,
without limitation, the cost of repairs of a structural
nature;
(f) costs or expenses resulting from any inadequacy in the design
or construction of the Building or with respect to poor
workmanship or materials in connection with such construction;
(g) costs of repairs done by the Landlord and for which the
Landlord has been or is to be reimbursed either as a result of
an insurance claim or otherwise;
(h) costs of alterations or improvements to the Leased Premises or
the premises of other tenants in the Building and
corresponding costs as to premises occupied or to be occupied
by the Landlord, except as they relate to premises occupied by
the Landlord in the performance of its function as landlord
and manager of the Building;
(i) commissions, fees and all other expenses incurred in
connection with marketing or leasing the Building or any part
thereof, including without limitation the cost of work which
the Landlord does in any other leased premises in the Building
for the purpose of obtaining a new tenant of such premises or
for the purposes of obtaining a renewal;
(j) amounts for which the Landlord is reimbursed by tenants or
third parties including, without limitation, insurance
premiums chargeable to tenants other than pursuant to this
definition;
(k) any bad debt loss, rent loss or reserves for bad debts or
rent loss;
(l) any amount paid as a fine or a penalty as a result of a
violation of law (provided such violation of law was not
caused by or contributed to by the Tenant), or the payment of
which constitutes a violation of law, or the reimbursement of
which would constitute a violation of law;
(m) all costs incurred in connection with the rectification of any
work done by the Landlord in the Leased Premises or in the
Building which did not comply with and conform to every
applicable statute, law, by-law, and regulation, provided such
non-compliance is not attributable to the Tenant or those for
whom the Tenant is in law responsible or the Tenant's use and
occupancy of the Leased Premises;
(n) income taxes and other taxes personal to the Landlord;
5
(o) sales tax, goods and services tax, value added tax or any
similar tax;
(p) the cost of any insurance premiums relating to risks or
amounts which are not normally insured against by reasonably
prudent owners of similar buildings;
(q) the amount of insurance premiums to the extent they are
payable in respect of insurance coverage arranged by the
Landlord on behalf of a specific tenant of the Building and to
the extent such coverage is not provided for in this Lease;
(r) the cost of any payment which the Landlord is obligated to
make pursuant to an agreement to indemnify any person;
(s) Capital Tax;
(t) operating costs which are recovered from insurance proceeds or
which would be recoverable assuming compliance by the Landlord
with its insurance obligations under this Lease;
(u) costs covered by warranties or guarantees;
(v) charges for services rendered or materials furnished to or
part of any special arrangement with any specific tenant or
tenants of the Building;
(w) any cost which would otherwise be included in Operating Costs,
but consists of an amount paid to a corporate affiliate,
parent or subsidiary of the Landlord, to the extent such
amount is in excess of the fair market value of the said item
or service where the expense incurred in an arms-length
transaction; and
(x) amounts which are deducted from the calculation of Operating
Costs in other tenant's leases.
"PROPERTY" means the Land and Building.
"PROPORTIONATE SHARE" shall mean the fraction which has as its
numerator the Rentable Area of the Leased Premises and has as its
denominator the total Rentable Area of the Building. The total Rentable
Area of the Leased Premises shall be adjusted from time to time, as may
be reasonably necessary, to give effect to any structural or functional
changes affecting the calculation of total Rentable Areas.
"RENT" means Base Rent and Additional Rent.
"RENTABLE AREA" in this Lease means:
(i) in the case of a single tenancy on a whole floor of the
Building, all areas within the inside finished surface of
the dominant portion of the permanent outer Building
walls and shall be computed by measuring the inside
finished surface of the dominant portion of the permanent
outer Building walls and shall include Service Areas and
any special stairs and/or elevators for the specific sole
use of that floor, but excluding stairs, elevator shafts,
flues, pipe shafts and vertical ducts and the like and
their enclosing walls (the "VERTICAL OPENINGS"), with no
deductions for columns or projections necessary to the
Building plus a gross-up factor for ground floor services
in common with other tenants, including, but not limited
to vestibules, corridors, elevator lobbies, mechanical,
electrical, telephone, mail, garbage and janitor's rooms,
such factor to be based upon a ratio which the ground
floor Service Areas of the Building bears to the gross
floor area, less Vertical Openings of the Building; and
6
(ii) in the case of a floor of the Building to be occupied by
more than one tenant, all areas from the inside finished
surface of the dominant portion of the permanent outer
Building walls to the Tenant's side of corridors and/or
other permanent interior walls and to the centre of
demising partitions which separate the area occupied from
adjoining rentable premises, herein referred to as the
"USABLE AREA", plus a gross-up factor for the Service
Areas on the floor in common with other tenants on the
same floor, including, but not limited to, corridors,
elevator lobbies, mechanical, electrical, telephone and
janitor's rooms exclusively serving the floor, such
factor to be based upon a ratio which the Service Areas
of the floor bear to the sum of the Usable Area of the
floor, plus an additional gross-up factor for ground
floor services in common with other tenants, including,
but not limited to, vestibules, corridors, elevator
lobbies, mechanical, electrical, telephone, mail, garbage
and janitor's rooms, such factor to be based upon a ratio
which the ground floor Service Areas of the Building
bears to the gross floor area, less Vertical Openings of
the Building.
"RULES AND REGULATIONS" means the rules and regulations
attached as Schedule "C".
"SERVICE AREAS" shall mean the area of corridors, elevator, lobbies,
service elevator lobbies, washrooms, air-cooling rooms, fan rooms,
janitor's closets, telephone and electrical closets and other closets
serving the Leased Premises in common with other premises on the same
floor.
"TAXES" means all taxes, rates, duties, levies and assessments
whatsoever, whether municipal, parliamentary or otherwise, levied,
imposed or assessed against the Building, Common Areas or Common Area
Facilities or upon the Landlord in respect thereof, excluding Capital
Tax, Large Corporations Tax and commercial concentration tax, or from
time to time levied, imposed or assessed in the future in lieu thereof,
whether now contemplated or not, and those levied, imposed or assessed
for education, schools and local improvements and including all costs
and expenses (including reasonable legal and other professional fees),
incurred by the Landlord in good faith in contesting, resisting or
appealing any taxes, rates, duties, levies or assessments, but
excluding taxes and license fees in respect of any business carried on
by tenants and occupants of the Building (including the Landlord) to
the extent such taxes are not levied in lieu of taxes, rates, duties,
levies and assessments against the Building or upon the Landlord in
respect thereof, and shall also include any and all taxes which may in
future be levied in lieu of taxes as hereinbefore defined.
"TERM" means the term of the Lease stipulated in paragraph 2.2.
"UTILITIES" means electricity as described in Article 6.2, natural gas
and any other utility required in the operation of the Building.
ARTICLE II - LEASE TERM AND PAYMENTS
2.1 DEMISE. In consideration of the rents, covenants and agreements
hereinafter reserved and contained, the Landlord hereby leases to the
Tenant, for the exclusive use of the Tenant, the Leased Premises for
the Term.
2.2 TERM. The Lease shall have a term of five (5) years commencing on April
1, 1995 and ending March 31, 2000, unless such term shall be sooner
terminated as hereinafter provided.
7
2.3 BASE RENT. Subject to the provisions of section 14.9 hereof the Tenant
shall pay yearly and every year during the within Term the sum of
$120,833.76 of lawful money of Canada in twelve (12) equal monthly
instalments of $10,069.48, in advance, the first of such instalment to
become due and payable on April 1, 1995 (the "BASE RENTAL").
8
The aforesaid annual Base Rent is calculated on the basis of the
Rentable Area of the Leased Premises being 9,537 square feet at a rate
of $12.67 for each square foot of Rentable Area.
The parties hereto acknowledge and agree that $0.67 of the Base Rental
rate noted above has been included in lieu of the Tenant not paying a
Proportionate Share of Capital Tax and Large Corporations Tax as part
of Taxes and not paying a Proportionate Share of depreciation of
systems and equipment as part of Operating Costs. It is further agreed
that upon this Lease becoming extended whether pursuant to Section 14.3
hereof or otherwise, there shall be added to the determined Base Rental
rate for the extension term, a corresponding amount of the then current
amount charged by the Landlord under its leases in the Building for
Capital Tax, Large Corporations Tax and depreciation of systems and
equipment of the Building.
The Landlord represents and warrants that the Rentable Area of the
Leased Premises is 9,537 square feet and the Landlord, at its cost,
covenants and agrees to deliver a certificate in respect thereof,
signed by the Landlord's architect, prior to the Commencement Date.
IF THE TERM COMMENCES on any day other than the first or ends on any
day other than the last day of the month, the Base Rental and
additional rental for the fractions of a month at the commencement and
at the end of the Term shall be adjusted pro rata. All Base Rental
payments shall be payable on the first of each month.
2.4 PREPAID RENT. The Landlord acknowledges receipt of the sum of
$39,031.00, including GST, representing payment on account of the Rents
due herein for the months of April, May and part of June, 1995.
ARTICLE III - LANDLORD AND TENANT COVENANTS
3.1 LANDLORD COVENANTS. The Landlord covenants with the Tenant:
(a) QUIET ENJOYMENT. To provide for quiet enjoyment.
(b) INTERIOR CLIMATE CONTROL. To provide to the Leased Premises
during Normal Business Hours, processed air by means of a
system for heating and cooling, filtering and circulating,
processed in such quantities, and at such temperatures as
shall be reasonable in accordance with good standards of
interior climate control generally pertaining to normal
occupancy of premises for office purposes. The Landlord shall
have no responsibility for inadequacy of the performance of
the said system if the Leased Premises depart from the design
criteria.
(c) ELEVATORS. Subject to the supervision of the Landlord and
except when repairs are being made thereto, to furnish for use
by the Tenant and its employees and invitees in common with
other persons entitled thereto reasonable standards of
passenger elevator service to the Leased Premises. The Tenant
shall be responsible for any damages caused to the elevator as
a result of taking possession or giving up possession of the
Leased Premises and shall pay such costs forthwith upon demand
as Additional Rent.
(d) ENTRANCES LOBBYS, ETC.. To permit the Tenant and its employees
and invitees to have the use in common with others entitled
thereto of the common entrances, lobbies, stairways, elevators
and corridors of the Building giving access to the Leased
Premises (subject to the Rules and Regulations and such other
reasonable limitations as the
9
Landlord may from time to time impose).
(e) WASHROOMS. To permit the Tenant and its employees and
invitees, in common with others entitled thereto to use the
washrooms available to the Leased Premises on each floor of
the Building upon which any part of the Leased Premises is
located.
(f) JANITOR SERVICE. To cause the floors and windows of the Leased
Premises to be swept and cleaned and the desks, tables and
other furniture of the Tenant to be dusted once per business
day, all in keeping with a first-class office building, such
work shall be done at the Landlord's direction without
interference by the Tenant, its servants or employees.
(g) MAINTENANCE OF COMMON AREAS. To cause the elevators, common
entrances, lobbies, stairways, corridors, washrooms and other
parts of the Building from time to time provided for common
use and enjoyment to be swept, cleaned or otherwise maintained
substantially in keeping with a first-class office building.
The Landlord further covenants with the Tenant as follows, subject to
chargeback if permitted by the terms of this Lease:
(i) to observe and perform all of the covenants and
obligations of the Landlord under this Lease;
(ii) to operate, maintain, clean, light, heat, ventilate and
air-condition (during Normal Business Hours), supervise and
regulate the Common Areas and the Common Area Facilities as a
prudent owner of a first-class building would do;
(iii) to provide security services for the Building;
(iv) to repair and maintain the Common Areas and the Common Area
Facilities, the Building and the Lands, including all external
and structural parts of the Building, with reasonable dispatch
and in a good and workmanlike manner, and so as to keep the
Building in good condition and repair as a prudent owner of a
first-class building would do;
(v) to promptly pay and discharge, on or before the times and
in such manner as may be necessary to prevent any default
which would give rise to any remedy which would result in
interference with the interests of the Tenant in the
Leased Premises, all payments (other than payments which
are required by reason of any act or default of the
Tenant or those for whom it is in law responsible)
required to be paid pursuant to any contract,
construction lien, lien, privilege, mortgage, charge or
encumbrance affecting the Leased Premises;
(vi) the Landlord shall, with respect to the Lands and that
portion of the Building which does not include the Leased
Premises: (1) maintain the Building and all electrical,
mechanical and plumbing systems in the Building in good
order and condition consistent with the standards
maintained in buildings in Metropolitan Toronto of
similar location and character as the Building; (2)
maintain in such good order and condition as would a
prudent owner, the roadways, sidewalks, parking areas and
grounds forming part of the Lands; (3) keep the roadways
and parking areas forming part of the Lands reasonably
free of snow and ice; and (4) heat the Building to the
extent necessary for the conduct by tenants of their
businesses;
(vii) the Landlord is the beneficial and legal owner of the Leased
Premises, the Building and the Land and has
10
authority to enter into this Lease; and
(viii) the Landlord shall comply at all times with any law, by-law,
ordinance, order, rule, regulation or requirement of any
federal, provincial or municipal government or any department,
commission, board or office thereof which relate to or affect
the Leased Premises, the Building and/or the Lands.
3.2 TENANT COVENANTS. The Tenant covenants with the Landlord:
(a) RENT. To pay Base Rent and Additional Rent.
(b) PERMITTED USE. To use the Leased Premises only for the purpose
of any lawful business or office undertaking and not to use or
permit to be used the Leased Premises or any part thereof for
any other purpose or business.
(c) WASTE AND NUISANCE. Not to commit or permit any waste, damage
or injury to the Leased Premises including the Leasehold
Improvements and trade fixtures therein, reasonable wear and
tear excluded, any overloading of the floors thereof, any
nuisance therein or any use or manner of use causing
unreasonable annoyance to other tenants and occupants of the
Building.
(d) CONDITION. Not to permit the Leased Premises to become
hazardous or permit unreasonable quantities of waste or refuse
to accumulate therein and at the end of each business day to
leave the Leased Premises in a condition such as to reasonably
facilitate the performance of the Landlord's janitor and
cleaning services referred to herein.
(e) BY-LAWS. To comply at its own expense with all municipal,
federal, provincial, sanitary, fire, building and safety
statutes, laws, by-laws, regulations, ordinances, orders or
regulations pertaining to the operation and use of the Leased
Premises, the condition of the Leasehold Improvements, trade
fixtures, furniture and equipment installed by the Tenant
therein and the making by the Tenant of any repairs, changes
or improvements therein.
(f) FIRE EXIT DOORS. To permit the installation by the Landlord of
all doors in the exterior wall of the Leased Premises
necessary to comply with the requirements of any statute, law,
by-law, regulation, ordinance, order or regulation.
(g) RULES AND REGULATIONS. To observe and to cause its employees,
invitees and others over whom the Tenant can reasonably be
expected to exercise control, the Rules and Regulations and
such further and other reasonable rules and regulations and
amendments and changes therein as may hereafter be made by the
Landlord and notified to the Tenant.
(h) OVERHOLDING. That in the event that the Tenant remains in
possession of the Leased Premises after the termination of
the original Term hereby created, without other special
agreement, it shall be at the monthly base rent equal to
the Base Rent and Additional Rent payable during the last
month of the Term hereof, times two, payable on the first
day of each and every month and subject in other respects
to the terms of this Lease, including those provisions
requiring the payment of Base Rent and Additional Rent in
monthly instalments.
3.3 SIGNS AND DIRECTORY. The Tenant covenants not to permit, paint,
display, inscribe, place or affix any sign, symbol, notice or lettering
of any kind anywhere outside the Leased Premises (whether on the
outside or inside of the Building) or
11
within the Leased Premises so as to be visible from the outside of the
Leased Premises, with the exception only of an identification sign at
or near the entrance to the Leased Premises, a directory listing in the
main lobby of the Building, and corporate identification on the podium
sign fronting on to 16th Avenue, in each case containing only the name
of the Tenant and to be subject to the approval of the Landlord, not to
be unreasonably withheld or delayed, as to size, location, content and
design criteria as established by the Landlord. Such identification
sign, directory listing and podium signage shall be installed by the
Landlord at the expense of the Tenant, which expense shall be the
invoice cost plus 15% for an administration fee. The Landlord's
acceptance of any name for listing upon the directory will not be
deemed, nor will it substitute for the Landlord's consent if required
by this Lease to any sublease, assignment or other occupancy of the
Leased Premises.
3.4 INSPECTION AND ACCESS. The Landlord shall be permitted to enter and to
have its authorized agents, employees and contractors enter the Leased
Premises, for the purpose of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements
to the Leased Premises or the Building, or to have access to utilities
and services and access panels which the Tenant agrees not to obstruct,
or to determine the electric light and power consumption by the Tenant
in the Leased Premises and the Tenant shall provide free and unhampered
access for such purposes and shall not be entitled to compensation for
any inconvenience, nuisance, discomfort or loss caused thereby, but the
Landlord, in exercising its rights hereunder, shall proceed to the
extent reasonably possible so as to minimize interference with the
Tenant's use and enjoyment of the Leased Premises.
3.5 EXHIBITING PREMISES. The Landlord and its authorized agents and
employees shall be permitted entry to the Leased Premises during the
last six (6) months of the term for the purpose of exhibiting them to
prospective tenants or at any time for the purposes of arranging
financing for the Building.
3.6 LANDLORD'S CONTROL. The Tenant acknowledges that the Common Area
Facilities are at all times subject to the exclusive control and
operation of the Landlord, and the Landlord shall have the right to
construct improvements, alterations and additions thereto and to
relocate the various facilities thereon.
3.7 BANK REFERENCES. The Tenant will, at the request of the Landlord,
supply bank references to the Landlord or to the mortgagees, if any, on
the said lands or a prospective mortgagee.
ARTICLE IV - REPAIR AND DAMAGE
4.1 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep the Leased Premises in a good and reasonable state of
repair and consistent with the general standards of
first-class office buildings in Metropolitan Toronto, to
perform all repairs and replacements as a prudent tenant would
do (reasonable wear and tear excepted) to the Leased Premises
including all Leasehold Improvements and all trade fixtures
therein and all glass therein.
(b) that the Landlord may enter and view the state of repair from
time to time and that the Tenant will repair if required to do
so pursuant to the terms of this Lease, according to notice in
writing and that the Tenant will leave the Leased Premises in
a good and reasonable state
12
of repair.
(c) that if any part of the Building other than the Leased
Premises becomes out of repair, damaged or destroyed through
the negligence or misuse of the Tenant or its employees,
invitees or others over whom the Tenant can reasonably be
expected to exercise control, the expense of repairs or
replacements thereto necessitated thereby shall be the
responsibility of the Tenant.
Notwithstanding the foregoing or anything else contained herein, the
Landlord agrees that the Tenant's obligations under this Lease shall
not include reasonable wear and tear to the Leased Premises and
maintenance, repairs or replacements:
(i) necessitated due to damage by fire, lightning, tempest or
other casualties;
(ii) necessitated due to the negligent or wilful acts or omissions
of the Landlord or those for whom it is in law responsible;
(iii) to any structural portion of the Building or the Leased
Premises, including the exterior walls, the roof, roof
structure and roof membrane;
(iv) necessitated due to structural defect or weaknesses or
improper or faulty workmanship, construction, design or
materials;
(v) to the extent same are covered by insurance maintained or
otherwise required to be maintained by the Landlord hereunder;
or
(vi) to the mechanical, electrical and base building systems,
subject to chargeback to the Tenant if permitted under this
Lease,
which shall all be the Landlord's responsibility at the Landlord's sole
expense in addition to the Landlord's other obligations pursuant to
this Lease.
4.2 ABATEMENT AND TERMINATION. It is agreed between the Landlord and the
Tenant that:
(a) In the event of damage to the Leased Premises or to the
Building affecting access or services essential to the
conduct of business in the Leased Premises and if the
damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and
occupancy by the Tenant for the purposes of its business
for any period of time in excess of 10 days, then
(i) unless the damage was caused by the misuse, fault,
negligence of the Tenant or its employees,
invitees or others under its control, from and
after the date of occurrence of the damage and
until the Leased Premises are again reasonably
capable of use and occupancy as aforesaid, Rent
shall xxxxx from time to time in proportion to the
part or parts of the Leased Premises not
reasonably capable of such use and occupancy, and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case
may be (according to the nature of the damage and
their respective obligations to repair as provided
herein, it being understood that the Tenant shall
have the obligation to repair and replace all
Leasehold Improvements and all Tenant's trade
fixtures) shall repair such damage with all
13
reasonable diligence, but to the extent that any
part of the Leased Premises is not reasonably
capable of such use and occupancy by reason of
damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the
Tenant is otherwise entitled hereunder shall not
extend later than the time by which repairs by the
Tenant ought to have been completed with
reasonable diligence; and
(b) if either the entire or substantially all of the Leased
Premises, or premises whether of the Tenant or other
tenants of the Building comprising in the aggregate 50% or
more of the Rentable Area of the Building are substantially
damaged or destroyed by any cause to such an extent in the
reasonable opinion of the Landlord cannot be repaired or
rebuilt within 180 days after the occurrence of the damage
or destruction, the Landlord may at its option, exercisable
by written notice to the Tenant given within 30 days after
the occurrence of such damage or destruction terminate this
Lease in which event neither the Landlord nor the Tenant
shall be bound to repair as provided herein and the Tenant
shall instead deliver up possession of the Leased Premises
to the Landlord with reasonable expedition but in any event
within 60 days after delivery of such notice of termination
and Rent shall be apportioned and paid to the date upon
which possession is so delivered up (but, subject to any
abatement to which the Tenant may be entitled under
paragraph (a) of this clause 4.2 by reason of the Leased
Premises having been rendered in whole or in part not
reasonably capable of use and occupancy), but otherwise the
Landlord or the Tenant as the case may be (according to the
nature of the damage and their respective obligations to
repair described in 4.2 (a) (ii)) shall repair such damage
with reasonable diligence. Notwithstanding the foregoing,
it is understood and agreed that in the event damage or
destruction should occur to the Premises during the last
year of the tenancy to the degree that the Tenant cannot
continue to occupy the Premises, the Tenant shall then have
the mutual right to terminate the Lease by notice given to
the Landlord, unless the Tenant exercises its right to
extend the Lease in which case the Tenant shall reoccupy
the Leased Premises once the damage or destruction has been
made good.
ARTICLE V - TAXES AND OPERATING COSTS
5.1 NET NET LEASE. The Tenant acknowledges and agrees that it is intended
that this Lease is a completely carefree net net lease to the Landlord,
except as expressly herein set out, that the Landlord is not
responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Leased
Premises, or the use and occupancy thereof, or the contents thereof or
the business carried on therein, except as expressly set out herein,
and the Tenant shall pay all charges, impositions, costs and expenses
of every nature and kind relating to the Leased Premises.
5.2 LANDLORD'S TAX OBLIGATIONS. The Landlord covenants with the Tenant,
subject to the provisions herein, to pay all Taxes promptly when due to
the taxing authority or authorities having jurisdiction.
5.3 TENANT'S TAX OBLIGATIONS. The Tenant covenants with the
Landlord:
(i) to pay promptly when due to the taxing authority or
authorities having jurisdiction all taxes, rates, duties,
levies and assessments whatsoever, whether municipal,
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parliamentary or otherwise, levied, imposed or assessed in
respect of any and every business carried on by the Tenant,
subtenants, licensees, or other occupants of the Leased
Premises or in respect of the use or occupancy thereof
(including licence fees); and
(ii) to pay promptly to the Landlord when demanded or otherwise due
hereunder:
(1) all Taxes charged in respect of all Leasehold
Improvements and trade fixtures and all furniture and
equipment made, owned or installed by or on behalf of
the Tenant in the Leased Premises as Additional Rent;
(2) if by reason of the act, election or religion of the
Tenant or any subtenant, licensee or occupant of the
Leased Premises, the Leased Premises or any part of
them shall be assessed for the support of Separate
Schools, the amount by which the Taxes so payable
exceed those which would have been payable if the
Leased Premises had been assessed for the support of
Public Schools; and
(3) the Tenant's Proportionate Share of Taxes as
Additional Rent in the manner stipulated herein.
(iii) notwithstanding any other provisions of this Lease to the
contrary, the Tenant shall pay to the Landlord, at such times
and in such manner as the Landlord may direct, without
duplication, an amount equal to all goods and service taxes,
sales taxes, value-added taxes or any other taxes imposed with
respect to Base Rent, Additional Rent or other amounts payable
by the Tenant to the Landlord under this Lease, howsoever such
taxes are characterized. The amount payable by the Tenant
hereunder shall not be deemed to be Base Rent or Additional
Rent but the Landlord shall have all of the same rights and
remedies for recovery of same as it has for recovery of Base
Rent and Additional Rent hereunder.
Whenever requested by the Landlord the Tenant will deliver to it
receipts for payment of all taxes, rates, duties, levies and
assessments payable by the Tenant hereof and furnish such other
information in connection therewith as the Landlord may reasonably
require.
The Tenant shall have the right to contest at its own expense by
appropriate legal proceedings, the validity of any tax, rate, including
local improvement rates, assessment or other charges in respect of the
Leased Premises or the use and occupancy thereof or any other part of
the Building or the Lands by the Tenant, provided the Tenant forthwith
pays the same under protest to the City of Richmond Hill (the "CITY")
or furnishes to the City sufficient security by bond or otherwise to
ensure the payment of same. Should, as a result of such contestations,
the amount of the Taxes payable hereunder by the Tenant be decreased as
a result of such contestation or appeal, the Landlord hereby agrees to
promptly reimburse the Tenant accordingly to the extent such overpaid
amounts have been paid, when reimbursed to the Landlord.
5.4 METHOD OF PAYMENT OF TAXES. The Tax payments required to be made by the
Tenant to the Landlord under the provisions of 5.3 (ii) herein shall be
estimated by the Landlord, and the Tenant shall pay to the Landlord in
addition to the monthly payments of Base Rent hereinbefore reserved,
one-ninth of the estimated annual tax payments in the months of January
to September, both inclusive, in each calendar year with an adjustment
being made when the property tax xxxx respecting the Building is
received by the Landlord for each year. The Tenant shall within sixty
(60) days of being invoiced pay to
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the Landlord such additional sums as may be required in order that out
of such monthly additional payments, the Landlord may pay the whole
amount of the annual taxes as the instalments thereof fall due; and if
the monthly additional payments so paid by the Tenant to the Landlord
exceed in total the Tenant's Proportionate Share of the annual property
tax xxxx with respect to the Building and Lands of which the Leased
Premises form part, then the excess shall be adjusted by the Landlord
in favour of the Tenant by applying such excess on account of the next
ensuing rental payments due (following the issue of the yearly
statement) and such next ensuing rental payments shall be reduced by
such excess accordingly. The Landlord shall forward to the Tenant
copies of all notices or tax bills relating to the imposition of
property taxes or other charges required hereunder to be paid as to
part or all thereof by the Tenant. In the event that the Landlord is
unable to obtain or determine a separate allocation of taxes payable by
the Tenant under this Lease, the Landlord shall have the right to make
an allocation, but shall be obligated to act reasonably and not
arbitrarily.
5.5 OPERATING COSTS. During the Term of this Lease, the Tenant shall pay to
the Landlord its Proportionate Share of Operating Costs. Prior to the
commencement of the Term of this Lease and the commencement of each
fiscal period selected by the Landlord thereafter which commences
during the Term the Landlord shall estimate the amount of Operating
Costs and the Tenant's Proportionate Share thereof for the ensuing
fiscal period or (if applicable) broken portion thereof, as the case
may be, and notify the Tenant in writing of such estimate. The amount
so estimated shall be payable in equal monthly instalments in advance
over the fiscal period or broken portion thereof in question, each such
instalment being payable on each monthly rental payment date provided
in clause 2.3. The Landlord may from time to time alter the fiscal
period selected, in which case, and in the case where only a broken
portion of a fiscal period is included with the Term, the appropriate
adjustment in monthly payments shall be made. From time to time during
a fiscal period the Landlord may re-estimate the amount of Operating
Costs and the Tenant's Proportionate Share thereof, in which event the
Landlord shall notify the Tenant in writing of such re-estimate and
fixed monthly instalments for the then remaining balance of such fiscal
period or broken portion thereof such that, after giving credit for
instalments paid by the Tenant on the basis of the previous estimate or
estimates, the Tenant's entire Proportionate Share of Operating Costs
will have been paid during such fiscal period or broken period thereof.
As soon as practicable after the expiration of each fiscal period the
Landlord shall make a final determination of Operating Costs and the
Tenant's Proportionate Share thereof for such fiscal period or (if
applicable) broken portion thereof and shall provide a statement to the
Tenant and the parties shall make the appropriate readjustment. Each 12
month period ending December 31st shall be deemed to be an accounting
year for adjusting the said Operating Costs and within 120 days after
the end of each such accounting year, the Landlord shall compute the
said costs for such accounting year and the Proportionate Share of the
Tenant therefor and shall submit to the Tenant a statement to reflect
the Operating Costs specifically permitted under this Lease, and the
said Proportionate Share thereof shall be borne by the Tenant. To the
extent that the Tenant's Proportionate Share of such costs for such
accounting year shall be greater than the total amount actually paid by
the Tenant by said monthly payments in respect of such year the
difference shall be paid by the Tenant to the Landlord within thirty
(30) days after receipt by the Tenant of such statement. Any excess
payments shall be applied by reducing the next ensuing rental
payment(s) by the amount of such excess. The said accounting period may
be modified by the Landlord if reasonably necessary.
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The Landlord shall keep proper and sufficient records of all its costs
relating to Additional Rent and the Tenant shall have the right at any
time during the Term and any extensions thereof and up to 2 years
following expiration of the tenancy, to claim a readjustment in respect
of any item of Additional Rent. For this purpose, the Tenant shall have
the right during such times to review all invoices, receipts and other
records used by the Landlord in the calculation of Additional Rent
relating to the Leased Premises, such review to take place at the
Landlord's offices and upon seven (7) business days' prior written
notice by the Tenant to the Landlord.
5.6 PAYMENT OF ADDITIONAL RENT. Any Additional Rent provided for under this
Lease unless otherwise provided herein, shall become due with each
instalment of monthly Base Rent.
ARTICLE VI- UTILITIES AND ADDITIONAL SERVICES
6.1 WATER AND TELEPHONE. The Landlord shall furnish appropriate openings
for bringing telephone services to the Leased Premises and shall
provide hot and cold water to washrooms in the Leased Premises and to
washrooms available for the Tenant's use in common with others entitled
thereto.
6.2 ELECTRICITY. The Tenant shall pay throughout the Term promptly to the
Landlord (unless paid directly to Hydro authorities pursuant to
separate billing) as Additional Rent when demanded:
(i) The cost of electric light and power supplied to the Leased
Premises monthly based on the electric light and power
requirements of the Tenant on a pro rata basis as determined
from time to time during the Term by the Landlord acting
reasonably; and
(ii) The cost of cleaning, maintaining and servicing in all
respects all electric lighting fixtures in the Leased
Premises including the cost of replacement of electric
light bulbs, tubes, starters and ballasts used to replace
those installed at the commencement of the Term. Such
cleaning, maintaining, servicing and replacement shall be
within the exclusive right of the Landlord. It is
understood and agreed that the costs described in this
sub-section (ii) shall be included as part of Operating
Costs.
6.3 ADDITIONAL SERVICES. The Landlord, if it shall from time to time so
elect, shall have the exclusive right, by way of Additional Services,
to provide or have its designated agents or contractors provide any
janitor or cleaning service to the Leased Premises and Common Area
Facilities required by the Tenant which are additional to those
required to be provided by the Landlord hereunder, including the
Additional Services which the Landlord agrees to provide by
arrangement, and to supervise the moving of furniture or equipment of
the Tenant in and out of the Building where such moving of furniture or
equipment would be disruptive to the normal business of the Building,
and the making of repairs or alterations conducted within the Leased
Premises affecting Base Building, building systems or Leasehold
Improvements. The reasonable cost of Additional Services provided to
the Tenant, whether the Landlord shall be obligated hereunder or shall
elect to provide them as Additional Services, shall be paid to the
Landlord by the Tenant from time to time within thirty (30) days
following receipt of invoices therefor from the Landlord. Costs of
Additional Services charged directly to the Tenant and other tenants
shall be credited in computing Operating Costs.
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ARTICLE VII- ASSIGNING AND SUBLETTING
7.1 ASSIGNMENTS AND SUBLETTINGS. The Tenant covenants with the Landlord
that it will not assign, sublet, licence or part with the possession of
the Leased Premises or any part thereof, or share the occupation of the
Leased Premises, or any part thereof, without the consent of the
Landlord in writing first had and obtained such consent not to be
unreasonably or arbitrarily withheld or delayed. Provided that as a
condition of the granting of its consent, the Landlord may require any
assignee, subtenant, licensee or occupant of the Leased Premises to
execute an agreement whereby he, it or they attorn to and become the
tenants of the Landlord as if he, it or they had executed this Lease,
or, except in the case of an absolute assignment of this Lease, to
execute an acknowledgement that all the sublessee's or undertenant's
estate, right and interest in and to the Leased Premises absolutely
terminates upon the surrender, release, disclaimer or merger of this
Lease notwithstanding the provisions of the Landlord and Tenant Act of
Ontario, R.S.O. 1980, Chapter 232 and amendments thereof with specific
reference to Paragraphs 21 and 39 (2) thereof, or other similar
statute. The Tenant shall furnish to the Landlord copies of any
assignment, sublease, licence or other agreement herein contemplated.
Notwithstanding any other provision in this section, no assignment,
subletting, licensing or parting with possession of the Leased Premises
shall in any way release or be deemed to release the Tenant (or any
guarantor hereof) from their obligations under the terms of this Lease.
Provided further that the proposed assignee, subtenant, licensee or
occupant of the Leased Premises shall be required to provide reasonable
financial information as the Landlord may require. It is agreed that
the Landlord may consider in determining whether to grant consent among
other matters, the following: the personal and business history of the
proposed assignee, occupant, sublessee and its key employees. The
Tenant agrees to pay the reasonable legal fees of the Landlord's
solicitor relating to the preparation of the Landlord's consent, and
determination as to whether to give the consent.
In the event of any sub-letting by the Tenant by virtue of which the
Tenant receives rent in the form of cash, goods, services or other
considerations from the sub-tenant which is higher than the rent
payable hereunder to the Landlord for the premises so sub-let, the
Tenant shall pay any such excess to the Landlord, in addition to all
rent and other costs payable hereunder, for the period of time during
which the said subtenant remains in possession of the premises sub-let
to it.
If the Tenant herein shall receive from any assignee of this lease,
either directly or indirectly, any consideration for the assignment of
this lease, either in the form of cash, goods or services, the Tenant
shall forthwith pay an amount equivalent to such consideration to the
Landlord and same shall be deemed to be further Additional Rent
hereunder.
Notwithstanding the above provisions, within ten (10) business days
after the receipt by the Landlord of such request for consent and of
all information which the Landlord shall have requested hereunder, the
Landlord shall have the right upon written notice of termination
submitted to the Tenant to, if the request is to assign this Lease or
sublet the whole of the Leased Premises, cancel and terminate this
Lease, or to, if the request is to sublet a part of the Leased Premises
only, cancel and terminate this Lease with respect to such part, in
each case as of a termination date to be stipulated in the notice of
termination which shall be ninety (90) days following giving of such
notice. In such event the Tenant shall surrender the whole or part, as
the case may be, of the Leased Premises in accordance with such notice
of termination and Base Rent and Additional Rent shall be apportioned
and paid to the date of surrender and, if only a part of the Leased
18
Premises is surrendered, Base Rent and Additional Rent shall, after the
date of surrender, xxxxx proportionately. If the Landlord does not
elect to terminate as aforesaid and if consent to sublease or assign
will be granted, the Tenant may assign or sublet, as the case may be,
only upon the terms and to the party set out in the offer submitted to
the Landlord as aforesaid. If the Landlord elects to terminate, the
Tenant may withdraw its request for consent by notice to the Landlord
given within five (5) days after the Landlord's notice of election in
which event the Landlord's notice of election shall be null and void
and the Tenant shall not proceed with the assigning or subletting for
which such consent was requested.
ARTICLE VIII- FIXTURES AND IMPROVEMENTS
8.1 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant shall not make,
erect, install or alter any Leasehold Improvements in the Leased
Premises without having requested and obtained the Landlord's prior
written approval which the Landlord shall not unreasonably delay or
withhold. In making, erecting, installing or altering any Leasehold
Improvements the Tenant will not alter or interfere with any
installations which have been made by the Landlord without the prior
written approval of the Landlord and in no event shall it alter or
interfere with window coverings (if any) installed by the Landlord on
exterior windows. The Tenant's request for any approval hereunder shall
be in writing and accompanied by an adequate description of the
contemplated work and, where appropriate, working drawings and
specifications thereof. All work to be performed in the Leased Premises
shall be performed by reputable contractors approved by the Landlord.
The Landlord reserves the right to require the Tenant to utilize the
contractor(s) of the Landlord where Base Building, building systems
and/or warranties may be affected provided the Landlord agrees that
charges by such contractors shall be in keeping with that which an arms
length contractor would charge. The cost of all such work shall be
estimated by the Landlord in advance and such estimate approved by the
Tenant prior to work commencing. All such work shall be performed at
the Tenant's expense and the Tenant shall be responsible for
application and payment of all fees in connection with any permits
required. All such work shall be subject to inspection by and the
reasonable supervision of the Landlord, and shall be performed in
accordance with any reasonable conditions or regulations imposed by the
Landlord and completed in a good and workmanlike manner in accordance
with the description of the work approved by the Landlord. The Landlord
shall be entitled to supervise the work. The Landlord shall be entitled
to charge reasonable fees for examining plans respecting the proposed
work as well as any reasonable consultant's fees where base building
systems and equipment as well as structure may be affected and whereby
the Landlord incurs actual out-of-pocket expenses for the review of
such alterations.
8.2 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In connection with
the making, erection, installation or alteration of Leasehold
Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the
provisions of the Construction Lien Act (Ontario) and other statutes
from time to time applicable thereto and shall promptly pay all
accounts relating thereto. The Tenant will not create or cause to be
created any mortgage, conditional sale agreement or other encumbrance
in respect of its Leasehold Improvements or permit any such mortgage,
conditional sale agreement or other encumbrance to attach to the Leased
Premises or to the Building and Common Area Facilities. If and whenever
any construction or other lien for work, labour, services or materials
supplied to or for the Tenant for the cost of which the Tenant may be
in any
19
way liable or claims therefor shall arise or be filed or any such
mortgage, conditional sales agreement or other encumbrance shall
attach, the Tenant shall within ten (10) days after receipt of notice
thereof procure the discharge thereof, including any certificate of
action registered in respect of any lien, by payment or giving security
or in such other manner as may be required or permitted by law failing
which the Landlord may in addition to all other remedies hereunder
avail itself of its remedy hereunder and may make any payments required
to procure the discharge of any such liens or encumbrances and shall be
entitled to be reimbursed by the Tenant as provided herein and its
right to reimbursement shall not be affected or impaired if the Tenant
shall then or subsequently establish or claim that any lien or
encumbrance so discharged was without merit or excessive or subject to
any abatement, set-off or defense.
8.3 REMOVAL OF FIXTURES AND IMPROVEMENTS. All Leasehold Improvements in or
upon the Leased Premises shall immediately upon termination of this
lease be and become the Landlord's property without compensation
therefor to the Tenant. Except to the extent otherwise expressly agreed
by the Landlord in writing no Leasehold Improvements, trade fixtures,
furniture or equipment shall be removed by the Tenant from the Leased
Premises either during or at the expiration or earlier termination of
the Term except that (1) the Tenant shall at the end of the Term remove
its trade fixtures, and (2) the Tenant shall remove its furniture and
equipment at the end of the Term and may remove its trade fixtures,
furniture and equipment during the Term in the usual and normal course
of its business. The Tenant shall, in the case of every removal either
during or at the end of the Term, make good any damage caused to the
Leased Premises by the installation and removal. Provided that upon the
termination of this Lease, the Tenant, if requested by the Landlord,
shall restore any alterations or installations made by or on behalf of
the Tenant subsequent to the Commencement Date that the Landlord
indicated at the time consent for such alteration or installation was
sought, would require restoration upon expiration of the tenancy, and
if not so requested, any such changes or alterations shall become the
property of the Landlord.
For clarity, it is understood and agreed that the Tenant shall not be
required to restore the Leased Premises or any additional space to base
building condition, whether at the expiration or other termination of
the Term or otherwise.
ARTICLE IX- INSURANCE AND LIABILITY
9.1 LANDLORD'S INSURANCE. The Tenant will during the whole of the Term
hereby granted as part of Operating Costs, pay its Proportionate Share
of all premiums with respect to insurance to be placed by the Landlord
and described in this Section 9.1. The Landlord agrees to maintain
during the Term, insurance coverages as follows:
(i) Property of Every Description (Building and Equipment) against
the perils of "All-Risks", under form providing coverage at
least equivalent to Commercial Building Broad Form I.A.O. Form
No. 700 including "Building By-Laws Endorsements", and to be
insured for the Replacement Value, without allowance for
depreciation and Stated Amount, and with no co-insurance
requirement.
(ii) "Rental Income" for the gross annual rental income on
"All-Risks" basis, as provided under Commercial Building Broad
Form I.A.O. Form 700 including "Building By-Laws
Endorsements", providing coverage at least equivalent to
I.A.O. Profits Form No. 551 with an eighteen (18) month
indemnity period.
20
(iii) Broad Form Boiler and Machinery Policy on a blanket and
replacement basis with limits for each accident in an
amount not less than the replacement cost of the Building
containing the Leased Premises and which shall cover all
boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus owned by the Landlord
and which shall include PCB coverage. It shall also
include "Rental Income" for the full gross annual income
equivalent to I.A.O. Profits Form No. 551 with a eighteen
(18) month indemnity period. This policy should also
provide "Building By-Laws Endorsements".
(iv) "General Liability Insurance" on a Comprehensive Form and on
an "occurrence" basis without deductible with retroactive
coverage against claims for Personal and Bodily Injury and
Death and/or Property Damage occurring upon or about the
Leased Premises and for a limit no less than $5,000,000.00
inclusive for one occurrence.
(v) Such other insurance coverage or coverages as a prudent owner
of a first class office building would obtain for protection
respecting loss of, or damage to the Building, the Lands or
the Leased Premises, or liability arising therefrom.
All such insurance coverages shall be kept and maintained by the
Landlord, and in no event shall the coverage be less than the amount
required by any institution then holding a mortgage on the Building and
Common Area Facilities. The Tenant shall pay to the Landlord, as part
of Operating Costs, its Proportionate Share of the Landlord's
Insurance. The Tenant shall not do or permit to be done any act or
thing whereby insurance coverage, premiums or any of them hereinbefore
contemplated, may be increased or cancelled by the insurer, or the
Leased Premises shall be rendered uninsurable, and if by reason of any
act done or permitted or omission, as the case may be, by the Tenant,
the said insurance coverage, premiums or any of them shall be
increased, then the Tenant, if it shall fail to rectify the event
giving rise to the increased premium after written notice thereof from
the Landlord, shall be liable to pay all of such increase in premium,
with respect to the entire coverages, and this notwithstanding that the
Tenant occupies only a portion of the Building covered by such
insurance coverages, and if the Leased Premises shall be rendered
uninsurable, or if the said insurance coverages, or any of them, shall
be cancelled by reason of any act or omission as the case may be by the
Tenant and shall not be susceptible of being replaced, after the
Landlord's reasonable efforts under the circumstances to do so, then
the Landlord, after giving the Tenant at least fourteen (14) days
written notice within which to replace insurance coverage or coverages
shall, at its absolute discretion, have the right to determine that the
term hereof has expired and in such event the Tenant shall deliver up
possession of the Leased Premises as if the Term of this Lease had
expired.
PROVIDED that no act required to be done by the Tenant nor any payment
required to be made by the Tenant, including reimbursements of
insurance premiums paid by the Landlord, shall relieve the Tenant from
any liability for damage incurred by the Landlord as result of any act
or omission of the Tenant.
If any other tenant of the Building has his own insurance premiums
increased by his insurers as a result of the use or occupation by the
Tenant herein of the within Leased Premises, the Tenant covenants and
agrees with the Landlord after written notice thereof, to pay the
additional cost forthwith upon demand as Additional Rent.
The Landlord's insurance policy shall contain a waiver of subrogation
in favour of the Tenant or those for whom the Tenant is in law
responsible.
21
9.2 AGENTS. The Tenant acknowledges, covenants and agrees that every right,
exemption from liability, defence and immunity of whatsoever nature
applicable to the Landlord or to which the Landlord is entitled
hereunder shall also be available and shall extend to protect every
such agent of the Landlord acting (in the course of or in connection
with his employment or otherwise) and for the purposes of all of the
foregoing provisions of this clause, the Landlord is or shall be deemed
to be acting as agent or trustee on behalf of and for the benefit of
persons who are or might be his servants, employees or agents from time
to time.
9.3 TENANT'S INSURANCE. The Tenant covenants to insure and to keep insured
during the whole of the Term, with an insurance company or companies in
good standing and upon terms and conditions all satisfactory to the
Landlord:
(i) "All-Risks" insurance upon all property owned by the
Tenant or for which it is legally liable or installed or
affixed by or on behalf of the Tenant and which is
located in the Building including, without limitation,
furniture, fittings, installations, alterations,
additions, partitions and fixtures or anything in the
nature of a Leasehold Improvement made or installed by or
on behalf of the Tenant in an amount equal to the full
replacement cost thereof; if there is a dispute as to the
amount which comprises full replacement cost the decision
of the Landlord's Architect shall be conclusive.
(ii) All parties hereto on a Comprehensive Form for bodily
injury and property damage, general liability coverage
arising out of the use, maintenance or repair of the
Leased Premises and/or the business of the Tenant or any
sub-tenant, licensees or occupiers of the Leased
Premises; such insurance shall be for a limit of not less
than $2,000,000.00 inclusive for any one occurrence, or
such higher limits as the Landlord, acting reasonably, or
any mortgagee requires from time to time, and shall
contain a severability of interest clause, and a cross
liability clause.
(iii) Any other form of insurance that the Landlord or any mortgagee
may reasonably require, from time to time in form, amounts and
for insurance risks acceptable to the Landlord and any
mortgagee.
The Tenant covenants and agrees to provide the Landlord with evidence
of insurance as required under this provision. Such evidence shall be
by way of a certified copy of the policy if available in timely fashion
or failing which a certificate of insurance at such time or times as
the Landlord may require. The Tenant agrees to provide same to the
Landlord forthwith after notice has been given by the Landlord to the
Tenant of its request. The Tenant's policy shall contain a waiver of
subrogation in favour of the Landlord and those for whom the Landlord
is in law responsible.
9.4 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that:
(i) the Landlord shall not be liable for any bodily injury or
death of, or loss or damage to any property belonging to the
Tenant or its employees, invitees, or licensees or any other
person in, on or about the Building and Common Area Facilities
howsoever occurring and in no event shall the Landlord be
liable for:
(1) any damage which is caused by steam, water, rain or
snow which may leak into, issue or flow from any part
of the Building or Common Area Facilities or from the
pipes or plumbing works thereof or from any other
place or quarter or for any damage caused by or
attributable to the condition or arrangement
22
of any electric or other wiring or for any damage
caused by anything done or omitted by any other
tenant; and
(2) 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, maintenance,
supervision or any other work in or about the Leased
Premises or the Building or Common Area Facilities;
and
23
(3) loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of
the Tenant; and
(ii) the Landlord shall have no responsibility or liability
for the failure to supply interior climate control or
elevator service when prevented from doing so by strikes,
the necessity of repairs, any order or regulation of any
body have jurisdiction, the failure of the supply of any
utility required for the operation thereof or any other
cause beyond the Landlord's reasonable control, and shall
not be held responsible for any bodily injury, death or
damage to property arising from the use of, or any
happening in or about, any elevator.
9.5 INDEMNITY OF LANDLORD. The Tenant agrees to indemnify and save harmless
the Landlord in respect of all claims for bodily injury or death,
property damage or other loss or damage arising from the conduct of any
work by or any act or omission of the Tenant or any assignee,
subtenant, agent, employee, contractor, invitee or licensee of the
Tenant, and in respect of all costs, expenses and liabilities incurred
by the Landlord in connection with or arising out of all such claims,
including the expenses of any action or proceeding pertaining thereto,
and in respect of any loss, cost, expense or damage suffered or
incurred by the Landlord arising from any breach by the Tenant of any
of its covenants and obligations under this Lease.
ARTICLE X-SUBORDINATION, ATTORNMENT AND CERTIFICATES
10.1 SUBORDINATION AND ATTORNMENT. The Tenant agrees that this Lease and all
the rights of the Tenant hereunder are subject and subordinate to all
mortgages now or hereafter existing (including deeds of trust and all
instruments supplemental thereto) which may now or hereafter affect the
Building or Common Area Facilities and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided such
mortgagee has provided a non-disturbance agreement to the Tenant;
provided that the Tenant whenever requested by any mortgagee (including
any trustee under a deed of trust and mortgage) shall attorn to such
mortgagee as the Tenant upon all the terms of this Lease. Subject to
the foregoing, the Tenant agrees to execute promptly whenever requested
by the Landlord or by such mortgagee such instrument of subordination
or attornment, as the case may be, as may be required of it.
10.2 CERTIFICATES. The Tenant shall promptly whenever requested by the
Landlord from time to time execute and deliver to the Landlord (and if
required by the Landlord, to any mortgagee [including any trustee under
a deed of trust and mortgage] designated by the Landlord) a certificate
in writing as to the then status of this Lease, including as to whether
it is in full force and effect, is modified or unmodified, confirming
the rent payable hereunder and the state of the accounts between the
Landlord and Tenant, the existence or non-existence of defaults, and
any other matters pertaining to this Lease as to which the Landlord
shall request a certificate.
ARTICLE XI-REMEDIES OF LANDLORD ON TENANT'S DEFAULT
11.1 REMEDYING BY LANDLORD. In addition to all rights and remedies of the
Landlord available to it in the event of any default hereunder by the
Tenant either by any other provision of this Lease or by statute or the
general law, the Landlord:
(1) shall have the right at all times after reasonable written
notice of an event of default has been given to
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the Tenant and a reasonable time given to cure such default
provided the Tenant is proceeding diligently, to remedy or
attempt to remedy any default of the Tenant, and in so
doing may make any payments due by the Tenant to third
parties and may enter upon the Leased Premises to do any
work or other things therein, as may be reasonably
necessary, and in such event all expenses of the Landlord
in remedying or attempting to remedy such default shall be
payable by the Tenant to the Landlord forthwith upon demand;
(2) subject to 11.3 below, shall have the same rights and remedies
in the event of any non-payment by the Tenant of any amounts
payable by the Tenant under any provision of this Lease as in
the case of a non-payment of Rent; and
(3) if the Tenant shall fail to pay any Rent or other amount from
time to time payable by it to the Landlord hereunder within 5
days of notice of same becoming due, shall be entitled, to
interest thereon at a rate of 3% per annum in excess of the
minimum lending rate to prime commercial borrowers from time
to time current at The Bank of Nova Scotia in Toronto from the
date upon which the same was due until actual payment thereof.
11.2 REMEDIES CUMULATIVE. The Landlord, subject to 11.3 hereof, may from
time to time resort to any or all of the rights and remedies available
to it in the event of any default hereunder by the Tenant, either by
any provision of this Lease or by statute or the general law, all of
which rights and remedies are not to be interpreted as excluding any
other or additional rights and remedies available to the Landlord by
statute or the general law.
11.3 RIGHT OF RE-ENTRY DEFAULT OR TERMINATION. It is expressly agreed that
if and whenever the Base Rent or Additional Rent hereby reserved,
remains unpaid, or if the Tenant shall breach or fail to observe or
perform any of the other covenants, agreements, provisoes, conditions,
reasonable rules or regulations and other obligations on the part of
the Tenant to be kept, observed or performed hereunder, provided the
Landlord has first delivered notice to the Tenant explaining the breach
and has allowed the Tenant five (5) days to rectify any monetary breach
and ten (10) days, (or such longer period as is reasonable in the
circumstances), to rectify any non-monetary breach, or if this Lease
shall have become terminated pursuant to any provision hereof, then and
in every such case it shall be lawful for the Landlord thereafter to
enter into and upon the Leased Premises or any part thereof and to have
again, repossess and enjoy the same as of its former estate, anything
in this Lease contained to the contrary notwithstanding.
11.4 TERMINATION RE-ENTRY. If and whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease,
the Landlord, in addition to all other rights and remedies, shall have
the right to terminate this Lease forthwith by leaving upon the Leased
Premises notice in writing of such termination.
11.5 PAYMENT ON TERMINATION. Upon the giving by the Landlord of a notice in
writing terminating this Lease, pursuant to 11.4 or 11.3 of this Lease,
this Lease and the Term shall terminate, rent and any other payments
for which the Tenant is liable under this Lease shall be computed,
apportioned and paid in full to the date of such termination, and the
Tenant shall immediately deliver up possession of the Leased Premises
to the Landlord, and the Landlord may re-enter and take possession of
them.
11.6 RENUNCIATION. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the
25
Landlord's right of distress.
26
11.7 RE-LETTING. Whenever the Landlord becomes entitled to re-enter upon the
Leased Premises under 11.3 or 11.4 hereof of this Lease the Landlord in
addition to all other rights it may have shall have the right as agent
of the Tenant to enter the Leased Premises and re-let them and to
receive the rent therefor and as the agent of the Tenant to take
possession of any furniture or other property thereon and to sell the
same at public or private sale without notice and to apply the proceeds
thereof and any rent derived from re-letting the Leased Premises upon
account of the rent due and to become due under this Lease and the
Tenant shall be liable to the Landlord for the deficiency if any.
ARTICLE XII-EVENTS TERMINATING LEASE
12.1 CANCELLATION OF INSURANCE. If any policy of insurance upon the Building
and Common Area Facilities from time to time effected by the Landlord
shall be cancelled or about to be cancelled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or any
assignee, sub-tenant or licensee of the Tenant or anyone permitted by
the Tenant to be upon the Leased Premises and the Tenant after receipt
of notice in writing from the Landlord and a reasonable time allowed,
to reinstate such insurance or avoid cancellation, shall have failed to
take such immediate steps in respect of such use or occupation as shall
enable the Landlord to reinstate or avoid cancellation (as the case may
be) of such policy of insurance, the Landlord may at its option
terminate this Lease by leaving upon the Leased Premises notice in
writing of such termination.
12.2 PROHIBITED OCCUPANCY, BANKRUPTCY, ETC. If, without the written consent
of the Landlord the Leased Premises shall be used by any persons other
than the Tenant, its employees, invitees and customers or its permitted
assigns or sub-tenants or for any purpose other than that for which
they were leased, or occupied by any persons whose occupancy is
prohibited by this Lease, or if the Leased Premises shall be vacated or
abandoned, or remain unoccupied for 7 days or more while capable of
being occupied, or if the Term or any of the goods and chattels of the
Tenant shall at any time be seized in execution or attachment, or if
the Tenant shall make any assignment for the benefit of creditors,
become bankrupt or insolvent or take the benefit of any statute now or
hereafter in force for bankrupt or insolvent debtors or (if a
corporation) shall take any steps or suffer any order to be made for
its winding-up or other termination of its corporate existence, then in
any such case the Landlord may at its option, subject to compliance
with the procedures set forth in Section 11.3, terminate this Lease by
leaving upon the Leased Premises notice in writing of such termination
and thereupon, in addition to the payment by the Tenant of Rent and
other payments for which the Tenant is liable under this Lease, Rent
for the current month and the next ensuing 3 (three) months' Rent shall
immediately become due and be paid by the Tenant.
ARTICLE XIII-MISCELLANEOUS
13.1 REGISTRATION. The Tenant agrees with the Landlord not to register this
Lease, but nevertheless if the Tenant desires to register a notice of
this Lease, the Landlord agrees to execute a notice or acknowledgement,
if required, sufficient for the purpose in such form as the Landlord
and Tenant mutually approve provided in no event shall rental rates of
this Lease be shown.
13.2 NOTICE. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either
delivered to an executive officer of the
27
Landlord or by facsimile transmission or mailed by prepaid
registered mail addressed to the Landlord at 0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx #000, Xxxxx Xxxx (Xxxxxxx), Xxxxxxx, X0X 0X0, and if
to the Tenant, either delivered to the Tenant (or to an officer of
the Tenant if the Tenant is a firm or corporation) or by facsimile
transmission or mailed by prepaid registered mail addressed to the
Tenant at the Leased Premises. Every such notice shall be deemed to
have been given when delivered or, if mailed as aforesaid in Canada,
upon the day when it was mailed. The Landlord may from time to time
by notice in writing to the Tenant designate another address in
Canada as the address to which notices are to be mailed to it.
13.3 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions
expressed or implied relating to this Lease or the Leased Premises save
as expressly set out in this Lease and in any agreement to Lease in
writing between the Landlord and the Tenant pursuant to which this
Lease has been executed. This Lease may not be modified except by an
agreement in writing executed by the Landlord and the Tenant.
13.4 CONSTRUCTION. All of the provisions of this Lease are to be construed
as covenants and agreements. If any provision of this Lease is illegal
or unenforceable it shall be considered separate and severable from the
remaining provisions of this Lease, which shall remain in force and be
binding as though the said provision had never been included. The
headings and marginal sub-headings of clauses and sub-clauses are for
convenience of reference and are not intended to limit, enlarge or
otherwise affect their meanings.
13.5 NON-WAIVER. No condoning, excusing or overlooking by the Landlord of
any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, agreement, proviso or condition
herein contained shall operate as a waiver of the Landlord's rights
hereunder in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of
the Landlord in respect of any such continuing or subsequent default or
breach and no waiver shall be inferred or implied by anything done or
omitted by the Landlord save only express waiver in writing.
13.6 ACCORD AND SATISFACTION. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the Base Rent and Additional Rent from
time to time due shall be deemed to be other than on account of the
earliest stipulated Base Rent and Additional Rent due, nor shall any
endorsement or statement on any cheque or any letter accompanying any
cheque or payment of Base Rent or Additional Rent be deemed an accord
and satisfaction, and the Landlord may accept such cheque or payment
without prejudice to the Landlord's right to recover the balance of
such Base Rent or Additional Rent or pursue any other remedy provided
in this Lease.
13.7 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Province of Ontario.
13.8 TIME OF THE ESSENCE. Time shall be of the essence of this Lease and
every part hereof.
13.9 NO PARTNERSHIP. Nothing contained herein shall be deemed or construed
by the parties hereto, nor any third party, as creating the
relationship of principal and agent, or a partnership, or a joint
venture between the parties hereto, it being understood and agreed that
none of the provisions contained herein nor any acts of the parties
hereto shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
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13.10 FORCE MAJEURE. Except as herein otherwise expressly provided, if and
whenever and to the extent that the Landlord or the Tenant shall be
prevented delayed or restricted in the fulfilment of any obligations
hereunder in respect of the supply or provision of any service or
utility, the making of any repair, the doing of any work or any
other thing by reason of strikes or work stoppages or being unable
to obtain any material, service, utility or labour required to
fulfil such obligation or by reason of any statute, law or
regulation of or inability to obtain any permission from any
governmental authority having lawful jurisdiction preventing,
delaying or restricting such fulfilment, or by reason of other
unavoidable occurrence (save for any financial reason), the time for
fulfilment of such obligation shall be extended during the period in
which such circumstance operates to prevent, delay or restrict the
fulfilment thereof and the other party shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby
occasioned.
13.11 CONTRA PROFERENTEM. The Parties acknowledge and agree that both
parties have participated in the drafting of this Lease, and any
rule of law providing that ambiguities shall be construed against
the drafting party, shall be of no force or effect.
13.12 PLANNING ACT. This Lease is expressly conditional upon compliance
with the land division provisions of the Planning Act R.S.O. 1990
(as it may be amended from time to time), if applicable.
13.13 ACCESS. The Tenant, its employees, invitees and customers and
persons connected with the Tenant (subject and except as in this
Lease provided) shall have the right in common with others entitled
thereto from time to time to use the parking areas, driveways,
walkways, lawns, ramps (if any) and other Common Areas in and about
the Building from time to time. The Tenant shall not unreasonably
block or in any manner hinder the Landlord, other tenants or other
persons claiming through or under them or any of them who may be
authorized by the Landlord to utilize the Common Areas from so
doing. The Landlord may, acting reasonably, from time to time permit
the Tenant to have the exclusive use of portions of the parking area
which forms part of the Common Areas and to permit other tenants or
other persons to have exclusive use of portions thereof.
13.14 TRANSFERS BY THE LANDLORD. The Landlord at any time and from time to
time may sell, transfer, lease, assign or otherwise dispose of the
whole or any part of its interest in the Leased Premises or in the
Building and lands of which the Leased Premises form a part, at any
time and from time to time, may enter into any mortgage of the whole
or any of its interest in the Building and Lands or in the Leased
Premises. If the party acquiring such interest shall have agreed to
assume and so long as it holds such interest, to perform each of the
covenants, obligations and agreements of the Landlord under this
Lease in the same manner and to the same extent as if originally
named as the Landlord in this Lease, the Landlord shall, thereupon
be released from all of its covenants and obligations under this
Lease.
The Landlord may assign its rights under this Lease to a lending
institution as collateral security for a loan. If such assignment is
made and executed by the Landlord and notification thereof is given
to the Tenant by or on behalf of the Landlord this Lease shall not
be cancelled or modified for any reason whatsoever except as
provided for by the terms hereof or by law without the consent in
writing of such lending institution.
13.15 OCCUPANCY PERMIT. - deleted intentionally.
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13.16 LEASED PREMISES. Save and except for any work to be performed by
the Landlord as specifically set out herein, the taking of
possession of the Leased Premises by the Tenant shall be conclusive
evidence that the Tenant accepts the Premises in an "as is"
condition and that the said Leased Premises were in good and
satisfactory condition at the time possession was so taken.
13.17 SUCCESSORS AND ASSIGNS. This Lease and everything herein contained
shall enure to the benefit of and be binding upon the successors and
assigns of the Landlord and the permitted successors and assigns of
the Tenant. References to the Tenant shall be read with such changes
in gender as may be appropriate, depending upon whether the Tenant
is a male or a female person or a firm or corporation, and if the
Tenant is more than one person or entity, the covenants of the
Tenants shall be deemed joint and several. All obligations of the
Tenant or the Landlord under this Lease shall be deemed to be
covenants whether or not expressed as same. No rights of the Tenant
in this Lease shall be deemed to be personal, but shall accrue to
the benefit of the Tenant's successors, permitted subtenants and
assigns.
13.18 AREA DETERMINATION. In the event that any calculation or
determination by the Landlord of the Rentable Area of any premises
(including the Demised Premises) or the Building is disputed or
called into question, it shall be calculated or determined by the
Landlord's architect from time to time appointed for the purpose,
whose certificate shall be conclusive and the cost of such
certificate shall be borne by the Tenant.
13.19 APPROVAL. Unless specifically provided herein to the contrary,
whenever any reference is made to any notice, consent, approval,
lease, designation, requirement, opinion, judgement, permission, or
discretion, on the part of either the Landlord or the Tenant, the
same shall be given, granted, determined, required of exercised
reasonably without undue delay.
ARTICLE XIV-OTHER PROVISIONS
14.1 PARKING. The Tenant acknowledges that the Common Area Facilities are at
all times subject to the exclusive control and operation of the
Landlord, and the Landlord shall have the right to construct
improvements, alterations and additions thereto and to relocate the
various facilities thereon. The Tenant further acknowledges that the
parking facilities in the Common Area Facilities are on a non-exclusive
("First Come", "First Serve Basis") and may be altered or diminished
during the term or renewal thereof and the manner in which access is
permitted may be altered.
The Landlord shall provide to the Tenant for the Term of the lease,
free of charge, one (1) covered reserved stall and the use of thirty
(30) surface parking stalls on a first-come, first-serve basis.
14.2 WINDOW COVERINGS. - deleted intentionally.
14.3 EXTENSION. Provided that the Tenant is not habitually in default under
the terms of this Lease and is not in default at the time of the
exercise of the option herein, then the Landlord shall, at the
expiration of the Term hereof, upon written request of the Tenant,
grant to the Tenant an extension of this Lease for a further period of
five (5) years upon the same terms and conditions as contained herein,
save as to the Base Rental rate, and save as to any further right of
extension. Provided always that the Tenant shall have given to the
Landlord 180 days' notice in writing before the
30
expiration of the Term of its desire to have such extension. The
Base Rental rate for the extension term shall be at the then current
market rate for similar premises in a similar area and as mutually
agreed between the Landlord and the Tenant. In the event that the
Landlord and the Tenant are unable to agree upon the Base Rental
rate for the extension term by 120 days prior to the maturity date,
the matter shall be submitted to arbitration by notice given by
either party to the other. Upon such notice being given, the dispute
shall be determined by the award of 3 arbitrators, or by a majority
of them, one to be named by the Landlord and one by the Tenant
within 30 days of the giving of such notice, and the 3rd to be
selected by these 2 arbitrators within 7 days after both have been
nominated. If either the Landlord or the Tenant shall neglect or
refuse to name its arbitrator in the time specified or to proceed
with the arbitration, the arbitrator named by the other party shall
proceed with the arbitration, and the award of such arbitrator shall
be final and binding upon the Landlord and the Tenant. The
Arbitrators shall have all the power given by the Arbitrations Act
of Ontario and may at any time proceed in such manner as they see
fit on such notice as they deem reasonable in the absence of either
party, if such party fails to attend. Each party shall pay its own
costs and shall share equally the costs of arbitration. The award
and determination of the arbitrators shall be final and binding upon
both parties hereto and each party agrees not to appeal any such
award or determination.
If the award of the arbitrators is not given before the commencement
date of the extension term, then the Tenant shall commence paying rent
at the market rate as determined by the Landlord together with
Additional Rent, which shall be adjusted forthwith after the award of
the arbitrators has become final and binding, to be calculated from the
commencement date of the extension term.
Interest at the rate set out herein shall be calculated monthly on the
difference between the Base Rent paid by the Tenant and the actual
amount awarded by the arbitrators and shall be paid forthwith upon
demand when the arbitrators' decision has been made.
14.4 TAXES, OPERATING COSTS AND HYDRO. The Landlord represents and warrants
that the Taxes, Operating Costs and Hydro applicable to the Leased
Premises is currently estimated to be $8.80 per Rentable square foot
per annum for 1995. The Tenant acknowledges that this is an estimate
only and is subject to adjustment when actual costs are known.
14.5 LEASEHOLD IMPROVEMENTS. As soon as possible and in any event, no later
than April 21, 1995, at its sole cost, but subject to force majeure and
delays attributable to the Tenant, the Landlord agrees to turnkey (that
is to complete the construction of improvements in the Leased Premises
so that the Tenant can commence business operations immediately), the
Leased Premises to a standard consistent with existing leasehold
improvements in the Leased Premises, and in accordance with the layout
attached hereto as Schedule "B".
The Landlord further agrees to utilize in the construction of the
Leased Premises existing materials and improvements (ie. doors and
frames, sidelights, glass partitions, glass entry doors, hardware,
cabinetry etc.) from adjoining vacant space on the 7th and 6th floor of
the Building at no cost to the Tenant, such materials and improvements
to be approved by the Tenant and agreed to by the Landlord.
14.6 RIGHT OF FIRST REFUSAL. Subject to prior rights of tenants in the
Building as of the Commencement Date, the Tenant will have the right of
first refusal, from time to time, to lease any part or all of any
office space on the 7th floor of the Building which becomes available
for lease. The rent and
31
terms shall be equal to a bona fide offer received by the Landlord.
The Tenant shall have five (5) business days following written
notice by the Landlord containing all relevant information
pertaining to such bona fide offer received in which to confirm to
the Landlord that it wishes to exercise its right of first refusal
to lease such space on the same terms and conditions as the bona
fide offer, failing which the Landlord shall be free to lease such
space to the bona fide offeror. This right becomes effective on the
Commencement Date of this Lease and thereafter will remain in effect
provided the Tenant is not in default under this Lease at the time
of exercising this right.
14.7 EXISTING FIXTURES. It is agreed and understood that all existing
fixtures as of the Commencement Date, including but not limited to
light fixtures, venetian blinds, and built-in cabinetry shall be
available to the Tenant at no additional cost.
14.8 CO-TENANCY. This Agreement is not personally binding upon and resort
shall not be had nor shall recourse or satisfaction be sought from the
private property of any of the unit holders of Investors Real Property
Fund (the "FUND"), trustees, officers, directors, employees or agents
of the trustee or manager of the Fund, it being intended and agreed
that only the property of the Fund shall be bound by this Agreement.
Only the co-tenancy interests of Menkes and Investors Group shall be
bound hereby and the obligations hereunder are not binding upon either
of Menkes or Investors Group in any other respect nor shall resort be
had to any other property of any of Menkes or Investors Group. The
rights and obligations of each of Menkes and Investors Group hereunder
shall, in every case, be several and proportionate and not either joint
or joint and several.
14.9 BASE RENT FREE PERIOD. The Tenant shall not be obligated to pay Base
Rent during twenty-two (22) months of the within Term, however, the
Tenant shall be responsible for the payment of all Additional Rent
during the Base Rent free period. The twenty-two (22) month period
shall occur as:
- the last eight (8) months of each of years 1 & 2 of the
Term; and
- the last six (6) months of year 3 of the Term.
Notwithstanding the foregoing, the parties agree that the $0.67 that
has been included in the Base Rent in lieu of the Tenant not paying
Capital and Large Corporations Tax and not paying for depreciation of
systems and equipment, shall be due and owing during the Base Rent Free
Period.
14.10 CAPITAL REPAIRS AND REPLACEMENTS. Notwithstanding anything contained
in this Lease to the contrary:
(a) it is understood and agreed that the Tenant shall not be
responsible for (and the Landlord shall not be permitted to
chargeback to the Tenant) replacements to the Building that
are of a capital nature (as such term is determined under
generally accepted accounting principles); and
(b) in the event of repairs to the Building that are of a capital
nature, the Tenant shall be responsible for its Proportionate
Share of the costs thereof provided that any repair costs that
exceed $10,000.00 in any given year shall be charged to
Operating Costs on an amortization- over-useful-life basis.
Provided however, should a capital repair or replacement be
necessitated by reason of the negligent act or omission of the
Tenant or those for whom the Tenant is in law responsible, the
entire cost of such repair or replacement shall be borne by the
Tenant payable to the Landlord
32
forthwith as Additional Rent.
14.11 COMMISSIONS. The Landlord shall be responsible for any and all real
estate commissions and brokerage fees, if any, payable in connection
with this Lease.
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease.
MENKES OFFICE PARKS LTD.
Per:_______________________________
(Landlord)
INVESTORS GROUP TRUST CO. LTD.
as trustee for
INVESTORS REAL PROPERTY FUND
Per:________________________________
(Landlord)
Per:________________________________
(Landlord)
XXXXXXXX MINWAX (CANADA) LTD.
Per:________________________________
(Tenant)
SCHEDULE "C"
RULES AND REGULATIONS
The Rules and Regulations may differentiate between different types of
businesses in the Building but the Rules and Regulations will be adopted and
promulgated by the Landlord acting reasonably and in such manner as would a
prudent Landlord of a reasonably similar office building. The Tenant's failure
to keep and observe the Rules and Regulations now or from time to time in force
constitutes a default under this Lease in such manner as if the same were
contained herein as covenants. The Landlord reserves the right from time to time
to amend or supplement the Rules and Regulations applicable to the Leased
Premises or the Building as in the Landlord's absolute and unfettered discretion
are from time to time needed for the safety, care, cleanliness and more
efficient operation of the Building and for the preservation of good order
therein. Notice of the Rules and Regulations and amendments and supplements, if
any, shall be given to the Tenant and the Tenant shall thereupon comply with and
observe all such Rules and Regulations provided that no Rules and Regulations
shall contradict any terms, covenants and conditions of this Lease. The Rules
and Regulations as at the Commencement Date are as follows:
1. The Tenant shall not place any debris, garbage, trash or refuse or
permit same to be placed or left in or upon any part of the Building
outside of the Leased Premises and the Tenant shall not allow any undue
accumulation of any debris, garbage, trash or refuse in or outside of
the Leased Premises.
2. The Landlord shall permit the Tenant and the Tenant's
employees and all Persons lawfully requiring communication
with them to have the use during such hours as the Landlord
deems reasonable in common with others entitled thereto of the
main entrance and stairways, corridors, elevators or other
mechanical means of access leading to the Leased Premises. At
times other than during such hours as the Landlord deems
reasonable the Tenant and the employees of the Tenant shall
have access to the Building and to the Leased Premises only in
accordance with the Rules and Regulations and shall be
required to satisfactorily identify themselves and to register
in any book which may at the Landlord's option be kept by the
Landlord for such purpose. If identification is not
satisfactory, the Landlord is entitled to prevent the Tenant
or the Tenant's employees or other Persons lawfully requiring
communication with the Tenant from having access to the
Building. In addition, the Landlord is not required to open
the door to the Leased Premises for the purpose of permitting
entry therein to any Person not having a key to the Leased
Premises.
3. The Landlord shall permit the Tenant and the employees of the
Tenant in common with others entitled thereto, to use the
washrooms on the floor of the Building on which the Leased
Premises are situated or, in lieu thereof, those washrooms
designated by the Landlord, save and except when the general
water supply may be turned off from the public main or at such
other times when repair and maintenance undertaken by the
Landlord shall necessitate the non-use of the facilities.
4. The Tenant shall permit window cleaners to clean the windows of the
Leased Premises during such hours as the Landlord deems reasonable.
5. The sidewalks, entrances, passages, elevators and staircases
shall not be obstructed or used by the Tenant, its agents,
servants, contractors, invitees or employees for any purpose
other than ingress to and egress from the offices. The
Landlord reserves entire control of all parts of the Building
employed for the common benefit of the tenants and without
restricting the generality of the foregoing, the sidewalks,
entrances, corridors and passages not within the Leased
2
Premises, washrooms, lavatories, air-conditioning closets, fan
rooms, janitor's closets, electrical closets and other closets, stairs,
elevator shafts, flues, stacks, pipe shafts and ducts and shall have
the right to place such signs and appliances therein, as it deems
advisable, provided that ingress to and egress from the Leased Premises
is not unduly impaired thereby.
6. The Tenant, its agents, servants, contractors, invitees or
employees, shall not bring in or take out, position, construct,
install or move any safe, business machinery or other heavy
machinery or equipment or anything liable to injure or destroy any
part of the Building without first obtaining the consent in writing
of the Landlord. In giving such consent, the Landlord shall have
the right in its absolute and unfettered discretion, to prescribe
the weight permitted and the position thereof, and the use and
design of planks, skids or platforms, to distribute the weight
thereof. All damage done to the Building by moving or using any such
heavy equipment or other office equipment or furniture shall be
repaired at the expense of the Tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only by
prior arrangement with the Landlord. Safes and other heavy office
equipment and machinery shall be moved through the halls and
corridors only upon steel bearing plates. No freight or bulky
matter of any description will be received into the Building or
carried in the elevators except during hours approved by the
Landlord.
7. The Tenant shall not place or cause to be placed any additional
locks upon any doors of the Leased Premises without the approval of
the Landlord and subject to any conditions imposed by the Landlord.
Two keys shall be supplied to the Landlord for each entrance door to
the Leased Premises and all locks shall be standard to permit access
to the Landlord's master key. If additional keys are requested,
they must be paid for by the Tenant. No one, other than the
Landlord's staff will have keys to the outside entrance doors of the
Building.
8. The water closets and other water apparatus shall not be used for
any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown
therein. Any damage resulting from misuse shall be borne by the
Tenant by whom or by whose agents, servants, or employees the same
is caused. The Tenant shall not (a) let the water run unless it is
in actual use, (b) deface or xxxx any part of the Building, (c)
drive nails, spikes, hooks or screws into the walls or woodwork of
the Building, or (d) bore, drill or cut into the walls or woodwork
of the Building in any manner or for any reason.
9. No one shall use the Leased Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or
articles other than those required for business purposes.
10. The Tenant shall not permit any cooking of any foods or liquids in
the Leased Premises without the written consent of the Landlord. The
Tenant shall be permitted the use of a microwave oven, a coffee
maker and a toaster.
11. Canvassing, soliciting and peddling in or about the Building and in the
parking facilities of the Building are prohibited.
12. It shall be the duty of the Tenant to assist and co-operate with the
Landlord in preventing injury to the Leased Premises.
13. No flammable oils or other flammable, dangerous or explosive material
save for samples of the Tenant's products and those approved in writing
by the Landlord's insurers shall be kept or permitted to be kept in the
Leased Premises. The Tenant
3
shall be solely responsible for ensuring full compliance with all
statutory regulations with respect to the keeping or storing of the
Tenant's products on the Leased Premises.
14. No bicycles or other vehicles shall be brought within the building
without the consent of the Landlord.
15. No animals or birds shall be brought into the Building without the
consent of the Landlord.
16. If the Tenant desires telegraphic or telephonic connections, the
Landlord will direct the electricians as to where and how the wires are
to be introduced. This restriction shall not extend to the installation
of the Tenant's phones within the Leased Premises. No gas pipe or
electric wire will be permitted which has not been ordered or
authorized by the Landlord.
17. The Tenant shall not cover or obstruct any of the skylights and windows
that reflect or admit light into any part of the Building except for
the proper use of approved window coverings.
18. Any hand trucks, carryalls, or similar appliances used in the Building
with the consent of the Landlord, shall be equipped with rubber tires,
slide guards and such other safeguards as the Landlord requires.
19. The Tenant shall not place or maintain any supplies, merchandise or
other articles in any vestibule or entry of the Leased Premises, on the
footwalks adjacent thereto or elsewhere on the exterior of the Leased
Premises or the Building.
20. The Tenant shall not commit or suffer or permit to be committed any
waste upon, or damage to, or disfiguration of the Leased Premises or
any nuisance or other act or thing which disturbs the quiet enjoyment
of any other tenant in the Building or which unreasonably disturbs or
interferes with or annoys any Person, nor perform any acts or carry on
any practices which may damage the building.
21. The Tenant shall not refer to the Building by any name other than that
designated from time to time by the Landlord, nor use such name for any
purpose other than that of the business address of the Tenant, provided
that the Tenant may use the municipal number of the Building assigned
to it by the Landlord instead of the name of the Building.
22. The Tenant shall not install or allow on the Leased Premises any
transmitting device, nor erect any aerial on the roof of the
Building or on any exterior walls of the Leased Premises. Any such
installations shall be subject to removal by the Landlord without
notice at any time and such removal shall be done and all damage as
a result thereof shall be made good, in each case, at the cost of
the Tenant, payable as Additional Rent forthwith on demand.
23. The Tenant shall not use any travelling or flashing lights or signs
or any loudspeakers, television, phonographs, radio or other
audio-visual or mechanical devices in a manner so that they can be
heard or seen outside of the Leased Premises. If the Tenant uses
any such equipment without receiving the prior written consent of
the Landlord, the Landlord shall be entitled to remove such
equipment without notice at any time and such removal shall be done
and all damage as a result thereof shall be made good, in each case,
at the cost of the Tenant, payable as Additional Rent forthwith on
demand.
4
24. The Landlord shall have the right to restrict access to the elevators
for move-in and move-out purposes. The Tenant shall consult prior to
taking or giving up occupation of the Leased Premises in order to
obtain an elevator schedule from the Landlord.
25. If the Tenant requires the supply of water, electricity, heating,
air conditioning or any other utility or service after the normal
hours during which the Landlord supplies same or on a weekend or
holiday, the Tenant shall purchase its requirements for those
utilities or services from the Landlord and the Tenant shall pay to
the Landlord as Additional Rent forthwith upon demand the cost of
same at the rates current from time to time set by the Landlord.
The Tenant acknowledges that reasonable prior verbal notice must be
given to the Landlord in the event that the Tenant requires the
supply of utilities after the hours the Landlord normally supplies
same.
SUBLEASE AGREEMENT
This Sublease, made as of the 31st day of August, 1997 by and between
Xxxxxxxx Minwax (Canada) Ltd., having an address c/o The Xxxxxxx-Xxxxxxxx
Company, Attn: Corporate Real Estate Department, 000 Xxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxx, Xxxx 00000-0000, herein called "Sublessor", and Changepoint Corp.,
an Ontario corporation, having an address of 0000 00xx Xxxxxx, Xxxxx #000,
Xxxxxxxx Xxxx, Xxxxxx, herein called "Sublessee",
WITNESSETH:
That Tenant does hereby rent and sublease unto Sublessee, and Sublessee
hereby subleases from Tenant, those certain Premises which are depicted on
Exhibit "A" which is attached hereto and made a part hereof (hereinafter
referred to as the "Premises"), consisting of approximately 9,537 rentable
square feet of space located in that certain Building located at 0000 00xx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx (hereinafter referred to as the "Building"),
and known as Suite #701 in said Building, which Premises were leased to
Sublessor, under the terms of that certain Lease entered into by and between
Menkes Office Parks Ltd. and Investors Group Trust Co. Ltd. as Trustee for
Investors Real Property Fund as Landlord (herein referred to as "Prime
Lessor") and Sublessor, dated the 4th day of April, 1995 (said Lease being
herein referred to as the "Prime Lease" and attached hereto as Exhibit "I").
To Have And To Hold the Premises with the appurtenances thereunto
belonging, (including all rights which Sublessor may have under said Prime
Lease to use any common areas) unto Sublessee, for a term commencing October
1, 1997 and ending on February 28, 2000 (unless sooner terminated as
hereinafter provided) subject, however, to all covenants, agreements,
restrictions and conditions contained in said Prime Lease, the terms and
conditions of which the Sublessee hereunder agrees to carry out insofar as
they pertain to said Premises, except as may be inconsistent with the terms
which are hereinafter provided for in this Sublease. As of February 1, 2000,
if Sublessee is not then in default and can provide documentation of a lease
executed between itself and the Prime Lessor for its continued tenancy of the
Premises, from and after March 31, 2000, Sublessee may continue its occupancy
of the Premises on the same terms and conditions of this Sublease through and
including March 31, 2000.
This Sublease us subject and subordinate to the Prime Lease. Except as
may be inconsistent with the terms hereof, all covenants and obligations
required of Sublessor under said Prime Lease shall be applicable to this
Sublease with the same force and effect as if Sublessor were the Lessor under
the Prime Lease and Sublessee were the Lessee thereunder; and in case of any
breach hereby by Sublessee, Sublessor shall have all the rights against
Sublessee as would be available to Lessor against Lessee under the Prime
Lease if such breach were by Lessee thereunder.
The Premises shall be used and occupied by Sublessee for the following
purpose only, and for no other purposes without the written consent of
Sublessor and Prime Lessor, which consent may be arbitrarily withheld: for
the purpose of any lawful business or undertaking. Sublessee will not permit
the Premises to be used for any unlawful purpose. Sublessee shall use the
Premises in a careful, safe and proper manner, and shall comply with all
laws, ordinances and regulations of the governing authorities having
jurisdiction over the Premises. The Premises are hereby subleased to and
accepted by Sublessee subject to matters of record; zoning ordinances;
building and other codes and law; utility installations, if any, and rights,
if any, of others connected therewith; and any matters which would be
disclosed by an accurate survey and personal inspection of the Premises.
Sublessor makes no warranties or representations to Sublessee that the
Premises can or may be used or occupied for the above-stated purpose, and
Sublessor is hereby expressly released and discharged from any and all
responsibility in that connection, should zoning ordinances, building and use
restrictions or anything else prohibit Sublessee's purpose.
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Sublessee covenants and agrees, at its sole expense, to observe all
regulations and requirements of underwriters concerning the use and condition
of the Premises tending to reduce fire hazards and insurance rates and not
permit nor allow any rubbish, waste material or products to accumulate on the
Premises. Should Sublessee maintain any conditions upon the Premises which
would increase the normal insurance rate of Sublessor or Prime Lessor, then
Sublessor may require Sublessee to reimburse Sublessor or Prime Lessor for
any additional insurance costs it may incur as a result of Sublessee
maintaining such condition.
It Is Mutually Covenanted And Agreed as follows:
PARAGRAPH 1
RENT
During said term, Sublessee shall pay to Sublessor, without notice,
demand or offset, as base rent for the Premises, the sum of Seven Thousand
Six Hundred Eighty-Five and 23/100 Dollars ($7,685.23) per month plus any GST
and/or capital taxes thereon assessed by the Province of Ontario or other
governmental entity. The first month's rent in the amount of Seven Thousand
Six Hundred Eighty-Five and 23/100 Dollars ($7,685.23) and a security deposit
in the amount of Seven Thousand Six Hundred Eighty-Five and 23/100 Dollars
($7,685.23) are paid herewith. Future monthly rent payments plus any GST
thereon shall be made on or before the first business day of every
consecutive calendar month throughout the term, payable to The
Xxxxxxx-Xxxxxxxx Company, Attn: Xxxx Xxxxxx, 000 Xxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxx, Xxxx 00000-0000, or Sublessee shall mail said rent to such other
address as Sublessor may, from time to time, designate by written notice to
Sublessee. If the Sublease term shall commence on a day other than the first
day of a calendar month or shall end on a day other than the last day of a
calendar month, the rental for such fractional month shall be such proportion
of the monthly rental as the number of days of such fractional month bears to
the total number of days in the calendar month. Rental payments received
after the fifth (5th) day of the month shall bear interest thereon at a rate
of 3% per annum in excess of the minimum lending rate to prime commercial
borrowers from time to time current at the Bank of Nova Scotia in Toronto
from the date upon which the same was due until actual payment thereof.
PARAGRAPH 2
NOTICES
Any notice or consent required to be given by or on behalf of either
party to the other shall be in writing and given by mailing such notice or
consent by registered or certified mail; return receipt requested, addressed
to the other party as follows:
(i) If to Sublessee: Changepoint Corp.
0000 00xx Xxxxxx, Xxxxx #000
Xxxxxxxx Xxxx, Xxxxxx
Attention: Corporate Financial Officer
(ii) If to Xxxxxxx-Xxxxxxxx: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxx 00000-0000
Attn: Corporate Real Estate Department
or at such other address as may be specified from time to time in writing by
either party. Any notice or consent given hereunder by Sublessor or Sublessee
shall be deemed effective on the date such notice or
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consent is deposited in a post office of the United States Postal Service and
on the date five (5) days after delivery of any notice or consent from
Sublessee to Sublessor.
PARAGRAPH 3
CONDITION OF PREMISES AND REPAIRS
Sublessee acknowledges that it has examined the Premises prior to the
making of this Sublease, and knows the condition thereof, and that no
representations as to the condition or state of repair thereof have been made
by Sublessor or its agents which are not herein expressed, and Sublessee
hereby accepts the Premises in their present condition. Sublessor does not
warrant the condition of the Premises in any respect, and shall not be
responsible for any injury that may happen to Sublessee or any property
brought, existing or permitted on the premises, nor shall Sublessor be
responsible for any injuries to third parties which occur on said Premises
during the continuance of this Sublease.
Sublessee shall use the Premises in a careful and proper manner and at
its own cost and expense shall repair and/or replace any damage or injury
done to the premises or any part thereof, caused by Sublessee or Sublessee's
agent, employees, invitees or visitors and any repairs to be performed by
Sublessor under the terms of the Prime Lease; provided, however, it is
further agreed that if Sublessee fails to make such repairs or replacements
promptly, then, and in that event Prime Lessor or, Sublessor may, at their
option, make such repairs and/or replacements, and Sublessee agrees, upon
demand by Sublessor, to forthwith reimburse Sublessor or Prime Lessor for the
cost of such repairs and/or replacements.
Sublessee hereby agrees to indemnify and hold Prime Lessor and Sublessor
harmless from and against all costs and expenses relative to damage to the
Premises, Building or appurtenances caused by Sublessee, its agents,
employees, customers, invitees or visitors.
Sublessee further agrees, that at the expiration or sooner termination
of this Sublease, Sublessee will surrender possession of the Premises
(including, but not limited to, all equipment and fixtures forming a part
thereof), in good condition and repair, reasonable use thereof, only,
excepted. Sublessee's obligations under this Paragraph 3 shall survive the
expiration or sooner termination of this Sublease.
Sublessor shall have the right, but no obligation of any nature or kind,
to make or erect any improvements on the Premises, nor any obligation to
Sublessee of any nature or kind to make any repairs and/or replacements to
said Premises. Sublessor agrees to cooperate with Sublessee in obtaining the
Prime Lessor's compliance with its repair obligations under the term of the
Prime Lease.
Sublessor covenants and agrees to leave all patch panels in the computer
room together with all existing wiring and cabling for computer and telephone
connections between the computer and the telephone rooms and the drop points
for office and workstations. Sublessee accepts such items in "as is"
condition, with no warranty of said condition provided by Sublessor.
PARAGRAPH 4
ASSIGNMENT AND SUBLETTING
Sublessee shall not sublet the Premises or assign this Sublease or any
part thereof without first obtaining the prior written consent of the
Sublessor or the Prime Lessor, said approval not to be unreasonably withheld
or delayed by Sublessor. Sublessor will make a reasonable attempt to obtain
Prime Lessor's consent, but shall in no event be liable for inability to do
so. Notwithstanding anything contained herein to the contrary, (i) Sublessee
agrees to pay the reasonable legal fees of both the Prime Lessor and
Sublessor relating to obtaining Prime Lessor's and Sublessor's consent, the
determination as to whether to give the consent; and the review of any
documents and/or financial statements without first obtaining the prior
written consent of both Sublessor and the Prime Lessor, (ii) Sublessor will
use reasonable efforts to obtain Prime
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Lessor's consent, but shall in no event be liable for failure to obtain same.
Any profit Sublessee may receive from any future assignment or Sublease shall
be paid to Sublessor.
PARAGRAPH 5
QUIET ENJOYMENT
Except as otherwise provided for herein, if Sublessee performs the
requirements hereof on its part to be performed, it shall have the quiet and
peaceable possession of the premises during the term of this Sublease. The
Sublessor shall pay the rent reserved under the Prime Lease to Prime Lessor
and to duly perform and observe all of the monetary obligations of Sublessor
as Tenant under the Prime Lease. The Sublessor shall use reasonable effort to
enforce for the benefit of the Sublessee the obligations of the Prime Lessor
under the Prime Lease, with the intent that the benefit of such covenants
shall extend to the Premises and be enjoyed by the Sublessee, but Sublessor
shall in no event be liable to Sublessee for any breach by Prime Lessor of
its obligations under said Prime Lease.
PARAGRAPH 6
WAIVER OF CLAIMS AND SUBROGATION
Notwithstanding anything to the contrary contained in this Sublease,
Sublessee waives all claims which arise or may arise in its favor against the
Prime Lessor or Sublessor during the term of this Sublease for any and all
loss of, or damage to, any of its property located within or upon, or
constituting a part of, the Premises, which loss or damage is caused by
perils normally insured against by standard "all-risk" coverage insurance
policies, regardless of the cause of such loss or damage, including any such
loss or damage resulting from the negligence of Prime Lessor Sublessor, its
agents, servants or employees. Inasmuch as such waiver will preclude the
assignment of any aforesaid claim by way of subrogation or otherwise to an
insurance company, Sublessee hereby agrees immediately to give to each
insurance company which has issued to it policies of "all-risk" coverage
insurance, written notice of the terms of such waiver, and to cause such
insurance policies to be properly endorsed, if necessary, to prevent the
invalidation of such insurance coverages by reason of such waivers.
PARAGRAPH 7
LIABILITY INSURANCE
The Sublessee covenants to insure and to keep insured during the whole
of the term, with an insurance company or companies in good standing and upon
terms and conditions all satisfactory to the Sublessor and Prime Lessor:
(i) "All-Risks'' insurance upon all property owned by the Sublessee or
for which it is legally liable or installed or affixed by or on
behalf of the Sublessee and which is located in the Premises,
including, without limitation, furniture, fittings, installations,
alterations, additions, partitions and fixtures or anything in the
nature of a leasehold improvement made or installed by or on
behalf of the Sublessee in an amount equal to the full replacement
cost thereof; if there is a dispute as to the amount which
comprises full replacement cost the decision of the Sublessor's
and/or Prime Lessor's Architect shall be conclusive.
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(ii) All parties hereto on a Comprehensive Forum for bodily injury and
property damage, general liability coverage arising out of the
use, maintenance or repair of the Premises and/or the business of
the Sublessee or any sub-tenant, licensees or occupiers of the
Premises; such insurance shall be for a limit of not less than
$2,000,000.00 inclusive for any one occurrence, or such higher
limits as the Sublessor and/or Prime Lessor, acting reasonably, or
any mortgages requires from time to time, and shall contain a
severability of interest clause, and a cross liability clause.
(iii) Any other form of insurance that the Sublessor and/or Prime Lessor
or any mortgagee may reasonably require, from time to time in
form, amounts and for insurance risks acceptable to the Sublessor
and/or Prime Lessor or any mortgagee.
The Sublessee covenants and agrees to provide the Sublessor and/or Prime
Lessor with evidence of insurance as required under this provision. Such
evidence shall be by way of a certified copy of the policy if available in
timely fashion or failing which a certificate of insurance at such time or
times as the Sublessor and/or Prime Lessor may require. Sublessee agrees to
have Sublessor and Prime Lessor named as additional insureds under such
policy. The Sublessee agrees to provide same to the Sublessor and Prime
Lessor forthwith after notice has been given by the Sublessor and/or Prime
Lessor to the Sublessee of its request. The Sublessee's policy shall contain
a waiver of subrogation in favor of the Sublessor and Prime Lessor and those
for whom the Sublessor and Prime Lessor are in law responsible.
PARAGRAPH 8
DAMAGE BY FIRE OR OTHER CASUALTY
In the event that the Premises shall be damaged by fire or other
casualty, the provisions of Paragraph 4.2 of the Prime Lease shall apply.
PARAGRAPH 9
FIXTURES AND ALTERATIONS
Sublessee shall make no alterations or changes to the Premises unless
such changes and alterations are approved, in writing, by both Sublessor and
the Prime Lessor said approval not to be unreasonably withheld or delayed by
Sublessor. If Sublessee does not hear from Sublessor within fourteen (14)
days after receipt of such written application for changes and alterations,
Sublessor's consent shall be deemed given. Sublessor will make a reasonable
attempt to obtain Prime Lessor's consent, but shall in no event be liable for
inability to do so. Sublessee shall submit plans and specifications to
Sublessor and Prime Lessor for their written consent before making any
changes or alterations. Notwithstanding anything to the contrary contained
herein, as a condition of Sublessor's approval, if Prime Lessor places any
additional requirements on Sublessor such as removing any alterations or
improvements at the expiration of the term of this Sublease, Sublessor may
withhold its consent to Sublessee's request. Sublessee shall not permit any
mechanics' or other liens to stand against the premises for work or material
furnished to it. Sublessor and the Prime Lessor shall have the right to post
a notice of non-responsibility on the Premises with respect to any such work
by Sublessee. All such changes and alterations as well as any installations
of fixtures, appliances and/or equipment shall be undertaken and completed in
a good and workmanlike manner and in compliance with all federal, state and
local building and other laws, ordinances, codes, and regulations. If
requested by Sublessor or Prime Lessor, Sublessee shall remove any
alterations from the premises and make any alterations or replacements caused
by such removal prior to the expiration or termination of this Sublease
Agreement.
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PARAGRAPH 10
MECHANICS' LIENS
Sublessee shall not do or suffer anything to be done whereby the
Premises shall be encumbered by any mechanic's or other lien or order for the
payment of money, and Sublessee shall at its own cost and expense, whenever
and as often as any mechanic's lien purporting to be for labor, material or
services furnished or to be furnished to Sublessee, or other lien or order
for the payment of money shall be filed against the Premises, cause the same
to be canceled and discharged of record within ten (10) days after the date
of filing thereof, and further shall indemnify and save harmless Sublessor
and Prime Lessor from and against any and all costs, expenses, claims, losses
or damages resulting therefrom or by reason thereof. In the event that any
such lien shall be filed against the premises and not canceled or discharged
within such ten (10) day period, Sublessor or Prime Lessor shall have the
right to pay said lien in full on Sublessee's behalf and Sublessee shall
reimburse Sublessor or Prime Lessor for the cost thereof upon demand.
Sublessee shall be permitted to remove its trade fixtures from the Premises
at the expiration of termination of the Sublease to the extent Sublessor is
permitted to do so under the Prime Lease and further provided that Sublessee
repairs any damage caused by such removal.
PARAGRAPH 11
DEFAULTS, REMEDIES
If Sublessee shall fail to pay to Sublessor any installment of rent or
any additional rent or other charges as and when the same are required to be
paid hereunder, within five (5) days of notice of same become due, Sublessor
shall be entitled, to interest thereon at a rate of 3% per annum in excess of
the minimum lending rate to prime commercial borrowers from time to time
current at The Bank of Nova Scotia in Toronto from the date upon which the
same was due until actual payment thereof. Sublessor shall have all of the
rights and remedies of Prime Lessor in the event of any default hereunder by
Sublessee either by provision of this Sublease or the Prime Leases, as well
as all remedies at law or in equity.
Sublessor shall not be deemed in breach of this Sublease unless it
commences to remedy same within five (5) days after written notice and
proceeds therewith with due diligence.
PARAGRAPH 12
NON-USE, BANKRUPTCY, INSOLVENCY, ETC.
In the event without the written consent of Sublessor the Premises shall
become and remain vacant or not used for a period of ten (10) days while the
same are suitable for use by Sublessee or in the event they shall be used by
any person other than Sublessee, or if the estate created hereby shall be
taken in execution or by other process of law, or if Sublessee shall file a
voluntary petition in bankruptcy or be declared bankrupt or insolvent
according to law, or any receiver be appointed for the business and property
of Sublessee, or it any assignment shall be made of Sublessee's property for
the benefit of creditors, then, and in that event, this Sublease may be
canceled at the sole option of Sublessor, by Sublessor giving Sublessee ten
(10) days' prior written notice of such termination.
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PARAGRAPH 13
EFFECT OF WAIVER
The failure of Sublessor to insist in any one or more instances upon the
strict performance of any of the terms, covenants, conditions, and agreements
of this Sublease, or to exercise any option herein conferred, shall not be
considered as waiving or relinquishing for the future any such terms,
covenants or conditions, agreements or options, but the same shall continue
and shall remain in full force and effect; and the receipt of any rent or any
part thereof, whether the rent be that specifically reserved or that which
may become payable under any of the covenants herein contained, and whether
the same be received from Sublessee or from anyone claiming under or through
it or otherwise shall not be deemed to operate as a waiver of the rights of
Sublessor to enforce the payment of rent or charges of any kind previously
due or which may thereafter become due, or the right to terminate this
Sublease and to recover possession of the Premises by summary proceedings or
otherwise, as Sublessor may deem proper, or to exercise any of the rights or
remedies reserved to Sublessor hereunder or which Sublessor may have at law,
in equity or otherwise.
PARAGRAPH 14
HOLDOVER
In the event Sublessee shall remain in the Premises after the expiration
or sooner termination of this Sublease without having executed a new written
Sublease/extension of this Sublease with Sublessor, or having executed a
Lease with the Prime Lessor, such holding over shall not constitute a renewal
or extension of this Sublease. Sublessor may, at its option, elect to treat
Sublessee as one who has not removed at the end of his term, and thereupon be
entitled to all the remedies against Sublessee provided by law in that
situation.
PARAGRAPH 15
SUBLESSEE'S PERSONAL PROPERTY
Sublessee, at Sublessee's sole expense, shall maintain all insurance on
its inventory, trade fixtures and personal property, and shall pay before
delinquency all taxes assessed against said personal property or against
Sublessee's business.
PARAGRAPH 16
ENTIRE AGREEMENT
The parties agree that this Sublease sets forth all the promises,
agreements, conditions and understandings between them relative to the
Premises and that there are no promises, agreements, conditions or
understandings between them, either oral or written, other than are herein
set forth.
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PARAGRAPH 17
SUCCESSORS AND ASSIGNS
The terms and conditions of this Sublease shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
representatives, successors and permitted assigns.
PARAGRAPH 18
INDEPENDENT CONTRACTOR
Sublessee is an independent contractor for the purposes of this
agreement and nothing in this agreement expressed or implied shall be
construed as creating or evidencing any purpose or intention to create the
relationship of employer and employee by the contracting parties.
PARAGRAPH 19
HEAD NOTES
The head notes are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of intent of this
Sublease nor in any way affect this Sublease. Words of any gender in this
Sublease shall be held to include any other gender and words in the singular
number shall be held to include the plural when the sense requires.
PARAGRAPH 20
SECURITY DEPOSIT
Sublessor acknowledges receipt from Sublessee of the sum of Seven
Thousand Six Hundred Eighty-Five and 23/100 Dollars ($7,685.23), which sum
Sublessor shall retain as security for the performance by Sublessee of each
of its obligations hereunder. If Sublessee fails at any time to perform its
obligations, Sublessor may at its option apply said deposit, or so much
thereof as is required, to cure Sublessee's default. Unless Sublessor uses
the same to cure a default of Sublessee or to restore the Premises to the
condition that Sublessee is required to leave them at the conclusion of the
term, Sublessor shall, within thirty (30) days of the termination or
expiration of the Sublease and Sublessee vacating the Premises or continuing
its occupation under a lease executed with the Prime Lessor, whichever is
applicable, refund so much of the deposit as remains.
PARAGRAPH 21
REALTOR
Sublessee warrants and represents that it has dealt with no realtor in
conjunction with this transaction and agrees to indemnify and hold harmless
Sublessor from the claims of any realtor asserting that it has represented
Sublessee in this transaction.
- 8 -
PARAGRAPH 22
PRIME LESSOR'S CONSENT REQUIRED
The term of this Sublease is subject to and conditioned upon the Prime
Lease continuing in full force and effect, and in the event that the Prime
Lease expires or is otherwise terminated, then this Sublease shall also
terminate simultaneously therewith. Sublessor's receipt of the written
consent of Prime Lessor is a prerequisite to consummation of this Sublease
prior to this Sublease taking effect.
PARAGRAPH 23
TAXES, OPERATING EXPENSES, UTILITIES AND ADDITIONAL RENT
Sublessee shall pay to Sublessor upon receipt of a written invoice from
Sublessor, all taxes, operating expenses and utilities, additional rent and
other charges billed to Sublessor by Prime Lessor in accordance with the
terms of said Lease, including but not limited to Articles I (Additional
Rent), V (Taxes and Operating Costs), and VI (Utilities) of the Prime Lease.
PARAGRAPH 24
SIGNS AND DIRECTORY
Sublessee shall have the right to use the identification signage and
directory listing privileges of Sublessor in accordance with Article III,
Paragraph 3.3 (Signs and Directory) of the Prime Lease.
PARAGRAPH 25
PARKING
Sublessee may use throughout the term of this Sublease, the parking
spaces under the provisions provided in Article XIV (Other Provisions) of the
Prime Lease.
- 9 -
PARAGRAPH 26
MUTUAL INDEMNIFICATION
Each party hereto agrees to indemnify and save the other harmless from
and against any and all loss, cost, damage and expense, including reasonable
attorneys' fees, arising out of or connected with the breach of this Sublease
by it, its agents or employees.
IN WITNESS WHEREOF, the parties hereto have executed this agreement.
WITNESSES AS TO SUBLESSOR: SUBLESSOR: XXXXXXXX MINWAX (CANADA)
LTD.
1. /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
2. /s/ Xxxxxx X. House Its: Assistant Secretary
---------------------------------- ----------------------------------
I have authorization to bind the
corporation.
WITNESSES AS TO SUBLESSEE: SUBLESSEE: CHANGEPOINT CORP.
1. /s/ illegible By: /s/ Xxxxx Xxxxx
---------------------------------- ----------------------------------
2. /s/ illegible Its: President
---------------------------------- ----------------------------------
I have authorization to bind the
corporation.
- 10 -
CONSENT OF PRIME LESSOR
The Prime Lessor does hereby consent to the above Sublease. The Prime
Lessor hereby further warrants and represents that the Prime Lease, dated
April 4, 1995 between Menkes Office Parks Ltd. and Investors Group Trust Co.
Ltd. as Trustee for Investors Real Property Fund, as Landlord, and Xxxxxxxx
Minwax (Canada) Ltd., as Tenant, is in full force and effect and that no
known default exists by either Landlord or Tenant thereunder.
WITNESSES AS TO PRIME LESSOR: MENKES OFFICE PARKS LTD. AND
INVESTORS GROUP TRUST CO. LTD.
AS TRUSTEE FOR INVESTORS REAL
PROPERTY FUND
1. By:
-------------------------------- ------------------------------
2. Its:
-------------------------------- ------------------------------
I have authorization to bind the
corporation.
- 00 -
[XXXXX XXXX]
Xxxx Xxxxxxxx Xxxx 0000 x 1500
18,041 SF Rentable
EXHIBIT "A"
LEASE
THIS LEASE made as of the 4th day of April, 1995
PURSUANT TO THE SHORT FORMS OF LEASES ACT
BETWEEN
MENKES OFFICE PARKS LTD. and INVESTORS
GROUP TRUST CO. LTD. as trustee for
INVESTORS REAL PROPERTY FUND
(the "LANDLORD")
OF THE FIRST PART
- AND -
XXXXXXXX MINWAX (CANADA) LTD.
(the "TENANT")
OF THE SECOND PART
ARTICLES. For convenience of reference this Lease has been divided
into the following Articles:
Article I - Definitions
Article II - Lease Term and Payments
Article III - Landlord and Tenant Covenants
Article IV - Repair and Damage
Article V - Taxes and Operating Costs
Article VI - Utilities and Additional Services
Article VII - Assigning and Subletting
Article VIII - Fixtures and Improvements
Article IX - Insurance and Liability
Article X - Subordination, Attornment and Certificates
Article XI - Remedies of Landlord on Tenant's Default
Article XII - Events Terminating Lease
Article XIII - Miscellaneous
Article XIV - Other Provisions
LIST OF SCHEDULES. The following schedules form an integral part of this
Lease:
Schedule "A" - Legal Description of Lands
Schedule "B" - Leased Premises
Schedule "C" - Rules and Regulations
ARTICLE I - DEFINITIONS
1.0 DEFINITIONS. In this Lease the following defined terms shall have the
meanings set forth below.
"ADDITIONAL RENT" means Operating Costs under Section 5.5, Taxes
under 5.3, Electricity under 6.2, and Insurance under Article I and
all other charges, costs and expenses required to be paid by the
Tenant under the terms of this Lease (other than Base Rent) whether
payable to the Landlord or not.
"ADDITIONAL SERVICES" means the services and supervision supplied by
the Landlord to the Leased Premises and Common Area Facilities and
referred to herein or in any other provision hereof as Additional
Services and any other services which from time to time the Landlord
supplies to the Tenant at the Tenant's written request or as the
Landlord deems necessary, acting reasonably, in the event of a
default by the Tenant and which are additional to the janitor and
cleaning and other services typically supplied in a first class
office building, supervision in connection with the making of any
repairs or alterations by the Tenant affecting the Base Building,
building systems or Leasehold Improvements.
"ATTIC STOCK" means spare fan, pump and cooling tower motors, base
Building light fixtures, fuses, etc.
"BASE RENT" means the base rent payable by the Tenant in accordance
with Section 2.3.
2
"BUILDING" means the building municipally known as 0000 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx.
"CAPITAL TAX" is an amount presently or hereafter imposed from time
to time pursuant to Part III of the Corporations Tax Act (Ontario)
(the "Act") upon the Landlord or the owner of the Building and Lands
and payable by the Landlord on account of its interest in the
Building and the Lands or any part thereof, or its interest in or
capital employed in the Building and the Lands, as the case may be.
"COMMENCEMENT DATE" means April 1, 1995.
"COMMON AREA FACILITIES" means all facilities, improvements,
installations, utilities and equipment located in the Building or the
Lands immediately surrounding the Building.
"COMMON AREAS" means those areas, facilities, utilities,
improvements, equipment and installations comprising the Lands and
Building and which are not leased or designated for lease to tenants
but are provided to be used in common by (or by the sublessees,
agents, employees, customers or licensees of) the Landlord, the
Tenant, and other tenants of the Building and other buildings on the
Lands, whether or not the same are open to the general public or a
specific tenant of the Building, and include, but are not limited
to, parking areas and all vestibules for and entrances and exits
thereto; driveways, truckways and related areas; corridors and
underground or above ground tunnels or passageways; stairways,
escalators, ramps, and elevators and other transportation equipment
and systems; tenant, common and public washrooms; telephone, meter,
valve, mechanical, mail, storage, service and janitor rooms; fire
prevention, security and communication systems, any fixtures,
chattels, systems, decor, signs, facilities, or landscaping and
planted areas contained therein or maintained or used in connection
therewith.
"COST OF ADDITIONAL SERVICES" shall mean in the case of Additional
Services provided by the Landlord a reasonable charge made therefor
by the Landlord which shall not exceed the cost of obtaining such
services from independent contractors and in the case of Additional
Services provided by independent contractors the Landlord's total
cost of providing Additional Services to the Tenant including the
proportionate cost of all direct labour (including salaries, wages
and fringe benefits) and materials and other direct expenses
incurred, the cost of supervision without duplication or profit and
other expenses reasonably allocated thereto.
"INSURED DAMAGE" means that part of any damage occurring to the
Leased Premises of which the entire cost of repair is actually
recovered by the Landlord under a policy of insurance in respect of
fire and other perils from time to time effected by the Landlord, or
for which the Landlord has self-insured under Section 9.1 herein.
"LAND" means those lands described in Schedule "A" attached
hereto.
"LEASE" means this lease between the Landlord and the Tenant,
and all amendments hereto.
"LEASEHOLD IMPROVEMENTS" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant or by or on
behalf of any other previous occupant in the Leased Premises
(including the Landlord) with the exception of trade fixtures,
furniture and equipment, (not of the nature of fixtures), modular
office furniture systems, improvements of a cosmetic nature such as
rugs (but not broadloom), decorations and other improvements
moveable without the use of tools, but Leasehold Improvements
include all office partitions however affixed and includes
wall-to-wall and other
3
carpeting with the exception of such carpeting where laid over vinyl
tile or other finished floor and affixed so as to be readily
removable without damage.
"LEASED PREMISES" means approximately 9,537 square feet of Rentable
Area on the 7th floor of the Building known as suite 701, as outlined
in red on the plans attached as Schedule "B".
"NORMAL BUSINESS HOURS" means the hours of 7:00 a.m. to 7:00
p.m. Monday to Friday, except public holidays.
"OPERATING COSTS" means the total of all expenses, costs, and outlays
incurred in the complete maintenance, repair and operation of the
Building and Common Area Facilities, whether incurred by or on behalf
of the Landlord and calculated without profit (other than the
management fee) or duplication, and subject to Section 14.10, in
accordance with generally accepted accounting principles:
(i) Operating Costs shall include without limiting the
generality of the foregoing (but subject to certain
deductions as hereinafter provided), the cost of
providing complete cleaning and janitorial services, the
cost of building supplies used in the maintenance of the
Building, Attic Stock, maintenance services, exterior
landscaping, snow removal, garbage and waste collection
and disposal, rental of equipment and signs, janitorial
services to the Common Areas of the Building, the cost of
operating elevators, the cost of heating, cooling and
ventilating all space including both rentable and non-
rentable areas, the cost of providing hot and cold water,
electricity (including lighting), and the replacement of
electric light bulb tubes, starters and ballasts,
telephone and other utilities and services to both
rentable and non-rentable areas, the cost of all repairs
including repairs to the Building or services in the
Building or Common Area Facilities including elevators,
the cost of window cleaning, and providing security (if
any), the cost of all insurance for liability or fire or
other casualties referred to in Article 9.1, accounting
costs incurred in connection with maintenance and
operation including computations required for the
imposition of charges to the Tenant and audit charges
required to be incurred for the conclusive determination
of any costs hereunder, reasonable legal fees, the amount
of all salaries (only to the extent that such salaries or
a proportion thereof, relate directly to the Building),
wages and fringe benefits, unemployment and workers
compensation insurance premiums, pension plan
contributions and other similar premiums and
contributions paid or provided to employees directly or
a reasonable proportion thereof engaged in the
maintenance, repair or operation of the Building, amounts
paid to independent contractors for any services in
connection with such maintenance, repair or operation,
the reasonable cost of management fees, and other
indirect expenses to the extent allocable to the
maintenance, repair and operation of the Building and
Common Area Facilities and all other reasonable expense
of every nature incurred in connection with the
maintenance, repair and operation of the Building and
Common Area Facilities; and
(ii) Operating Costs shall exclude debt service, and all
management costs not allocable to the actual maintenance,
repair and operation of the Building (such as that incurred
in connection with leasing and rental advertising).
Notwithstanding anything contained herein, Operating Costs shall not
include:
4
(a) interest and principal payments on outstanding financing
of the Landlord, and any other debt costs of the
Landlord;
(b) payments under any ground lease;
(c) costs or expenses incurred with respect to the acquisition,
development, construction, furnishing and original
landscaping of the Building and any expansion thereof;
(d) depreciation;
(e) save and except as permitted by Section 14.10, costs and
expenses properly chargeable to capital account including,
without limitation, the cost of repairs of a structural
nature;
(f) costs or expenses resulting from any inadequacy in the
design or construction of the Building or with respect to
poor workmanship or materials in connection with such
construction;
(g) costs of repairs done by the Landlord and for which the
Landlord has been or is to be reimbursed either as a result
of an insurance claim or otherwise;
(h) costs of alterations or improvements to the Leased Premises
or the premises of other tenants in the Building and
corresponding costs as to premises occupied or to be
occupied by the Landlord, except as they relate to premises
occupied by the Landlord in the performance of its function
as landlord and manager of the Building;
(i) commissions, fees and all other expenses incurred in
connection with marketing or leasing the Building or any
part thereof, including without limitation the cost of work
which the Landlord does in any other leased premises in the
Building for the purpose of obtaining a new tenant of such
premises or for the purposes of obtaining a renewal;
(j) amounts for which the Landlord is reimbursed by tenants or
third parties including, without limitation, insurance
premiums chargeable to tenants other than pursuant to this
definition;
(k) any bad debt loss, rent loss or reserves for bad debts or
rent loss;
(l) any amount paid as a fine or a penalty as a result of a
violation of law (provided such violation of law was not
caused by or contributed to by the Tenant), or the payment
of which constitutes a violation of law, or the
reimbursement of which would constitute a violation of law;
(m) all costs incurred in connection with the rectification of
any work done by the Landlord in the Leased Premises or in
the Building which did not comply with and conform to every
applicable statute, law, by-law, and regulation, provided
such non-compliance is not attributable to the Tenant or
those for whom the Tenant is in law responsible or the
Tenant's use and occupancy of the Leased Premises;
(n) income taxes and other taxes personal to the Landlord;
(o) sales tax, goods and services tax, value added tax or any
similar tax;
(p) the cost of any insurance premiums relating to risks or
amounts which are not normally insured against by reasonably
prudent owners of similar buildings;
5
(q) the amount of insurance premiums to the extent they are
payable in respect of insurance coverage arranged by the
Landlord on behalf of a specific tenant of the Building and to
the extent such coverage is not provided for in this Lease;
(r) the cost of any payment which the Landlord is obligated to
make pursuant to an agreement to indemnify any person;
(s) Capital Tax;
(t) operating costs which are recovered from insurance proceeds or
which would be recoverable assuming compliance by the Landlord
with its insurance obligations under this Lease;
(u) costs covered by warranties or guarantees;
(v) charges for services rendered or materials furnished to or
part of any special arrangement with any specific tenant or
tenants of the Building;
(w) any cost which would otherwise be included in Operating Costs,
but consists of an amount paid to a corporate affiliate,
parent or subsidiary of the Landlord, to the extent such
amount is in excess of the fair market value of the said item
or service where the expense incurred in an arms-length
transaction; and
(x) amounts which are deducted from the calculation of Operating
Costs in other tenant's leases.
"PROPERTY" means the Land and Building.
"PROPORTIONATE SHARE" shall mean the fraction which has as its
numerator the Rentable Area of the Leased Premises and has as its
denominator the total Rentable Area of the Building. The total Rentable
Area of the Leased Premises shall be adjusted from time to time, as may
be reasonably necessary, to give effect to any structural or functional
changes affecting the calculation of total Rentable Areas.
"RENT" means Base Rent and Additional Rent.
"RENTABLE AREA" in this Lease means:
(i) in the case of a single tenancy on a whole floor of the
Building, all areas within the inside finished surface of
the dominant portion of the permanent outer Building
walls and shall be computed by measuring the inside
finished surface of the dominant portion of the permanent
outer Building walls and shall include Service Areas and
any special stairs and/or elevators for the specific sole
use of that floor, but excluding stairs, elevator shafts,
flues, pipe shafts and vertical ducts and the like and
their enclosing walls (the "VERTICAL OPENINGS"), with no
deductions for columns or projections necessary to the
Building plus a gross-up factor for ground floor services
in common with other tenants, including, but not limited
to vestibules, corridors, elevator lobbies, mechanical,
electrical, telephone, mail, garbage and janitor's rooms,
such factor to be based upon a ratio which the ground
floor Service Areas of the Building bears to the gross
floor area, less Vertical Openings of the Building; and
(ii) in the case of a floor of the Building to be occupied by
more than one tenant, all areas from the inside finished
surface of the dominant portion of the permanent outer
Building walls to the Tenant's side of corridors and/or
other permanent interior walls and to the centre of
demising partitions which separate the area occupied from
adjoining rentable premises, herein referred to as the
"USABLE AREA", plus a gross-up factor for the Service
6
Areas on the floor in common with other tenants on the
same floor, including, but not limited to, corridors,
elevator lobbies, mechanical, electrical, telephone and
janitor's rooms exclusively serving the floor, such
factor to be based upon a ratio which the Service Areas
of the floor bear to the sum of the Usable Area of the
floor, plus an additional gross-up factor for ground
floor services in common with other tenants, including,
but not limited to, vestibules, corridors, elevator
lobbies, mechanical, electrical, telephone, mail, garbage
and janitor's rooms, such factor to be based upon a ratio
which the ground floor Service Areas of the Building
bears to the gross floor area, less Vertical Openings of
the Building.
"RULES AND REGULATIONS" means the rules and regulations
attached as Schedule "C".
"SERVICE AREAS" shall mean the area of corridors, elevator, lobbies,
service elevator lobbies, washrooms, air-cooling rooms, fan rooms,
janitor's closets, telephone and electrical closets and other closets
serving the Leased Premises in common with other premises on the same
floor.
"TAXES" means all taxes, rates, duties, levies and assessments
whatsoever, whether municipal, parliamentary or otherwise, levied,
imposed or assessed against the Building, Common Areas or Common Area
Facilities or upon the Landlord in respect thereof, excluding Capital
Tax, Large Corporations Tax and commercial concentration tax, or from
time to time levied, imposed or assessed in the future in lieu thereof,
whether now contemplated or not, and those levied, imposed or assessed
for education, schools and local improvements and including all costs
and expenses (including reasonable legal and other professional fees),
incurred by the Landlord in good faith in contesting, resisting or
appealing any taxes, rates, duties, levies or assessments, but
excluding taxes and license fees in respect of any business carried on
by tenants and occupants of the Building (including the Landlord) to
the extent such taxes are not levied in lieu of taxes, rates, duties,
levies and assessments against the Building or upon the Landlord in
respect thereof, and shall also include any and all taxes which may in
future be levied in lieu of taxes as hereinbefore defined.
"TERM" means the term of the Lease stipulated in paragraph 2.2.
"UTILITIES" means electricity as described in Article 6.2, natural gas
and any other utility required in the operation of the Building.
ARTICLE II - LEASE TERM AND PAYMENTS
2.1 DEMISE. In consideration of the rents, covenants and agreements
hereinafter reserved and contained, the Landlord hereby leases to the
Tenant, for the exclusive use of the Tenant, the Leased Premises for
the Term.
2.2 TERM. The Lease shall have a term of five (5) years commencing on April
1, 1995 and ending March 31, 2000, unless such term shall be sooner
terminated as hereinafter provided.
2.3 BASE RENT. Subject to the provisions of section 14.9 hereof the
Tenant shall pay yearly and every year during the within Term the
sum of of lawful money of Canada in twelve (12) equal
monthly instalments of , in advance, the first of such
instalment to become due and payable on April 1, 1995 (the "BASE
RENTAL").
7
The aforesaid annual Base Rent is calculated on the basis of the
Rentable Area of the Leased Premises being 9,537 square feet at a
rate of for each square foot of Rentable Area.
The parties hereto acknowledge and agree that of the Base Rental
rate noted above has been included in lieu of the Tenant not paying a
Proportionate Share of Capital Tax and Large Corporations Tax as part
of Taxes and not paying a Proportionate Share of depreciation of
systems and equipment as part of Operating Costs. It is further agreed
that upon this Lease becoming extended whether pursuant to Section 14.3
hereof or otherwise, there shall be added to the determined Base Rental
rate for the extension term, a corresponding amount of the then current
amount charged by the Landlord under its leases in the Building for
Capital Tax, Large Corporations Tax and depreciation of systems and
equipment of the Building.
The Landlord represents and warrants that the Rentable Area of the
Leased Premises is 9,537 square feet and the Landlord, at its cost,
covenants and agrees to deliver a certificate in respect thereof,
signed by the Landlord's architect, prior to the Commencement Date.
IF THE TERM COMMENCES on any day other than the first or ends on any
day other than the last day of the month, the Base Rental and
additional rental for the fractions of a month at the commencement and
at the end of the Term shall be adjusted pro rata. All Base Rental
payments shall be payable on the first of each month.
2.4 PREPAID RENT. The Landlord acknowledges receipt of the sum of
including GST, representing payment on account of the Rents
due herein for the months of April, May and part of June, 1995.
ARTICLE III - LANDLORD AND TENANT COVENANTS
3.1 LANDLORD COVENANTS. The Landlord covenants with the Tenant:
(a) QUIET ENJOYMENT. To provide for quiet enjoyment.
(b) INTERIOR CLIMATE CONTROL. To provide to the Leased Premises
during Normal Business Hours, processed air by means of a
system for heating and cooling, filtering and circulating,
processed in such quantities, and at such temperatures as
shall be reasonable in accordance with good standards of
interior climate control generally pertaining to normal
occupancy of premises for office purposes. The Landlord shall
have no responsibility for inadequacy of the performance of
the said system if the Leased Premises depart from the design
criteria.
(c) ELEVATORS. Subject to the supervision of the Landlord and
except when repairs are being made thereto, to furnish for use
by the Tenant and its employees and invitees in common with
other persons entitled thereto reasonable standards of
passenger elevator service to the Leased Premises. The Tenant
shall be responsible for any damages caused to the elevator as
a result of taking possession or giving up possession of the
Leased Premises and shall pay such costs forthwith upon demand
as Additional Rent.
(d) ENTRANCES LOBBYS, ETC.. To permit the Tenant and its
employees and invitees to have the use in common with
others entitled thereto of the common entrances, lobbies,
stairways, elevators and corridors of the Building giving
access to the Leased Premises (subject to the Rules and
Regulations and such other reasonable limitations as the
Landlord may from time to time impose).
8
(e) WASHROOMS. To permit the Tenant and its employees and
invitees, in common with others entitled thereto to use the
washrooms available to the Leased Premises on each floor of
the Building upon which any part of the Leased Premises is
located.
(f) JANITOR SERVICE. To cause the floors and windows of the Leased
Premises to be swept and cleaned and the desks, tables and
other furniture of the Tenant to be dusted once per business
day, all in keeping with a first-class office building, such
work shall be done at the Landlord's direction without
interference by the Tenant, its servants or employees.
(g) MAINTENANCE OF COMMON AREAS. To cause the elevators, common
entrances, lobbies, stairways, corridors, washrooms and other
parts of the Building from time to time provided for common
use and enjoyment to be swept, cleaned or otherwise maintained
substantially in keeping with a first-class office building.
The Landlord further covenants with the Tenant as follows, subject to
chargeback if permitted by the terms of this Lease:
(i) to observe and perform all of the covenants and
obligations of the Landlord under this Lease;
(ii) to operate, maintain, clean, light, heat, ventilate and
air-condition (during Normal Business Hours), supervise and
regulate the Common Areas and the Common Area Facilities as a
prudent owner of a first-class building would do;
(iii) to provide security services for the Building;
(iv) to repair and maintain the Common Areas and the Common Area
Facilities, the Building and the Lands, including all external
and structural parts of the Building, with reasonable dispatch
and in a good and workmanlike manner, and so as to keep the
Building in good condition and repair as a prudent owner of a
first-class building would do;
(v) to promptly pay and discharge, on or before the times and
in such manner as may be necessary to prevent any default
which would give rise to any remedy which would result in
interference with the interests of the Tenant in the
Leased Premises, all payments (other than payments which
are required by reason of any act or default of the
Tenant or those for whom it is in law responsible)
required to be paid pursuant to any contract,
construction lien, lien, privilege, mortgage, charge or
encumbrance affecting the Leased Premises;
(vi) the Landlord shall, with respect to the Lands and that
portion of the Building which does not include the Leased
Premises: (1) maintain the Building and all electrical,
mechanical and plumbing systems in the Building in good
order and condition consistent with the standards
maintained in buildings in Metropolitan Toronto of
similar location and character as the Building; (2)
maintain in such good order and condition as would a
prudent owner, the roadways, sidewalks, parking areas and
grounds forming part of the Lands; (3) keep the roadways
and parking areas forming part of the Lands reasonably
free of snow and ice; and (4) heat the Building to the
extent necessary for the conduct by tenants of their
businesses;
(vii) the Landlord is the beneficial and legal owner of the Leased
Premises, the Building and the Land and has
authority to enter into this Lease; and
9
(viii) the Landlord shall comply at all times with any law, by-law,
ordinance, order, rule, regulation or requirement of any
federal, provincial or municipal government or any department,
commission, board or office thereof which relate to or affect
the Leased Premises, the Building and/or the Lands.
3.2 TENANT COVENANTS. The Tenant covenants with the Landlord:
(a) RENT. To pay Base Rent and Additional Rent.
(b) PERMITTED USE. To use the Leased Premises only for the purpose
of any lawful business or office undertaking and not to use or
permit to be used the Leased Premises or any part thereof for
any other purpose or business.
(c) WASTE AND NUISANCE. Not to commit or permit any waste, damage
or injury to the Leased Premises including the Leasehold
Improvements and trade fixtures therein, reasonable wear and
tear excluded, any overloading of the floors thereof, any
nuisance therein or any use or manner of use causing
unreasonable annoyance to other tenants and occupants of the
Building.
(d) CONDITION. Not to permit the Leased Premises to become
hazardous or permit unreasonable quantities of waste or refuse
to accumulate therein and at the end of each business day to
leave the Leased Premises in a condition such as to reasonably
facilitate the performance of the Landlord's janitor and
cleaning services referred to herein.
(e) BY-LAWS. To comply at its own expense with all municipal,
federal, provincial, sanitary, fire, building and safety
statutes, laws, by-laws, regulations, ordinances, orders or
regulations pertaining to the operation and use of the Leased
Premises, the condition of the Leasehold Improvements, trade
fixtures, furniture and equipment installed by the Tenant
therein and the making by the Tenant of any repairs, changes
or improvements therein.
(f) FIRE EXIT DOORS. To permit the installation by the Landlord of
all doors in the exterior wall of the Leased Premises
necessary to comply with the requirements of any statute, law,
by-law, regulation, ordinance, order or regulation.
(g) RULES AND REGULATIONS. To observe and to cause its employees,
invitees and others over whom the Tenant can reasonably be
expected to exercise control, the Rules and Regulations and
such further and other reasonable rules and regulations and
amendments and changes therein as may hereafter be made by the
Landlord and notified to the Tenant.
(h) OVERHOLDING. That in the event that the Tenant remains in
possession of the Leased Premises after the termination of
the original Term hereby created, without other special
agreement, it shall be at the monthly base rent equal to
the Base Rent and Additional Rent payable during the last
month of the Term hereof, times two, payable on the first
day of each and every month and subject in other respects
to the terms of this Lease, including those provisions
requiring the payment of Base Rent and Additional Rent in
monthly instalments.
3.3 SIGNS AND DIRECTORY. The Tenant covenants not to permit, paint,
display, inscribe, place or affix any sign, symbol, notice or
lettering of any kind anywhere outside the Leased Premises (whether
on the outside or inside of the Building) or within the Leased
Premises so as to be visible from the outside of the Leased
Premises, with the exception only of an identification sign at or
near the entrance to the Leased
10
Premises, a directory listing in the main lobby of the Building, and
corporate identification on the podium sign fronting on to 16th
Avenue, in each case containing only the name of the Tenant and to
be subject to the approval of the Landlord, not to be unreasonably
withheld or delayed, as to size, location, content and design
criteria as established by the Landlord. Such identification sign,
directory listing and podium signage shall be installed by the
Landlord at the expense of the Tenant, which expense shall be the
invoice cost plus 15% for an administration fee. The Landlord's
acceptance of any name for listing upon the directory will not be
deemed, nor will it substitute for the Landlord's consent if
required by this Lease to any sublease, assignment or other
occupancy of the Leased Premises.
3.4 INSPECTION AND ACCESS. The Landlord shall be permitted to enter and to
have its authorized agents, employees and contractors enter the Leased
Premises, for the purpose of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements
to the Leased Premises or the Building, or to have access to utilities
and services and access panels which the Tenant agrees not to obstruct,
or to determine the electric light and power consumption by the Tenant
in the Leased Premises and the Tenant shall provide free and unhampered
access for such purposes and shall not be entitled to compensation for
any inconvenience, nuisance, discomfort or loss caused thereby, but the
Landlord, in exercising its rights hereunder, shall proceed to the
extent reasonably possible so as to minimize interference with the
Tenant's use and enjoyment of the Leased Premises.
3.5 EXHIBITING PREMISES. The Landlord and its authorized agents and
employees shall be permitted entry to the Leased Premises during the
last six (6) months of the term for the purpose of exhibiting them to
prospective tenants or at any time for the purposes of arranging
financing for the Building.
3.6 LANDLORD'S CONTROL. The Tenant acknowledges that the Common Area
Facilities are at all times subject to the exclusive control and
operation of the Landlord, and the Landlord shall have the right to
construct improvements, alterations and additions thereto and to
relocate the various facilities thereon.
3.7 BANK REFERENCES. The Tenant will, at the request of the Landlord,
supply bank references to the Landlord or to the mortgagees, if any, on
the said lands or a prospective mortgagee.
ARTICLE IV - REPAIR AND DAMAGE
4.1 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep the Leased Premises in a good and reasonable state of
repair and consistent with the general standards of
first-class office buildings in Metropolitan Toronto, to
perform all repairs and replacements as a prudent tenant would
do (reasonable wear and tear excepted) to the Leased Premises
including all Leasehold Improvements and all trade fixtures
therein and all glass therein.
(b) that the Landlord may enter and view the state of repair from
time to time and that the Tenant will repair if required to do
so pursuant to the terms of this Lease, according to notice in
writing and that the Tenant will leave the Leased Premises in
a good and reasonable state of repair.
(c) that if any part of the Building other than the Leased
Premises becomes out of repair, damaged or destroyed
through the negligence or misuse of the Tenant or its
11
employees, invitees or others over whom the Tenant can
reasonably be expected to exercise control, the expense of
repairs or replacements thereto necessitated thereby shall
be the responsibility of the Tenant.
Notwithstanding the foregoing or anything else contained herein, the
Landlord agrees that the Tenant's obligations under this Lease shall
not include reasonable wear and tear to the Leased Premises and
maintenance, repairs or replacements:
(i) necessitated due to damage by fire, lightning, tempest or
other casualties;
(ii) necessitated due to the negligent or wilful acts or omissions
of the Landlord or those for whom it is in law responsible;
(iii) to any structural portion of the Building or the Leased
Premises, including the exterior walls, the roof, roof
structure and roof membrane;
(iv) necessitated due to structural defect or weaknesses or
improper or faulty workmanship, construction, design or
materials;
(v) to the extent same are covered by insurance maintained or
otherwise required to be maintained by the Landlord hereunder;
or
(vi) to the mechanical, electrical and base building systems,
subject to chargeback to the Tenant if permitted under this
Lease,
which shall all be the Landlord's responsibility at the Landlord's sole
expense in addition to the Landlord's other obligations pursuant to
this Lease.
4.2 ABATEMENT AND TERMINATION. It is agreed between the Landlord and the
Tenant that:
(a) In the event of damage to the Leased Premises or to the
Building affecting access or services essential to the
conduct of business in the Leased Premises and if the
damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and
occupancy by the Tenant for the purposes of its business
for any period of time in excess of 10 days, then
(i) unless the damage was caused by the misuse, fault,
negligence of the Tenant or its employees,
invitees or others under its control, from and
after the date of occurrence of the damage and
until the Leased Premises are again reasonably
capable of use and occupancy as aforesaid, Rent
shall xxxxx from time to time in proportion to the
part or parts of the Leased Premises not
reasonably capable of such use and occupancy, and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case
may be (according to the nature of the damage and
their respective obligations to repair as provided
herein, it being understood that the Tenant shall
have the obligation to repair and replace all
Leasehold Improvements and all Tenant's trade
fixtures) shall repair such damage with all
reasonable diligence, but to the extent that any
part of the Leased Premises is not reasonably
capable of such use and occupancy by reason of
damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the
Tenant is otherwise entitled hereunder shall not
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extend later than the time by which repairs by the
Tenant ought to have been completed with
reasonable diligence; and
(b) if either the entire or substantially all of the Leased
Premises, or premises whether of the Tenant or other
tenants of the Building comprising in the aggregate 50% or
more of the Rentable Area of the Building are substantially
damaged or destroyed by any cause to such an extent in the
reasonable opinion of the Landlord cannot be repaired or
rebuilt within 180 days after the occurrence of the damage
or destruction, the Landlord may at its option, exercisable
by written notice to the Tenant given within 30 days after
the occurrence of such damage or destruction terminate this
Lease in which event neither the Landlord nor the Tenant
shall be bound to repair as provided herein and the Tenant
shall instead deliver up possession of the Leased Premises
to the Landlord with reasonable expedition but in any event
within 60 days after delivery of such notice of termination
and Rent shall be apportioned and paid to the date upon
which possession is so delivered up (but, subject to any
abatement to which the Tenant may be entitled under
paragraph (a) of this clause 4.2 by reason of the Leased
Premises having been rendered in whole or in part not
reasonably capable of use and occupancy), but otherwise the
Landlord or the Tenant as the case may be (according to the
nature of the damage and their respective obligations to
repair described in 4.2 (a) (ii)) shall repair such damage
with reasonable diligence. Notwithstanding the foregoing,
it is understood and agreed that in the event damage or
destruction should occur to the Premises during the last
year of the tenancy to the degree that the Tenant cannot
continue to occupy the Premises, the Tenant shall then have
the mutual right to terminate the Lease by notice given to
the Landlord, unless the Tenant exercises its right to
extend the Lease in which case the Tenant shall reoccupy
the Leased Premises once the damage or destruction has been
made good.
ARTICLE V - TAXES AND OPERATING COSTS
5.1 NET NET LEASE. The Tenant acknowledges and agrees that it is intended
that this Lease is a completely carefree net net lease to the Landlord,
except as expressly herein set out, that the Landlord is not
responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Leased
Premises, or the use and occupancy thereof, or the contents thereof or
the business carried on therein, except as expressly set out herein,
and the Tenant shall pay all charges, impositions, costs and expenses
of every nature and kind relating to the Leased Premises.
5.2 LANDLORD'S TAX OBLIGATIONS. The Landlord covenants with the Tenant,
subject to the provisions herein, to pay all Taxes promptly when due to
the taxing authority or authorities having jurisdiction.
5.3 TENANT'S TAX OBLIGATIONS. The Tenant covenants with the
Landlord:
(i) to pay promptly when due to the taxing authority or
authorities having jurisdiction all taxes, rates, duties,
levies and assessments whatsoever, whether municipal,
parliamentary or otherwise, levied, imposed or assessed in
respect of any and every business carried on by the Tenant,
subtenants, licensees, or other occupants of the Leased
Premises or in respect of the use or occupancy thereof
(including licence fees); and
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(ii) to pay promptly to the Landlord when demanded or otherwise due
hereunder:
(1) all Taxes charged in respect of all Leasehold
Improvements and trade fixtures and all furniture and
equipment made, owned or installed by or on behalf of
the Tenant in the Leased Premises as Additional Rent;
(2) if by reason of the act, election or religion of the
Tenant or any subtenant, licensee or occupant of the
Leased Premises, the Leased Premises or any part of
them shall be assessed for the support of Separate
Schools, the amount by which the Taxes so payable
exceed those which would have been payable if the
Leased Premises had been assessed for the support of
Public Schools; and
(3) the Tenant's Proportionate Share of Taxes as
Additional Rent in the manner stipulated herein.
(iii) notwithstanding any other provisions of this Lease to the
contrary, the Tenant shall pay to the Landlord, at such times
and in such manner as the Landlord may direct, without
duplication, an amount equal to all goods and service taxes,
sales taxes, value-added taxes or any other taxes imposed with
respect to Base Rent, Additional Rent or other amounts payable
by the Tenant to the Landlord under this Lease, howsoever such
taxes are characterized. The amount payable by the Tenant
hereunder shall not be deemed to be Base Rent or Additional
Rent but the Landlord shall have all of the same rights and
remedies for recovery of same as it has for recovery of Base
Rent and Additional Rent hereunder.
Whenever requested by the Landlord the Tenant will deliver to it
receipts for payment of all taxes, rates, duties, levies and
assessments payable by the Tenant hereof and furnish such other
information in connection therewith as the Landlord may reasonably
require.
The Tenant shall have the right to contest at its own expense by
appropriate legal proceedings, the validity of any tax, rate, including
local improvement rates, assessment or other charges in respect of the
Leased Premises or the use and occupancy thereof or any other part of
the Building or the Lands by the Tenant, provided the Tenant forthwith
pays the same under protest to the City of Richmond Hill (the "CITY")
or furnishes to the City sufficient security by bond or otherwise to
ensure the payment of same. Should, as a result of such contestations,
the amount of the Taxes payable hereunder by the Tenant be decreased as
a result of such contestation or appeal, the Landlord hereby agrees to
promptly reimburse the Tenant accordingly to the extent such overpaid
amounts have been paid, when reimbursed to the Landlord.
5.4 METHOD OF PAYMENT OF TAXES. The Tax payments required to be made by
the Tenant to the Landlord under the provisions of 5.3 (ii) herein
shall be estimated by the Landlord, and the Tenant shall pay to the
Landlord in addition to the monthly payments of Base Rent
hereinbefore reserved, one-ninth of the estimated annual tax
payments in the months of January to September, both inclusive, in
each calendar year with an adjustment being made when the property
tax xxxx respecting the Building is received by the Landlord for
each year. The Tenant shall within sixty (60) days of being invoiced
pay to the Landlord such additional sums as may be required in order
that out of such monthly additional payments, the Landlord may pay
the whole amount of the annual taxes as the instalments thereof fall
due; and if the monthly additional payments so paid by the Tenant to
the Landlord exceed in total the Tenant's Proportionate Share of the
annual property tax xxxx with respect to the Building and Lands of
which the Leased
14
Premises form part, then the excess shall be adjusted by the
Landlord in favour of the Tenant by applying such excess on account
of the next ensuing rental payments due (following the issue of the
yearly statement) and such next ensuing rental payments shall be
reduced by such excess accordingly. The Landlord shall forward to
the Tenant copies of all notices or tax bills relating to the
imposition of property taxes or other charges required hereunder to
be paid as to part or all thereof by the Tenant. In the event that
the Landlord is unable to obtain or determine a separate allocation
of taxes payable by the Tenant under this Lease, the Landlord shall
have the right to make an allocation, but shall be obligated to act
reasonably and not arbitrarily.
5.5 OPERATING COSTS. During the Term of this Lease, the Tenant shall pay to
the Landlord its Proportionate Share of Operating Costs. Prior to the
commencement of the Term of this Lease and the commencement of each
fiscal period selected by the Landlord thereafter which commences
during the Term the Landlord shall estimate the amount of Operating
Costs and the Tenant's Proportionate Share thereof for the ensuing
fiscal period or (if applicable) broken portion thereof, as the case
may be, and notify the Tenant in writing of such estimate. The amount
so estimated shall be payable in equal monthly instalments in advance
over the fiscal period or broken portion thereof in question, each such
instalment being payable on each monthly rental payment date provided
in clause 2.3. The Landlord may from time to time alter the fiscal
period selected, in which case, and in the case where only a broken
portion of a fiscal period is included with the Term, the appropriate
adjustment in monthly payments shall be made. From time to time during
a fiscal period the Landlord may re-estimate the amount of Operating
Costs and the Tenant's Proportionate Share thereof, in which event the
Landlord shall notify the Tenant in writing of such re-estimate and
fixed monthly instalments for the then remaining balance of such fiscal
period or broken portion thereof such that, after giving credit for
instalments paid by the Tenant on the basis of the previous estimate or
estimates, the Tenant's entire Proportionate Share of Operating Costs
will have been paid during such fiscal period or broken period thereof.
As soon as practicable after the expiration of each fiscal period the
Landlord shall make a final determination of Operating Costs and the
Tenant's Proportionate Share thereof for such fiscal period or (if
applicable) broken portion thereof and shall provide a statement to the
Tenant and the parties shall make the appropriate readjustment. Each 12
month period ending December 31st shall be deemed to be an accounting
year for adjusting the said Operating Costs and within 120 days after
the end of each such accounting year, the Landlord shall compute the
said costs for such accounting year and the Proportionate Share of the
Tenant therefor and shall submit to the Tenant a statement to reflect
the Operating Costs specifically permitted under this Lease, and the
said Proportionate Share thereof shall be borne by the Tenant. To the
extent that the Tenant's Proportionate Share of such costs for such
accounting year shall be greater than the total amount actually paid by
the Tenant by said monthly payments in respect of such year the
difference shall be paid by the Tenant to the Landlord within thirty
(30) days after receipt by the Tenant of such statement. Any excess
payments shall be applied by reducing the next ensuing rental
payment(s) by the amount of such excess. The said accounting period may
be modified by the Landlord if reasonably necessary.
The Landlord shall keep proper and sufficient records of all its costs
relating to Additional Rent and the Tenant shall have the right at any
time during the Term and any extensions thereof and up to 2 years
following expiration of the tenancy, to claim a readjustment in respect
of any item of Additional Rent. For this purpose, the Tenant shall have
the right during such times to review all invoices, receipts and other
records used by the Landlord in the calculation of Additional Rent
15
relating to the Leased Premises, such review to take place at the
Landlord's offices and upon seven (7) business days' prior written
notice by the Tenant to the Landlord.
5.6 PAYMENT OF ADDITIONAL RENT. Any Additional Rent provided for under this
Lease unless otherwise provided herein, shall become due with each
instalment of monthly Base Rent.
ARTICLE VI- UTILITIES AND ADDITIONAL SERVICES
6.1 WATER AND TELEPHONE. The Landlord shall furnish appropriate openings
for bringing telephone services to the Leased Premises and shall
provide hot and cold water to washrooms in the Leased Premises and to
washrooms available for the Tenant's use in common with others entitled
thereto.
6.2 ELECTRICITY. The Tenant shall pay throughout the Term promptly to the
Landlord (unless paid directly to Hydro authorities pursuant to
separate billing) as Additional Rent when demanded:
(i) The cost of electric light and power supplied to the Leased
Premises monthly based on the electric light and power
requirements of the Tenant on a pro rata basis as determined
from time to time during the Term by the Landlord acting
reasonably; and
(ii) The cost of cleaning, maintaining and servicing in all
respects all electric lighting fixtures in the Leased
Premises including the cost of replacement of electric
light bulbs, tubes, starters and ballasts used to replace
those installed at the commencement of the Term. Such
cleaning, maintaining, servicing and replacement shall be
within the exclusive right of the Landlord. It is
understood and agreed that the costs described in this
sub-section (ii) shall be included as part of Operating
Costs.
6.3 ADDITIONAL SERVICES. The Landlord, if it shall from time to time so
elect, shall have the exclusive right, by way of Additional Services,
to provide or have its designated agents or contractors provide any
janitor or cleaning service to the Leased Premises and Common Area
Facilities required by the Tenant which are additional to those
required to be provided by the Landlord hereunder, including the
Additional Services which the Landlord agrees to provide by
arrangement, and to supervise the moving of furniture or equipment of
the Tenant in and out of the Building where such moving of furniture or
equipment would be disruptive to the normal business of the Building,
and the making of repairs or alterations conducted within the Leased
Premises affecting Base Building, building systems or Leasehold
Improvements. The reasonable cost of Additional Services provided to
the Tenant, whether the Landlord shall be obligated hereunder or shall
elect to provide them as Additional Services, shall be paid to the
Landlord by the Tenant from time to time within thirty (30) days
following receipt of invoices therefor from the Landlord. Costs of
Additional Services charged directly to the Tenant and other tenants
shall be credited in computing Operating Costs.
ARTICLE VII- ASSIGNING AND SUBLETTING
7.1 ASSIGNMENTS AND SUBLETTINGS. The Tenant covenants with the Landlord
that it will not assign, sublet, licence or part with the possession of
the Leased Premises or any part thereof, or share the occupation of the
Leased Premises, or any part thereof, without the consent of the
Landlord in writing first had and obtained such consent not to be
unreasonably or arbitrarily withheld or delayed. Provided that as a
condition of the granting of its consent, the Landlord may require any
16
assignee, subtenant, licensee or occupant of the Leased Premises to
execute an agreement whereby he, it or they attorn to and become the
tenants of the Landlord as if he, it or they had executed this Lease,
or, except in the case of an absolute assignment of this Lease, to
execute an acknowledgement that all the sublessee's or undertenant's
estate, right and interest in and to the Leased Premises absolutely
terminates upon the surrender, release, disclaimer or merger of this
Lease notwithstanding the provisions of the Landlord and Tenant Act of
Ontario, R.S.O. 1980, Chapter 232 and amendments thereof with specific
reference to Paragraphs 21 and 39 (2) thereof, or other similar
statute. The Tenant shall furnish to the Landlord copies of any
assignment, sublease, licence or other agreement herein contemplated.
Notwithstanding any other provision in this section, no assignment,
subletting, licensing or parting with possession of the Leased Premises
shall in any way release or be deemed to release the Tenant (or any
guarantor hereof) from their obligations under the terms of this Lease.
Provided further that the proposed assignee, subtenant, licensee or
occupant of the Leased Premises shall be required to provide reasonable
financial information as the Landlord may require. It is agreed that
the Landlord may consider in determining whether to grant consent among
other matters, the following: the personal and business history of the
proposed assignee, occupant, sublessee and its key employees. The
Tenant agrees to pay the reasonable legal fees of the Landlord's
solicitor relating to the preparation of the Landlord's consent, and
determination as to whether to give the consent.
In the event of any sub-letting by the Tenant by virtue of which the
Tenant receives rent in the form of cash, goods, services or other
considerations from the sub-tenant which is higher than the rent
payable hereunder to the Landlord for the premises so sub-let, the
Tenant shall pay any such excess to the Landlord, in addition to all
rent and other costs payable hereunder, for the period of time during
which the said subtenant remains in possession of the premises sub-let
to it.
If the Tenant herein shall receive from any assignee of this lease,
either directly or indirectly, any consideration for the assignment of
this lease, either in the form of cash, goods or services, the Tenant
shall forthwith pay an amount equivalent to such consideration to the
Landlord and same shall be deemed to be further Additional Rent
hereunder.
Notwithstanding the above provisions, within ten (10) business days
after the receipt by the Landlord of such request for consent and of
all information which the Landlord shall have requested hereunder,
the Landlord shall have the right upon written notice of termination
submitted to the Tenant to, if the request is to assign this Lease
or sublet the whole of the Leased Premises, cancel and terminate
this Lease, or to, if the request is to sublet a part of the Leased
Premises only, cancel and terminate this Lease with respect to such
part, in each case as of a termination date to be stipulated in the
notice of termination which shall be ninety (90) days following
giving of such notice. In such event the Tenant shall surrender the
whole or part, as the case may be, of the Leased Premises in
accordance with such notice of termination and Base Rent and
Additional Rent shall be apportioned and paid to the date of
surrender and, if only a part of the Leased Premises is surrendered,
Base Rent and Additional Rent shall, after the date of surrender,
xxxxx proportionately. If the Landlord does not elect to terminate
as aforesaid and if consent to sublease or assign will be granted,
the Tenant may assign or sublet, as the case may be, only upon the
terms and to the party set out in the offer submitted to the
Landlord as aforesaid. If the Landlord elects to terminate, the
Tenant may withdraw its request for consent by notice to the
Landlord given within five (5) days after the Landlord's notice of
17
election in which event the Landlord's notice of election shall be
null and void and the Tenant shall not proceed with the assigning or
subletting for which such consent was requested.
ARTICLE VIII- FIXTURES AND IMPROVEMENTS
8.1 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant shall not make,
erect, install or alter any Leasehold Improvements in the Leased
Premises without having requested and obtained the Landlord's prior
written approval which the Landlord shall not unreasonably delay or
withhold. In making, erecting, installing or altering any Leasehold
Improvements the Tenant will not alter or interfere with any
installations which have been made by the Landlord without the prior
written approval of the Landlord and in no event shall it alter or
interfere with window coverings (if any) installed by the Landlord on
exterior windows. The Tenant's request for any approval hereunder shall
be in writing and accompanied by an adequate description of the
contemplated work and, where appropriate, working drawings and
specifications thereof. All work to be performed in the Leased Premises
shall be performed by reputable contractors approved by the Landlord.
The Landlord reserves the right to require the Tenant to utilize the
contractor(s) of the Landlord where Base Building, building systems
and/or warranties may be affected provided the Landlord agrees that
charges by such contractors shall be in keeping with that which an arms
length contractor would charge. The cost of all such work shall be
estimated by the Landlord in advance and such estimate approved by the
Tenant prior to work commencing. All such work shall be performed at
the Tenant's expense and the Tenant shall be responsible for
application and payment of all fees in connection with any permits
required. All such work shall be subject to inspection by and the
reasonable supervision of the Landlord, and shall be performed in
accordance with any reasonable conditions or regulations imposed by the
Landlord and completed in a good and workmanlike manner in accordance
with the description of the work approved by the Landlord. The Landlord
shall be entitled to supervise the work. The Landlord shall be entitled
to charge reasonable fees for examining plans respecting the proposed
work as well as any reasonable consultant's fees where base building
systems and equipment as well as structure may be affected and whereby
the Landlord incurs actual out-of-pocket expenses for the review of
such alterations.
8.2 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In connection
with the making, erection, installation or alteration of Leasehold
Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the
provisions of the Construction Lien Act (Ontario) and other statutes
from time to time applicable thereto and shall promptly pay all
accounts relating thereto. The Tenant will not create or cause to be
created any mortgage, conditional sale agreement or other
encumbrance in respect of its Leasehold Improvements or permit any
such mortgage, conditional sale agreement or other encumbrance to
attach to the Leased Premises or to the Building and Common Area
Facilities. If and whenever any construction or other lien for work,
labour, services or materials supplied to or for the Tenant for the
cost of which the Tenant may be in any way liable or claims therefor
shall arise or be filed or any such mortgage, conditional sales
agreement or other encumbrance shall attach, the Tenant shall within
ten (10) days after receipt of notice thereof procure the discharge
thereof, including any certificate of action registered in respect
of any lien, by payment or giving security or in such other manner
as may be required or permitted by law failing which the Landlord
may in addition to all other remedies hereunder avail itself of its
remedy hereunder and may make any payments required to procure the
discharge of any such
18
liens or encumbrances and shall be entitled to be reimbursed by the
Tenant as provided herein and its right to reimbursement shall not
be affected or impaired if the Tenant shall then or subsequently
establish or claim that any lien or encumbrance so discharged was
without merit or excessive or subject to any abatement, set-off or
defense.
8.3 REMOVAL OF FIXTURES AND IMPROVEMENTS. All Leasehold Improvements in or
upon the Leased Premises shall immediately upon termination of this
lease be and become the Landlord's property without compensation
therefor to the Tenant. Except to the extent otherwise expressly agreed
by the Landlord in writing no Leasehold Improvements, trade fixtures,
furniture or equipment shall be removed by the Tenant from the Leased
Premises either during or at the expiration or earlier termination of
the Term except that (1) the Tenant shall at the end of the Term remove
its trade fixtures, and (2) the Tenant shall remove its furniture and
equipment at the end of the Term and may remove its trade fixtures,
furniture and equipment during the Term in the usual and normal course
of its business. The Tenant shall, in the case of every removal either
during or at the end of the Term, make good any damage caused to the
Leased Premises by the installation and removal. Provided that upon the
termination of this Lease, the Tenant, if requested by the Landlord,
shall restore any alterations or installations made by or on behalf of
the Tenant subsequent to the Commencement Date that the Landlord
indicated at the time consent for such alteration or installation was
sought, would require restoration upon expiration of the tenancy, and
if not so requested, any such changes or alterations shall become the
property of the Landlord.
For clarity, it is understood and agreed that the Tenant shall not be
required to restore the Leased Premises or any additional space to base
building condition, whether at the expiration or other termination of
the Term or otherwise.
ARTICLE IX- INSURANCE AND LIABILITY
9.1 LANDLORD'S INSURANCE. The Tenant will during the whole of the Term
hereby granted as part of Operating Costs, pay its Proportionate Share
of all premiums with respect to insurance to be placed by the Landlord
and described in this Section 9.1. The Landlord agrees to maintain
during the Term, insurance coverages as follows:
(i) Property of Every Description (Building and Equipment) against
the perils of "All-Risks", under form providing coverage at
least equivalent to Commercial Building Broad Form I.A.O. Form
No. 700 including "Building By-Laws Endorsements", and to be
insured for the Replacement Value, without allowance for
depreciation and Stated Amount, and with no co-insurance
requirement.
(ii) "Rental Income" for the gross annual rental income on
"All-Risks" basis, as provided under Commercial Building Broad
Form I.A.O. Form 700 including "Building By-Laws
Endorsements", providing coverage at least equivalent to
I.A.O. Profits Form No. 551 with an eighteen (18) month
indemnity period.
(iii) Broad Form Boiler and Machinery Policy on a blanket and
replacement basis with limits for each accident in an
amount not less than the replacement cost of the Building
containing the Leased Premises and which shall cover all
boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus owned by the Landlord
and which shall include PCB coverage. It shall also
include "Rental Income" for the full gross annual income
equivalent to I.A.O. Profits Form No. 551 with a eighteen
(18) month indemnity period. This policy should also
provide "Building By-Laws Endorsements".
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(iv) "General Liability Insurance" on a Comprehensive Form and on
an "occurrence" basis without deductible with retroactive
coverage against claims for Personal and Bodily Injury and
Death and/or Property Damage occurring upon or about the
Leased Premises and for a limit no less than $5,000,000.00
inclusive for one occurrence.
(v) Such other insurance coverage or coverages as a prudent owner
of a first class office building would obtain for protection
respecting loss of, or damage to the Building, the Lands or
the Leased Premises, or liability arising therefrom.
All such insurance coverages shall be kept and maintained by the
Landlord, and in no event shall the coverage be less than the amount
required by any institution then holding a mortgage on the Building and
Common Area Facilities. The Tenant shall pay to the Landlord, as part
of Operating Costs, its Proportionate Share of the Landlord's
Insurance. The Tenant shall not do or permit to be done any act or
thing whereby insurance coverage, premiums or any of them hereinbefore
contemplated, may be increased or cancelled by the insurer, or the
Leased Premises shall be rendered uninsurable, and if by reason of any
act done or permitted or omission, as the case may be, by the Tenant,
the said insurance coverage, premiums or any of them shall be
increased, then the Tenant, if it shall fail to rectify the event
giving rise to the increased premium after written notice thereof from
the Landlord, shall be liable to pay all of such increase in premium,
with respect to the entire coverages, and this notwithstanding that the
Tenant occupies only a portion of the Building covered by such
insurance coverages, and if the Leased Premises shall be rendered
uninsurable, or if the said insurance coverages, or any of them, shall
be cancelled by reason of any act or omission as the case may be by the
Tenant and shall not be susceptible of being replaced, after the
Landlord's reasonable efforts under the circumstances to do so, then
the Landlord, after giving the Tenant at least fourteen (14) days
written notice within which to replace insurance coverage or coverages
shall, at its absolute discretion, have the right to determine that the
term hereof has expired and in such event the Tenant shall deliver up
possession of the Leased Premises as if the Term of this Lease had
expired.
PROVIDED that no act required to be done by the Tenant nor any payment
required to be made by the Tenant, including reimbursements of
insurance premiums paid by the Landlord, shall relieve the Tenant from
any liability for damage incurred by the Landlord as result of any act
or omission of the Tenant.
If any other tenant of the Building has his own insurance premiums
increased by his insurers as a result of the use or occupation by the
Tenant herein of the within Leased Premises, the Tenant covenants and
agrees with the Landlord after written notice thereof, to pay the
additional cost forthwith upon demand as Additional Rent.
The Landlord's insurance policy shall contain a waiver of subrogation
in favour of the Tenant or those for whom the Tenant is in law
responsible.
9.2 AGENTS. The Tenant acknowledges, covenants and agrees that every right,
exemption from liability, defence and immunity of whatsoever nature
applicable to the Landlord or to which the Landlord is entitled
hereunder shall also be available and shall extend to protect every
such agent of the Landlord acting (in the course of or in connection
with his employment or otherwise) and for the purposes of all of the
foregoing provisions of this clause, the Landlord is or shall be deemed
to be acting as agent or trustee on behalf of and for the benefit of
persons who are or might be his servants, employees or agents from time
to time.
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9.3 TENANT'S INSURANCE. The Tenant covenants to insure and to keep insured
during the whole of the Term, with an insurance company or companies in
good standing and upon terms and conditions all satisfactory to the
Landlord:
(i) "All-Risks" insurance upon all property owned by the
Tenant or for which it is legally liable or installed or
affixed by or on behalf of the Tenant and which is
located in the Building including, without limitation,
furniture, fittings, installations, alterations,
additions, partitions and fixtures or anything in the
nature of a Leasehold Improvement made or installed by or
on behalf of the Tenant in an amount equal to the full
replacement cost thereof; if there is a dispute as to the
amount which comprises full replacement cost the decision
of the Landlord's Architect shall be conclusive.
(ii) All parties hereto on a Comprehensive Form for bodily
injury and property damage, general liability coverage
arising out of the use, maintenance or repair of the
Leased Premises and/or the business of the Tenant or any
sub-tenant, licensees or occupiers of the Leased
Premises; such insurance shall be for a limit of not less
than $2,000,000.00 inclusive for any one occurrence, or
such higher limits as the Landlord, acting reasonably, or
any mortgagee requires from time to time, and shall
contain a severability of interest clause, and a cross
liability clause.
(iii) Any other form of insurance that the Landlord or any mortgagee
may reasonably require, from time to time in form, amounts and
for insurance risks acceptable to the Landlord and any
mortgagee.
The Tenant covenants and agrees to provide the Landlord with evidence
of insurance as required under this provision. Such evidence shall be
by way of a certified copy of the policy if available in timely fashion
or failing which a certificate of insurance at such time or times as
the Landlord may require. The Tenant agrees to provide same to the
Landlord forthwith after notice has been given by the Landlord to the
Tenant of its request. The Tenant's policy shall contain a waiver of
subrogation in favour of the Landlord and those for whom the Landlord
is in law responsible.
9.4 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that:
(i) the Landlord shall not be liable for any bodily injury or
death of, or loss or damage to any property belonging to the
Tenant or its employees, invitees, or licensees or any other
person in, on or about the Building and Common Area Facilities
howsoever occurring and in no event shall the Landlord be
liable for:
(1) any damage which is caused by steam, water, rain or
snow which may leak into, issue or flow from any part
of the Building or Common Area Facilities or from the
pipes or plumbing works thereof or from any other
place or quarter or for any damage caused by or
attributable to the condition or arrangement
of any electric or other wiring or for any damage
caused by anything done or omitted by any other
tenant; and
(2) 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, maintenance,
supervision or any other work in or about the Leased
Premises or the Building or Common Area Facilities;
and
21
(3) loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of
the Tenant; and
(ii) the Landlord shall have no responsibility or liability
for the failure to supply interior climate control or
elevator service when prevented from doing so by strikes,
the necessity of repairs, any order or regulation of any
body have jurisdiction, the failure of the supply of any
utility required for the operation thereof or any other
cause beyond the Landlord's reasonable control, and shall
not be held responsible for any bodily injury, death or
damage to property arising from the use of, or any
happening in or about, any elevator.
9.5 INDEMNITY OF LANDLORD. The Tenant agrees to indemnify and save harmless
the Landlord in respect of all claims for bodily injury or death,
property damage or other loss or damage arising from the conduct of any
work by or any act or omission of the Tenant or any assignee,
subtenant, agent, employee, contractor, invitee or licensee of the
Tenant, and in respect of all costs, expenses and liabilities incurred
by the Landlord in connection with or arising out of all such claims,
including the expenses of any action or proceeding pertaining thereto,
and in respect of any loss, cost, expense or damage suffered or
incurred by the Landlord arising from any breach by the Tenant of any
of its covenants and obligations under this Lease.
ARTICLE X-SUBORDINATION, ATTORNMENT AND CERTIFICATES
10.1 SUBORDINATION AND ATTORNMENT. The Tenant agrees that this Lease and all
the rights of the Tenant hereunder are subject and subordinate to all
mortgages now or hereafter existing (including deeds of trust and all
instruments supplemental thereto) which may now or hereafter affect the
Building or Common Area Facilities and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided such
mortgagee has provided a non-disturbance agreement to the Tenant;
provided that the Tenant whenever requested by any mortgagee (including
any trustee under a deed of trust and mortgage) shall attorn to such
mortgagee as the Tenant upon all the terms of this Lease. Subject to
the foregoing, the Tenant agrees to execute promptly whenever requested
by the Landlord or by such mortgagee such instrument of subordination
or attornment, as the case may be, as may be required of it.
10.2 CERTIFICATES. The Tenant shall promptly whenever requested by the
Landlord from time to time execute and deliver to the Landlord (and if
required by the Landlord, to any mortgagee [including any trustee under
a deed of trust and mortgage] designated by the Landlord) a certificate
in writing as to the then status of this Lease, including as to whether
it is in full force and effect, is modified or unmodified, confirming
the rent payable hereunder and the state of the accounts between the
Landlord and Tenant, the existence or non-existence of defaults, and
any other matters pertaining to this Lease as to which the Landlord
shall request a certificate.
ARTICLE XI-REMEDIES OF LANDLORD ON TENANT'S DEFAULT
11.1 REMEDYING BY LANDLORD. In addition to all rights and remedies of the
Landlord available to it in the event of any default hereunder by the
Tenant either by any other provision of this Lease or by statute or the
general law, the Landlord:
(1) shall have the right at all times after reasonable written
notice of an event of default has been given to the Tenant
and a reasonable time given to cure such default provided
the Tenant is proceeding diligently, to
22
remedy or attempt to remedy any default of the Tenant, and
in so doing may make any payments due by the Tenant to
third parties and may enter upon the Leased Premises to do
any work or other things therein, as may be reasonably
necessary, and in such event all expenses of the Landlord
in remedying or attempting to remedy such default shall be
payable by the Tenant to the Landlord forthwith upon demand;
(2) subject to 11.3 below, shall have the same rights and remedies
in the event of any non-payment by the Tenant of any amounts
payable by the Tenant under any provision of this Lease as in
the case of a non-payment of Rent; and
(3) if the Tenant shall fail to pay any Rent or other amount from
time to time payable by it to the Landlord hereunder within 5
days of notice of same becoming due, shall be entitled, to
interest thereon at a rate of 3% per annum in excess of the
minimum lending rate to prime commercial borrowers from time
to time current at The Bank of Nova Scotia in Toronto from the
date upon which the same was due until actual payment thereof.
11.2 REMEDIES CUMULATIVE. The Landlord, subject to 11.3 hereof, may from
time to time resort to any or all of the rights and remedies available
to it in the event of any default hereunder by the Tenant, either by
any provision of this Lease or by statute or the general law, all of
which rights and remedies are not to be interpreted as excluding any
other or additional rights and remedies available to the Landlord by
statute or the general law.
11.3 RIGHT OF RE-ENTRY DEFAULT OR TERMINATION. It is expressly agreed that
if and whenever the Base Rent or Additional Rent hereby reserved,
remains unpaid, or if the Tenant shall breach or fail to observe or
perform any of the other covenants, agreements, provisoes, conditions,
reasonable rules or regulations and other obligations on the part of
the Tenant to be kept, observed or performed hereunder, provided the
Landlord has first delivered notice to the Tenant explaining the breach
and has allowed the Tenant five (5) days to rectify any monetary breach
and ten (10) days, (or such longer period as is reasonable in the
circumstances), to rectify any non-monetary breach, or if this Lease
shall have become terminated pursuant to any provision hereof, then and
in every such case it shall be lawful for the Landlord thereafter to
enter into and upon the Leased Premises or any part thereof and to have
again, repossess and enjoy the same as of its former estate, anything
in this Lease contained to the contrary notwithstanding.
11.4 TERMINATION RE-ENTRY. If and whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease,
the Landlord, in addition to all other rights and remedies, shall have
the right to terminate this Lease forthwith by leaving upon the Leased
Premises notice in writing of such termination.
11.5 PAYMENT ON TERMINATION. Upon the giving by the Landlord of a notice in
writing terminating this Lease, pursuant to 11.4 or 11.3 of this Lease,
this Lease and the Term shall terminate, rent and any other payments
for which the Tenant is liable under this Lease shall be computed,
apportioned and paid in full to the date of such termination, and the
Tenant shall immediately deliver up possession of the Leased Premises
to the Landlord, and the Landlord may re-enter and take possession of
them.
11.6 RENUNCIATION. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the
Landlord's right of distress.
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11.7 RE-LETTING. Whenever the Landlord becomes entitled to re-enter upon the
Leased Premises under 11.3 or 11.4 hereof of this Lease the Landlord in
addition to all other rights it may have shall have the right as agent
of the Tenant to enter the Leased Premises and re-let them and to
receive the rent therefor and as the agent of the Tenant to take
possession of any furniture or other property thereon and to sell the
same at public or private sale without notice and to apply the proceeds
thereof and any rent derived from re-letting the Leased Premises upon
account of the rent due and to become due under this Lease and the
Tenant shall be liable to the Landlord for the deficiency if any.
ARTICLE XII-EVENTS TERMINATING LEASE
12.1 CANCELLATION OF INSURANCE. If any policy of insurance upon the Building
and Common Area Facilities from time to time effected by the Landlord
shall be cancelled or about to be cancelled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or any
assignee, sub-tenant or licensee of the Tenant or anyone permitted by
the Tenant to be upon the Leased Premises and the Tenant after receipt
of notice in writing from the Landlord and a reasonable time allowed,
to reinstate such insurance or avoid cancellation, shall have failed to
take such immediate steps in respect of such use or occupation as shall
enable the Landlord to reinstate or avoid cancellation (as the case may
be) of such policy of insurance, the Landlord may at its option
terminate this Lease by leaving upon the Leased Premises notice in
writing of such termination.
12.2 PROHIBITED OCCUPANCY, BANKRUPTCY, ETC. If, without the written consent
of the Landlord the Leased Premises shall be used by any persons other
than the Tenant, its employees, invitees and customers or its permitted
assigns or sub-tenants or for any purpose other than that for which
they were leased, or occupied by any persons whose occupancy is
prohibited by this Lease, or if the Leased Premises shall be vacated or
abandoned, or remain unoccupied for 7 days or more while capable of
being occupied, or if the Term or any of the goods and chattels of the
Tenant shall at any time be seized in execution or attachment, or if
the Tenant shall make any assignment for the benefit of creditors,
become bankrupt or insolvent or take the benefit of any statute now or
hereafter in force for bankrupt or insolvent debtors or (if a
corporation) shall take any steps or suffer any order to be made for
its winding-up or other termination of its corporate existence, then in
any such case the Landlord may at its option, subject to compliance
with the procedures set forth in Section 11.3, terminate this Lease by
leaving upon the Leased Premises notice in writing of such termination
and thereupon, in addition to the payment by the Tenant of Rent and
other payments for which the Tenant is liable under this Lease, Rent
for the current month and the next ensuing 3 (three) months' Rent shall
immediately become due and be paid by the Tenant.
ARTICLE XIII-MISCELLANEOUS
13.1 REGISTRATION. The Tenant agrees with the Landlord not to register this
Lease, but nevertheless if the Tenant desires to register a notice of
this Lease, the Landlord agrees to execute a notice or acknowledgement,
if required, sufficient for the purpose in such form as the Landlord
and Tenant mutually approve provided in no event shall rental rates of
this Lease be shown.
13.2 NOTICE. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either
delivered to an executive officer of the Landlord or by facsimile
transmission or mailed by prepaid registered mail addressed to the
Landlord at 3650 Victoria
00
Xxxx Xxxxxx, Xxxxx #000, Xxxxx Xxxx (Xxxxxxx), Xxxxxxx, X0X 0X0, and
if to the Tenant, either delivered to the Tenant (or to an officer
of the Tenant if the Tenant is a firm or corporation) or by
facsimile transmission or mailed by prepaid registered mail
addressed to the Tenant at the Leased Premises. Every such notice
shall be deemed to have been given when delivered or, if mailed as
aforesaid in Canada, upon the day when it was mailed. The Landlord
may from time to time by notice in writing to the Tenant designate
another address in Canada as the address to which notices are to be
mailed to it.
13.3 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions
expressed or implied relating to this Lease or the Leased Premises save
as expressly set out in this Lease and in any agreement to Lease in
writing between the Landlord and the Tenant pursuant to which this
Lease has been executed. This Lease may not be modified except by an
agreement in writing executed by the Landlord and the Tenant.
13.4 CONSTRUCTION. All of the provisions of this Lease are to be construed
as covenants and agreements. If any provision of this Lease is illegal
or unenforceable it shall be considered separate and severable from the
remaining provisions of this Lease, which shall remain in force and be
binding as though the said provision had never been included. The
headings and marginal sub-headings of clauses and sub-clauses are for
convenience of reference and are not intended to limit, enlarge or
otherwise affect their meanings.
13.5 NON-WAIVER. No condoning, excusing or overlooking by the Landlord of
any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, agreement, proviso or condition
herein contained shall operate as a waiver of the Landlord's rights
hereunder in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of
the Landlord in respect of any such continuing or subsequent default or
breach and no waiver shall be inferred or implied by anything done or
omitted by the Landlord save only express waiver in writing.
13.6 ACCORD AND SATISFACTION. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the Base Rent and Additional Rent from
time to time due shall be deemed to be other than on account of the
earliest stipulated Base Rent and Additional Rent due, nor shall any
endorsement or statement on any cheque or any letter accompanying any
cheque or payment of Base Rent or Additional Rent be deemed an accord
and satisfaction, and the Landlord may accept such cheque or payment
without prejudice to the Landlord's right to recover the balance of
such Base Rent or Additional Rent or pursue any other remedy provided
in this Lease.
13.7 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Province of Ontario.
13.8 TIME OF THE ESSENCE. Time shall be of the essence of this Lease and
every part hereof.
13.9 NO PARTNERSHIP. Nothing contained herein shall be deemed or construed
by the parties hereto, nor any third party, as creating the
relationship of principal and agent, or a partnership, or a joint
venture between the parties hereto, it being understood and agreed that
none of the provisions contained herein nor any acts of the parties
hereto shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
13.10 FORCE MAJEURE. Except as herein otherwise expressly provided, if and
whenever and to the extent that the Landlord or the Tenant shall be
prevented delayed or restricted in the
25
fulfilment of any obligations hereunder in respect of the supply or
provision of any service or utility, the making of any repair, the
doing of any work or any other thing by reason of strikes or work
stoppages or being unable to obtain any material, service, utility
or labour required to fulfil such obligation or by reason of any
statute, law or regulation of or inability to obtain any permission
from any governmental authority having lawful jurisdiction
preventing, delaying or restricting such fulfilment, or by reason of
other unavoidable occurrence (save for any financial reason), the
time for fulfilment of such obligation shall be extended during the
period in which such circumstance operates to prevent, delay or
restrict the fulfilment thereof and the other party shall not be
entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned.
13.11 CONTRA PROFERENTEM. The Parties acknowledge and agree that both
parties have participated in the drafting of this Lease, and any
rule of law providing that ambiguities shall be construed against
the drafting party, shall be of no force or effect.
13.12 PLANNING ACT. This Lease is expressly conditional upon compliance
with the land division provisions of the Planning Act R.S.O. 1990
(as it may be amended from time to time), if applicable.
13.13 ACCESS. The Tenant, its employees, invitees and customers and
persons connected with the Tenant (subject and except as in this
Lease provided) shall have the right in common with others entitled
thereto from time to time to use the parking areas, driveways,
walkways, lawns, ramps (if any) and other Common Areas in and about
the Building from time to time. The Tenant shall not unreasonably
block or in any manner hinder the Landlord, other tenants or other
persons claiming through or under them or any of them who may be
authorized by the Landlord to utilize the Common Areas from so
doing. The Landlord may, acting reasonably, from time to time permit
the Tenant to have the exclusive use of portions of the parking area
which forms part of the Common Areas and to permit other tenants or
other persons to have exclusive use of portions thereof.
13.14 TRANSFERS BY THE LANDLORD. The Landlord at any time and from time to
time may sell, transfer, lease, assign or otherwise dispose of the
whole or any part of its interest in the Leased Premises or in the
Building and lands of which the Leased Premises form a part, at any
time and from time to time, may enter into any mortgage of the whole
or any of its interest in the Building and Lands or in the Leased
Premises. If the party acquiring such interest shall have agreed to
assume and so long as it holds such interest, to perform each of the
covenants, obligations and agreements of the Landlord under this
Lease in the same manner and to the same extent as if originally
named as the Landlord in this Lease, the Landlord shall, thereupon
be released from all of its covenants and obligations under this
Lease.
The Landlord may assign its rights under this Lease to a lending
institution as collateral security for a loan. If such assignment is
made and executed by the Landlord and notification thereof is given
to the Tenant by or on behalf of the Landlord this Lease shall not
be cancelled or modified for any reason whatsoever except as
provided for by the terms hereof or by law without the consent in
writing of such lending institution.
13.15 OCCUPANCY PERMIT. - deleted intentionally.
13.16 LEASED PREMISES. Save and except for any work to be performed by
the Landlord as specifically set out herein, the taking of
possession of the Leased Premises by the Tenant shall be conclusive
evidence that the Tenant accepts the
26
Premises in an "as is" condition and that the said Leased Premises
were in good and satisfactory condition at the time possession was
so taken.
13.17 SUCCESSORS AND ASSIGNS. This Lease and everything herein contained
shall enure to the benefit of and be binding upon the successors and
assigns of the Landlord and the permitted successors and assigns of
the Tenant. References to the Tenant shall be read with such changes
in gender as may be appropriate, depending upon whether the Tenant
is a male or a female person or a firm or corporation, and if the
Tenant is more than one person or entity, the covenants of the
Tenants shall be deemed joint and several. All obligations of the
Tenant or the Landlord under this Lease shall be deemed to be
covenants whether or not expressed as same. No rights of the Tenant
in this Lease shall be deemed to be personal, but shall accrue to
the benefit of the Tenant's successors, permitted subtenants and
assigns.
13.18 AREA DETERMINATION. In the event that any calculation or
determination by the Landlord of the Rentable Area of any premises
(including the Demised Premises) or the Building is disputed or
called into question, it shall be calculated or determined by the
Landlord's architect from time to time appointed for the purpose,
whose certificate shall be conclusive and the cost of such
certificate shall be borne by the Tenant.
13.19 APPROVAL. Unless specifically provided herein to the contrary,
whenever any reference is made to any notice, consent, approval,
lease, designation, requirement, opinion, judgement, permission, or
discretion, on the part of either the Landlord or the Tenant, the
same shall be given, granted, determined, required of exercised
reasonably without undue delay.
ARTICLE XIV-OTHER PROVISIONS
14.1 PARKING. The Tenant acknowledges that the Common Area Facilities are at
all times subject to the exclusive control and operation of the
Landlord, and the Landlord shall have the right to construct
improvements, alterations and additions thereto and to relocate the
various facilities thereon. The Tenant further acknowledges that the
parking facilities in the Common Area Facilities are on a non-exclusive
("First Come", "First Serve Basis") and may be altered or diminished
during the term or renewal thereof and the manner in which access is
permitted may be altered.
The Landlord shall provide to the Tenant for the Term of the lease,
free of charge, one (1) covered reserved stall and the use of thirty
(30) surface parking stalls on a first-come, first-serve basis.
14.2 WINDOW COVERINGS. - deleted intentionally.
14.3 EXTENSION. Provided that the Tenant is not habitually in default
under the terms of this Lease and is not in default at the time of
the exercise of the option herein, then the Landlord shall, at the
expiration of the Term hereof, upon written request of the Tenant,
grant to the Tenant an extension of this Lease for a further period
of five (5) years upon the same terms and conditions as contained
herein, save as to the Base Rental rate, and save as to any further
right of extension. Provided always that the Tenant shall have given
to the Landlord 180 days' notice in writing before the expiration of
the Term of its desire to have such extension. The Base Rental rate
for the extension term shall be at the then current market rate for
similar premises in a similar area and as mutually agreed between
the Landlord and the Tenant. In the event that the Landlord and the
Tenant are unable to agree upon the Base Rental rate for the
extension
27
term by 120 days prior to the maturity date, the matter shall be
submitted to arbitration by notice given by either party to the
other. Upon such notice being given, the dispute shall be determined
by the award of 3 arbitrators, or by a majority of them, one to be
named by the Landlord and one by the Tenant within 30 days of the
giving of such notice, and the 3rd to be selected by these 2
arbitrators within 7 days after both have been nominated. If either
the Landlord or the Tenant shall neglect or refuse to name its
arbitrator in the time specified or to proceed with the arbitration,
the arbitrator named by the other party shall proceed with the
arbitration, and the award of such arbitrator shall be final and
binding upon the Landlord and the Tenant. The Arbitrators shall have
all the power given by the Arbitrations Act of Ontario and may at
any time proceed in such manner as they see fit on such notice as
they deem reasonable in the absence of either party, if such party
fails to attend. Each party shall pay its own costs and shall share
equally the costs of arbitration. The award and determination of the
arbitrators shall be final and binding upon both parties hereto and
each party agrees not to appeal any such award or determination.
If the award of the arbitrators is not given before the commencement
date of the extension term, then the Tenant shall commence paying rent
at the market rate as determined by the Landlord together with
Additional Rent, which shall be adjusted forthwith after the award of
the arbitrators has become final and binding, to be calculated from the
commencement date of the extension term.
Interest at the rate set out herein shall be calculated monthly on the
difference between the Base Rent paid by the Tenant and the actual
amount awarded by the arbitrators and shall be paid forthwith upon
demand when the arbitrators' decision has been made.
14.4 TAXES, OPERATING COSTS AND HYDRO. The Landlord represents and warrants
that the Taxes, Operating Costs and Hydro applicable to the Leased
Premises is currently estimated to be $8.80 per Rentable square foot
per annum for 1995. The Tenant acknowledges that this is an estimate
only and is subject to adjustment when actual costs are known.
14.5 LEASEHOLD IMPROVEMENTS. As soon as possible and in any event, no later
than April 21, 1995, at its sole cost, but subject to force majeure and
delays attributable to the Tenant, the Landlord agrees to turnkey (that
is to complete the construction of improvements in the Leased Premises
so that the Tenant can commence business operations immediately), the
Leased Premises to a standard consistent with existing leasehold
improvements in the Leased Premises, and in accordance with the layout
attached hereto as Schedule "B".
The Landlord further agrees to utilize in the construction of the
Leased Premises existing materials and improvements (ie. doors and
frames, sidelights, glass partitions, glass entry doors, hardware,
cabinetry etc.) from adjoining vacant space on the 7th and 6th floor of
the Building at no cost to the Tenant, such materials and improvements
to be approved by the Tenant and agreed to by the Landlord.
14.6 RIGHT OF FIRST REFUSAL. Subject to prior rights of tenants in the
Building as of the Commencement Date, the Tenant will have the right
of first refusal, from time to time, to lease any part or all of any
office space on the 7th floor of the Building which becomes
available for lease. The rent and terms shall be equal to a bona
fide offer received by the Landlord. The Tenant shall have five (5)
business days following written notice by the Landlord containing
all relevant information pertaining to such bona fide offer received
in which to confirm to the Landlord that it wishes to exercise its
right of first refusal to lease such space on the same terms and
conditions as the bona fide offer, failing
28
which the Landlord shall be free to lease such space to the bona
fide offeror. This right becomes effective on the Commencement Date
of this Lease and thereafter will remain in effect provided the
Tenant is not in default under this Lease at the time of exercising
this right.
14.7 EXISTING FIXTURES. It is agreed and understood that all existing
fixtures as of the Commencement Date, including but not limited to
light fixtures, venetian blinds, and built-in cabinetry shall be
available to the Tenant at no additional cost.
14.8 CO-TENANCY. This Agreement is not personally binding upon and resort
shall not be had nor shall recourse or satisfaction be sought from the
private property of any of the unit holders of Investors Real Property
Fund (the "FUND"), trustees, officers, directors, employees or agents
of the trustee or manager of the Fund, it being intended and agreed
that only the property of the Fund shall be bound by this Agreement.
Only the co-tenancy interests of Menkes and Investors Group shall be
bound hereby and the obligations hereunder are not binding upon either
of Menkes or Investors Group in any other respect nor shall resort be
had to any other property of any of Menkes or Investors Group. The
rights and obligations of each of Menkes and Investors Group hereunder
shall, in every case, be several and proportionate and not either joint
or joint and several.
14.9 INTENTIONALLY DELETED AS PART OF SUBLEASE AGREEMENT EXHIBIT
14.10 CAPITAL REPAIRS AND REPLACEMENTS. Notwithstanding anything contained
in this Lease to the contrary:
(a) it is understood and agreed that the Tenant shall not be
responsible for (and the Landlord shall not be permitted to
chargeback to the Tenant) replacements to the Building that
are of a capital nature (as such term is determined under
generally accepted accounting principles); and
(b) in the event of repairs to the Building that are of a capital
nature, the Tenant shall be responsible for its Proportionate
Share of the costs thereof provided that any repair costs that
exceed $10,000.00 in any given year shall be charged to
Operating Costs on an amortization-over-useful-life basis.
Provided however, should a capital repair or replacement be
necessitated by reason of the negligent act or omission of the
Tenant or those for whom the Tenant is in law responsible, the
entire cost of such repair or replacement shall be borne by the
Tenant payable to the Landlord forthwith as Additional Rent.
14.11 COMMISSIONS. The Landlord shall be responsible for any and all real
estate commissions and brokerage fees, if any, payable in connection
with this Lease.
29
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease.
MENKES OFFICE PARKS LTD.
Per: /s/ Illegible
______________________________
(Landlord)
INVESTORS GROUP TRUST CO. LTD.
as trustee for
INVESTORS REAL PROPERTY FUND
Per: /s/ Illegible
______________________________
(Landlord)
Vice President
Per: /s/ Illegible
______________________________
(Landlord)
Assistant Secretary
XXXXXXXX MINWAX (CANADA) LTD.
Witness: /s/ Illegible Per: /s/ Xxxxxxx Xxxxxx
______________________________
(Tenant)
President
SCHEDULE "A"
Lots 4 & 5, Plan 65M-2139, in the Town of Richmond Hill, in the Regional
Municipality of York.
[GRAPHIC -- FLOOR PLAN]
SCHEDULE "B"
SCHEDULE "C"
RULES AND REGULATIONS
The Rules and Regulations may differentiate between different types of
businesses in the Building but the Rules and Regulations will be adopted and
promulgated by the Landlord acting reasonably and in such manner as would a
prudent Landlord of a reasonably similar office building. The Tenant's failure
to keep and observe the Rules and Regulations now or from time to time in force
constitutes a default under this Lease in such manner as if the same were
contained herein as covenants. The Landlord reserves the right from time to time
to amend or supplement the Rules and Regulations applicable to the Leased
Premises or the Building as in the Landlord's absolute and unfettered discretion
are from time to time needed for the safety, care, cleanliness and more
efficient operation of the Building and for the preservation of good order
therein. Notice of the Rules and Regulations and amendments and supplements, if
any, shall be given to the Tenant and the Tenant shall thereupon comply with and
observe all such Rules and Regulations provided that no Rules and Regulations
shall contradict any terms, covenants and conditions of this Lease. The Rules
and Regulations as at the Commencement Date are as follows:
1. The Tenant shall not place any debris, garbage, trash or refuse or
permit same to be placed or left in or upon any part of the Building
outside of the Leased Premises and the Tenant shall not allow any undue
accumulation of any debris, garbage, trash or refuse in or outside of
the Leased Premises.
2. The Landlord shall permit the Tenant and the Tenant's
employees and all Persons lawfully requiring communication
with them to have the use during such hours as the Landlord
deems reasonable in common with others entitled thereto of the
main entrance and stairways, corridors, elevators or other
mechanical means of access leading to the Leased Premises. At
times other than during such hours as the Landlord deems
reasonable the Tenant and the employees of the Tenant shall
have access to the Building and to the Leased Premises only in
accordance with the Rules and Regulations and shall be
required to satisfactorily identify themselves and to register
in any book which may at the Landlord's option be kept by the
Landlord for such purpose. If identification is not
satisfactory, the Landlord is entitled to prevent the Tenant
or the Tenant's employees or other Persons lawfully requiring
communication with the Tenant from having access to the
Building. In addition, the Landlord is not required to open
the door to the Leased Premises for the purpose of permitting
entry therein to any Person not having a key to the Leased
Premises.
3. The Landlord shall permit the Tenant and the employees of the
Tenant in common with others entitled thereto, to use the
washrooms on the floor of the Building on which the Leased
Premises are situated or, in lieu thereof, those washrooms
designated by the Landlord, save and except when the general
water supply may be turned off from the public main or at such
other times when repair and maintenance undertaken by the
Landlord shall necessitate the non-use of the facilities.
4. The Tenant shall permit window cleaners to clean the windows of the
Leased Premises during such hours as the Landlord deems reasonable.
5. The sidewalks, entrances, passages, elevators and staircases
shall not be obstructed or used by the Tenant, its agents,
servants, contractors, invitees or employees for any purpose
other than ingress to and egress from the offices. The
Landlord reserves entire control of all parts of the Building
employed for the common benefit of the tenants and without
restricting the generality of the foregoing, the sidewalks,
entrances, corridors and passages not within the Leased
Premises, washrooms, lavatories, air-conditioning closets, fan
2
rooms, janitor's closets, electrical closets and other closets, stairs,
elevator shafts, flues, stacks, pipe shafts and ducts and shall have
the right to place such signs and appliances therein, as it deems
advisable, provided that ingress to and egress from the Leased Premises
is not unduly impaired thereby.
6. The Tenant, its agents, servants, contractors, invitees or
employees, shall not bring in or take out, position, construct,
install or move any safe, business machinery or other heavy
machinery or equipment or anything liable to injure or destroy any
part of the Building without first obtaining the consent in writing
of the Landlord. In giving such consent, the Landlord shall have
the right in its absolute and unfettered discretion, to prescribe
the weight permitted and the position thereof, and the use and
design of planks, skids or platforms, to distribute the weight
thereof. All damage done to the Building by moving or using any such
heavy equipment or other office equipment or furniture shall be
repaired at the expense of the Tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only by
prior arrangement with the Landlord. Safes and other heavy office
equipment and machinery shall be moved through the halls and
corridors only upon steel bearing plates. No freight or bulky
matter of any description will be received into the Building or
carried in the elevators except during hours approved by the
Landlord.
7. The Tenant shall not place or cause to be placed any additional
locks upon any doors of the Leased Premises without the approval of
the Landlord and subject to any conditions imposed by the Landlord.
Two keys shall be supplied to the Landlord for each entrance door to
the Leased Premises and all locks shall be standard to permit access
to the Landlord's master key. If additional keys are requested,
they must be paid for by the Tenant. No one, other than the
Landlord's staff will have keys to the outside entrance doors of the
Building.
8. The water closets and other water apparatus shall not be used for
any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown
therein. Any damage resulting from misuse shall be borne by the
Tenant by whom or by whose agents, servants, or employees the same
is caused. The Tenant shall not (a) let the water run unless it is
in actual use, (b) deface or xxxx any part of the Building, (c)
drive nails, spikes, hooks or screws into the walls or woodwork of
the Building, or (d) bore, drill or cut into the walls or woodwork
of the Building in any manner or for any reason.
9. No one shall use the Leased Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or
articles other than those required for business purposes.
10. The Tenant shall not permit any cooking of any foods or liquids in
the Leased Premises without the written consent of the Landlord. The
Tenant shall be permitted the use of a microwave oven, a coffee
maker and a toaster.
11. Canvassing, soliciting and peddling in or about the Building and in the
parking facilities of the Building are prohibited.
12. It shall be the duty of the Tenant to assist and co-operate with the
Landlord in preventing injury to the Leased Premises.
13. No flammable oils or other flammable, dangerous or explosive material
save for samples of the Tenant's products and those approved in writing
by the Landlord's insurers shall be kept or permitted to be kept in the
Leased Premises. The Tenant
3
shall be solely responsible for ensuring full compliance with all
statutory regulations with respect to the keeping or storing of the
Tenant's products on the Leased Premises.
14. No bicycles or other vehicles shall be brought within the building
without the consent of the Landlord.
15. No animals or birds shall be brought into the Building without the
consent of the Landlord.
16. If the Tenant desires telegraphic or telephonic connections, the
Landlord will direct the electricians as to where and how the wires are
to be introduced. This restriction shall not extend to the installation
of the Tenant's phones within the Leased Premises. No gas pipe or
electric wire will be permitted which has not been ordered or
authorized by the Landlord.
17. The Tenant shall not cover or obstruct any of the skylights and windows
that reflect or admit light into any part of the Building except for
the proper use of approved window coverings.
18. Any hand trucks, carryalls, or similar appliances used in the Building
with the consent of the Landlord, shall be equipped with rubber tires,
slide guards and such other safeguards as the Landlord requires.
19. The Tenant shall not place or maintain any supplies, merchandise or
other articles in any vestibule or entry of the Leased Premises, on the
footwalks adjacent thereto or elsewhere on the exterior of the Leased
Premises or the Building.
20. The Tenant shall not commit or suffer or permit to be committed any
waste upon, or damage to, or disfiguration of the Leased Premises or
any nuisance or other act or thing which disturbs the quiet enjoyment
of any other tenant in the Building or which unreasonably disturbs or
interferes with or annoys any Person, nor perform any acts or carry on
any practices which may damage the building.
21. The Tenant shall not refer to the Building by any name other than that
designated from time to time by the Landlord, nor use such name for any
purpose other than that of the business address of the Tenant, provided
that the Tenant may use the municipal number of the Building assigned
to it by the Landlord instead of the name of the Building.
22. The Tenant shall not install or allow on the Leased Premises any
transmitting device, nor erect any aerial on the roof of the
Building or on any exterior walls of the Leased Premises. Any such
installations shall be subject to removal by the Landlord without
notice at any time and such removal shall be done and all damage as
a result thereof shall be made good, in each case, at the cost of
the Tenant, payable as Additional Rent forthwith on demand.
23. The Tenant shall not use any travelling or flashing lights or signs
or any loudspeakers, television, phonographs, radio or other
audio-visual or mechanical devices in a manner so that they can be
heard or seen outside of the Leased Premises. If the Tenant uses
any such equipment without receiving the prior written consent of
the Landlord, the Landlord shall be entitled to remove such
equipment without notice at any time and such removal shall be done
and all damage as a result thereof shall be made good, in each case,
at the cost of the Tenant, payable as Additional Rent forthwith on
demand.
4
24. The Landlord shall have the right to restrict access to the elevators
for move-in and move-out purposes. The Tenant shall consult prior to
taking or giving up occupation of the Leased Premises in order to
obtain an elevator schedule from the Landlord.
25. If the Tenant requires the supply of water, electricity, heating,
air conditioning or any other utility or service after the normal
hours during which the Landlord supplies same or on a weekend or
holiday, the Tenant shall purchase its requirements for those
utilities or services from the Landlord and the Tenant shall pay to
the Landlord as Additional Rent forthwith upon demand the cost of
same at the rates current from time to time set by the Landlord.
The Tenant acknowledges that reasonable prior verbal notice must be
given to the Landlord in the event that the Tenant requires the
supply of utilities after the hours the Landlord normally supplies
same.
CONSENT TO SUBLEASE
THIS AGREEMENT made this 24th day of September, 1997.
B E T W E E N:
MENKES OFFICE PARKS LTD. AND INVESTORS GROUP
TRUST CO. LTD., AS TRUSTEE FOR INVESTORS REAL
PROPERTY FUND
(hereinafter called the "LANDLORD")
OF THE FIRST PART
A N D:
XXXXXXXX MINWAX (CANADA) LTD.
(hereinafter called the "TENANT")
OF THE SECOND PART
A N D:
CHANGEPOINT CORP.
(hereinafter called the "SUBTENANT")
OF THE THIRD PART
WHEREAS:
(a) by a lease dated the 4th day of April, 1995 (the "LEASE"), the
Landlord leased to the Tenant the premises known as Xxxxx 000,
0000 00xx Xxxxxx, Xxxxxxxx Xxxx (xxx "PREMISES"), subject to the
terms, covenants, provisos and conditions therein set forth;
(b) the Tenant intends to sublease by a sublease agreement dated
August 31, 1997, a copy of which the Landlord is in receipt of,
(the "SUBLEASE") to the Subtenant and the Tenant and the Subtenant
have applied to the Landlord for consent to the Sublease.
NOW THIS INDENTURE WITNESSETH that in consideration of the covenants herein
exchanged the Parties agree as follows:
1. Subject to the provisions of this Agreement, the Landlord does herein
consent to such Sublease.
2. The Tenant acknowledges that notwithstanding such consent and Sublease,
the Tenant shall not be relieved of any of the covenants, provisos,
conditions and agreements set forth in the Lease and that this Consent
shall not be deemed to permit any further subletting. The Tenant further
acknowledges that the execution of this Consent to Sublease by the
Landlord does not imply approval by the Landlord of the provisions of
the sublease agreement to be entered into by the Tenant and Subtenant.
3. The Tenant and Subtenant acknowledges and agree that the payment of Base
Rent and Additional Rent required under the Lease shall continue to be
payable
2
to the Landlord by the Tenant at the times required, provided that in
the event of default by the Tenant (after notice and anytime to cure
provided under the Lease), in the payment of Base Rent or Additional
Rent, the Landlord shall have the right to collect the rent payable by
the Subtenant pursuant to the terms and conditions of the Sublease
directly from the Subtenant as agent for the Tenant and to apply any
rent so collected against rental arrears owing by the Tenant to the
Landlord.
The Tenant and the Subtenant hereby acknowledge that the Landlord shall
exercise this right to collect the rent payable pursuant to the Sublease
by giving written notice to the Tenant and the Subtenant. The Subtenant
covenants and agrees to thereafter pay such rent to the Landlord until
such time as the Landlord notifies the Subtenant that the default has
been cured by the Tenant. It is acknowledged that any such collection of
rent by the Landlord from the Subtenant shall not be construed as to
create a landlord/tenant relationship between the Landlord and the
Subtenant and shall in no way limit the Tenant's liability to pay all
rent outstanding under the Lease or in any way limit the Landlord's
rights and remedies under the Lease or at law.
4. The Tenant and Subtenant covenant and agree with the Landlord not to
amend the terms of the Sublease without the consent in writing of the
Landlord.
5. The Subtenant covenants and agrees to abide by all the terms, covenants,
provisos, conditions and agreements contained in the Lease save for the
payment of Base Rent and Additional Rent.
6. The Tenant agrees that in consideration of the Landlord giving such
consent, it shall pay any fee charged by the Landlord for processing
this Agreement. Said fee shall be approximately $425.00.
7. The Subtenant covenants and agrees with the Landlord that if the Lease
is terminated for any reason or surrendered, that from such date of
termination or surrender the Sublease shall be deemed to be terminated.
8. Notwithstanding the terms of the Sublease, the Tenant and Subtenant
acknowledge and agree that the Premises will not be used for any purpose
other than as permitted under the Lease.
9. Notwithstanding the terms of paragraph 9 of the Sublease, it is agreed
and understood that until such time as the Landlord delivers its written
approval for any proposed changes or alterations, the Subtenant shall
not be entitled to perform such changes or alterations notwithstanding
that the Tenant may not have replied within a period of 14 days as set
out in paragraph 9 of the Sublease.
10. This Agreement shall enure to and be binding upon the respective heirs,
executors, administrators and successors and permitted assigns of the
Parties hereto.
11. The parties acknowledge that the Lease is not personally binding upon
and resort shall not be had nor shall recourse or satisfaction be sought
from the private property of any of the unit holders of Investors Real
Property Funds (the "FUND"), trustees, officers, directors, employees or
agents of the trustee or manger of the Fund, it being intended and
agreed that only the property of the Fund shall be bound by the Lease.
Only the co-tenancy interests of Menkes Office Parks Ltd. and Investors
Group Trust Co. Ltd. shall be bound by the Lease and the obligations
under the Lease are not binding upon either of Menkes Office Parks Ltd.
or Investors Group Trust Co. Ltd. in any other respect nor shall resort
be had to any other property of any of Menkes Office Parks Ltd. or
Investors Group Trust Co. Ltd. The rights and obligations of each of
Menkes
3
Office Parks Ltd. and Investors Group Trust Co. Ltd. under the Lease
shall, in every case, be several and proportionate and not either joint
or joint and several.
IN WITNESS WHEREOF the parties hereto have hereunto caused to be affixed
their corporate seals duly attested to by the hands of their respective
proper signing officers authorized in that behalf the day and year first
above written.
LANDLORD: LANDLORD:
MENKES OFFICE PARKS LTD. INVESTORS GROUP TRUST CO. LTD.,
AS TRUSTEE FOR INVESTORS REAL
Per: /s/ Illegible PROPERTY FUND
--------------------------------
[Authorized Signing Officer]
Per: /s/
------------------------------
XXXXXX X. XXXXXXX
Vice President
Per: /s/
------------------------------
XXXXXX X. XXXXXXXX
Assistant Secretary
TENANT: SUBTENANT:
XXXXXXXX MINWAX (CANADA) LTD. CHANGEPOINT CORP.
Per: /s/ Illegible Per: /s/ Illegible
-------------------------------- -------------------------------
[Authorized Signing Officer] [Authorized Signing Officer]
Per: /s/ Illegible Per: /s/ Xxxx Xxxxxx
-------------------------------- -------------------------------
[Authorized Signing Officer] [Authorized Signing Officer]
ADDENDUM TO AND EXTENSION OF LEASE
THIS AGREEMENT made this 28th day of October, 0000
X X X X X X X:
MENKES OFFICE PARKS LTD., AND
INVESTORS GROUP TRUST CO. LTD. AS TRUSTEE
FOR INVESTORS REAL PROPERTY FUND
(collectively Hereinafter called the "LANDLORD")
OF THE FIRST PART
- and -
CHANGEPOINT CORPORATION
(Hereinafter called the "TENANT")
OF THE SECOND PART
WITNESSETH
WHEREAS:
A. By a lease dated the 18th day of May, 1995 (hereinafter called the
"LEASE") made between the Landlord and the Tenant, the Landlord leased
to the Tenant the premises known as 0000 00xx Xxxxxx, Xxxxx 000,
Xxxxxxxx Xxxx, Xxxxxxx (the "PREMISES") for a term of five (5) years
from the 23rd day of June, 1995 upon the terms and conditions therein
set forth.
B. The Tenant has made known its desire to lease certain additional
premises known municipally as 0000 00xx Xxxxxx, Xxxxx 000, Xxxxxxxx
Xxxx, Xxxxxxx (the "ADDITIONAL PREMISES"), containing approximately
9,537 square feet for a term commencing the 1st day of April, 2000 and
terminating the 30th day of September, 2000 (the "ADDENDUM TERM") and
the Landlord has agreed to do so.
C. The Tenant has also requested the Landlord grant to it this Extension
of the Lease for the Premises for a further term of three (3) months
and eight (8) days (the "EXTENSION TERM") from the 23rd day of June,
2000 on the terms hereinafter set forth and the Landlord has agreed to
do so.
Now in consideration of the mutual covenants hereinafter contained the Parties
agree as follows:
1. The Landlord hereby leases to the Tenant the Additional Premises
subject to the payment on the same days and in the like manner of
Base Rental and additional rent save and except that the Base Rental
for the Additional Premises from the 1st day of April, 2000, until
the 30th day of September, 2000 shall be in the amount of $85,833.00
per annum and the Base Rental monthly payments shall be in the
amount of $7,152.75 per month plus G.S.T. The term of lease for the
Additional Premises shall be six (6) months commencing on the 1st
day of April, 2000 and
-2-
terminating the 30th day of September, 2000, and subject to and with
the benefit of the Tenant's and Landlord's covenants, provisos and
conditions as contained in the Lease.
2. The Landlord hereby leases to the Tenant the Premises subject to the
payment on the same days and in the like manner of Base Rental and
additional rent save and except that the Base Rental for the Extension
Term shall be in the amount of $76,536.00 per annum and the Base Rental
monthly payments shall be in the amount of $6,378.00 per month plus
GST. The Extension Term for the Premises shall be for three (3) months
eight (8) days commencing on the 23rd day of June, 2000 and terminating
on the 30th day of September, 2000 and subject to and with the benefit
of the Tenant's and Landlord's covenants, provisos and conditions
contained in the Lease.
3. The Landlord and Tenant hereby mutually covenant that they will perform
and observe the several covenants, provisos and conditions in the Lease
as fully as if such covenants, provisos and conditions has been
repeated herein in full with such modifications only as are necessary
to make them applicable to this Addendum to and Extension of Lease. It
is further understood and agreed that any clauses in the Lease relating
to Landlord's work, Base Rental free or additional rent free periods,
Landlord's warranties, options to extend, early occupancy, early
access, additional rent estimates and any other such tenant inducements
are not applicable to the Addendum Term or Extension Term unless
otherwise stated herein.
4. Provided it is mutually agreed and understood that if the Tenant
duly and regularly pays the Base Rental and additional rental and
performs all of the provisos and agreements contained in the Lease
and this Addendum to and Extension of Lease on the part of the
Tenant to be performed, and provided further that the Tenant is not
habitually in default under the terms of the Lease and this Addendum
to and Extension of Lease and is not in default at the time of the
exercise of the option herein, then the Landlord shall, at the
expiration of the Addendum Term and Extension Term hereof, upon
written request of the Tenant, grant to the Tenant a further
extension of the Lease, as extended, for a further period of five
(5) years upon the same terms and conditions as contained herein,
save as to the Base Rental rate, save as to any further right of
extension and in an "as is" condition. Provided always that the
Tenant shall have given to the Landlord notice in writing on or
before March 28, 2000 of its desire to have such extension. The Base
Rental rate for such extension term shall be at the then fair market
rate at the time of the exercise by the Tenant for similar premises
in a similar area and as mutually agreed between the Landlord and
the Tenant. In the event that the Landlord and the Tenant are unable
to agree upon the Base Rental rate for such extension term by 120
days prior to the maturity date, the matter shall be submitted to
arbitration by notice given by either party to the other. Upon such
notice being given, the dispute shall be determined by the award of
3 arbitrators, or by a majority of them, one to be named by the
Landlord and one by the Tenant within 30 days of the giving of such
notice, and the 3rd to be selected by these 2 arbitrators within 7
days after both have been nominated. If either the Landlord or the
Tenant shall neglect or refuse to name its arbitrator in the time
specified or to proceed with the arbitration, the arbitrator named
by the other party shall proceed with the arbitration, and the award
of such arbitrator shall be final and binding upon the Landlord and
the Tenant. The Arbitrators shall have all the power given by the
Arbitrations Act of
-3-
Ontario and may at any time proceed in such manner as they see fit
on such notice as they deem reasonable in the absence of either
party, if such party fails to attend. Each party shall pay its own
costs and shall share equally the costs of arbitration. The award
and determination of the arbitrators shall be final and binding upon
both parties hereto and each party agrees not to appeal any such
award or determination.
In no event shall the Base Rental for the extension period be less than
the highest Base Rental payable under the final year of the Extension
Term.
If the award of the arbitrators is not given before the commencement
date of such extension term, then the Tenant shall commence paying base
rental at the market rate as determined by the Landlord together with
additional rental, which shall be adjusted forthwith after the award of
the arbitrators has become final and binding, to be calculated from the
commencement date of the extension term.
Interest at the rate set out herein shall be calculated monthly on the
difference between the base rental paid by the Tenant and the actual
amount awarded by the arbitrators and shall be paid forthwith upon
demand when the arbitrators' decision has been made.
The extension of lease form shall be prepared by the Landlord at the
Tenant's cost and the Tenant covenants and agrees to pay to the
Landlord said costs forthwith upon demand.
5. It is understood and mutually agreed that there is no further right of
extension for either the Premises or the Additional Premises unless
otherwise negotiated between the Parties.
6. The Parties agree to execute such further and other documentation as
may be necessary to give this agreement full force and effect.
7. This agreement shall be binding upon the respective heirs, executors,
administrators, successors and permitted assigns of the Parties hereto.
IN WITNESS WHEREOF the Parties hereto have hereunto caused to be affixed their
corporate seals, duly attested to by the hands of their proper signing officers
authorized in that behalf.
-4-
SIGNED, SEALED AND DELIVERED ) MENKES OFFICE PARKS LTD.
IN THE PRESENCE OF )
)
) Per: ________________________________
) (Landlord)
)
)
) INVESTORS GROUP TRUST CO. LTD. AS
) TRUSTEE FOR INVESTORS REAL
) PROPERTY FUND
)
)
) Per: ________________________________
) (Landlord)
)
)
) Per: ________________________________
) (Landlord)
)
)
) CHANGEPOINT CORPORATION
)
)
) Per: ________________________________
) (Tenant)
)
LEASE
THIS LEASE made as of the 15th day of August, 1994
PURSUANT TO THE SHORT FORMS OF LEASES ACT
BETWEEN
MENKES OFFICE PARKS LTD. AND
INVESTORS GROUP TRUST CO. LTD.
AS TRUSTEE FOR INVESTORS REAL
PROPERTY FUND
(the "Landlord")
OF THE FIRST PART
- AND -
BATTERY TECHNOLOGIES INC.
(the "Tenant")
OF THE SECOND PART
ARTICLES. For convenience of reference this Lease has been divided
into the following Articles:
Article I - Definitions
Article II - Lease Term and Payments
Article III - Landlord and Tenant Covenants
Article IV - Repair and Damage
Article V - Taxes and Operating Costs
Article VI - Utilities and Additional Services
Article VII - Assigning and Subletting
Article VIII - Fixtures and Improvements
Article IX - Insurance and Liability
Article X - Subordination, Attornment and Certificates
Article XI - Remedies of Landlord on Tenant's Default
Article XII - Events Terminating Lease
Article XIII - Miscellaneous
Article XIV - Other Provisions
LIST OF SCHEDULES. The following schedules form an integral part
of this Lease:
Schedule "A" - Legal Description of Lands
Schedule "B" - Leased Premises
Schedule "C" - Rules and Regulations
ARTICLE I - DEFINITIONS
1.0 DEFINITIONS. In this Lease the following defined terms shall have the
meanings set forth below.
"ADDITIONAL RENT" means Operating Costs under Section 5.5, Taxes under
5.3, Electricity under 6.2, and Insurance under Article IX and all
other charges, costs and expenses required to be paid by the Tenant
under the terms of this Lease (other than Base Rent) whether payable to
the Landlord or not.
"ADDITIONAL SERVICES" means the services and supervision supplied by
the Landlord to the Leased Premises and Common Area Facilities and
referred to herein or in any other provision hereof as Additional
Services and any other services which from time to time the Landlord
supplies to the Tenant at the Tenant's written request or as the
Landlord deems necessary, acting reasonably and which are additional to
the janitor and cleaning and other services typically supplied in a
first class office building, supervision in connection with the making
of any repairs or alterations by the Tenant affecting the Base
Building, building systems or Leasehold Improvements.
"ATTIC STOCK" means spare fan, pump and cooling tower motors, base
Building light fixtures, fuses, etc.
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"BASE RENT" means the base rent payable by the Tenant in accordance
with Section 2.3.
"BUILDING" means the building municipally known as 0000 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx.
"CAPITAL TAX" is an amount presently or hereafter imposed from time to
time pursuant to Part III of the Corporations Tax Act (Ontario) (the
"Act") upon the Landlord or the owner of the Building and Lands and
payable by the Landlord on account of its interest in the Building and
the Lands or any part thereof, or its interest in or capital employed
in the Building and the Lands, as the case may be.
"COMMENCEMENT DATE" means October 1, 1994.
"COMMON AREA FACILITIES" means all facilities, improvements,
installations, utilities and equipment located in the Building or the
Lands immediately surrounding the Building.
"COMMON AREAS" means those areas, facilities, utilities, improvements,
equipment and installations comprising the Lands and Building and which
are not leased or designated for lease to tenants but are provided to
be used in common by (or by the sublessees, agents, employees,
customers or licensees of) the Landlord, the Tenant, and other tenants
of the Building and other buildings on the Lands, whether or not the
same are open to the general public or a specific tenant of the
Building, and include, but are not limited to, parking areas and all
vestibules for and entrances and exits thereto; driveways, truckways
and related areas; corridors and underground or above ground tunnels or
passageways; stairways, escalators, ramps, and elevators and other
transportation equipment and systems; tenant, common and public
washrooms; telephone, meter, valve, mechanical, mail, storage, service
and janitor rooms; fire prevention, security and communication systems,
any fixtures, chattels, systems, decor, signs, facilities, or
landscaping and planted areas contained therein or maintained or used
in connection therewith.
"COST OF ADDITIONAL SERVICES" shall mean in the case of Additional
Services provided by the Landlord a reasonable charge made therefor by
the Landlord which shall not exceed the cost of obtaining such services
from independent contractors and in the case of Additional Services
provided by independent contractors the Landlord's total cost of
providing Additional Services to the Tenant including the proportionate
cost of all direct labour (including salaries, wages and fringe
benefits) and materials and other direct expenses incurred, the cost of
supervision without duplication or profit and other expenses reasonably
allocated thereto.
"INSURED DAMAGE" means that part of any damage occurring to the Leased
Premises of which the entire cost of repair is actually recovered by
the Landlord under a policy of insurance in respect of fire and other
perils from time to time effected by the Landlord, or for which the
Landlord has self-insured under Section 9.1 herein.
"LAND" means those lands described in Schedule "A" attached
hereto.
"LEASE" means this lease between the Landlord and the Tenant,
and all amendments hereto.
"LEASEHOLD IMPROVEMENTS" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant or by or on behalf
of any other previous occupant in the Leased Premises (including the
Landlord) with the exception of trade
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fixtures, furniture and equipment, (not of the nature of fixtures),
modular office furniture systems, improvements of a cosmetic nature
such as rugs (but not broadloom), decorations and other improvements
moveable without the use of tools, but Leasehold Improvements
include all office partitions however affixed and includes wall-to-wall
and other carpeting with the exception of such carpeting where laid
over vinyl tile or other finished floor and affixed so as to be
readily removable without damage.
"LEASED PREMISES" means approximately 5,801 square feet of Rentable
Area on the 6th floor of the Building as outlined in red on the plans
attached as Schedule "B" and known as suite 601.
"NORMAL BUSINESS HOURS" means the hours of 7:00 a.m. to 7:00
p.m. Monday to Friday, except public holidays.
"OPERATING COSTS" means the total of all expenses, costs, and outlays
incurred in the complete maintenance, repair and operation of the
Building and Common Area Facilities, whether incurred by or on behalf
of the Landlord.
(i) Operating Costs shall include without limiting the
generality of the foregoing (but subject to certain
deductions as hereinafter provided), the cost of providing
complete cleaning and janitorial services, the cost of
building supplies used in the maintenance of the Building,
Attic Stock, supervisory (if any) and maintenance
services, exterior landscaping, snow removal, garbage and
waste collection and disposal, rental of equipment and
signs, janitorial services to the Common Areas of the
Building, the cost of operating elevators, the cost of
heating, cooling and ventilating all space including both
rentable and non-rentable areas, the cost of providing hot
and cold water, electricity (including lighting), and the
replacement of electric light bulb tubes, starters and
ballasts, telephone and other utilities and services to
both rentable and non-rentable areas, the cost of all
repairs including repairs to the Building or services in
the Building or Common Area Facilities including elevators,
depreciation on the central HVAC systems distribution plant
and associated equipment, depreciation on all fixtures,
equipment and facilities requiring periodic maintenance or
substantial replacement, the cost of window cleaning, and
providing security (if any), the cost of all insurance for
liability or fire or other casualties referred to in
Article 9.1, accounting costs incurred in connection with
maintenance and operation including computations required
for the imposition of charges to tenants and audit charges
required to be incurred for the conclusive determination of
any costs hereunder, legal fees, the amount of all salaries
(only to the extent that such salaries or a proportion
thereof, relate directly to the Building), wages and fringe
benefits, unemployment and workers compensation insurance
premiums, pension plan contributions and other similar
premiums and contributions paid or provided to employees
directly or a reasonable proportion thereof engaged in the
maintenance, repair or operation of the Building, amounts
paid to independent contractors for any services in
connection with such maintenance, repair or operation, the
cost of management fees, and other indirect expenses to the
extent allocable to the maintenance, repair and operation
of the Building and Common Area Facilities and all other
expense of every nature incurred in connection with the
maintenance, repair and operation of the Building and
Common Area Facilities; and
(ii) Operating Costs shall exclude debt service, and all management
costs not allocable to the actual maintenance,
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repair and operation of the Building (such as that incurred
in connection with leasing and rental advertising).
"PROPERTY" means the Land and Building.
5
"PROPORTIONATE SHARE" shall mean the fraction which has as its
numerator the Rentable Area of the Leased Premises and has as its
denominator the total Rentable Area of the Building. The total Rentable
Area of the Leased Premises shall be adjusted from time to time, as may
be reasonably necessary, to give effect to any structural or functional
changes affecting the calculation of total Rentable Areas.
"RENT" means Base Rent and Additional Rent.
"RENTABLE AREA" in this Lease means:
(i) in the case of a single tenancy on a whole floor of the
Building, all areas within the inside finished surface of
the dominant portion of the permanent outer Building
walls and shall be computed by measuring the inside
finished surface of the dominant portion of the permanent
outer Building walls and shall include Service Areas and
any special stairs and/or elevators for the specific sole
use of that floor, but excluding stairs, elevator shafts,
flues, pipe shafts and vertical ducts and the like and
their enclosing walls (the "VERTICAL OPENINGS"), with no
deductions for columns or projections necessary to the
Building plus a gross-up factor for ground floor services
in common with other tenants, including, but not limited
to vestibules, corridors, elevator lobbies, mechanical,
electrical, telephone, mail, garbage and janitor's rooms,
such factor to be based upon a ratio which the ground
floor Service Areas of the Building bears to the gross
floor area, less Vertical Openings of the Building; and
(ii) in the case of a floor of the Building to be occupied by
more than one tenant, all areas from the inside finished
surface of the dominant portion of the permanent outer
Building walls to the Tenant's side of corridors and/or
other permanent interior walls and to the centre of
demising partitions which separate the area occupied from
adjoining rentable premises, herein referred to as the
"USABLE AREA", plus a gross-up factor for the Service
Areas on the floor in common with other tenants on the
same floor, including, but not limited to, corridors,
elevator lobbies, mechanical, electrical, telephone and
janitor's rooms exclusively serving the floor, such
factor to be based upon a ratio which the Service Areas
of the floor bear to the sum of the Usable Area of the
floor, plus an additional gross-up factor for ground
floor services in common with other tenants, including,
but not limited to, vestibules, corridors, elevator
lobbies, mechanical, electrical, telephone, mail, garbage
and janitor's rooms, such factor to be based upon a ratio
which the ground floor Service Areas of the Building
bears to the gross floor area, less Vertical Openings of
the Building.
"RULES AND REGULATIONS" means the rules and regulations
attached as Schedule "C".
"SERVICE AREAS" shall mean the area of corridors, elevator, lobbies,
service elevator lobbies, washrooms, air-cooling rooms, fan rooms,
janitor's closets, telephone and electrical closets and other closets
serving the Leased Premises in common with other premises on the same
floor.
"TAXES" means all taxes, rates, duties, levies and assessments
whatsoever, whether municipal, parliamentary or otherwise, levied,
imposed or assessed against the Building, Common Areas or Common Area
Facilities or upon the Landlord in respect thereof including Capital
Tax and commercial concentration tax, or from time to time levied,
imposed or assessed in the future in lieu thereof, or in addition
thereto, whether now
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contemplated or not, and those levied, imposed or assessed for
education, schools and local improvements and including all
costs and expenses (including legal and other professional fees and
interest and penalties on deferred payments), incurred by the Landlord
in good faith in contesting, resisting or appealing any taxes, rates,
duties, levies or assessments, but excluding taxes and license fees in
respect of any business carried on by tenants and occupants of the
Building (including the Landlord) to the extent such taxes are not
levied in lieu of taxes, rates, duties, levies and assessments against
the Building or upon the Landlord in respect thereof, and shall also
include any and all taxes which may in future be levied in lieu of
taxes as hereinbefore defined, and also including Large Corporations
Tax or any similar or successor tax in lieu thereof or in addition
thereto assessed upon the Landlord.
"TERM" means the term of the Lease stipulated in paragraph
2.2.
"UTILITIES" means electricity as described in Article 6.2, natural gas
and any other utility required in the operation of the Building.
ARTICLE II - LEASE TERM AND PAYMENTS
2.1 DEMISE. In consideration of the rents, covenants and agreements
hereinafter reserved and contained, the Landlord hereby leases to the
Tenant, for the exclusive use of the Tenant, the Leased Premises for
the Term.
2.2 TERM. The Lease shall have a term of six (6) years commencing on the
1st day of October, 1994 and terminating the 30th day of September,
2000, unless such term shall be sooner terminated as hereinafter
provided.
2.3 BASE RENT. THE TENANT SHALL PAY during the first year of the within
Term the sum of $39,156.75 of lawful money of Canada in nine (9) equal
monthly instalments of $4,350.75, in advance, the first of such
instalment to become due and payable on January 1, 1995 (the "BASE
RENTAL").
BASE RENT. THE TENANT SHALL PAY during the second year of the within
Term the sum of $52,209.00 of lawful money of Canada in twelve (12)
equal monthly instalments of $4,350.75, in advance, the first of such
instalment to become due and payable on October 1, 1995 (the "BASE
RENTAL").
BASE RENT. THE TENANT SHALL PAY during the third year of the within
Term the sum of $58,010.04 of lawful money of Canada in twelve (12)
equal monthly instalments of $4,834.17, in advance, the first of such
instalment to become due and payable on October 1, 1996 (the "BASE
RENTAL").
BASE RENT. THE TENANT SHALL PAY YEARLY AND EVERY YEAR during the
fourth, fifth and sixth year of the within Term the sum of $69,612.00
of lawful money of Canada in twelve (12) equal monthly instalments of
$5,801.00, in advance, the first of such instalment to become due and
payable on October 1, 1997 (the "BASE RENTAL").
The aforesaid annual Base Rent is calculated on the basis of the
Rentable Area of the Leased Premises being 5,801 square feet at a rate
of:
$9.00 per square foot of Rentable Area for the first two (2)years of
the Term; $10.00 per square foot of Rentable Area for the third year of
the Term; and
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$12.00 per square foot of Rentable Area for the fourth, fifth and
sixth year of the Term.
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IF THE TERM COMMENCES on any day other than the first or ends on any
day other than the last day of the month, the Base Rental and
additional rental for the fractions of a month at the commencement and
at the end of the Term shall be adjusted pro rata. All Base Rental
payments shall be payable on the first of each month.
2.4 PREPAID RENT. The Landlord acknowledges receipt of the sum of
$8,392.13, including GST, representing payment on account of the first
Rents due hereunder.
2.5 SECURITY DEPOSIT. The Landlord acknowledges receipt of the sum of
$8,000.00, to be held by the Landlord without any liability on the part
of the Landlord for the payment of interest thereon as a security
deposit for the faithful performance by the Tenant of the terms,
covenants and conditions of this Lease during the Term hereof and not
be applied on account of Base Rent. It is understood and agreed between
the Parties that any portion of this security deposit may be applied
towards the payment of overdue or unpaid Base Rent or Additional Rent
and may also be applied as compensation to the Landlord for any loss or
damage sustained with respect to the breach on the part of the Tenant
of any terms, covenants and conditions of this Lease, provided in all
cases however, that all the Landlord's other rights, either in law or
under this Lease are observed, and the Tenant's liability hereunder is
not limited to the amount of this security. If during the Term of this
Lease any portion of the security deposit is so applied, then the
Tenant will on written demand provide the Landlord with a sufficient
amount in cash to restore this deposit to the original sum deposited.
The Landlord will refund to the Tenant forthwith after the expiry date
of the within lease any portion of the security deposit not used by the
Landlord after application by the Landlord to any damage incurred by
the default of the Tenant under the terms of this Lease. It is further
provided that the Landlord will be discharged from any liability to the
Tenant with respect to this security if it is transferred to any
purchaser of the Landlord's interest in the Leased Premises.
2.6 POST-DATED CHEQUES
The Tenant shall deliver to the Landlord, prior to the Tenant taking
possession of the Premises, twelve (12) post-dated cheques each in the
amount equal to the monthly Base Rent plus the Additional Rent payments
required under this Lease. One month prior to the first and subsequent
anniversaries of the Lease, the Tenant agrees to deliver twelve (12)
post-dated cheques to the Landlord.
ARTICLE III - LANDLORD AND TENANT COVENANTS
3.1 LANDLORD COVENANTS. The Landlord covenants with the Tenant:
(a) QUIET ENJOYMENT. To provide for quiet enjoyment.
(b) INTERIOR CLIMATE CONTROL. To provide to the Leased
Premises during Normal Business Hours, processed air by
means of a system for heating and cooling, filtering and
circulating, processed in such quantities, and at such
temperatures as shall be reasonable in accordance with
good standards of interior climate control generally
pertaining to normal occupancy of premises for office
purposes. The Landlord shall have no responsibility for
inadequacy of the performance of the said system if the
Leased Premises depart from the design criteria.
(c) ELEVATORS. Subject to the supervision of the Landlord and
except when repairs are being made thereto, to
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furnish for use by the Tenant and its employees and invitees
in common with other persons entitled thereto reasonable
standards of passenger elevator service to the Leased
Premises. The Tenant shall be responsible for any damages
caused to the elevator as a result of taking possession
or giving up possession of the Leased Premises and shall
pay such costs forthwith upon demand as Additional Rent.
(d) ENTRANCES LOBBYS, ETC.. To permit the Tenant and its employees
and invitees to have the use in common with others entitled
thereto of the common entrances, lobbies, stairways, elevators
and corridors of the Building giving access to the Leased
Premises (subject to the Rules and Regulations and such other
reasonable limitations as the Landlord may from time to time
impose).
(e) WASHROOMS. To permit the Tenant and its employees and
invitees, in common with others entitled thereto to use the
washrooms available to the Leased Premises on each floor of
the Building upon which any part of the Leased Premises is
located.
(f) JANITOR SERVICE. To cause when reasonably necessary from time
to time the floors and windows of the Leased Premises to be
swept and cleaned and the desks, tables and other furniture of
the Tenant to be dusted, all in keeping with a first-class
office building, such work shall be done at the Landlord's
direction without interference by the Tenant, its servants or
employees.
(g) MAINTENANCE OF COMMON AREAS. To cause the elevators, common
entrances, lobbies, stairways, corridors, washrooms and other
parts of the Building from time to time provided for common
use and enjoyment to be swept, cleaned or otherwise maintained
substantially in keeping with a first-class office building.
3.2 TENANT COVENANTS. The Tenant covenants with the Landlord:
(a) RENT. To pay Base Rent and Additional Rent.
(b) PERMITTED USE. To use the Leased Premises only for the purpose
of any lawful business or office undertaking and not to use or
permit to be used the Leased Premises or any part thereof for
any other purpose or business.
(c) WASTE AND NUISANCE. Not to commit or permit any waste, damage
or injury to the Leased Premises including the Leasehold
Improvements and trade fixtures therein, reasonable wear and
tear excluded, any overloading of the floors thereof, any
nuisance therein or any use or manner of use causing
unreasonable annoyance to other tenants and occupants of the
Building.
(d) CONDITION. Not to permit the Leased Premises to become
hazardous or permit unreasonable quantities of waste or refuse
to accumulate therein and at the end of each business day to
leave the Leased Premises in a condition such as to reasonably
facilitate the performance of the Landlord's janitor and
cleaning services referred to herein.
(e) BY-LAWS. To comply at its own expense with all municipal,
federal, provincial, sanitary, fire, building and safety
statutes, laws, by-laws, regulations, ordinances, orders or
regulations pertaining to the operation and use of the Leased
Premises, the condition of the Leasehold Improvements, trade
fixtures, furniture and equipment installed by the Tenant
therein and the making by the Tenant of any repairs, changes
or improvements therein.
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(f) FIRE EXIT DOORS. To permit the installation by the Landlord of
all doors in the exterior wall of the Leased Premises
necessary to comply with the requirements of any statute, law,
by-law, regulation, ordinance, order or regulation.
(g) RULES AND REGULATIONS. To observe and to cause its employees,
invitees and others over whom the Tenant can reasonably be
expected to exercise control, the Rules and Regulations and
such further and other reasonable rules and regulations and
amendments and changes therein as may hereafter be made by the
Landlord and notified to the Tenant.
(h) OVERHOLDING. That in the event that the Tenant remains in
possession of the Leased Premises after the termination of
the original Term hereby created, without other special
agreement, it shall be at the monthly base rent equal to the
Base Rent and Additional Rent payable during the last month of
the Term hereof, times two, payable on the first day of each
and every month and subject in other respects to the terms of
this Lease, including those provisions requiring the payment
of Base Rent and Additional Rent in monthly installments.
3.3 SIGNS AND DIRECTORY. The Tenant covenants not to permit, paint,
display, inscribe, place or affix any sign, symbol, notice or lettering
of any kind anywhere outside the Leased Premises (whether on the
outside or inside of the Building) or within the Leased Premises so as
to be visible from the outside of the Leased Premises, with the
exception only of an identification sign at or near the entrance to the
Leased Premises and a directory listing in the main lobby of the
Building, in each case containing only the name of the Tenant and to be
subject to the approval of the Landlord as to size, location, content
and design criteria as established by the Landlord. Such identification
sign and directory listing shall be installed by the Landlord at the
expense of the Tenant, which expense shall be the invoice cost plus 15%
for an administration fee. The Landlord's acceptance of any name for
listing upon the directory will not be deemed, nor will it substitute
for the Landlord's consent if required by this Lease to any sublease,
assignment or other occupancy of the Leased Premises.
3.4 INSPECTION AND ACCESS. The Landlord shall be permitted to enter and to
have its authorized agents, employees and contractors enter the Leased
Premises, for the purpose of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements
to the Leased Premises or the Building, or to have access to utilities
and services and access panels which the Tenant agrees not to obstruct,
or to determine the electric light and power consumption by the Tenant
in the Leased Premises and the Tenant shall provide free and unhampered
access for such purposes and shall not be entitled to compensation for
any inconvenience, nuisance, discomfort or loss caused thereby, but the
Landlord, in exercising its rights hereunder, shall proceed to the
extent reasonably possible so as to minimize interference with the
Tenant's use and enjoyment of the Leased Premises.
3.5 EXHIBITING PREMISES. The Landlord and its authorized agents and
employees shall be permitted entry to the Leased Premises during the
last six (6) months of the term for the purpose of exhibiting them to
prospective tenants or at any time for the purposes of arranging
financing for the Building.
3.6 LANDLORD'S CONTROL. The Tenant acknowledges that the Common Area
Facilities are at all times subject to the exclusive control and
operation of the Landlord, and the Landlord shall
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have the right to construct improvements, alterations and additions
thereto and to relocate the various facilities thereon.
3.7 FINANCIAL STATEMENTS. The Tenant will, at the request of the Landlord,
supply copies of his financial statements to the Landlord or to the
mortgagees, if any, on the said lands or a prospective mortgagee.
ARTICLE IV - REPAIR AND DAMAGE
4.1 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep in good and reasonable state of repair and consistent
with the general standards of first-class office buildings in
Metropolitan Toronto, to perform all repairs and replacements
as a prudent tenant would do (reasonable wear and tear
excepted) to the Leased Premises including all Leasehold
Improvements and all trade fixtures therein and all glass
therein.
(b) that the Landlord may enter and view the state of repair from
time to time and that the Tenant will repair if required to do
so pursuant to the terms of this Lease, according to notice in
writing and that the Tenant will leave the Leased Premises in
a good and reasonable state of repair.
(c) that if any part of the Building other than the Leased
Premises becomes out of repair, damaged or destroyed through
the negligence or misuse of the Tenant or its employees,
invitees or others over whom the Tenant can reasonably be
expected to exercise control, the expense of repairs or
replacements thereto necessitated thereby shall be the
responsibility of the Tenant.
4.2 ABATEMENT AND TERMINATION. It is agreed between the Landlord and the
Tenant that:
(a) In the event of damage to the Leased Premises or to the
Building affecting access or services essential to the
conduct of business in the Leased Premises and if the
damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and
occupancy by the Tenant for the purposes of its business
for any period of time in excess of 10 days, then
(i) unless the damage was caused by the misuse, fault,
negligence of the Tenant or its employees,
invitees or others under its control, from and
after the date of occurrence of the damage and
until the Leased Premises are again reasonably
capable of use and occupancy as aforesaid, Base
Rent (but not any other payments required to be
made by the Tenant hereunder) shall xxxxx from
time to time in proportion to the part or parts of
the Leased Premises not reasonably capable of such
use and occupancy, and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case may
be (according to the nature of the damage and their
respective obligations to repair as provided herein,
it being understood that the Tenant shall have the
obligation to repair and replace all Leasehold
Improvements and all Tenant's trade fixtures) shall
repair such damage with all reasonable diligence, but
to the extent that any part of the Leased Premises is
not reasonably capable of such use and occupancy by
reason of
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damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the Tenant
is otherwise entitled hereunder shall not extend
later than the time by which repairs by the Tenant
ought to have been completed with reasonable
diligence; and
(b) if either the entire or substantially all of the Leased
Premises, or premises whether of the Tenant or other
tenants of the Building comprising in the aggregate 50% or
more of the Rentable Area of the Building are substantially
damaged or destroyed by any cause to such an extent in the
reasonable opinion of the Landlord cannot be repaired or
rebuilt within 180 days after the occurrence of the damage
or destruction, the Landlord may at its option, exercisable
by written notice to the Tenant given within 30 days after
the occurrence of such damage or destruction terminate this
Lease in which event neither the Landlord nor the Tenant
shall be bound to repair as provided herein and the Tenant
shall instead deliver up possession of the Leased Premises
to the Landlord with reasonable expedition but in any event
within 60 days after delivery of such notice of termination
and rent shall be apportioned and paid to the date upon
which possession is so delivered up (but, subject to any
abatement to which the Tenant may be entitled under
paragraph (a) of this clause 4.2 by reason of the Leased
Premises having been rendered in whole or in part not
reasonably capable of use and occupancy), but otherwise the
Landlord or the Tenant as the case may be (according to the
nature of the damage and their respective obligations to
repair described in 4.2 (a) (ii)) shall repair such damage
with reasonable diligence.
ARTICLE V - TAXES AND OPERATING COSTS
5.1 NET NET LEASE. The Tenant acknowledges and agrees that it is intended
that this Lease is a completely carefree net net lease to the Landlord,
except as expressly herein set out, that the Landlord is not
responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Leased
Premises, or the use and occupancy thereof, or the contents thereof or
the business carried on therein, except as expressly set out herein,
and the Tenant shall pay all charges, impositions, costs and expenses
of every nature and kind relating to the Leased Premises.
5.2 LANDLORD'S TAX OBLIGATIONS. The Landlord covenants with the Tenant,
subject to the provisions herein, to pay all Taxes promptly when due to
the taxing authority or authorities having jurisdiction.
5.3 TENANT'S TAX OBLIGATIONS. The Tenant covenants with the
Landlord:
(i) to pay promptly when due to the taxing authority or
authorities having jurisdiction all taxes, rates, duties,
levies and assessments whatsoever, whether municipal,
parliamentary or otherwise, levied, imposed or assessed
in respect of any and every business carried on by the
Tenant, subtenants, licensees, or other occupants of the
Leased Premises or in respect of the use or occupancy
thereof (including licence fees); and
(ii) to pay promptly to the Landlord when demanded or otherwise due
hereunder:
(1) all Taxes charged in respect of all Leasehold
Improvements and trade fixtures and all furniture and
equipment made, owned or installed by or on
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behalf of the Tenant in the Leased Premises as
Additional Rent;
(2) if by reason of the act, election or religion of the
Tenant or any subtenant, licensee or occupant of the
Leased Premises, the Leased Premises or any part of
them shall be assessed for the support of Separate
Schools, the amount by which the Taxes so payable
exceed those which would have been payable if the
Leased Premises had been assessed for the support of
Public Schools; and
(3) the Tenant's Proportionate Share of Taxes as
Additional Rent in the manner stipulated herein.
(iii) notwithstanding any other provisions of this Lease to the
contrary, the Tenant shall pay to the Landlord, at such
times and in such manner as the Landlord may direct,
without duplication, an amount equal to all goods and
service taxes, sales taxes, value-added taxes or any other
taxes imposed with respect to Base Rent, Additional Rent or
other amounts payable by the Tenant to the Landlord under
this Lease, howsoever such taxes are characterized. The
amount payable by the Tenant hereunder shall not be deemed
to be Base Rent or Additional Rent but the Landlord shall
have all of the same rights and remedies for recovery of
same as it has for recovery of Base Rent and Additional
Rent hereunder.
Whenever requested by the Landlord the Tenant will deliver to it
receipts for payment of all taxes, rates, duties, levies and
assessments payable by the Tenant hereof and furnish such other
information in connection therewith as the Landlord may reasonably
require.
5.4 METHOD OF PAYMENT OF TAXES. The Tax payments required to be made by the
Tenant to the Landlord under the provisions of 5.3 (ii) herein shall be
estimated by the Landlord, and the Tenant shall pay to the Landlord in
addition to the monthly payments of Base Rent hereinbefore reserved,
one-ninth of the estimated annual tax payments in the months of January
to September, both inclusive, in each calendar year with an adjustment
being made when the property tax xxxx respecting the Building is
received by the Landlord for each year. The Tenant shall within sixty
(60) days of being invoiced pay to the Landlord such additional sums as
may be required in order that out of such monthly additional payments,
the Landlord may pay the whole amount of the annual taxes as the
installments thereof fall due; and if the monthly additional payments
so paid by the Tenant to the Landlord exceed in total the Tenant's
Proportionate Share of the annual property tax xxxx with respect to the
Building and Lands of which the Leased Premises form part, then the
excess shall be adjusted by the Landlord in favour of the Tenant by
applying such excess on account of the next ensuing rental payments due
(following the issue of the yearly statement) and such next ensuing
rental payments shall be reduced by such excess accordingly. The
Landlord shall forward to the Tenant copies of all notices or tax bills
relating to the imposition of property taxes or other charges required
hereunder to be paid as to part or all thereof by the Tenant. In the
event that the Landlord is unable to obtain or determine a separate
allocation of taxes payable by the Tenant under this Lease, the
Landlord shall have the right to make an allocation, but shall be
obligated to act reasonably and not arbitrarily.
5.5 OPERATING COSTS. During the Term of this Lease, the Tenant shall pay to
the Landlord its Proportionate Share of Operating Costs. Prior to the
commencement of the Term of this Lease and the commencement of each
fiscal period selected by the Landlord thereafter which commences
during the Term the Landlord shall estimate the amount of Operating
Costs and the
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Tenant's Proportionate Share thereof for the ensuing fiscal
period or (if applicable) broken portion thereof, as the case may
be, and notify the Tenant in writing of such estimate. The amount
so estimated shall be payable in equal monthly installments in
advance over the fiscal period or broken portion thereof in
question, each such instalment being payable on each monthly
rental payment date provided in clause 2.3. The Landlord may from
time to time alter the fiscal period selected, in which case, and
in the case where only a broken portion of a fiscal period is
included with the Term, the appropriate adjustment in monthly
payments shall be made. From time to time during a fiscal period
the Landlord may re-estimate the amount of Operating Costs and
the Tenant's Proportionate Share thereof, in which event the
Landlord shall notify the Tenant in writing of such re-estimate
and fixed monthly installments for the then remaining balance of
such fiscal period or broken portion thereof such that, after
giving credit for installments paid by the Tenant on the basis of
the previous estimate or estimates, the Tenant's entire
Proportionate Share of Operating Costs will have been paid during
such fiscal period or broken period thereof. As soon as
practicable after the expiration of each fiscal period the
Landlord shall make a final determination of Operating Costs and
the Tenant's Proportionate Share thereof for such fiscal period
or (if applicable) broken portion thereof and shall provide a
statement to the Tenant and the parties shall make the
appropriate readjustment. Each 12 month period ending December
31st shall be deemed to be an accounting year for adjusting the
said Operating Costs and within 120 days after the end of each
such accounting year, the Landlord shall compute the said costs
for such accounting year and the Proportionate Share of the
Tenant therefor and shall submit to the Tenant a statement to
reflect the Operating Costs specifically permitted under this
Lease, and the said Proportionate Share thereof shall be borne by
the Tenant. To the extent that the Tenant's Proportionate Share
of such costs for such accounting year shall be greater than the
total amount actually paid by the Tenant by said monthly payments
in respect of such year the difference shall be paid by the
Tenant to the Landlord within thirty (30) days after receipt by
the Tenant of such statement. Any excess payments shall be
applied by reducing the next ensuing rental payment(s) by the
amount of such excess. The said accounting period may be modified
by the Landlord if reasonably necessary. The Tenant may not claim
a readjustment in respect to the Tenant's Proportionate Share of
Operating Costs based upon any error of assessment, determination
or calculation thereof unless claimed in writing prior to the
expiration of one year after the fiscal period to which the
Operating Costs relate.
5.6 PAYMENT OF ADDITIONAL RENT. Any Additional Rent provided for under this
Lease unless otherwise provided herein, shall become due with each
instalment of monthly Base Rent.
ARTICLE VI- UTILITIES AND ADDITIONAL SERVICES
6.1 WATER AND TELEPHONE. The Landlord shall furnish appropriate openings
for bringing telephone services to the Leased Premises and shall
provide hot and cold water to washrooms in the Leased Premises and to
washrooms available for the Tenant's use in common with others entitled
thereto.
6.2 ELECTRICITY. The Tenant shall pay throughout the Term promptly to the
Landlord (unless paid directly to Hydro authorities pursuant to
separate billing) as Additional Rent when demanded:
(i) The cost of electric light and power supplied to the Leased
Premises monthly based on the electric light and power
requirements of the Tenant on a pro rata basis as determined
from time to time during the Term by the
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Landlord acting reasonably; and
(ii) The cost of cleaning, maintaining and servicing in all
respects all electric lighting fixtures in the Leased Premises
including the cost of replacement of electric light bulbs,
tubes, starters and ballasts used to replace those installed
at the commencement of the Term. Such cleaning, maintaining,
servicing and replacement shall be within the exclusive right
of the Landlord. It is understood and agreed that the costs
described in this sub-section (ii) shall be included as part
of Operating Costs.
6.3 ADDITIONAL SERVICES. The Landlord, if it shall from time to time so
elect, shall have the exclusive right, by way of Additional Services,
to provide or have its designated agents or contractors provide any
janitor or cleaning service to the Leased Premises and Common Area
Facilities required by the Tenant which are additional to those
required to be provided by the Landlord hereunder, including the
Additional Services which the Landlord agrees to provide by
arrangement, and to supervise the moving of furniture or equipment of
the Tenant in and out of the Building where such moving of furniture or
equipment would be disruptive to the normal business of the Building,
and the making of repairs or alterations conducted within the Leased
Premises affecting Base Building, building systems or Leasehold
Improvements. The reasonable cost of Additional Services provided to
the Tenant, whether the Landlord shall be obligated hereunder or shall
elect to provide them as Additional Services, shall be paid to the
Landlord by the Tenant from time to time within thirty (30) days
following receipt of invoices therefor from the Landlord. Costs of
Additional Services charged directly to the Tenant and other tenants
shall be credited in computing Operating Costs.
ARTICLE VII- ASSIGNING AND SUBLETTING
7.1 ASSIGNMENTS AND SUBLETTINGS. The Tenant covenants with the Landlord
that it will not assign, sublet, licence or part with the possession of
the Leased Premises or any part thereof, or share the occupation of the
Leased Premises, or any part thereof, without the consent of the
Landlord in writing first had and obtained such consent not to be
unreasonably or arbitrarily withheld or delayed. Provided that as a
condition of the granting of its consent, the Landlord may require any
assignee, subtenant, licensee or occupant of the Leased Premises to
execute an agreement whereby he, it or they attorn to and become the
tenants of the Landlord as if he, it or they had executed this Lease,
or, except in the case of an absolute assignment of this Lease, to
execute an acknowledgement that all the sublessee's or undertenant's
estate, right and interest in and to the Leased Premises absolutely
terminates upon the surrender, release, disclaimer or merger of this
Lease notwithstanding the provisions of the Landlord and Tenant Act of
Ontario, R.S.O. 1980, Chapter 232 and amendments thereof with specific
reference to Paragraphs 21 and 39 (2) thereof, or other similar
statute. The Tenant shall furnish to the Landlord copies of any
assignment, sublease, licence or other agreement herein contemplated.
Notwithstanding any other provision in this section, no assignment,
subletting, licensing or parting with possession of the Leased Premises
shall in any way release or be deemed to release the Tenant (or any
guarantor hereof) from their obligations under the terms of this Lease.
Provided further that the proposed assignee, subtenant, licensee or
occupant of the Leased Premises shall be required to provide financial
statements or other financial information as the Landlord may require.
It is agreed that the Landlord may consider in determining whether to
grant consent among other matters, the following: the personal and
business history of the proposed assignee,
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occupant, sublessee and its key employees. The Tenant agrees to pay
the reasonable legal fees of the Landlord's solicitor relating to the
preparation of the Landlord's consent, and determination as to whether
to give the consent.
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If by sale, transfer or other disposition of its shares, the control of
the Tenant is altered so that 51% of the shares are transferred in any
manner, then same shall be deemed as an assignment and the provisions
of this paragraph shall apply. The Tenant covenants and agrees to
advise the Landlord forthwith if such a transfer is contemplated.
In the event of any sub-letting by the Tenant by virtue of which the
Tenant receives rent in the form of cash, goods, services or other
considerations from the sub-tenant which is higher than the rent
payable hereunder to the Landlord for the premises so sub-let, the
Tenant shall pay any such excess to the Landlord, in addition to all
rent and other costs payable hereunder, for the period of time during
which the said subtenant remains in possession of the premises sub-let
to it.
If the Tenant herein shall receive from any assignee of this lease,
either directly or indirectly, any consideration for the assignment of
this lease, either in the form of cash, goods or services, the Tenant
shall forthwith pay an amount equivalent to such consideration to the
Landlord and same shall be deemed to be further Additional Rent
hereunder.
In the event of any proposed assignment or subletting of the Leased
Premises by the Tenant, the Landlord shall not be obligated to consider
such a proposal nor be required to consent to same, unless the base
rent payable by the proposed assignee or sublessee is, in the sole
discretion of the Landlord, at the then current market rate for similar
space in the immediate and surrounding area.
In calculating whether there is any additional consideration payable by
an assignee or sublessee as hereinbefore provided, no deduction shall
be made for any commission payable to any agent or other party.
If the Landlord has granted to the Tenant, named on page 1 of this
Lease, any first rights of refusal, exclusive rights or options to
lease additional space or to purchase, it is agreed and understood that
upon the Tenant assigning, subletting, licensing or parting with
possession of the Leased Premises or any part thereof, the aforesaid
rights referred to shall automatically become null and void.
ARTICLE VIII- FIXTURES AND IMPROVEMENTS
8.1 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant shall not make,
erect, install or alter any Leasehold Improvements in the Leased
Premises without having requested and obtained the Landlord's prior
written approval which the Landlord shall not unreasonably delay or
withhold. In making, erecting, installing or altering any Leasehold
Improvements the Tenant will not alter or interfere with any
installations which have been made by the Landlord without the prior
written approval of the Landlord and in no event shall it alter or
interfere with window coverings (if any) installed by the Landlord on
exterior windows. The Tenant's request for any approval hereunder shall
be in writing and accompanied by an adequate description of the
contemplated work and, where appropriate, working drawings and
specifications thereof. All work to be performed in the Leased Premises
shall be performed by reputable contractors approved by the Landlord.
The Landlord reserves the right to require the Tenant to utilize the
contractor(s) of the Landlord where Base Building, building systems
and/or warranties may be affected provided the Landlord agrees that
charges by such contractors shall be in keeping with that which an arms
length contractor would charge. The cost of all such work shall be
estimated by the Landlord in advance and such estimate approved by the
Tenant prior to work commencing. All such work shall be performed at
the Tenant's expense and the Tenant shall be responsible for
19
application and payment of all fees in connection with any permits
required. All such work shall be subject to inspection by and the
reasonable supervision of the Landlord, as an Additional Service,
and shall be performed in accordance with any reasonable conditions or
regulations imposed by the Landlord and completed in a good and
workmanlike manner in accordance with the description of the work
approved by the Landlord. The Landlord shall be entitled to supervise
the work and charge the Tenant a supervision fee. The Landlord shall
also be entitled to charge reasonable fees for examining plans
respecting the proposed work. The Tenant shall be obligated to pay any
reasonable consultant's fees incurred by the Landlord for review and
approval of plans for construction of any nature after the Commencement
Date as Additional Rent.
8.2 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In connection with
the making, erection, installation or alteration of Leasehold
Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the
provisions of the Construction Lien Act (Ontario) and other statutes
from time to time applicable thereto and shall promptly pay all
accounts relating thereto. The Tenant will not create or cause to be
created any mortgage, conditional sale agreement or other encumbrance
in respect of its Leasehold Improvements or permit any such mortgage,
conditional sale agreement or other encumbrance to attach to the Leased
Premises or to the Building and Common Area Facilities. If and whenever
any construction or other lien for work, labour, services or materials
supplied to or for the Tenant for the cost of which the Tenant may be
in any way liable or claims therefor shall arise or be filed or any
such mortgage, conditional sales agreement or other encumbrance shall
attach, the Tenant shall within ten (10) days after receipt of notice
thereof procure the discharge thereof, including any certificate of
action registered in respect of any lien, by payment or giving security
or in such other manner as may be required or permitted by law failing
which the Landlord may in addition to all other remedies hereunder
avail itself of its remedy hereunder and may make any payments required
to procure the discharge of any such liens or encumbrances and shall be
entitled to be reimbursed by the Tenant as provided herein and its
right to reimbursement shall not be affected or impaired if the Tenant
shall then or subsequently establish or claim that any lien or
encumbrance so discharged was without merit or excessive or subject to
any abatement, set-off or defense.
8.3 REMOVAL OF FIXTURES AND IMPROVEMENTS. All Leasehold Improvements in or
upon the Leased Premises shall immediately upon termination of this
lease be and become the Landlord's property without compensation
therefor to the Tenant. Except to the extent otherwise expressly agreed
by the Landlord in writing no Leasehold Improvements, trade fixtures,
furniture or equipment shall be removed by the Tenant from the Leased
Premises either during or at the expiration or earlier termination of
the Term except that (1) the Tenant shall at the end of the Term remove
its trade fixtures, (2) the Tenant shall at the end of the Term remove
such Leasehold Improvements as the Landlord shall require to be
removed, and (3) the Tenant shall remove its furniture and equipment at
the end of the Term and may remove its furniture and equipment during
the Term in the usual and normal course of its business where such
furniture or equipment has become excess for the Tenant's purposes or
the Tenant is substituting therefor new furniture and equipment. The
Tenant shall, in the case of every removal either during or at the end
of the Term, make good any damage caused to the Leased Premises by the
installation and removal. Provided that upon the termination of this
Lease, the Tenant, if requested by the Landlord, shall restore the
interior of the Leased Premises to its former condition immediately
prior to the installation of such alterations or changes, including the
restoration of such standard fixtures as may have been
20
installed by the Landlord, and if not so requested, any such
21
changes or alterations shall become the property of the Landlord, or
alternatively, the Tenant shall install such comparable fixtures and
materials as may then be in use.
8.4 OCCUPATIONAL HEALTH AND SAFETY. The Tenant covenants and agrees that it
will ensure that a comprehensive and rigorous health and safety program
to protect workers in the Leased Premises is implemented to ensure that
no accidents or injuries occur in connection with the performance of
any Tenant's work. The Tenant will indemnify the Landlord in respect of
all claims, infractions, prosecutions, alleged infractions, losses,
costs and expenses and any fines or proceedings relating to fines or
other offences under all occupational health and safety and any similar
legislation that might be brought, or imposed against or suffered by
the Landlord or any of its officers, directors and employees in
connection with the performance of any Tenant's work. Without limiting
the obligations set out above in this Section 8.4, the Tenant will do
at least the following:
(a) ensure that all obligations imposed by statute, law or
regulation on "constructors" or other persons completing or
co-ordinating any Tenant's work are diligently and properly
completed;
(b) co-operate with the Landlord in having any Tenant's work
designated as a separate project so that the Landlord does not
incur any obligations as a constructor or obligations similar
to those of a constructor at law or by regulation imposed in
connection with the performance of any Tenant's work;
(c) comply with all directions that the Landlord may give to the
Tenant in connection with the performance of any Tenant's work
having regard to construction health and safety requirements;
and
(d) provide to the Landlord whatever rights of access, inspection,
and whatever information, documents and other matters the
Landlord requires in order to ensure that the Tenant's
obligations under this Section are complied with.
ARTICLE IX- INSURANCE AND LIABILITY
9.1 LANDLORD'S INSURANCE. The Tenant will during the whole of the Term
hereby granted as part of Operating Costs, pay its Proportionate Share
of all premiums with respect to insurance to be placed by the Landlord
and described in this Section 9.1. The Landlord agrees to maintain
during the Term, insurance coverages as follows:
(i) Property of Every Description (Building and Equipment) against
the perils of "All-Risks", under form providing coverage at
least equivalent to Commercial Building Broad Form I.A.O. Form
No. 700 including "Building By-Laws Endorsements", and to be
insured for the Replacement Value, without allowance for
depreciation and Stated Amount, and with no co-insurance
requirement.
(ii) "Rental Income" for the gross annual rental income on
"All-Risks" basis, as provided under Commercial Building Broad
Form I.A.O. Form 700 including "Building By-Laws
Endorsements", providing coverage at least equivalent to
I.A.O. Profits Form No. 551 with an eighteen (18) month
indemnity period.
(iii) Broad Form Boiler and Machinery Policy on a blanket and
replacement basis with limits for each accident in an amount
not less than the replacement cost of the Building containing
the Leased Premises and which shall cover all
22
boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus owned by the Landlord
and which shall include PCB coverage. It shall also
include "Rental Income" for the full gross annual income
equivalent to I.A.O. Profits Form No. 551 with a eighteen
(18) month indemnity period. This policy should also
provide "Building By-Laws Endorsements".
(iv) "General Liability Insurance" on a Comprehensive Form and on
an "occurrence" basis without deductible with retroactive
coverage against claims for Personal and Bodily Injury and
Death and/or Property Damage occurring upon or about the
Leased Premises and for a limit no less than $5,000,000.00
inclusive for one occurrence.
(v) Such other insurance coverage or coverages as a prudent owner
of a first class office building would obtain for protection
respecting loss of, or damage to the Building, the Lands or
the Leased Premises, or liability arising therefrom.
All such insurance coverages shall be kept and maintained by the
Landlord, and in no event shall the coverage be less than the amount
required by any institution then holding a mortgage on the Building and
Common Area Facilities. The Tenant shall pay to the Landlord, as part
of Operating Costs, its Proportionate Share of the Landlord's
Insurance. The Tenant shall not do or permit to be done any act or
thing whereby insurance coverage, premiums or any of them hereinbefore
contemplated, may be increased or cancelled by the insurer, or the
Leased Premises shall be rendered uninsurable, and if by reason of any
act done or permitted or omission, as the case may be, by the Tenant,
the said insurance coverage, premiums or any of them shall be
increased, then the Tenant, if it shall fail to rectify the event
giving rise to the increased premium after written notice thereof from
the Landlord, shall be liable to pay all of such increase in premium,
with respect to the entire coverages, and this notwithstanding that the
Tenant occupies only a portion of the Building covered by such
insurance coverages, and if the Leased Premises shall be rendered
uninsurable, or if the said insurance coverages, or any of them, shall
be cancelled by reason of any act or omission as the case may be by the
Tenant and shall not be susceptible of being replaced, after the
Landlord's reasonable efforts under the circumstances to do so, then
the Landlord, after giving the Tenant at least fourteen (14) days
written notice within which to replace insurance coverage or coverages
shall, at its absolute discretion, have the right to determine that the
term hereof has expired and in such event the Tenant shall deliver up
possession of the Leased Premises as if the Term of this Lease had
expired.
PROVIDED that no act required to be done by the Tenant nor any payment
required to be made by the Tenant, including reimbursements of
insurance premiums paid by the Landlord, shall relieve the Tenant from
any liability for damage incurred by the Landlord as result of any act
or omission of the Tenant.
If any other tenant of the Building has his own insurance premiums
increased by his insurers as a result of the use or occupation by the
Tenant herein of the within Leased Premises, the Tenant covenants and
agrees with the Landlord after written notice thereof, to pay the
additional cost forthwith upon demand as Additional Rent.
The Landlord's insurance policy shall contain a waiver of subrogation
in favour of the Tenant or those for whom the Tenant is in law
responsible.
9.2 AGENTS. The Tenant acknowledges, covenants and agrees that every right,
exemption from liability, defence and immunity of whatsoever nature
applicable to the Landlord or to which the
23
Landlord is entitled hereunder shall also be available and shall extend
to protect every such agent of the Landlord acting (in the course of
or in connection with his employment or otherwise) and for the
purposes of all of the foregoing provisions of this clause, the
Landlord is or shall be deemed to be acting as agent or trustee on
behalf of and for the benefit of persons who are or might be his
servants, employees or agents from time to time.
9.3 TENANT'S INSURANCE. The Tenant covenants to insure and to keep insured
during the whole of the Term, with an insurance company or companies in
good standing and upon terms and conditions all satisfactory to the
Landlord:
(i) "All-Risks" insurance upon all property owned by the Tenant
or for which it is legally liable or installed or affixed
by or on behalf of the Tenant and which is located in the
Building including, without limitation, furniture,
fittings, installations, alterations, additions, partitions
and fixtures or anything in the nature of a Leasehold
Improvement made or installed by or on behalf of the Tenant
in an amount equal to the full replacement cost thereof; if
there is a dispute as to the amount which comprises full
replacement cost the decision of the Landlord's Architect
shall be conclusive.
(ii) All parties hereto on a Comprehensive Form for bodily
injury and property damage, general liability coverage
arising out of the use, maintenance or repair of the Leased
Premises and/or the business of the Tenant or any
sub-tenant, licensees or occupiers of the Leased Premises;
such insurance shall be for a limit of not less than
$2,000,000.00 inclusive for any one occurrence, or such
higher limits as the Landlord, acting reasonably, or any
mortgagee requires from time to time, and shall contain a
severability of interest clause, and a cross liability
clause.
(iii) Glass coverage for the replacement of all glass broken,
cracked or damaged in, on and about the Leased Premises.
(iv) Any other form of insurance that the Landlord or any mortgagee
may reasonably require, from time to time in form, amounts and
for insurance risks acceptable to the Landlord and any
mortgagee.
The Tenant covenants and agrees to provide the Landlord with evidence
of insurance as required under this provision. Such evidence shall be
by way of a certified copy of the policy if available in timely fashion
or failing which a certificate of insurance at such time or times as
the Landlord may require. The Tenant agrees to provide same to the
Landlord forthwith after notice has been given by the Landlord to the
Tenant of its request. The Tenant's policy shall contain a waiver of
subrogation in favour of the Landlord and those for whom the Landlord
is in law responsible.
9.4 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that:
(i) the Landlord shall not be liable for any bodily injury or
death of, or loss or damage to any property belonging to the
Tenant or its employees, invitees, or licensees or any other
person in, on or about the Building and Common Area Facilities
howsoever occurring and in no event shall the Landlord be
liable for:
(1) any damage which is caused by steam, water, rain or
snow which may leak into, issue or flow from any part
of the Building or Common Area Facilities or from the
pipes or plumbing works thereof or from any other
place or quarter or for any damage caused by or
attributable to the condition or arrangement
23
of any electric or other wiring or for any damage
caused by anything done or omitted by any other
tenant; and
(2) 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, maintenance,
supervision or any other work in or about the Leased
Premises or the Building or Common Area Facilities;
and
(3) loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of
the Tenant; and
(ii) the Landlord shall have no responsibility or liability for
the failure to supply interior climate control or elevator
service when prevented from doing so by strikes, the
necessity of repairs, any order or regulation of any body
have jurisdiction, the failure of the supply of any utility
required for the operation thereof or any other cause
beyond the Landlord's reasonable control, and shall not be
held responsible for any bodily injury, death or damage to
property arising from the use of, or any happening in or
about, any elevator.
9.5 INDEMNITY OF LANDLORD. The Tenant agrees to indemnify and save harmless
the Landlord in respect of all claims for bodily injury or death,
property damage or other loss or damage arising from the conduct of any
work by or any act or omission of the Tenant or any assignee,
subtenant, agent, employee, contractor, invitee or licensee of the
Tenant, and in respect of all costs, expenses and liabilities incurred
by the Landlord in connection with or arising out of all such claims,
including the expenses of any action or proceeding pertaining thereto,
and in respect of any loss, cost, expense or damage suffered or
incurred by the Landlord arising from any breach by the Tenant of any
of its covenants and obligations under this Lease.
ARTICLE X-SUBORDINATION, ATTORNMENT AND CERTIFICATES
10.1 SUBORDINATION AND ATTORNMENT. The Tenant agrees that this Lease and all
the rights of the Tenant hereunder are subject and subordinate to all
mortgages now or hereafter existing (including deeds of trust and all
instruments supplemental thereto) which may now or hereafter affect the
Building or Common Area Facilities and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided such
mortgagee has provided a non-disturbance agreement to the Tenant;
provided that the Tenant whenever requested by any mortgagee (including
any trustee under a deed of trust and mortgage) shall attorn to such
mortgagee as the Tenant upon all the terms of this Lease. Subject to
the foregoing, the Tenant agrees to execute promptly whenever requested
by the Landlord or by such mortgagee such instrument of subordination
or attornment, as the case may be, as may be required of it.
10.2 CERTIFICATES. The Tenant shall promptly whenever requested by the
Landlord from time to time execute and deliver to the Landlord (and if
required by the Landlord, to any mortgagee [including any trustee under
a deed of trust and mortgage] designated by the Landlord) a certificate
in writing as to the then status of this Lease, including as to whether
it is in full force and effect, is modified or unmodified, confirming
the rent payable hereunder and the state of the accounts between the
Landlord and Tenant, the existence or non-existence of defaults, and
any other matters pertaining to this Lease as to which the Landlord
shall request a certificate.
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26
ARTICLE XI-REMEDIES OF LANDLORD ON TENANT'S DEFAULT
11.1 REMEDYING BY LANDLORD. In addition to all rights and remedies of the
Landlord available to it in the event of any default hereunder by the
Tenant either by any other provision of this Lease or by statute or the
general law, the Landlord:
(1) shall have the right at all times after reasonable written
notice of an event of default has been given to the Tenant and
a reasonable time given to cure such default provided the
Tenant is proceeding diligently, to remedy or attempt to
remedy any default of the Tenant, and in so doing may make any
payments due by the Tenant to third parties and may enter upon
the Leased Premises to do any work or other things therein, as
may be reasonably necessary, and in such event all expenses of
the Landlord in remedying or attempting to remedy such default
shall be payable by the Tenant to the Landlord forthwith upon
demand;
(2) subject to 11.3 below, shall have the same rights and remedies
in the event of any non-payment by the Tenant of any amounts
payable by the Tenant under any provision of this Lease as in
the case of a non-payment of Rent; and
(3) if the Tenant shall fail to pay any Rent or other amount from
time to time payable by it to the Landlord hereunder promptly
when due, shall be entitled, to interest thereon at a rate of
3% per annum in excess of the minimum lending rate to prime
commercial borrowers from time to time current at The Bank of
Nova Scotia in Toronto from the date upon which the same was
due until actual payment thereof.
11.2 REMEDIES CUMULATIVE. The Landlord, subject to 11.3 hereof, may from
time to time resort to any or all of the rights and remedies available
to it in the event of any default hereunder by the Tenant, either by
any provision of this Lease or by statute or the general law, all of
which rights and remedies are not to be interpreted as excluding any
other or additional rights and remedies available to the Landlord by
statute or the general law.
11.3 RIGHT OF RE-ENTRY DEFAULT OR TERMINATION. It is expressly agreed that
if and whenever the Base Rent or Additional Rent hereby reserved,
remains unpaid, or if the Tenant shall breach or fail to observe or
perform any of the other covenants, agreements, provisoes, conditions,
reasonable rules or regulations and other obligations on the part of
the Tenant to be kept, observed or performed hereunder, provided the
Landlord has first delivered notice to the Tenant explaining the
non-monetary breach and has allowed the Tenant ten (10) days to rectify
such non-monetary breach, or if this Lease shall have become terminated
pursuant to any provision hereof, then and in every such case it shall
be lawful for the Landlord thereafter to enter into and upon the Leased
Premises or any part thereof and to have again, repossess and enjoy the
same as of its former estate, anything in this Lease contained to the
contrary notwithstanding. No notice shall be required in the event of
monetary breach.
11.4 TERMINATION RE-ENTRY. If and whenever the Landlord becomes entitled to
re-enter upon the Leased Premises under any provision of this Lease,
the Landlord, in addition to all other rights and remedies, shall have
the right to terminate this Lease forthwith by leaving upon the Leased
Premises notice in writing of such termination.
11.5 PAYMENT ON TERMINATION. Upon the giving by the Landlord of a notice in
writing terminating this Lease, pursuant to 11.4 or
27
11.3 of this Lease, this Lease and the Term shall terminate, rent
and any other payments for which the Tenant is liable under this
Lease shall be computed, apportioned and paid in full to the date of
such termination, and the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord, and the Landlord may
re-enter and take possession of them.
11.6 RENUNCIATION. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's right
of distress.
11.7 RE-LETTING. Whenever the Landlord becomes entitled to re-enter upon the
Leased Premises under 11.3 or 11.4 hereof of this Lease the Landlord in
addition to all other rights it may have shall have the right as agent
of the Tenant to enter the Leased Premises and re-let them and to
receive the rent therefor and as the agent of the Tenant to take
possession of any furniture or other property thereon and to sell the
same at public or private sale without notice and to apply the proceeds
thereof and any rent derived from re-letting the Leased Premises upon
account of the rent due and to become due under this Lease and the
Tenant shall be liable to the Landlord for the deficiency if any.
ARTICLE XII-EVENTS TERMINATING LEASE
12.1 CANCELLATION OF INSURANCE. If any policy of insurance upon the Building
and Common Area Facilities from time to time effected by the Landlord
shall be cancelled or about to be cancelled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or any
assignee, sub-tenant or licensee of the Tenant or anyone permitted by
the Tenant to be upon the Leased Premises and the Tenant after receipt
of notice in writing from the Landlord and a reasonable time allowed,
to reinstate such insurance or avoid cancellation, shall have failed to
take such immediate steps in respect of such use or occupation as shall
enable the Landlord to reinstate or avoid cancellation (as the case may
be) of such policy of insurance, the Landlord may at its option
terminate this Lease by leaving upon the Leased Premises notice in
writing of such termination.
12.2 PROHIBITED OCCUPANCY, BANKRUPTCY, ETC. If, without the written consent
of the Landlord the Leased Premises shall be used by any persons other
than the Tenant, its employees, invitees and customers or its permitted
assigns or sub-tenants or for any purpose other than that for which
they were leased, or occupied by any persons whose occupancy is
prohibited by this Lease, or if the Leased Premises shall be vacated or
abandoned, or remain unoccupied for 7 days or more while capable of
being occupied, or if the Term or any of the goods and chattels of the
Tenant shall at any time be seized in execution or attachment, or if
the Tenant shall make any assignment for the benefit of creditors,
become bankrupt or insolvent or take the benefit of any statute now or
hereafter in force for bankrupt or insolvent debtors or (if a
corporation) shall take any steps or suffer any order to be made for
its winding-up or other termination of its corporate existence, then in
any such case the Landlord may at its option, subject to compliance
with the procedures set forth in Section 11.3, terminate this Lease by
leaving upon the Leased Premises notice in writing of such termination
and thereupon, in addition to the payment by the Tenant of Rent and
other payments for which the Tenant is liable under this Lease, Rent
for the current month and the next ensuing 3 (three) months' Rent shall
immediately become due and be paid by the Tenant.
ARTICLE XIII-MISCELLANEOUS
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13.1 REGISTRATION. The Tenant agrees with the Landlord not to register
this Lease, but nevertheless if the Tenant desires to register a
notice of this Lease, the Landlord agrees to execute a notice or
acknowledgement, if required, sufficient for the purpose in such
form as the Landlord and Tenant mutually approve provided in no
event shall rental rates of this Lease be shown.
13.2 NOTICE. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either
delivered to an executive officer of the Landlord or by facsimile
transmission or mailed by prepaid registered mail addressed to the
Landlord at 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxx #000, Xxxxx Xxxx
(Xxxxxxx), Xxxxxxx, X0X 0X0, and if to the Tenant, either delivered to
the Tenant (or to an officer of the Tenant if the Tenant is a firm or
corporation) or by facsimile transmission or mailed by prepaid
registered mail addressed to the Tenant at the Leased Premises. Every
such notice shall be deemed to have been given when delivered or, if
mailed as aforesaid in Canada, upon the day when it was mailed. The
Landlord may from time to time by notice in writing to the Tenant
designate another address in Canada as the address to which notices are
to be mailed to it.
13.3 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions
expressed or implied relating to this Lease or the Leased Premises save
as expressly set out in this Lease and in any agreement to Lease in
writing between the Landlord and the Tenant pursuant to which this
Lease has been executed. This Lease may not be modified except by an
agreement in writing executed by the Landlord and the Tenant.
13.4 CONSTRUCTION. All of the provisions of this Lease are to be construed
as covenants and agreements. If any provision of this Lease is illegal
or unenforceable it shall be considered separate and severable from the
remaining provisions of this Lease, which shall remain in force and be
binding as though the said provision had never been included. The
headings and marginal sub-headings of clauses and sub-clauses are for
convenience of reference and are not intended to limit, enlarge or
otherwise affect their meanings.
13.5 NON-WAIVER. No condoning, excusing or overlooking by the Landlord of
any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, agreement, proviso or condition
herein contained shall operate as a waiver of the Landlord's rights
hereunder in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of
the Landlord in respect of any such continuing or subsequent default or
breach and no waiver shall be inferred or implied by anything done or
omitted by the Landlord save only express waiver in writing.
13.6 ACCORD AND SATISFACTION. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the Base Rent and Additional Rent from
time to time due shall be deemed to be other than on account of the
earliest stipulated Base Rent and Additional Rent due, nor shall any
endorsement or statement on any cheque or any letter accompanying any
cheque or payment of Base Rent or Additional Rent be deemed an accord
and satisfaction, and the Landlord may accept such cheque or payment
without prejudice to the Landlord's right to recover the balance of
such Base Rent or Additional Rent or pursue any other remedy provided
in this Lease.
13.7 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Province of Ontario.
29
13.8 TIME OF THE ESSENCE. Time shall be of the essence of this Lease and
every part hereof.
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13.9 NO PARTNERSHIP. Nothing contained herein shall be deemed or construed
by the parties hereto, nor any third party, as creating the
relationship of principal and agent, or a partnership, or a joint
venture between the parties hereto, it being understood and agreed that
none of the provisions contained herein nor any acts of the parties
hereto shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
13.10 FORCE MAJEURE. Except as herein otherwise expressly provided, if and
whenever and to the extent that the Landlord shall be prevented
delayed or restricted in the fulfilment of any obligations hereunder
in respect of the supply or provision of any service or utility, the
making of any repair, the doing of any work or any other thing by
reason of strikes or work stoppages or being unable to obtain any
material, service, utility or labour required to fulfil such
obligation or by reason of any statute, law or regulation of or
inability to obtain any permission from any governmental authority
having lawful jurisdiction preventing, delaying or restricting such
fulfilment, or by reason of other unavoidable occurrence, the time
for fulfilment of such obligation shall be extended during the
period in which such circumstance operates to prevent, delay or
restrict the fulfilment thereof and the Tenant shall not be entitled
to compensation for any inconvenience, nuisance or discomfort
thereby occasioned.
13.11 CONTRA PROFERENTEM. The Parties acknowledge and agree that both
parties have participated in the drafting of this Lease, and any
rule of law providing that ambiguities shall be construed against
the drafting party, shall be of no force or effect.
13.12 PLANNING ACT. This Lease is expressly conditional upon compliance
with the land division provisions of the Planning Act R.S.O. 1990
(as it may be amended from time to time), if applicable.
13.13 ACCESS. The Tenant, its employees, invitees and customers and
persons connected with the Tenant (subject and except as in this
Lease provided) shall have the right in common with others entitled
thereto from time to time to use the parking areas, driveways,
walkways, lawns, ramps (if any) and other Common Areas in and about
the Building from time to time. The Tenant shall not unreasonably
block or in any manner hinder the Landlord, other tenants or other
persons claiming through or under them or any of them who may be
authorized by the Landlord to utilize the Common Areas from so
doing. The Landlord may, acting reasonably, from time to time permit
the Tenant to have the exclusive use of portions of the parking area
which forms part of the Common Areas and to permit other tenants or
other persons to have exclusive use of portions thereof.
13.14 TRANSFERS BY THE LANDLORD. The Landlord at any time and from time to
time may sell, transfer, lease, assign or otherwise dispose of the
whole or any part of its interest in the Leased Premises or in the
Building and lands of which the Leased Premises form a part, at any
time and from time to time, may enter into any mortgage of the whole
or any of its interest in the Building and Lands or in the Leased
Premises. If the party acquiring such interest shall have agreed to
assume and so long as it holds such interest, to perform each of the
covenants, obligations and agreements of the Landlord under this
Lease in the same manner and to the same extent as if originally
named as the Landlord in this Lease, the Landlord shall, thereupon
be released from all of its covenants and obligations under this
Lease.
The Landlord may assign its rights under this Lease to a
31
lending institution as collateral security for a loan. If such
assignment is made and executed by the Landlord and notification
thereof is given to the Tenant by or on behalf of the Landlord this
Lease shall not be cancelled or modified for any reason whatsoever
except as provided for by the terms hereof or by law without the
consent in writing of such lending institution.
13.15 OCCUPANCY PERMIT. Provided further that notwithstanding the
Commencement Date of the Lease as hereinbefore set out, the Tenant
shall not be permitted to enter into possession of the Leased
Premises until the Tenant has obtained at its sole expense, an
occupancy permit from the proper governmental authority. The
Landlord, in its sole discretion, may waive this provision. Provided
further, the Tenant agrees to use its best efforts to obtain same
prior to occupancy.
13.16 LEASED PREMISES. Save and except for any work to be performed by the
Landlord as specifically set out herein, the taking of possession of
the Leased Premises by the Tenant shall be conclusive evidence that
the Tenant accepts the Premises in an "as is" condition and that the
said Leased Premises were in good and satisfactory condition at the
time possession was so taken.
13.17 SUCCESSORS AND ASSIGNS. This Lease and everything herein contained
shall enure to the benefit of and be binding upon the successors and
assigns of the Landlord and the permitted successors and assigns of
the Tenant. References to the Tenant shall be read with such changes
in gender as may be appropriate, depending upon whether the Tenant
is a male or a female person or a firm or corporation, and if the
Tenant is more than one person or entity, the covenants of the
Tenants shall be deemed joint and several. All obligations of the
Tenant or the Landlord under this Lease shall be deemed to be
covenants whether or not expressed as same. No rights of the Tenant
in this Lease shall be deemed to be personal, but shall accrue to
the benefit of the Tenant's successors, permitted subtenants and
assigns.
13.18 AREA DETERMINATION. In the event that any calculation or
determination by the Landlord of the Rentable Area of any premises
(including the Demised Premises) or the Building is disputed or
called into question, it shall be calculated or determined by the
Landlord's architect from time to time appointed for the purpose,
whose certificate shall be conclusive and the cost of such
certificate shall be borne by the Tenant.
ARTICLE XIV-OTHER PROVISIONS
14.1 PARKING. The Tenant acknowledges that the Common Area Facilities are at
all times subject to the exclusive control and operation of the
Landlord, and the Landlord shall have the right to construct
improvements, alterations and additions thereto and to relocate the
various facilities thereon. The Tenant further acknowledges that the
parking facilities in the Common Area Facilities are on a non-exclusive
("First Come", "First Serve Basis") and may be altered or diminished
during the term or renewal thereof and the manner in which access is
permitted may be altered.
The Landlord shall grant to the Tenant the use of eighteen (18) surface
and covered unreserved parking spaces free of charge throughout the
Term of this Lease or any extension thereof.
14.2 WINDOW COVERINGS. The Tenant acknowledges that as at the date of this
Lease the Landlord does not intend to require the Tenant to install and
maintain window coverings. Provided
32
however, that the Landlord shall have the right at any future time
to prescribe a uniform pattern for window coverings to be utilized in
the Leased Premises. In the event the Landlord so prescribes same, the
Tenant shall permit the Landlord to install window coverings at the
cost of the Tenant which cost or the current portion thereof shall form
part of Operating Costs. Until such time, no window coverings may be
installed or utilized by the Tenant without the written consent of the
Landlord, which consent may be unreasonably or arbitrarily withheld.
14.3 EXTENSION. Provided it is mutually agreed and understood that if the
Tenant is not in default at the time of the exercise of the option
herein, then the Landlord shall, at the expiration of the Term hereof,
upon written request of the Tenant, grant to the Tenant an extension of
this Lease for a further period of five (5) years upon the same terms
and conditions as contained herein, save as to the Base Rental rate,
save as to any further right of extension and save as to Landlord's
Work. Provided always that the Tenant shall have given to the Landlord
180 days' notice in writing before the expiration of the Term of its
desire to have such extension. The Base Rental rate for the extension
term shall be at the then current market rate for similar premises in a
similar area and as mutually agreed between the Landlord and the
Tenant. In the event that the Landlord and the Tenant are unable to
agree upon the Base Rental rate for the extension term by 120 days
prior to the maturity date, the matter shall be submitted to
arbitration by notice given by either party to the other. Upon such
notice being given, the dispute shall be determined by the award of 3
arbitrators, or by a majority of them, one to be named by the Landlord
and one by the Tenant within 30 days of the giving of such notice, and
the 3rd to be selected by these 2 arbitrators within 7 days after both
have been nominated. If either the Landlord or the Tenant shall neglect
or refuse to name its arbitrator in the time specified or to proceed
with the arbitration, the arbitrator named by the other party shall
proceed with the arbitration, and the award of such arbitrator shall be
final and binding upon the Landlord and the Tenant. The Arbitrators
shall have all the power given by the Arbitrations Act of Ontario and
may at any time proceed in such manner as they see fit on such notice
as they deem reasonable in the absence of either party, if such party
fails to attend. Each party shall pay its own costs and shall share
equally the costs of arbitration. The award and determination of the
arbitrators shall be final and binding upon both parties hereto and
each party agrees not to appeal any such award or determination.
In no event shall the Base Rent for the extension period be less than
the highest Base Rent payable under the original Term.
If the award of the arbitrators is not given before the commencement
date of the extension term, then the Tenant shall commence paying rent
at the market rate as determined by the Landlord together with
Additional Rent, which shall be adjusted forthwith after the award of
the arbitrators has become final and binding, to be calculated from the
commencement date of the extension term.
Interest at the rate set out herein shall be calculated monthly on the
difference between the Base Rent paid by the Tenant and the actual
amount awarded by the arbitrators and shall be paid forthwith upon
demand when the arbitrators' decision has been made.
The extension of lease form shall be prepared by the Landlord at the
Tenant's cost and the Tenant covenants and agrees to pay to the
Landlord said costs forthwith upon demand.
14.4 TAXES, OPERATING COSTS AND HYDRO. The Taxes, Operating Costs
33
and Hydro applicable to the Leased Premises is currently estimated to
be $9.47 per square foot per annum for 1994. The Tenant acknowledges
that this is an estimate only and is subject to adjustment when actual
costs are known.
14.5 LANDLORD'S WORK. The Landlord shall complete, at its expense, leasehold
improvements to the Leased Premises (the "LANDLORD'S WORK") to a
maximum value of $23.00 per Rentable square foot, prior to commencement
of the Lease Term, in accordance with the Tenant's space plan. The
Tenant shall finalize and submit its space plan to the Landlord within
ten (10) business days preceding this Lease and shall approve final
working drawings by August 15, 1994. The Landlord shall arrange, at no
cost to the Tenant, use of the Landlord's space planner to complete a
space plan for the Leased Premises. The Landlord and the Tenant shall
agree in advance upon the selection and cost of leasehold materials
prior to commencement of the Landlord's Work.
14.6 BASE BUILDING. In addition to the Landlord's Work, the Landlord shall
provide the following base building work to the Leased Premises, prior
to the Commencement Date:
i) at the Tenant's expense, place the Tenant's name on the
main directory board and standard building tenant
identification on the Tenant's main entrance door; and
ii) at the Landlord's expense, provide a general clean-up of the
Leased Premises including minor repairs as needed.
14.7 EARLY ACCESS. The Tenant shall have the right of early access to the
Leased Premises for the purpose of making modifications to the Leased
Premises from September 15, 1994 as is convenient with the Landlord as
long as this Lease has been signed by both parties.
14.8 CO-TENANCY. This Agreement is not personally binding upon and resort
shall not be had nor shall recourse or satisfaction be sought from the
private property of any of the unit holders of Investors Real Property
Fund (the "FUND"), trustees, officers, employees or agents of the
trustee or manager of the Fund, it being intended and agreed that only
the property of the Fund shall be bound by this Agreement. Only the
co-tenancy interests of Menkes and Investors Group shall be bound
hereby and the obligations hereunder are not binding upon either of
Menkes or Investors Group in any other respect nor shall resort be had
to any other property of any of Menkes or Investors Group. The rights
and obligations of each of Menkes and Investors Group hereunder shall,
in every case, be several and proportionate and not either joint or
joint and several.
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease.
MENKES OFFICE PARKS LTD.
Per:_______________________________
(Landlord)
INVESTORS GROUP TRUST CO. LTD. AS
TRUSTEE FOR INVESTORS REAL PROPERTY FUND
Per:________________________________
(Landlord)
BATTERY TECHNOLOGIES INC.
PER:________________________________
(Tenant)
THIS SUBLEASE is made as of the 1st day of January, 1997.
BETWEEN:
BATTERY TECHNOLOGIES INC., a corporation
incorporated under the laws of Ontario
(the "Sublandlord")
-and-
CHANGEPOINT CORPORATION, a corporation
incorporated under the laws of Ontario
(the "Subtenant")
RECITALS:
A. By a lease dated as of the 15th day of August, 1994, (the "Lease"),
Menkes Office Parks Limited and Investors Group Trust Co. Ltd., as
trustee for Investors Real Property Fund (the "Head Landlord") leased to
the Sublandlord certain premises (the "Premises") situate, lying and
being in the Town of Richmond Hill, in the Province of Ontario and
designated as Suite 601 in the building (the "Building") municipally
known as 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx as more particularly
described in the Lease.
B. The term of the Lease expires on the 30th day of September, 2000, and is
subject to the tenant's covenants and agreements therein contained.
C. The Sublandlord has agreed to grant to the Subtenant, on the terms and
conditions hereinafter set forth, a sublease of the Premises, as shown
on Schedule "A" annexed to the Lease comprising approximately 5,801
square feet of gross leasable area (the "Subleased Premises").
NOW THERFORE IN CONSIDERATION of the rents, covenants and
agreements herein contained and by the parties to be respectively paid,
observed and performed, the parties hereto hereby covenant and agree each
with the other as follows:
1. All capitalized words and phrases used herein shall have the meaning
ascribed to them in the Lease unless specifically stated otherwise.
2. The Sublandlord hereby leases the Subleased Premises to the Subtenant,
subject to the reservation of rent and to the terms, covenants and
conditions hereinafter contained.
3. This Sublease shall be for a term of three (3) years and nine (9) months
less one (1) day to be computed from the 1st, day of January, 1997 and
expiring on the 29th day of September, 2000 (the "Sublease Term").
4. The Subtenant covenants to pay to the Sublandlord, as Base Rent, during
each year of the Sublease Term, without any deduction, abatement or
set-off, an annual rental in the amount of Fifty-Two Thousand, Two
Hundred and Nine Dollars ($52,209.00), which rent is based on a rate of
Nine Dollars ($9.00) per square foot of the gross leasable area of the
Subleased Premises and shall be paid in advance in equal monthly
installments of Four Thousand, Three Hundred and Fifty Dollars and
Seventy-Five Cents ($4,350.75) each, on the first day of each and every
month during the Sublease Term.
The Base Rent payable hereunder shall be adjusted, if at any time, the
Base Rent payable to the Head Landlord under the Head Lease is adjusted
by virtue of an architect's certificate under Section 2.1 of the Head
Lease.
-2-
The Subtenant also covenants to pay Additional Rent payable under the
Head Lease.
5. The Sublandlord acknowledges the receipt of Ten Thousand Dollars
($10,000.00) to be held by the Sublandlord and to be applied on account
of the Base Rent for the months of January and February 1997 and partial
payment towards the Base Rent for March 1997.
6. The Subtenant shall at the same time as it shall make payment of Base
Rent to the Sublandlord pay all Goods and Services Tax ("GST") exigible
with respect to such gross rent pursuant to the EXCISE TAX ACT (Canada).
GST shall not be deemed to be additional rent but the Sublandlord shall
have all of the same remedies with respect to collection of GST as it
shall have with respect to rent in arrears.
7. As security for the Subtenant's obligation to pay rent under the
Sublease, the Subtenant will provide to the Sublandlord a letter of
credit from a chartered Canadian bank in the amount of $50,000 on terms
and conditions satisfactory to the parties acting reasonably.
8. The Subtenant shall use the Subleased Premises for the purposes of
general corporate office use and for no other purpose.
9. The Subtenant acknowledges and agrees that it has inspected the
Subleased Premises and that it subleases the Subleased Premises on an
"as is" basis except that Sublandlord will arrange for, or reimburse
Subtenant for, steam cleaning of carpets prior to Subtenant taking
possession.
10. The Subtenant shall not take possession of the Subleased Premises until
such time as this Sublease has been executed by both parties and the
Subtenant has provided to the Sublandlord, satisfactory evidence of
insurance in accordance with the terms of the Head Lease, said insurance
to include both Head Landlord and Sublandlord as named insureds.
11. The terms and conditions contained in the Lease shall, mutatis mutandis,
be deemed to be the terms and conditions herein contained with respect
to the Subleased Premises, except where otherwise expressly provided
herein, and, except that the covenants on the part of the Head Landlord
contained in the Lease shall be deemed not to be contained herein as
covenants on the part of the Sublandlord. The Sublandlord hereby assigns
to the Subtenant for the Sublease Term such covenants on the part of the
Head Landlord (the same being automatically re-assigned to the
Sublandlord on the expiry or earlier termination of the Sublease) and
that the covenants therein contained on the part of the Sublandlord
shall be deemed to be contained herein as covenants on the part of the
Subtenant with the Sublandlord.
12. The following terms and conditions of the Lease shall are hereby deemed
not to be terms and conditions of this sublease:
(a) The Subtenant shall pay Base Rent in the amount provided herein
and not in the Head Lease.
13. Subject to the due performance of the Subtenant of its obligations and
agreements herein contained, the Sublandlord covenants with the
Subtenant:
(i) for quiet possession;
(ii) that it will pay all rents and other monies due and payable
under the terms of the Lease;
(iii) that it will perform and observe the covenants, terms and
conditions contained in the Lease on its part to be
performed and observed, to the extent that the same are not
required to be performed or observed by the Subtenant under
this sublease; and
(iv) that it will at the request of the Subtenant, acting
reasonably, take all necessary steps and procedures
available to it under the provisions of the Lease to enforce
all the rights and benefits that accrue to the Sublandlord
under the Lease and to the Subtenant under this Sublease.
14. The Sublandlord represents and warrants to the Subtenant that, as at the
date hereof:
(i) the Sublandlord and, to the best of the Sublandlord's
knowledge, the Head Landlord are in compliance with their
respective obligations under the Lease;
(ii) the Lease has not been amended and remains in full force and
effect; and
(iii) it has full power and authority to enter into and grant this
Sublease.
15. The provisions of Article VII of the Lease with respect to assignment
and subletting, shall be applicable to any assignment or sublease by the
Subtenant.
16. When and whenever the consent of the Sublandlord is required pursuant to
the Sublease, such consent shall be deemed to mean the consent of the
Sublandlord, acting reasonably (unless otherwise expressly stated), and
the Head Landlord.
17. In the event that the Subtenant breaches any covenant or agreement in or
is in any other way in default of, this Sublease, or the Lease, then the
Sublandlord shall have such remedies against the Subtenant as those of
the Head Landlord against the Sublandlord, pursuant to the Lease.
18. All sums, for rent or otherwise, payable to the Sublandlord under the
terms of this Sublease, shall bear interest at the rate of interest
determined in accordance with the provisions of the Head Lease relating
to delayed payment thereunder until the actual date of payment.
19. Any notice, demand, request or other instrument which may be or is
required to be given under this Sublease shall be delivered in person or
sent by registered mail postage prepaid and shall be addressed, if to
the Sublandlord, at Battery Technologies Inc., 00 Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx, or to such other person or at such other address
as the Sublandlord designates by written notice and, if to the
Subtenant, at the Subleased Premises. Any notice, demand request or
consent is conclusively deemed to have been given or made on the day
upon which it is delivered or, if mailed, then seventy-two (72) hours
following the date of mailing, as the case may be. Any party may give
written notice of any change of its address and thereafter the new
address is deemed to be the address of any change for the giving of
notices. If the postal service is interrupted or is substantially
delayed, any notice, demand, request or other instrument will be
delivered in person
20. This Sublease sets forth all the covenants, promises, agreements,
conditions and understandings between the Sublandlord and the Subtenant
concerning the Subleased Premises and there are no covenants, promises,
agreements, conditions, or understandings, either oral or written,
between them or relied upon by the Subtenant to induce it to enter into
this Sublease, other than are herein set forth. Except as herein
otherwise provided, no alteration, amendment, change or addition to this
Sublease shall be binding upon the Sublandlord or the Subtenant unless
in writing and signed by the Subtenant and the Sublandlord.
21. This Sublease is conditional upon obtaining the Head Landlord's consent
to it.
22. This Sublease shall be governed by and construed in accordance with the
laws of the Province of Ontario.
-4-
23. This Sublease shall extend to, be binding upon and enure to the benefit
of the parties hereto and their respective permitted, successors and
assigns.
IN WITNESS WHEREOF the parties hereto have executed these presents.
BATTERY TECHNOLOGIES INC.
Per: /s/ Illegible c/s
-----------------------------
CHANGEPOINT CORPORATION
Per: /s/ Illegible c/s
-----------------------------
SCHEDULE "A"
[DIAGRAM]
CONSENT TO SUBLEASE
THIS AGREEMENT made this 20th day of November, 1996.
BETWEEN: MENKES OFFICE PARKS LIMITED ("MENKES), AND
INVESTORS GROUP TRUST CO. LTD. ("INVESTORS
GROUP") AS TRUSTEE FOR INVESTORS REAL
PROPERTY FUND
(collectively HEREINAFTER called the "LANDLORD")
OF THE FIRST PART
-and-
BATTERY TECHNOLOGIES INC.
(HEREINAFTER called the "TENANT")
OF THE SECOND PART
-and-
CHANGEPOINT CORPORATION
(HEREINAFTER called the "SUBTENANT")
OF THE THIRD PART
WHEREAS:
(a) by a lease dated the 15th day of August, 1994 (the "Lease"), the
Landlord leased to the Tenant the premises known as suite 601 (the
"PREMISES"), subject to the terms, covenants, provisos and conditions
therein set forth;
(b) the Tenant intends to sublease by a sublease agreement dated November
11, 1996 (the "SUBLEASE"), a copy of which the Landlord is in receipt
of, to the Subtenant and the Tenant and the Subtenant have applied to
the Landlord for consent to sublease.
NOW THIS INDENTURE WITNESSETH that in consideration of the covenants herein
exchanged the Parties agree as follows:
1. Subject to the provisions of this Agreement, the Landlord does herein
consent to such sublease.
2. The Tenant acknowledges that notwithstanding such consent and Sublease,
the Tenant shall not be relieved of any of the covenants, provisos,
conditions and agreements set forth in the Lease and that this Consent
shall not be deemed to permit any further subletting. The Tenant further
acknowledges that the execution of this Consent to Sublease by the
Landlord does not imply approval by the Landlord of the provisions of
sublease agreement to be entered into by the Tenant and Subtenant and,
in particular, the Landlord does not consent to the provisions of
subparagraphs 11(ii) and 22(b) of the Sublease.
3. The Tenant and Subtenant acknowledge and agree that the payment of Base
Rent and Additional Rent required under the Lease shall continue to be
payable to the Landlord by the Tenant at the times required, provided
that in the event of default by the Tenant in the payment of Base Rent
or Additional Rent, the Landlord shall have the right to collect the
rent
-2-
payable by the Subtenant pursuant to the terms and conditions of the
Sublease directly from the Subtenant as agent for the Tenant and to
apply any rent so collected against rental arrears owing by the Tenant
to the Landlord.
The Tenant and the Subtenant hereby acknowledge that the Landlord shall
exercise this right to collect the rent payable pursuant to the Sublease
by giving written notice to the Tenant and the Subtenant. The Subtenant
covenants and agrees to thereafter pay such rent to the Landlord until
such time as the Landlord notifies the Subtenant that the default has
been cured by the Tenant. It is acknowledged that any such collection of
rent by the Landlord from the Subtenant shall not be construed as to
create a landlord/tenant relationship between the Landlord and the
Subtenant and shall in no way limit the Tenant's liability to pay all
rent outstanding under the Lease or in any way limit the Landlord's
rights and remedies under the Lease or at law.
4. The Tenant and Subtenant covenant and agree with the Landlord not to
amend the terms of the Sublease without the consent in writing of the
Landlord.
5. The Subtenant covenants and agrees to abide by all the terms, covenants,
provisos, conditions and agreements contained in the Lease save for the
payment of Base Rent and Additional Rent.
6. The Subtenant covenants and agrees with the Landlord that if the Lease
is terminated for any reason or surrendered, that from such date of
termination or surrender the Sublease shall be deemed to be terminated.
7. The Sublandlord agrees that in consideration of the Landlord giving such
consent it shall pay any fee charged by the Landlord or its solicitors
for processing this Sublease.
8. This Agreement shall enure to and be binding upon the respective heirs,
executors, administrators and successors and permitted assigns of the
Parties hereto.
9. The parties acknowledge that the Lease is not personally binding upon
and resort shall not be had nor shall recourse or satisfaction be sought
from the private property of any of the unit holders of Investors Real
Property Fund (the "FUND"), trustees, officers, directors, employees or
agents of the trustee or manager of the Fund, it being intended and
agreed that only the property of the Fund shall be bound by the Lease.
Only the co-tenancy interests of Menkes and Investors Group shall be
bound by the Lease and the obligations under the Lease are not binding
upon either of Menkes or Investors Group in any other respect nor shall
resort be had to any other property of any of Menkes or Investors Group.
The rights and obligations of each of Menkes and Investors Group under
the Lease shall, in every case, be several and proportionate and not
either joint or joint and several.
-3-
IN WITNESS WHEREOF the parties hereto have hereunto caused to be affixed
their corporate seals duly attested to by the hands of their respective
proper signing officers authorized in that behalf the day and year first
above written.
MENKES OFFICE PARKS LTD.
Per: /s/ Illegible
---------------------------------
(Landlord)
INVESTORS GROUP TRUST CO. LTD. AS
TRUSTEE FOR INVESTORS REAL
PROPERTY FUND
Per: /s/ Illegible
---------------------------------
Vice President (Landlord)
Per: /s/ Illegible
---------------------------------
Assistant Secretary (Landlord)
BATTERY TECHNOLOGIES INC.
Per: /s/ Illegible
---------------------------------
(Tenant)
CHANGEPOINT CORPORATION
Per: /s/ Illegible
---------------------------------
(Subtenant)
10/96
LEASE
THIS LEASE made as of the 8th day of July, 1996
PURSUANT TO THE SHORT FORMS OF LEASES ACT
BETWEEN
MENKES OFFICE PARKS LTD. and INVESTORS
GROUP TRUST CO. LTD. as trustee for
INVESTORS REAL PROPERTY FUND
(the "LANDLORD")
OF THE FIRST PART
- AND -
WALL DATA INCORPORATED
(the "TENANT")
OF THE SECOND PART
ARTICLES. For convenience of reference this Lease has been divided
into the following Articles:
Article I - Definitions
Article II - Lease Term and Payments
Article III - Landlord and Tenant Covenants
Article IV - Repair and Damage
Article V - Taxes and Operating Costs
Article VI - Utilities and Additional Services
Article VII - Assigning and Subletting
Article VIII - Fixtures and Improvements
Article IX - Insurance and Liability
Article X - Subordination, Attornment and Certificates
Article XI - Events of Default and Remedies
Article XII - Miscellaneous
Article XIII - Other Provisions
LIST OF SCHEDULES. The following schedules form an integral part of this
Lease:
Schedule "A" - Legal Description of Lands
Schedule "B" - Leased Premises
Schedule "C" - Rules and Regulations
Schedule "D" - Lease Rider
ARTICLE I - DEFINITIONS
1.0 DEFINITIONS. In this Lease the following defined terms shall have the
meanings set forth below.
"ADDITIONAL RENT" means Operating Costs under Section 5.5, Taxes
under 5.3, Electricity under 6.2, and Insurance under Article IX and
all other charges, costs and expenses required to be paid by the
Tenant under the terms of this Lease (other than Base Rent) whether
payable to the Landlord or not.
"ADDITIONAL SERVICES" means the services and supervision supplied by
the Landlord to the Leased Premises and Common Area Facilities and
referred to herein or in any other provision hereof as Additional
Services and any other services which from time to time the Landlord
supplies to the Tenant at the Tenant's written request or as the
Landlord deems necessary, acting reasonably and which are additional
to the janitor and cleaning and other services typically supplied in
a first class office building, supervision in connection with the
making of any repairs or alterations by the Tenant affecting the
Base Building, building systems or Leasehold Improvements.
"ATTIC STOCK" means spare fan, pump and cooling tower motors, base
Building light fixtures, fuses, etc.
2
"BASE RENT" means the base rent payable by the Tenant in accordance
with Section 2.3.
"BUILDING" means the building municipally known as 0000 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxx.
"CAPITAL TAX" is an amount presently or hereafter imposed from time to
time pursuant to Part III of the Corporations Tax Act (Ontario) (the
"Act") upon the Landlord or the owner of the Building and Lands and
payable by the Landlord on account of its interest in the Building and
the Lands or any part thereof, or its interest in or capital employed
in the Building and the Lands, as the case may be.
"COMMENCEMENT DATE" means September 16, 1996.
"COMMON AREA FACILITIES" means all facilities, improvements,
installations, utilities and equipment located in the Building or the
Lands immediately surrounding the Building.
"COMMON AREAS" means those areas, facilities, utilities, improvements,
equipment and installations comprising the Lands and Building and which
are not leased or designated for lease to tenants but are provided to
be used in common by (or by the sublessees, agents, employees,
customers or licensees of) the Landlord, the Tenant, and other tenants
of the Building and other buildings on the Lands, whether or not the
same are open to the general public or a specific tenant of the
Building, and include, but are not limited to, parking areas and all
vestibules for and entrances and exits thereto; driveways, truckways
and related areas; corridors and underground or above ground tunnels or
passageways; stairways, escalators, ramps, and elevators and other
transportation equipment and systems; tenant, common and public
washrooms; telephone, meter, valve, mechanical, mail, storage, service
and janitor rooms; fire prevention, security and communication systems,
any fixtures, chattels, systems, decor, signs, facilities, or
landscaping and planted areas contained therein or maintained or used
in connection therewith.
"COST OF ADDITIONAL SERVICES" shall mean in the case of Additional
Services provided by the Landlord a reasonable charge made therefor by
the Landlord which shall not exceed the cost of obtaining such services
from independent contractors and in the case of Additional Services
provided by independent contractors the Landlord's total cost of
providing Additional Services to the Tenant including the proportionate
cost of all direct labour (including salaries, wages and fringe
benefits) and materials and other direct expenses incurred, the cost of
supervision without duplication or profit and other expenses reasonably
allocated thereto.
"INSURED DAMAGE" means that part of any damage occurring to the Leased
Premises of which the entire cost of repair is actually recovered by
the Landlord under a policy of insurance in respect of fire and other
perils from time to time effected by the Landlord, or for which the
Landlord has self-insured under Section 9.1 herein.
"LAND" means those lands described in Schedule "A" attached
hereto.
"LEASE" means this lease between the Landlord and the Tenant,
and all amendments hereto.
"LEASEHOLD IMPROVEMENTS" means all fixtures, improvements,
installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant or by or on behalf
of any other previous occupant in the Leased
3
Premises (including the Landlord) with the exception of trade
fixtures, furniture and equipment, (not of the nature of fixtures),
modular office furniture systems, and moveable partitions,
improvements of a cosmetic nature such as rugs (but not broadloom),
decorations and other improvements moveable without the use of
tools, but Leasehold Improvements include all office partitions
however affixed and includes wall-to-wall and other carpeting with
the exception of such carpeting where laid over vinyl tile or other
finished floor and affixed so as to be readily removable without
damage.
"LEASED PREMISES" means approximately 4,396 square feet of Rentable
Area on the third floor of the Building known as suite 303, as
outlined in red on the plans attached as Schedule "B".
"NORMAL BUSINESS HOURS" means the hours of 7:00 a.m. to 7:00
p.m. Monday to Friday, except public holidays.
"OPERATING COSTS" means the total of all expenses, costs, and outlays
incurred in the complete maintenance, repair and operation of the
Building and Common Area Facilities, whether incurred by or on behalf
of the Landlord.
(i) Operating Costs shall include without limiting the
generality of the foregoing (but subject to certain
deductions as hereinafter provided), the cost of providing
complete cleaning and janitorial services, the cost of
building supplies used in the maintenance of the Building,
Attic Stock, supervisory (if any) and maintenance services,
exterior landscaping, snow removal, garbage and waste
collection and disposal, rental of equipment and signs,
janitorial services to the Common Areas of the Building,
the cost of operating elevators, the cost of heating,
cooling and ventilating all space including both rentable
and non-rentable areas, the cost of providing hot and cold
water, electricity (including lighting), and the
replacement of electric light bulb tubes, starters and
ballasts, telephone and other utilities and services to
both rentable and non-rentable areas, the cost of all
repairs including repairs to the Building or services in
the Building or Common Area Facilities including elevators,
depreciation on the central HVAC systems distribution plant
and associated equipment, depreciation on all fixtures,
equipment and facilities requiring periodic maintenance or
substantial replacement, the cost of window cleaning, and
providing security (if any), the cost of all insurance for
liability or fire or other casualties referred to in
Article 9.1, accounting costs incurred in connection with
maintenance and operation including computations required
for the imposition of charges to the tenants and audit
charges required to be incurred for the conclusive
determination of any costs hereunder, legal fees, the
amount of all salaries (only to the extent that such
salaries or a proportion thereof, relate directly to the
Building), wages and fringe benefits, unemployment and
workers compensation insurance premiums, pension plan
contributions and other similar premiums and contributions
paid or provided to employees directly or a reasonable
proportion thereof engaged in the maintenance, repair or
operation of the Building, amounts paid to independent
contractors for any services in connection with such
maintenance, repair or operation, the reasonable cost of
management fees, and other indirect expenses to the extent
allocable to the maintenance, repair and operation of the
Building and Common Area Facilities and all other
reasonable expense of every nature incurred in connection
with the maintenance, repair and operation of the Building
and Common Area Facilities; and
4
(ii) Operating Costs shall exclude debt service, and all
management costs not allocable to the actual maintenance,
repair and operation of the Building (such as that incurred
in connection with leasing and rental advertising).
"PROPERTY" means the Land and Building.
"PROPORTIONATE SHARE" shall mean the fraction which has as its
numerator the Rentable Area of the Leased Premises and has as its
denominator the total Rentable Area of the Building. The total Rentable
Area of the Leased Premises shall be adjusted from time to time, as may
be reasonably necessary, to give effect to any structural or functional
changes affecting the calculation of total Rentable Areas.
"RENT" means Base Rent and Additional Rent.
"RENTABLE AREA" in this Lease means:
(i) in the case of a single tenancy on a whole floor of the
Building, all areas within the inside finished surface of
the dominant portion of the permanent outer Building
walls and shall be computed by measuring the inside
finished surface of the dominant portion of the permanent
outer Building walls and shall include Service Areas and
any special stairs and/or elevators for the specific sole
use of that floor, but excluding stairs, elevator shafts,
flues, pipe shafts and vertical ducts and the like and
their enclosing walls (the "VERTICAL OPENINGS"), with no
deductions for columns or projections necessary to the
Building plus a gross-up factor for ground floor services
in common with other tenants, including, but not limited
to vestibules, corridors, elevator lobbies, mechanical,
electrical, telephone, mail, garbage and janitor's rooms,
such factor to be based upon a ratio which the ground
floor Service Areas of the Building bears to the gross
floor area, less Vertical Openings of the Building; and
(ii) in the case of a floor of the Building to be occupied by
more than one tenant, all areas from the inside finished
surface of the dominant portion of the permanent outer
Building walls to the Tenant's side of corridors and/or
other permanent interior walls and to the centre of
demising partitions which separate the area occupied from
adjoining rentable premises, herein referred to as the
"USABLE AREA", plus a gross-up factor for the Service
Areas on the floor in common with other tenants on the
same floor, including, but not limited to, corridors,
elevator lobbies, mechanical, electrical, telephone and
janitor's rooms exclusively serving the floor, such
factor to be based upon a ratio which the Service Areas
of the floor bear to the sum of the Usable Area of the
floor, plus an additional gross-up factor for ground
floor services in common with other tenants, including,
but not limited to, vestibules, corridors, elevator
lobbies, mechanical, electrical, telephone, mail, garbage
and janitor's rooms, such factor to be based upon a ratio
which the ground floor Service Areas of the Building
bears to the gross floor area, less Vertical Openings of
the Building.
"RULES AND REGULATIONS" means the rules and regulations
attached as Schedule "C".
"SERVICE AREAS" shall mean the area of corridors, elevator, lobbies,
service elevator lobbies, washrooms, air-cooling rooms, fan rooms,
janitor's closets, telephone and electrical closets and other closets
serving the Leased Premises in common with other premises on the same
floor.
5
"TAXES" means all taxes, rates, duties, levies and assessments whatsoever,
whether municipal, parliamentary or otherwise, levied, imposed or
assessed against the Building, Common Areas or Common Area
Facilities or upon the Landlord in respect thereof, excluding
Capital Tax and commercial concentration tax, or from time to time
levied, imposed or assessed in the future in lieu thereof, or
addition thereto, whether now contemplated or not, and those levied,
imposed or assessed for education, schools and local improvements
and including all costs and expenses (including legal and other
professional fees and interest and penalties on deferred payments),
incurred by the Landlord in good faith in contesting, resisting or
appealing any taxes, rates, duties, levies or assessments, but
excluding taxes and license fees in respect of any business carried
on by tenants and occupants of the Building (including the Landlord)
to the extent such taxes are not levied in lieu of taxes, rates,
duties, levies and assessments against the Building or upon the
Landlord in respect thereof, and shall also include any and all
taxes which may in future be levied in lieu of taxes as hereinbefore
defined, and also including Large Corporations Tax or any similar or
successor tax in lieu thereof or in addition thereto assessed upon
the Landlord.
"TERM" means the term of the Lease stipulated in paragraph 2.2.
"UTILITIES" means electricity as described in Article 6.2, natural gas
and any other utility required in the operation of the Building.
ARTICLE II - LEASE TERM AND PAYMENTS
2.1 DEMISE. In consideration of the rents, covenants and agreements
hereinafter reserved and contained, the Landlord hereby leases to the
Tenant, for the exclusive use of the Tenant, the Leased Premises for
the Term.
2.2 TERM. The Lease shall have a term of two (2) years commencing on the
Commencement Date and ending two (2) years after the Commencement
Date, unless such term shall be sooner terminated as hereinafter
provided.
2.3 BASE RENT. THE TENANT SHALL PAY yearly and every year during the
within Term the sum of $26,376.00 of lawful money of Canada in
twelve (12) equal monthly instalments of $2,198.00, in advance, the
first of such instalments of $2,198.00, in advance, the first of
such instalment to become due and payable on September 16, 1996 (the
"BASE RENTAL").
The aforesaid annual Base Rent is calculated on the basis of the
Rentable Area of the Leased Premises being 4,396 square feet at a rate
of $6.00 for each square foot of Rentable Area per annum.
IF THE TERM COMMENCES on any day other than the first or ends on any
day other than the last day of the month, the Base Rental and
additional rental for the fractions of a month at the commencement and
at the end of the Term shall be adjusted pro rata. All Base Rental
payments shall be payable on the first of each month.
2.4 PREPAID RENT. On execution of this Lease, the Tenant shall submit
$2,351.86, including GST, representing payment on account of Base
Rent for the first month of the Term herein.
2.5 SECURITY DEPOSIT. On execution of this Lease, the Tenant shall
submit $2,351.86, including GST, to be held by the Landlord without
any liability on the part of the Landlord for
6
the payment of interest thereon as a security deposit for the
faithful performance by the Tenant of the terms, covenants and
conditions of this Lease during the Term hereof and not be applied
on account of Base Rent. It is understood and agreed between the
Parties that any portion of this security deposit may be applied
towards the payment of overdue or unpaid Base or Rent or Additional
Rent and may also be applied as compensation to the Landlord for any
loss or damage sustained with respect to the breach on the part of
the Tenant of any terms, covenants and conditions of this Lease,
provided in all cases however, that all the Landlord's other rights,
either in law or under this Lease are observed, and the Tenant's
liability hereunder is not limited to the amount of this security.
If during the Term of this Lease any portion of the security deposit
is so applied, then the Tenant will on written demand provide the
Landlord with a sufficient amount in cash to restore this deposit to
the original sum deposited. The Landlord will refund to the Tenant
forthwith after the expiry date of the within lease any portion of
the security deposit not used by the Landlord after application by
the Landlord to any damage incurred by the default of the Tenant
under the terms of this Lease. It is further provided that the
Landlord will be discharged from any liability to the Tenant with
respect to this security if it is transferred to any purchaser of
the Landlord's interest in the Leased Premises.
ARTICLE III - LANDLORD AND TENANT COVENANTS
3.1 LANDLORD COVENANTS. The Landlord covenants with the Tenant:
(a) QUIET ENJOYMENT. To provide for quiet enjoyment.
(b) INTERIOR CLIMATE CONTROL. To provide to the Leased Premises
during Normal Business Hours, processed air by means of a
system for heating and cooling, filtering and circulating,
processed in such quantities, and at such temperatures as
shall be reasonable in accordance with good standards of
interior climate control generally pertaining to normal
occupancy of premises for office purposes. The Landlord shall
have no responsibility for inadequacy of the performance of
the said system if the Leased Premises depart from the design
criteria.
(c) ELEVATORS. Subject to the supervision of the Landlord and
except when repairs are being made thereto, to furnish for use
by the Tenant and its employees and invitees in common with
other persons entitled thereto reasonable standards of
passenger elevator service to the Leased Premises. The Tenant
shall be responsible for any damages caused to the elevator as
a result of taking possession or giving up possession of the
Leased Premises and shall pay such costs forthwith upon demand
as Additional Rent.
(d) ENTRANCES LOBBYS, ETC.. To permit the Tenant and its employees
and invitees to have the use in common with others entitled
thereto of the common entrances, lobbies, stairways, elevators
and corridors of the Building giving access to the Leased
Premises (subject to the Rules and Regulations and such other
reasonable limitations as the Landlord may from time to time
impose).
(e) WASHROOMS. To permit the Tenant and its employees and
invitees, in common with others entitled thereto to use the
washrooms available to the Leased Premises on each floor of
the Building upon which any part of the Leased Premises is
located.
7
(f) JANITOR SERVICE. To cause when reasonably necessary from
time to time the floors and windows of the Leased Premises
to be swept and cleaned and the desks, tables and other
furniture of the Tenant to be dusted, all in keeping with a
first-class office building, such work shall be done at the
Landlord's direction without interference by the Tenant,
its servants or employees.
(g) MAINTENANCE OF COMMON AREAS. To cause the elevators, common
entrances, lobbies, stairways, corridors, washrooms and other
parts of the Building from time to time provided for common
use and enjoyment to be swept, cleaned or otherwise maintained
substantially in keeping with a first-class office building.
3.2 TENANT COVENANTS. The Tenant covenants with the Landlord:
(a) RENT. To pay Base Rent and Additional Rent.
(b) PERMITTED USE. To use the Leased Premises only for the purpose
of any lawful business or office undertaking and not to use or
permit to be used the Leased Premises or any part thereof for
any other purpose or business.
(c) WASTE AND NUISANCE. Not to commit or permit any waste, damage
or injury to the Leased Premises including the Leasehold
Improvements and trade fixtures therein, reasonable wear and
tear excluded, any overloading of the floors thereof, any
nuisance therein or any use or manner of use causing
unreasonable annoyance to other tenants and occupants of the
Building.
(d) CONDITION. Not to permit the Leased Premises to become
hazardous or permit unreasonable quantities of waste or refuse
to accumulate therein and at the end of each business day to
leave the Leased Premises in a condition such as to reasonably
facilitate the performance of the Landlord's janitor and
cleaning services referred to herein.
(e) BY-LAWS. To comply at its own expense with all municipal,
federal, provincial, sanitary, fire, building and safety
statutes, laws, by-laws, regulations, ordinances, orders or
regulations pertaining to the operation and use of the Leased
Premises, the condition of the Leasehold Improvements, trade
fixtures, furniture and equipment installed by the Tenant
therein and the making by the Tenant of any repairs, changes
or improvements therein.
(f) FIRE EXIT DOORS. To permit the installation by the Landlord of
all doors in the exterior wall of the Leased Premises
necessary to comply with the requirements of any statute, law,
by-law, regulation, ordinance, order or regulation.
(g) RULES AND REGULATIONS. To observe and to cause its employees,
invitees and others over whom the Tenant can reasonably be
expected to exercise control, the Rules and Regulations and
such further and other reasonable rules and regulations and
amendments and changes therein as may hereafter be made by the
Landlord and notified to the Tenant.
(h) OVERHOLDING. That in the event that the Tenant remains in
possession of the Leased Premises after the termination of
the original Term hereby created, without other special
agreement, it shall be at the monthly base rent equal to
the Base Rent and Additional Rent payable during the last
month of the Term hereof, times two, payable on the first
day of each and every month and subject in other respects
to the terms of this Lease,
8
including those provisions requiring the payment of Base
Rent and Additional Rent in monthly instalments.
3.3 SIGNS AND DIRECTORY. The Tenant covenants not to permit, paint,
display, inscribe, place or affix any sign, symbol, notice or
lettering of any kind anywhere outside the Leased Premises (whether
on the outside or inside of the Building) or within the Leased
Premises so as to be visible from the outside of the Leased
Premises, with the exception only of an identification sign at or
near the entrance to the Leased Premises, a directory listing in the
main lobby of the Building, in each case containing only the name of
the Tenant and to be subject to the approval of the Landlord as to
size, location, content and design criteria as established by the
Landlord. Such identification sign, directory listing shall be
installed by the Landlord at the expense of the Tenant, which
expense shall be the invoice cost plus 15% for an administration
fee. The Landlord's acceptance of any name for listing upon the
directory will not be deemed, nor will it substitute for the
Landlord's consent if required by this Lease to any sublease,
assignment or other occupancy of the Leased Premises.
3.4 INSPECTION AND ACCESS. The Landlord shall be permitted to enter and to
have its authorized agents, employees and contractors enter the Leased
Premises, for the purpose of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements
to the Leased Premises or the Building, or to have access to utilities
and services and access panels which the Tenant agrees not to obstruct,
or to determine the electric light and power consumption by the Tenant
in the Leased Premises and the Tenant shall provide free and unhampered
access for such purposes and shall not be entitled to compensation for
any inconvenience, nuisance, discomfort or loss caused thereby, but the
Landlord, in exercising its rights hereunder, shall proceed to the
extent reasonably possible so as to minimize interference with the
Tenant's use and enjoyment of the Leased Premises.
3.5 EXHIBITING PREMISES. The Landlord and its authorized agents and
employees shall be permitted entry to the Leased Premises during the
last six (6) months of the term for the purpose of exhibiting them to
prospective tenants or at any time for the purposes of arranging
financing for the Building.
3.6 LANDLORD'S CONTROL. The Tenant acknowledges that the Common Area
Facilities are at all times subject to the exclusive control and
operation of the Landlord, and the Landlord shall have the right to
construct improvements, alterations and additions thereto and to
relocate the various facilities thereon.
3.7 FINANCIAL STATEMENTS. The Tenant will, at the request of the
Landlord, supply copies of his financial statements to the Landlord
or to the mortgagees, if any, on the said lands or a prospective
mortgagee.
ARTICLE IV - REPAIR AND DAMAGE
4.1 TENANT'S REPAIRS. The Tenant covenants with the Landlord:
(a) to keep the Leased Premises in a good and reasonable state of
repair and consistent with the general standards of
first-class office buildings in Metropolitan Toronto, to
perform all repairs and replacements as a prudent tenant would
do (reasonable wear and tear excepted) to the Leased Premises
including all Leasehold Improvements and all trade fixtures
therein and all glass therein.
9
(b) that the Landlord may enter and view the state of repair from
time to time and that the Tenant will repair if required to do
so pursuant to the terms of this Lease, according to notice in
writing and that the Tenant will leave the Leased Premises in
a good and reasonable state of repair.
(c) that if any part of the Building other than the Leased
Premises becomes out of repair, damaged or destroyed through
the negligence or misuse of the Tenant or its employees,
invitees or others over whom the Tenant can reasonably be
expected to exercise control, the expense of repairs or
replacements thereto necessitated thereby shall be the
responsibility of the Tenant.
4.2 ABATEMENT AND TERMINATION. It is agreed between the Landlord and the
Tenant that:
(a) In the event of damage to the Leased Premises or to the
Building affecting access or services essential to the
conduct of business in the Leased Premises and if the
damage is such that the Leased Premises or any substantial
part thereof is rendered not reasonably capable of use and
occupancy by the Tenant for the purposes of its business
for any period of time in excess of 10 days, then
(i) unless the damage was caused by the misuse, fault,
negligence of the Tenant or its employees,
invitees or others under its control, from and
after the date of occurrence of the damage and
until the Leased Premises are again reasonably
capable of use and occupancy as aforesaid, Base
Rent (but not any other payments required to be
made by the Tenant hereunder) shall xxxxx from
time to time in proportion to the part or parts of
the Leased Premises not reasonably capable of such
use and occupancy, and
(ii) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case
may be (according to the nature of the damage and
their respective obligations to repair as provided
herein, it being understood that the Tenant shall
have the obligation to repair and replace all
Leasehold Improvements and all Tenant's trade
fixtures) shall repair such damage with all
reasonable diligence, but to the extent that any
part of the Leased Premises is not reasonably
capable of such use and occupancy by reason of
damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the
Tenant is otherwise entitled hereunder shall not
extend later than the time by which repairs by the
Tenant ought to have been completed with
reasonable diligence; and
(b) if either the entire or substantially all of the Leased
Premises, or premises whether of the Tenant or other
tenants of the Building comprising in the aggregate 50% or
more of the Rentable Area of the Building are substantially
damaged or destroyed by any cause to such an extent in the
reasonable opinion of the Landlord cannot be repaired or
rebuilt within 180 days after the occurrence of the damage
or destruction, the Landlord may at its option, exercisable
by written notice to the Tenant given within 30 days after
the occurrence of such damage or destruction terminate this
Lease in which event neither the Landlord nor the Tenant
shall be bound to repair as provided herein and the Tenant
shall instead deliver up possession of the Leased Premises
to the
10
Landlord with reasonable expedition but in any event
within 60 days after delivery of such notice of termination
and rent shall be apportioned and paid to the date upon
which possession is so delivered up (but, subject to any
abatement to which the Tenant may be entitled under
paragraph (a) of this clause 4.2 by reason of the Leased
Premises having been rendered in whole or in part not
reasonably capable of use and occupancy), but otherwise the
Landlord or the Tenant as the case may be (according to the
nature of the damage and their respective obligations to
repair described in 4.2 (a) (ii)) shall repair such damage
with reasonable diligence.
ARTICLE V - TAXES AND OPERATING COSTS
5.1 NET NET LEASE. The Tenant acknowledges and agrees that it is intended
that this Lease is a completely carefree net net lease to the Landlord,
except as expressly herein set out, that the Landlord is not
responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Leased
Premises, or the use and occupancy thereof, or the contents thereof or
the business carried on therein, except as expressly set out herein,
and the Tenant shall pay all charges, impositions, costs and expenses
of every nature and kind relating to the Leased Premises.
5.2 LANDLORD'S TAX OBLIGATIONS. The Landlord covenants with the Tenant,
subject to the provisions herein, to pay all Taxes promptly when due to
the taxing authority or authorities having jurisdiction.
5.3 TENANT'S TAX OBLIGATIONS. The Tenant covenants with the
Landlord:
(i) to pay promptly when due to the taxing authority or
authorities having jurisdiction all taxes, rates, duties,
levies and assessments whatsoever, whether municipal,
parliamentary or otherwise, levied, imposed or assessed in
respect of any and every business carried on by the Tenant,
subtenants, licensees, or other occupants of the Leased
Premises or in respect of the use or occupancy thereof
(including licence fees); and
(ii) to pay promptly to the Landlord when demanded or otherwise due
hereunder:
(1) all Taxes charged in respect of all Leasehold
Improvements and trade fixtures and all furniture and
equipment made, owned or installed by or on behalf of
the Tenant in the Leased Premises as Additional Rent;
(2) if by reason of the act, election or religion of the
Tenant or any subtenant, licensee or occupant of the
Leased Premises, the Leased Premises or any part of
them shall be assessed for the support of Separate
Schools, the amount by which the Taxes so payable
exceed those which would have been payable if the
Leased Premises had been assessed for the support of
Public Schools; and
(3) the Tenant's Proportionate Share of Taxes as
Additional Rent in the manner stipulated herein.
(iii) notwithstanding any other provisions of this Lease to the
contrary, the Tenant shall pay to the Landlord, at such times
and in such manner as the Landlord may direct, without
duplication, an amount equal to all goods and
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service taxes, sales taxes, value-added taxes or any other
taxes imposed with respect to Base Rent, Additional Rent or
other amounts payable by the Tenant to the Landlord under
this Lease, howsoever such taxes are characterized. The
amount payable by the Tenant hereunder shall not be deemed
to be Base Rent or Additional Rent but the Landlord shall
have all of the same rights and remedies for recovery of
same as it has for recovery of Base Rent and Additional
Rent hereunder.
Whenever requested by the Landlord the Tenant will deliver to it
receipts for payment of all taxes, rates, duties, levies and
assessments payable by the Tenant hereof and furnish such other
information in connection therewith as the Landlord may reasonably
require.
5.4 METHOD OF PAYMENT OF TAXES. The Tax payments required to be made by
the Tenant to the Landlord under the provisions of 5.3 (ii) herein
shall be estimated by the Landlord, and the Tenant shall pay to the
Landlord in addition to the monthly payments of Base Rent
hereinbefore reserved, one-ninth of the estimated annual tax
payments in the months of January to September, both inclusive, in
each calendar year with an adjustment being made when the property
tax xxxx respecting the Building is received by the Landlord for
each year. The Tenant shall within sixty (60) days of being invoiced
pay to the Landlord such additional sums as may be required in order
that out of such monthly additional payments, the Landlord may pay
the whole amount of the annual taxes as the installments thereof fall
due; and if the monthly additional payments so paid by the Tenant to
the Landlord exceed in total the Tenant's Proportionate Share of the
annual property tax xxxx with respect to the Building and Lands of
which the Leased Premises form part, then the excess shall be
adjusted by the Landlord in favour of the Tenant by applying such
excess on account of the next ensuing rental payments due (following
the issue of the yearly statement) and such next ensuing rental
payments shall be reduced by such excess accordingly. The Landlord
shall forward to the Tenant copies of all notices or tax bills
relating to the imposition of property taxes or other charges
required hereunder to be paid as to part or all thereof by the
Tenant. In the event that the Landlord is unable to obtain or
determine a separate allocation of taxes payable by the Tenant under
this Lease, the Landlord shall have the right to make an allocation,
but shall be obligated to act reasonably and not arbitrarily.
5.5 OPERATING COSTS. During the Term of this Lease, the Tenant shall pay
to the Landlord its Proportionate Share of Operating Costs. Prior to
the commencement of the Term of this Lease and the commencement of
each fiscal period selected by the Landlord thereafter which
commences during the Term the Landlord shall estimate the amount of
Operating Costs and the Tenant's Proportionate Share thereof for the
ensuing fiscal period or (if applicable) broken portion thereof, as
the case may be, and notify the Tenant in writing of such estimate.
The amount so estimated shall be payable in equal monthly
installments in advance over the fiscal period or broken portion
thereof in question, each such instalment being payable on each
monthly rental payment date provided in clause 2.3. The Landlord may
from time to time alter the fiscal period selected, in which case,
and in the case where only a broken portion of a fiscal period is
included with the Term, the appropriate adjustment in monthly
payments shall be made. From time to time during a fiscal period the
Landlord may re-estimate the amount of Operating Costs and the
Tenant's Proportionate Share thereof, in which event the Landlord
shall notify the Tenant in writing of such re-estimate and fixed
monthly installments for the then remaining balance of such fiscal
period or broken portion thereof such that, after giving credit for
installments paid by the Tenant on the basis
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of the previous estimate or estimates, the Tenant's entire
Proportionate Share of Operating Costs will have been paid during
such fiscal period or broken period thereof. As soon as practicable
after the expiration of each fiscal period the Landlord shall make a
final determination of Operating Costs and the Tenant's
Proportionate Share thereof for such fiscal period or (if
applicable) broken portion thereof and shall provide a statement to
the Tenant and the parties shall make the appropriate readjustment.
Each 12 month period ending December 31st shall be deemed to be an
accounting year for adjusting the said Operating Costs and within
120 days after the end of each such accounting year, the Landlord
shall compute the said costs for such accounting year and the
Proportionate Share of the Tenant therefor and shall submit to the
Tenant a statement to reflect the Operating Costs specifically
permitted under this Lease, and the said Proportionate Share thereof
shall be borne by the Tenant. To the extent that the Tenant's
Proportionate Share of such costs for such accounting year shall be
greater than the total amount actually paid by the Tenant by said
monthly payments in respect of such year the difference shall be
paid by the Tenant to the Landlord within thirty (30) days after
receipt by the Tenant of such statement. Any excess payments shall
be applied by reducing the next ensuing rental payment(s) by the
amount of such excess. The said accounting period may be modified by
the Landlord if reasonably necessary. The Tenant may not claim a
readjustment in respect to the Tenant's Proportionate Share of
Operating Costs based upon any error of assessment, determination or
calculation thereof unless claimed in writing prior to the
expoiration of one year after the fiscal period to which the
Operating Costs relate.
5.6 PAYMENT OF ADDITIONAL RENT. Any Additional Rent provided for under this
Lease unless otherwise provided herein, shall become due with each
instalment of monthly Base Rent.
ARTICLE VI- UTILITIES AND ADDITIONAL SERVICES
6.1 WATER AND TELEPHONE. The Landlord shall furnish appropriate openings
for bringing telephone services to the Leased Premises and shall
provide hot and cold water to washrooms in the Leased Premises and to
washrooms available for the Tenant's use in common with others entitled
thereto.
6.2 ELECTRICITY. The Tenant shall pay throughout the Term promptly to the
Landlord (unless paid directly to Hydro authorities pursuant to
separate billing) as Additional Rent when demanded:
(i) The cost of electric light and power supplied to the Leased
Premises monthly based on the electric light and power
requirements of the Tenant on a pro rata basis as determined
from time to time during the Term by the Landlord acting
reasonably; and
(ii) The cost of cleaning, maintaining and servicing in all
respects all electric lighting fixtures in the Leased
Premises including the cost of replacement of electric
light bulbs, tubes, starters and ballasts used to replace
those installed at the commencement of the Term. Such
cleaning, maintaining, servicing and replacement shall be
within the exclusive right of the Landlord. It is
understood and agreed that the costs described in this
sub-section (ii) shall be charged to the Tenant as an
Additional Service payable upon receipt of invoice from
the Landlord.
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6.3 ADDITIONAL SERVICES. The Landlord, if it shall from time to time so
elect, shall have the exclusive right, by way of Additional Services,
to provide or have its designated agents or contractors provide any
janitor or cleaning service to the Leased Premises and Common Area
Facilities required by the Tenant which are additional to those
required to be provided by the Landlord hereunder, including the
Additional Services which the Landlord agrees to provide by
arrangement, and to supervise the moving of furniture or equipment of
the Tenant in and out of the Building where such moving of furniture or
equipment would be disruptive to the normal business of the Building,
and the making of repairs or alterations conducted within the Leased
Premises affecting Base Building, building systems or Leasehold
Improvements. The reasonable cost of Additional Services provided to
the Tenant, whether the Landlord shall be obligated hereunder or shall
elect to provide them as Additional Services, shall be paid to the
Landlord by the Tenant from time to time within thirty (30) days
following receipt of invoices therefor from the Landlord. Costs of
Additional Services charged directly to the Tenant and other tenants
shall be credited in computing Operating Costs.
ARTICLE VII- ASSIGNING AND SUBLETTING
7.1 ASSIGNMENTS AND SUBLETTINGS. The Tenant covenants with the Landlord
that it will not assign, sublet, licence or part with the possession of
the Leased Premises or any part thereof, or share the occupation of the
Leased Premises, or any part thereof, without the consent of the
Landlord in writing first had and obtained such consent not to be
unreasonably or arbitrarily withheld or delayed. Provided that as a
condition of the granting of its consent, the Landlord may require any
assignee, subtenant, licensee or occupant of the Leased Premises to
execute an agreement whereby he, it or they attorn to and become the
tenants of the Landlord as if he, it or they had executed this Lease,
or, except in the case of an absolute assignment of this Lease, to
execute an acknowledgement that all the sublessee's or undertenant's
estate, right and interest in and to the Leased Premises absolutely
terminates upon the surrender, release, disclaimer or merger of this
Lease notwithstanding the provisions of the Landlord and Tenant Act of
Ontario, R.S.O. 1980, Chapter 232 and amendments thereof with specific
reference to Paragraphs 21 and 39 (2) thereof, or other similar
statute. The Tenant shall furnish to the Landlord copies of any
assignment, sublease, licence or other agreement herein contemplated.
Notwithstanding any other provision in this section, no assignment,
subletting, licensing or parting with possession of the Leased Premises
shall in any way release or be deemed to release the Tenant (or any
guarantor hereof) from their obligations under the terms of this Lease.
Provided further that the proposed assignee, subtenant, licensee or
occupant of the Leased Premises shall be required to provide reasonable
financial information as the Landlord may require. It is agreed that
the Landlord may consider in determining whether to grant consent among
other matters, the following: the personal and business history of the
proposed assignee, occupant, sublessee and its key employees. The
Tenant agrees to pay the reasonable legal fees of the Landlord's
solicitor relating to the preparation of the Landlord's consent, and
determination as to whether to give the consent.
If by sale, transfer or other disposition of its shares, the control
of the tenant is altered so that 51% of the shares are transferred
in any manner, then same shall be deemed as an assignment and the
provisions of this paragraph shall apply. The Tenant covenants and
agrees to advise the Landlord forthwith if such a transfer is
contemplated.
14
In the event of any sub-letting by the Tenant by virtue of which the
Tenant receives rent in the form of cash, goods, services or other
considerations from the sub-tenant which is higher than the rent
payable hereunder to the Landlord for the premises so sub-let, the
Tenant shall pay any such excess to the Landlord, in addition to all
rent and other costs payable hereunder, for the period of time during
which the said subtenant remains in possession of the premises sub-let
to it.
If the Tenant herein shall receive from any assignee of this lease,
either directly or indirectly, any consideration for the assignment of
this lease, either in the form of cash, goods or services, the Tenant
shall forthwith pay an amount equivalent to such consideration to the
Landlord and same shall be deemed to be further Additional Rent
hereunder.
In the event of any proposed assignment or subletting of the Leased
Premises by the Tenant, the Landlord shall not be obligated to
consider such a proposal nor be required to consent to same, unless
the base rent payable by the proposed assignee or sublessee is, in
the sole discretion of the Landlord, at the then current market rate
for similar space in the immediate and surrounding area.
In calculating whether there is any additional consideration payable
by an assignee or sublessee as hereinbefore provided, no deduction
shall be made for any commission payable to any agent or other
party.
If the Landlord has granted to the Tenant, named on page 1 of this
Lease, any first rights of refusal, exclusive rights or options to
lease additional space or to purchase, it is agreed and understood
that upon the Tenant assigning, subletting, licensing or parting
with possession of the Leased Premises or any part thereof, the
aforesaid rights referred to shall automatically become null and
void.
Notwithstanding the above provisions, within ten (10) business days
after the receipt by the Landlord of such request for consent and of
all information which the Landlord shall have requested hereunder, the
Landlord shall have the right upon written notice of termination
submitted to the Tenant to, if the request is to assign this Lease or
sublet the whole of the Leased Premises, cancel and terminate this
Lease, or to, if the request is to sublet a part of the Leased Premises
only, cancel and terminate this Lease with respect to such part, in
each case as of a termination date to be stipulated in the notice of
termination which shall be ninety (90) days following giving of such
notice. In such event the Tenant shall surrender the whole or part, as
the case may be, of the Leased Premises in accordance with such notice
of termination and Base Rent and Additional Rent shall be apportioned
and paid to the date of surrender and, if only a part of the Leased
Premises is surrendered, Base Rent and Additional Rent shall, after the
date of surrender, xxxxx proportionately. If the Landlord does not
elect to terminate as aforesaid and if consent to sublease or assign
will be granted, the Tenant may assign or sublet, as the case may be,
only upon the terms and to the party set out in the offer submitted to
the Landlord as aforesaid.
ARTICLE VIII- FIXTURES AND IMPROVEMENTS
8.1 INSTALLATION OF FIXTURES AND IMPROVEMENTS. The Tenant shall not make,
erect, install or alter any Leasehold Improvements in the Leased
Premises without having requested and obtained the Landlord's prior
written approval which the Landlord shall not unreasonably delay or
withhold. In making, erecting, installing or altering any Leasehold
Improvements the Tenant will not alter or interfere with any
installations which have
15
been made by the Landlord without the prior written approval of the
Landlord and in no event shall it alter or interfere with window
coverings (if any) installed by the Landlord on exterior windows.
The Tenant's request for any approval hereunder shall be in writing
and accompanied by an adequate description of the contemplated work
and, where appropriate, working drawings and specifications thereof.
All work to be performed in the Leased Premises shall be performed
by reputable contractors approved by the Landlord. The Landlord
reserves the right to require the Tenant to utilize the
contractor(s) of the Landlord where Base Building, building systems
and/or warranties may be affected provided the Landlord agrees that
charges by such contractors shall be in keeping with that which an
arms length contractor would charge. The cost of all such work shall
be estimated by the Landlord in advance and such estimate approved
by the Tenant prior to work commencing. All such work shall be
performed at the Tenant's expense and the Tenant shall be
responsible for application and payment of all fees in connection
with any permits required. All such work shall be subject to
inspection by and the reasonable supervision of the Landlord, as an
Additional Service, and shall be performed in accordance with any
reasonable conditions or regulations imposed by the Landlord and
completed in a good and workmanlike manner in accordance with the
description of the work approved by the Landlord. The Landlord shall
be entitled to supervise the work and charge the Tenant a
supervision fee. The Landlord shall also be entitled to charge
reasonable fees for examining plans respecting the proposed work.
The Tenant shall be obligated to pay any reasonable consultant's
fees incurred by the Landlord for review and approval of plans for
construction of any nature after the Commencement Date as Additional
Rent.
8.2 LIENS AND ENCUMBRANCES ON FIXTURES AND IMPROVEMENTS. In connection
with the making, erection, installation or alteration of Leasehold
Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the
provisions of the Construction Lien Act (Ontario) and other statutes
from time to time applicable thereto and shall promptly pay all
accounts relating thereto. The Tenant will not create or cause to be
created any mortgage, conditional sale agreement or other
encumbrance in respect of its Leasehold Improvements or permit any
such mortgage, conditional sale agreement or other encumbrance to
attach to the Leased Premises or to the Building and Common Area
Facilities. If and whenever any construction or other lien for work,
labour, services or materials supplied to or for the Tenant for the
cost of which the Tenant may be in any way liable or claims therefor
shall arise or be filed or any such mortgage, conditional sales
agreement or other encumbrance shall attach, the Tenant shall within
ten (10) days after receipt of notice thereof procure the discharge
thereof, including any certificate of action registered in respect
of any lien, by payment or giving security or in such other manner
as may be required or permitted by law failing which the Landlord
may in addition to all other remedies hereunder avail itself of its
remedy hereunder and may make any payments required to procure the
discharge of any such liens or encumbrances and shall be entitled to
be reimbursed by the Tenant as provided herein and its right to
reimbursement shall not be affected or impaired if the Tenant shall
then or subsequently establish or claim that any lien or encumbrance
so discharged was without merit or excessive or subject to any
abatement, set-off or defense.
8.3 REMOVAL OF FIXTURES AND IMPROVEMENTS. All Leasehold Improvements in or
upon the Leased Premises shall immediately upon termination of this
lease be and become the Landlord's property without compensation
therefor to the Tenant. Except to the extent otherwise expressly agreed
by the Landlord in writing no Leasehold Improvements, trade fixtures,
furniture
16
or equipment shall be removed by the Tenant from the Leased Premises
either during or at the expiration or earlier termination of the
Term except that (1) the Tenant shall at the end of the Term remove
its trade fixtures, (2) the Tenant shall at the end of the Term
remove such Leasehold Improvements as the Landlord shall require to
be removed which items shall be identified at the time the work is
approved, and (3) the tenant shall remove its furniture and
equipment at the end of the Term and may remove its furniture and
equipment during the Term in the usual and normal course of its
business where such furniture or equipment has become excess for the
Tenant's purposes or the or the Tenant is substituting therefor new
furniture and equipment. The Tenant shall, in the case of every
removal either during or at the end of the Term, make good any
damage caused to the Leased Premises by the installation and
removal. Provided that upon the termination of this Lease, the
Tenant, if requested by the Landlord, shall restore the interior of
the Leased Premises to its former condition immediately prior to the
installation of such alterations or changes, including the
restoration or such standard fixtures as may have been installed by
the Landlord, and if not so requested, any such changes or
alterations shall become the property of the Landlord, or
alternatively, the Tenant shall install such comparable fixtures and
materials as may then be in use.
8.4 OCCUPATIONAL HEALTH AND SAFETY. The Tenant covenants and agrees that
it will ensure that a comprehensive and rigorous health and safety
program to protect workers in the Leased Premises is implemented to
ensure that no accidents or injuries occur in connection with the
performance of any Tenant's work. The Tenant will indemnify the
Landlord in respect of all claims, infractions, prosecutions,
alleged infractions, losses, costs and expenses and any fines or
proceedings relating to fines or other offenses under all
occupational health and safety and any similar legislation that
might be brought, or imposed against or suffered by the Landlord or
any of its officers, directors and employees in connection with the
performance of any Tenant's work. Without limiting the obligations
set out above in this Section 8.4, the Tenant will do at least the
following:
(a) ensure that all obligations imposed by statute, law or
regulation on "constructors" or other persons completing or
co-ordinating any Tenant's work are diligently and properly
completed;
(b) co-operate with the Landlord in having any Tenant's work
designated as a separate project so that the Landlord does
not incur any obligations as a constructor or obligations
similar to those of a constructor at law or by regulation
imposed in connection with the performance of any Tenant's
work;
(c) comply with all directions that the Landlord may give to
the Tenant in connection with the performance of any
Tenant's work having regard to construction health and
safety requirements; and
(d) provide to the Landlord whatever rights of access,
inspection, and whatever information, documents and other
matters the Landlord requires in order to ensure that the
Tenant's obligations under this Section are complied with.
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ARTICLE IX- INSURANCE AND LIABILITY
9.1 LANDLORD'S INSURANCE. The Tenant will during the whole of the Term
hereby granted as part of Operating Costs, pay its Proportionate Share
of all premiums with respect to insurance to be placed by the Landlord
and described in this Section 9.1. The Landlord agrees to maintain
during the Term, insurance coverages as follows:
(i) Property of Every Description (Building and Equipment) against
the perils of "All-Risks", under form providing coverage at
least equivalent to Commercial Building Broad Form I.A.O. Form
No. 700 including "Building By-Laws Endorsements", and to be
insured for the Replacement Value, without allowance for
depreciation and Stated Amount, and with no co-insurance
requirement.
(ii) "Rental Income" for the gross annual rental income on
"All-Risks" basis, as provided under Commercial Building Broad
Form I.A.O. Form 700 including "Building By-Laws
Endorsements", providing coverage at least equivalent to
I.A.O. Profits Form No. 551 with an eighteen (18) month
indemnity period.
(iii) Broad Form Boiler and Machinery Policy on a blanket and
replacement basis with limits for each accident in an
amount not less than the replacement cost of the Building
containing the Leased Premises and which shall cover all
boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus owned by the Landlord
and which shall include PCB coverage. It shall also
include "Rental Income" for the full gross annual income
equivalent to I.A.O. Profits Form No. 551 with a eighteen
(18) month indemnity period. This policy should also
provide "Building By-Laws Endorsements".
(iv) "General Liability Insurance" on a Comprehensive Form and on
an "occurrence" basis without deductible with retroactive
coverage against claims for Personal and Bodily Injury and
Death and/or Property Damage occurring upon or about the
Leased Premises and for a limit no less than $5,000,000.00
inclusive for one occurrence.
(v) Such other insurance coverage or coverages as a prudent owner
of a first class office building would obtain for protection
respecting loss of, or damage to the Building, the Lands or
the Leased Premises, or liability arising therefrom.
All such insurance coverages shall be kept and maintained by the
Landlord, and in no event shall the coverage be less than the amount
required by any institution then holding a mortgage on the Building and
Common Area Facilities. The Tenant shall pay to the Landlord, as part
of Operating Costs, its Proportionate Share of the Landlord's
Insurance. The Tenant shall not do or permit to be done any act or
thing whereby insurance coverage, premiums or any of them hereinbefore
contemplated, may be increased or cancelled by the insurer, or the
Leased Premises shall be rendered uninsurable, and if by reason of any
act done or permitted or omission, as the case may be, by the Tenant,
the said insurance coverage, premiums or any of them shall be
increased, then the Tenant, if it shall fail to rectify the event
giving rise to the increased premium after written notice thereof from
the Landlord, shall be liable to pay all of such increase in premium,
with respect to the entire coverages, and this notwithstanding that the
Tenant occupies only a portion of the Building covered by such
insurance coverages, and if the Leased Premises shall be rendered
uninsurable, or if the said insurance coverages, or any of them, shall
be cancelled by reason of any act or
18
omission as the case may be by the Tenant and shall not be
susceptible of being replaced, after the Landlord's reasonable
efforts under the circumstances to do so, then the Landlord, after
giving the Tenant at least fourteen (14) days written notice within
which to replace insurance coverage or coverages shall, at its
absolute discretion, have the right to determine that the term
hereof has expired and in such event the Tenant shall deliver up
possession of the Leased Premises as if the Term of this Lease had
expired.
PROVIDED that no act required to be done by the Tenant nor any payment
required to be made by the Tenant, including reimbursements of
insurance premiums paid by the Landlord, shall relieve the Tenant from
any liability for damage incurred by the Landlord as result of any act
or omission of the Tenant.
If any other tenant of the Building has his own insurance premiums
increased by his insurers as a result of the use or occupation by the
Tenant herein of the within Leased Premises, the Tenant covenants and
agrees with the Landlord after written notice thereof, to pay the
additional cost forthwith upon demand as Additional Rent.
The Landlord's insurance policy shall contain a waiver of subrogation
in favour of the Tenant or those for whom the Tenant is in law
responsible.
9.2 AGENTS. The Tenant acknowledges, covenants and agrees that every right,
exemption from liability, defence and immunity of whatsoever nature
applicable to the Landlord or to which the Landlord is entitled
hereunder shall also be available and shall extend to protect every
such agent of the Landlord acting (in the course of or in connection
with his employment or otherwise) and for the purposes of all of the
foregoing provisions of this clause, the Landlord is or shall be deemed
to be acting as agent or trustee on behalf of and for the benefit of
persons who are or might be his servants, employees or agents from time
to time.
9.3 TENANT'S INSURANCE. The Tenant covenants to insure and to keep insured
during the whole of the Term, with an insurance company or companies in
good standing and upon terms and conditions all satisfactory to the
Landlord:
(i) "All-Risks" insurance upon all property owned by the
Tenant or for which it is legally liable or installed or
affixed by or on behalf of the Tenant and which is
located in the Building including, without limitation,
furniture, fittings, installations, alterations,
additions, partitions and fixtures or anything in the
nature of a Leasehold Improvement made or installed by or
on behalf of the Tenant in an amount equal to the full
replacement cost thereof; if there is a dispute as to the
amount which comprises full replacement cost the decision
of the Landlord's Architect shall be conclusive.
(ii) All parties hereto on a Comprehensive Form for bodily
injury and property damage, general liability coverage
arising out of the use, maintenance or repair of the
Leased Premises and/or the business of the Tenant or any
sub-tenant, licensees or occupiers of the Leased
Premises; such insurance shall be for a limit of not less
than $2,000,000.00 inclusive for any one occurrence, or
such higher limits as the Landlord, acting reasonably, or
any mortgagee requires from time to time, and shall
contain a severability of interest clause, and a cross
liability clause.
19
(iii) Glass coverage for the replacement of all glass broken,
cracked or damaged in, on and about the Leased Premises.
(iv) Any other form of insurance that the Landlord or any mortgagee
may reasonably require, from time to time in form, amounts and
for insurance risks acceptable to the Landlord and any
mortgagee.
The Tenant covenants and agrees to provide the Landlord with evidence
of insurance as required under this provision. Such evidence shall be
by way of a certified copy of the policy if available in timely fashion
or failing which a certificate of insurance at such time or times as
the Landlord may require. The Tenant agrees to provide same to the
Landlord forthwith after notice has been given by the Landlord to the
Tenant of its request. The Tenant's policy shall contain a waiver of
subrogation in favour of the Landlord and those for whom the Landlord
is in law responsible.
9.4 LIMITATION OF LANDLORD'S LIABILITY. The Tenant agrees that:
(i) the Landlord shall not be liable for any bodily injury or
death of, or loss or damage to any property belonging to the
Tenant or its employees, invitees, or licensees or any other
person in, on or about the Building and Common Area Facilities
howsoever occurring and in no event shall the Landlord be
liable for:
(1) any damage which is caused by steam, water, rain or
snow which may leak into, issue or flow from any part
of the Building or Common Area Facilities or from the
pipes or plumbing works thereof or from any other
place or quarter or for any damage caused by or
attributable to the condition or arrangement
of any electric or other wiring or for any damage
caused by anything done or omitted by any other
tenant; and
(2) 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, maintenance,
supervision or any other work in or about the Leased
Premises or the Building or Common Area Facilities
provided it is understood that the Landlord shall
require its contractors to maintain insurance
consistent with industry standards; and
(3) loss or damage, however caused, to money, securities,
negotiable instruments, papers or other valuables of
the Tenant; and
(ii) the Landlord shall have no responsibility or liability
for the failure to supply interior climate control or
elevator service when prevented from doing so by strikes,
the necessity of repairs, any order or regulation of any
body have jurisdiction, the failure of the supply of any
utility required for the operation thereof or any other
cause beyond the Landlord's reasonable control, and shall
not be held responsible for any bodily injury, death or
damage to property arising from the use of, or any
happening in or about, any elevator.
9.5 INDEMNITY OF LANDLORD. The Tenant agrees to indemnify and save harmless
the Landlord in respect of all claims for bodily injury or death,
property damage or other loss or damage arising from the conduct of any
work by or any act or omission of the Tenant or any assignee,
subtenant, agent, employee, contractor, invitee or licensee of the
Tenant, and in respect of all costs, expenses and liabilities incurred
by the Landlord in connection with or arising out of all such claims,
20
including the expenses of any action or proceeding pertaining thereto,
and in respect of any loss, cost, expense or damage suffered or
incurred by the Landlord arising from any breach by the Tenant of any
of its covenants and obligations under this Lease.
ARTICLE X-SUBORDINATION, ATTORNMENT AND CERTIFICATES
10.1 SUBORDINATION AND ATTORNMENT. The Tenant agrees that this Lease and all
the rights of the Tenant hereunder are subject and subordinate to all
mortgages now or hereafter existing (including deeds of trust and all
instruments supplemental thereto) which may now or hereafter affect the
Building or Common Area Facilities and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided such
mortgagee has provided a non-disturbance agreement to the Tenant;
provided that the Tenant whenever requested by any mortgagee (including
any trustee under a deed of trust and mortgage) shall attorn to such
mortgagee as the Tenant upon all the terms of this Lease. Subject to
the foregoing, the Tenant agrees to execute promptly whenever requested
by the Landlord or by such mortgagee such instrument of subordination
or attornment, as the case may be, as may be required of it.
10.2 CERTIFICATES. The Tenant shall promptly whenever requested by the
Landlord from time to time execute and deliver to the Landlord (and if
required by the Landlord, to any mortgagee [including any trustee under
a deed of trust and mortgage] designated by the Landlord) a certificate
in writing as to the then status of this Lease, including as to whether
it is in full force and effect, is modified or unmodified, confirming
the rent payable hereunder and the state of the accounts between the
Landlord and Tenant, the existence or non-existence of defaults, and
any other matters pertaining to this Lease as to which the Landlord
shall request a certificate.
ARTICLE XI-EVENTS OF DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT AND REMEDIES. In the event of the happening of any
one of the following events (hereinafter referred to as a "DEFAULT"):
(a) the Tenant shall have failed to pay an instalment of Base
Rent or of Additional Rent or any other amount payable
hereunder when due. No notice shall be required in the
event of a monetary Default;
(b) there shall be a default of or with any condition,
covenant, agreement or other obligation on the part of the
Tenant to be kept, observed or performed hereunder (other
than the obligation to pay Base Rent, Additional Rent or
any other amount of money) and such Default shall be
continuing for a period of more than ten (10) days after
written notice by the Landlord to the Tenant specifying the
Default and requiring that it discontinue or such longer
period as may be reasonably required in order to rectify
such default provided that the Tenant commences curing the
default within such 10 day period and thereafter diligently
attempts to cure such default on a continuous and regular
basis until such default is cured;
(c) if any policy of insurance upon the Building or any part
thereof from time to time affected by the Landlord shall be
cancelled or about to be cancelled by the insurer by reason
of the use or occupation of the Leased Premises by the
Tenant or any assignee, sub-tenant or licensee of the
21
Tenant or anyone permitted by the Tenant to be upon the
Leased Premises and the Tenant, after receipt of notice in
writing from the Landlord, shall have failed to take such
immediate steps in respect of such use or occupation as
shall enable the Landlord to reinstate or avoid
cancellation (as the case may be) of such policy of
insurance;
(d) the Leased Premises shall, without the prior written
consent of the Landlord, be used by any other persons than
the Tenant or its permitted assigns or sub-tenants or for
any purpose other than that for which they were leased or
occupied or by any persons whose occupancy is prohibited by
this Lease;
(e) the Leased Premises shall be vacated or abandoned, without
the prior written consent of the Landlord for seven (7)
consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods
and chattels of the Tenant located in the Leased Premises,
shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt or insolvent or take the
benefit of any statute for bankrupt or insolvent debtors
or, if a corporation, shall take any steps or suffer any
order to be made for its winding-up or other termination of
its corporate existence; or a trustee, receiver or
receiver-manager or agent or other like person shall be
appointed of any of the assets of the Tenant;
the Landlord shall have the following rights and remedies all of
which are cumulative and not alternative and not to the exclusion of
any other or additional rights and remedies in law or equity
available to the Landlord by statute or otherwise:
(i) to remedy or attempt to remedy any Default of the Tenant,
and in so doing to make any payments due or alleged to be
due by the Tenant to third parties and to enter upon the
Leased Premises to do any work or other things therein, and
in such event all reasonable expenses of the Landlord in
remedying or attempting to remedy such Default shall be
payable by the Tenant to the Landlord on demand;
(ii) with respect to unpaid overdue Rent, to the payment by the
Tenant of the rent and of interest (which said interest
shall be deemed included herein in the term "Rent") thereon
at a rate equal to three percent (3%) above the prime
commercial loan rate charged to borrowers having the
highest credit rating from time to time by the Landlord's
principal bank from the date upon which the same was due
until actual payment thereof and the maximum amount allowed
under the laws of the jurisdiction in which the Building is
located;
(iii) to terminate this Lease forthwith by leaving upon the
Leased Premises or by affixing to an entrance door to the
Leased Premises notice terminating the Lease and to
immediately thereafter cease to furnish any services
hereunder and enter into and upon the Leased Premises or
any part thereof in the name of the whole and the same to
have again, re-possess and enjoy as of its former estate,
anything in this Lease contained to the contrary
notwithstanding; and
22
(iv) to enter the Leased Premises as agent of the Tenant and as
such agent to re-let them and to receive the rent therefor
and as the agent of the Tenant to take possession of any
furniture or other property thereon and upon giving ten
(10) days' written notice to the Tenant to store the same
at the expense and risk of the Tenant or to sell or
otherwise dispose of the same at public or private sale
without further notice and to apply the proceeds thereof
and any rent derived from re-letting the Leased Premises
upon the account of the rent due and to become due under
this Lease and the Tenant shall be liable to the Landlord
for the deficiency if any.
11.5 PAYMENT OF RENT, ETC. ON TERMINATION.
(a) Upon the giving by the Landlord of a notice in writing
terminating this Lease under sub-paragraph 11.1 (iii) of
this paragraph, this Lease and the term shall terminate,
Rent and any other payments for which the Tenant is liable
under this Lease shall be computed, apportioned and paid
in full to the date of such termination forthwith, and
there shall immediately become due and payable forthwith
in one lump sum, the next immediately ensuing three (3)
months' Rent (calculated as if full Base Rent and
Additional Rent are owing and not giving credit for any
scheduled free Rent period). Upon termination of this
Lease and the Term, the Tenant shall immediately deliver
up possession of the Leased Premises to the Landlord, and
the Landlord may forthwith re-enter and take possession of
them.
(b) The Tenant shall pay to the Landlord on demand all costs
and expenses, including lawyers' fees and disbursements
incurred by the Landlord in enforcing any of the
obligations of the Tenant under this Lease.
(c) The Tenant shall pay to the Landlord, for any monetary
Default, interest at a fixed rate per annum equal to the
most favourable rate which the Landlord's principal bank
will lend money on prime loans to commercial customers at
the date when interest commences to run plus three percent
(3%) per annum. Such interest shall run from the due date
of such sum without the necessity of a demand until
payment and shall be compounded semi-annually.
11.3 RENUNCIATION. The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's right
of distress.
ARTICLE XII-MISCELLANEOUS
12.1 REGISTRATION. The Tenant agrees with the Landlord not to register this
Lease, but nevertheless if the Tenant desires to register a notice of
this Lease, the Landlord agrees to execute a notice or acknowledgement,
if required, sufficient for the purpose in such form as the Landlord
and Tenant mutually approve provided in no event shall rental rates of
this Lease be shown.
12.2 NOTICE. Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either
delivered to an executive officer of the Landlord or by facsimile
transmission or mailed by prepaid registered mail addressed to the
Landlord at 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxx #000, Xxxxx Xxxx
(Xxxxxxx), Xxxxxxx, X0X 0X0, and if to the Tenant, either delivered
to the Tenant (or to an officer of the Tenant if the Tenant is a
firm or corporation) or by facsimile transmission or mailed by
prepaid registered mail addressed to the Tenant at the Leased
23
Premises. Every such notice shall be deemed to have been given when
delivered or, if mailed as aforesaid in Canada, upon the day when it
was mailed. The Landlord may from time to time by notice in writing
to the Tenant designate another address in Canada as the address to
which notices are to be mailed to it.
12.3 EXTRANEOUS AGREEMENTS. The Tenant acknowledges that there are no
covenants, representations, warranties, agreements or conditions
expressed or implied relating to this Lease or the Leased Premises save
as expressly set out in this Lease and in any agreement to Lease in
writing between the Landlord and the Tenant pursuant to which this
Lease has been executed. This Lease may not be modified except by an
agreement in writing executed by the Landlord and the Tenant.
12.4 CONSTRUCTION. All of the provisions of this Lease are to be construed
as covenants and agreements. If any provision of this Lease is illegal
or unenforceable it shall be considered separate and severable from the
remaining provisions of this Lease, which shall remain in force and be
binding as though the said provision had never been included. The
headings and marginal sub-headings of clauses and sub-clauses are for
convenience of reference and are not intended to limit, enlarge or
otherwise affect their meanings.
12.5 NON-WAIVER. No condoning, excusing or overlooking by the Landlord of
any default, breach or non-observance by the Tenant at any time or
times in respect of any covenant, agreement, proviso or condition
herein contained shall operate as a waiver of the Landlord's rights
hereunder in respect of any continuing or subsequent default, breach or
non-observance or so as to defeat or affect in any way the rights of
the Landlord in respect of any such continuing or subsequent default or
breach and no waiver shall be inferred or implied by anything done or
omitted by the Landlord save only express waiver in writing.
12.6 ACCORD AND SATISFACTION. No payment by the Tenant or receipt by the
Landlord of a lesser amount than the Base Rent and Additional Rent from
time to time due shall be deemed to be other than on account of the
earliest stipulated Base Rent and Additional Rent due, nor shall any
endorsement or statement on any cheque or any letter accompanying any
cheque or payment of Base Rent or Additional Rent be deemed an accord
and satisfaction, and the Landlord may accept such cheque or payment
without prejudice to the Landlord's right to recover the balance of
such Base Rent or Additional Rent or pursue any other remedy provided
in this Lease.
12.7 GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the Province of Ontario.
12.8 TIME OF THE ESSENCE. Time shall be of the essence of this Lease and
every part hereof.
12.9 NO PARTNERSHIP. Nothing contained herein shall be deemed or construed
by the parties hereto, nor any third party, as creating the
relationship of principal and agent, or a partnership, or a joint
venture between the parties hereto, it being understood and agreed that
none of the provisions contained herein nor any acts of the parties
hereto shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant.
12.10 FORCE MAJEURE. Except as herein otherwise expressly provided, if and
whenever and to the extent that the Landlord or the Tenant shall be
prevented delayed or restricted in the fulfilment of any obligations
hereunder in respect of the supply or provision of any service or
utility,
24
the making of any repair, the doing of any work or any other thing
by reason of strikes or work stoppages or being unable to obtain any
material, service, utility or labour required to fulfil such
obligation or by reason of any statute, law or regulation of or
inability to obtain any permission from any governmental authority
having lawful jurisdiction preventing, delaying or restricting such
fulfilment, or by reason of other unavoidable occurrence, the time
for fulfilment of such obligation shall be extended during the
period in which such circumstance operates to prevent, delay or
restrict the fulfilment thereof and the Tenant or Landlord, as the
case may be, shall not be entitled to compensation for any
inconvenience, nuisance or discomfort thereby occasioned.
Notwithstanding the foregoing, the Tenant acknowledges and agrees
that this provision shall have no application to the Tenant's
obligation to pay Rent in accordance with the strict provisions of
this Lease.
12.11 CONTRA PROFERENTEM. The Parties acknowledge and agree that both
parties have participated in the drafting of this Lease, and any
rule of law providing that ambiguities shall be construed against
the drafting party, shall be of no force or effect.
12.12 PLANNING ACT. This Lease is expressly conditional upon compliance
with the land division provisions of the Planning Act R.S.O. 1990
(as it may be amended from time to time), if applicable.
12.13 ACCESS. The Tenant, its employees, invitees and customers and
persons connected with the Tenant (subject and except as in this
Lease provided) shall have the right in common with others entitled
thereto from time to time to use the parking areas, driveways,
walkways, lawns, ramps (if any) and other Common Areas in and about
the Building from time to time. The Tenant shall not unreasonably
block or in any manner hinder the Landlord, other tenants or other
persons claiming through or under them or any of them who may be
authorized by the Landlord to utilize the Common Areas from so
doing. The Landlord may, acting reasonably, from time to time permit
the Tenant to have the exclusive use of portions of the parking area
which forms part of the Common Areas and to permit other tenants or
other persons to have exclusive use of portions thereof.
12.14 TRANSFERS BY THE LANDLORD. The Landlord at any time and from time to
time may sell, transfer, lease, assign or otherwise dispose of the
whole or any part of its interest in the Leased Premises or in the
Building and lands of which the Leased Premises form a part, at any
time and from time to time, may enter into any mortgage of the whole
or any of its interest in the Building and Lands or in the Leased
Premises. If the party acquiring such interest shall have agreed to
assume and so long as it holds such interest, to perform each of the
covenants, obligations and agreements of the Landlord under this
Lease in the same manner and to the same extent as if originally
named as the Landlord in this Lease, the Landlord shall, thereupon
be released from all of its covenants and obligations under this
Lease.
The Landlord may assign its rights under this Lease to a lending
institution as collateral security for a loan. If such assignment is
made and executed by the Landlord and notification thereof is given
to the Tenant by or on behalf of the Landlord this Lease shall not
be cancelled or modified for any reason whatsoever except as
provided for by the terms hereof or by law without the consent in
writing of such lending institution.
12.15 OCCUPANCY PERMIT. [Deleted]
25
12.16 LEASED PREMISES. Save and except for any work to be performed by
the Landlord as specifically set out herein, the taking of
possession of the Leased Premises by the Tenant shall be conclusive
evidence that the Tenant accepts the Premises in an "as is"
condition and that the said Leased Premises were in good and
satisfactory condition at the time possession was so taken.
12.17 SUCCESSORS AND ASSIGNS. This Lease and everything herein contained
shall enure to the benefit of and be binding upon the successors and
assigns of the Landlord and the permitted successors and assigns of
the Tenant. References to the Tenant shall be read with such changes
in gender as may be appropriate, depending upon whether the Tenant
is a male or a female person or a firm or corporation, and if the
Tenant is more than one person or entity, the covenants of the
Tenants shall be deemed joint and several. All obligations of the
Tenant or the Landlord under this Lease shall be deemed to be
covenants whether or not expressed as same. No rights of the Tenant
in this Lease shall be deemed to be personal, but shall accrue to
the benefit of the Tenant's successors, permitted subtenants and
assigns.
12.18 AREA DETERMINATION. In the event that any calculation or
determination by the Landlord of the Rentable Area of any premises
(including the Demised Premises) or the Building is disputed or
called into question by the Tenant, it shall be calculated or
determined by the Landlord's architect from time to time appointed
for the purpose, whose certificate shall be conclusive and the cost
of such certificate shall be borne by the Tenant.
ARTICLE XIII-OTHER PROVISIONS
13.1 COMMON AREAS. The Tenant acknowledges that the Common Area
Facilities are at all times subject to the exclusive control and
operation of the Landlord, and the Landlord shall have the right to
construct improvements, alterations and additions thereto and to
relocate the various facilities thereon.
13.2 PARKING. The Tenant further acknowledges that the parking facilities
in the Common Area Facilities are on a non-exclusive ("First Come",
"First Serve Basis") and may be altered or diminished during the
term or renewal thereof and the manner in which access is permitted
may be altered. The monthly parking rate per space shall be the rate
as determined by the Landlord from time to time in its sole
discretion.
13.3 WINDOW COVERINGS. [Deleted]
13.4 LANDLORD'S WORK.
The Landlord agrees to repaint the Leased Premises and the Tenant
shall assist and co-operate with the Landlord in regard to the
scheduling of such work. Except for such repainting, the Tenant
agrees to lease the Leased Premises on as "as-is" basis.
13.5 CO-TENANCY. This Lease is not personally binding upon and resort
shall not be had nor shall recourse or satisfaction be sought from
the private property of any of the unit holders of Investors Real
Property Fund (the "Fund"), trustees, officers, directors, employees
or agents of the trustee or manager of the Fund, it being intended
and agreed that only the property of the Fund shall be bound by this
Lease. Only the co-tenancy interests of Menkes Office Parks Ltd.
("Menkes") and Investors Group Trust Co. Ltd. ("Investors Group")
shall be bound hereby and
26
the obligations hereunder are not binding upon either of Menkes or
Investors Group in any other respect nor shall resort be had to any
other property of any of Menkes or Investors Group. The rights and
obligations of each of Menkes and Investors Group hereunder shall,
in every case, be several and proportionate and not either joint or
joint and several.
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease.
MENKES OFFICE PARKS LTD.
Per: /s/ illegible
_____________________________________________
(I/We have authority to bind the Corporation)
INVESTORS GROUP TRUST CO. LTD.
as trustee for
INVESTORS REAL PROPERTY FUND
Per: /s/ Xxxxxx X. Xxxxxxx
_____________________________________________
(I/We have authority to bind the Corporation)
XXXXXX X. XXXXXXX Vice President
Per: /s/ Xxxxxx X. Xxxxxxxx
_____________________________________________
(I/We have authority to bind the Corporation)
XXXXXX X. XXXXXXXX Assistant Secretary
WALL DATA INCORPORATED
Per: /s/ Xxxxxxx X. Xxx Xxxxxx
_____________________________________________
(I/We have authority to bind the Corporation)
XXXXXXX XXX XXXXXX
VP FINANCE, CO
01/96
SCHEDULE "A"
Xxxx 0 & 0 , Xxxx 00X-0000, in the Town of Richmond Hill, in the Regional
Municipality of York.
SCHEDULE "B"
[FLOOR PLAN]
Base Building Grid 1500 x 1500
PREPARED BY: 0000 00xx Xxx. [MENKES LOGO]
[LOGO] Xxxxx Xxxxx 000-0000
Xxxxxxxx Xxxx, Xxxxxxx
SCHEDULE "C"
RULES AND REGULATIONS
The Rules and Regulations may differentiate between different types of
businesses in the Building but the Rules and Regulations will be adopted and
promulgated by the Landlord acting reasonably and in such manner as would a
prudent Landlord of a reasonably similar office building. The Tenant's failure
to keep and observe the Rules and Regulations now or from time to time in force
constitutes a default under this Lease in such manner as if the same were
contained herein as covenants. The Landlord reserves the right from time to time
to amend or supplement the Rules and Regulations applicable to the Leased
Premises or the Building as in the Landlord's absolute and unfettered discretion
are from time to time needed for the safety, care, cleanliness and more
efficient operation of the Building and for the preservation of good order
therein. Notice of the Rules and Regulations and amendments and supplements, if
any, shall be given to the Tenant and the Tenant shall thereupon comply with and
observe all such Rules and Regulations provided that no Rules and Regulations
shall contradict any terms, covenants and conditions of this Lease. The Rules
and Regulations as at the Commencement Date are as follows:
1. The Tenant shall not place any debris, garbage, trash or refuse or
permit same to be placed or left in or upon any part of the Building
outside of the Leased Premises and the Tenant shall not allow any undue
accumulation of any debris, garbage, trash or refuse in or outside of
the Leased Premises.
2. The Landlord shall permit the Tenant and the Tenant's
employees and all Persons lawfully requiring communication
with them to have the use during such hours as the Landlord
deems reasonable in common with others entitled thereto of the
main entrance and stairways, corridors, elevators or other
mechanical means of access leading to the Leased Premises. At
times other than during such hours as the Landlord deems
reasonable the Tenant and the employees of the Tenant shall
have access to the Building and to the Leased Premises only in
accordance with the Rules and Regulations and shall be
required to satisfactorily identify themselves and to register
in any book which may at the Landlord's option be kept by the
Landlord for such purpose. If identification is not
satisfactory, the Landlord is entitled to prevent the Tenant
or the Tenant's employees or other Persons lawfully requiring
communication with the Tenant from having access to the
Building. In addition, the Landlord is not required to open
the door to the Leased Premises for the purpose of permitting
entry therein to any Person not having a key to the Leased
Premises.
3. The Landlord shall permit the Tenant and the employees of the
Tenant in common with others entitled thereto, to use the
washrooms on the floor of the Building on which the Leased
Premises are situated or, in lieu thereof, those washrooms
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designated by the Landlord, save and except when the general
water supply may be turned off from the public main or at such
other times when repair and maintenance undertaken by the
Landlord shall necessitate the non-use of the facilities.
4. The Tenant shall permit window cleaners to clean the windows of the
Leased Premises during such hours as the Landlord deems reasonable.
5. The sidewalks, entrances, passages, elevators and staircases shall
not be obstructed or used by the Tenant, its agents, servants,
contractors, invitees or employees for any purpose other than
ingress to and egress from the offices. The Landlord reserves
entire control of all parts of the Building employed for the common
benefit of the tenants and without restricting the generality of the
foregoing, the sidewalks, entrances, corridors and passages not
within the Leased Premises, washrooms, lavatories, air-conditioning
closets, fan rooms, janitor's closets, electrical closets and other
closets, stairs, elevator shafts, flues, stacks, pipe shafts and
ducts and shall have the right to place such signs and appliances
therein, as it deems advisable, provided that ingress to and egress
from the Leased Premises is not unduly impaired thereby.
6. The Tenant, its agents, servants, contractors, invitees or
employees, shall not bring in or take out, position, construct,
install or move any safe, business machinery or other heavy
machinery or equipment or anything liable to injure or destroy any
part of the Building without first obtaining the consent in writing
of the Landlord. In giving such consent, the Landlord shall have
the right in its absolute and unfettered discretion, to prescribe
the weight permitted and the position thereof, and the use and
design of planks, skids or platforms, to distribute the weight
thereof. All damage done to the Building by moving or using any such
heavy equipment or other office equipment or furniture shall be
repaired at the expense of the Tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only by
prior arrangement with the Landlord. No Tenant shall employ anyone
to do its moving in the Building other than the staff of the
Building, unless permission to employ anyone else is given by the
Landlord and the reasonable cost of such moving shall be paid by the
Tenant. Safes and other heavy office equipment and machinery shall
be moved through the halls and corridors only upon steel bearing
plates. No freight or bulky matter of any description will be
received into the Building or carried in the elevators except during
hours approved by the Landlord.
7. The Tenant shall not place or cause to be placed any additional
locks upon any doors of the Leased Premises without the approval of
the Landlord and subject to any conditions imposed by the Landlord.
Two keys shall be supplied to the Landlord for each entrance door to
the Leased Premises and all locks shall be standard to permit access
to the Landlord's master key. If additional keys are requested,
they must be paid for by the Tenant. No one, other than the
Landlord's
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staff will have keys to the outside entrance doors of the Building.
8. The water closets and other water apparatus shall not be used for
any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown
therein. Any damage resulting from misuse shall be borne by the
Tenant by whom or by whose agents, servants, or employees the same
is caused. The Tenant shall not (a) let the water run unless it is
in actual use, (b) deface or xxxx any part of the Building, (c)
drive nails, spikes, hooks or screws into the walls or woodwork of
the Building, or (d) bore, drill or cut into the walls or woodwork
of the Building in any manner or for any reason.
9. No one shall use the Leased Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or
articles other than those required for business purposes.
10. The Tenant shall not permit any cooking of any foods or liquids in
the Leased Premises without the written consent of the Landlord.
11. Canvassing, soliciting and peddling in or about the Building and in the
parking facilities of the Building are prohibited.
12. It shall be the duty of the Tenant to assist and co-operate with the
Landlord in preventing injury to the Leased Premises.
13. No flammable oils or other flammable, dangerous or explosive
material save those approved in writing by the Landlord's insurers
shall be kept or permitted to be kept in the Leased Premises.
14. No bicycles or other vehicles shall be brought within the building
without the consent of the Landlord.
15. No animals or birds shall be brought into the Building without the
consent of the Landlord.
16. The Tenant shall not install of permit the installation or use of
any machine dispensing goods for sale in the Leased Premises or the
Building or permit the delivery of any food or beverage to the
Leased Premises without the approval of the Landlord or in
contravention of any regulations fixed or to be fixed by the
Landlord. Only Persons authorized by the Landlord shall be permitted
to deliver or to use the elevators in the Building for the purpose
of delivering foods or beverages to the Leased Premises.
17. If the Tenant desires telegraphic or telephonic connections, the
Landlord will direct the electricians as to where and how the wires
are to be introduced. No gas pipe or electric wire will be permitted
which has not been ordered or authorized by the Landlord.
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18. The Tenant shall not cover or obstruct any of the skylights and
windows that reflect or admit light into any part of the Building
except for the proper use of approved window coverings.
19. Any hand trucks, carryalls, or similar appliances used in the Building
with the consent of the Landlord, shall be equipped with rubber tires,
slide guards and such other safeguards as the Landlord requires.
20. The Tenant shall not place or maintain any supplies, merchandise or
other articles in any vestibule or entry of the Leased Premises, on the
footwalks adjacent thereto or elsewhere on the exterior of the Leased
Premises or the Building.
21. The Tenant shall not commit or suffer or permit to be committed any
waste upon, or damage to, or disfiguration of the Leased Premises or
any nuisance or other act or thing which disturbs the quiet enjoyment
of any other tenant in the Building or which unreasonably disturbs or
interferes with or annoys any Person, nor perform any acts or carry on
any practices which may damage the building.
22. The Tenant shall not refer to the Building by any name other than that
designated from time to time by the Landlord, nor use such name for any
purpose other than that of the business address of the Tenant, provided
that the Tenant may use the municipal number of the Building assigned
to it by the Landlord instead of the name of the Building.
23. The Tenant shall not install or allow on the Leased Premises any
transmitting device, nor erect any aerial on the roof of the
Building or on any exterior walls of the Leased Premises. Any such
installations shall be subject to removal by the Landlord without
notice at any time and such removal shall be done and all damage as
a result thereof shall be made good, in each case, at the cost of
the Tenant, payable as Additional Rent forthwith on demand.
24. The Tenant shall not use any travelling or flashing lights or signs
or any loudspeakers, television, phonographs, radio or other
audio visual or mechanical devices in a manner so that they can be
heard or seen outside of the Leased Premises. If the Tenant uses
any such equipment without receiving the prior written consent of
the Landlord, the Landlord shall be entitled to remove such
equipment without notice at any time and such removal shall be done
and all damage as a result thereof shall be made good, in each case,
at the cost of the Tenant, payable as Additional Rent forthwith on
demand.
25. The Landlord shall have the right to restrict access to the elevators
for move-in and move-out purposes. The Tenant shall consult prior to
taking or giving up occupation of the Leased Premises in order to
obtain an elevator schedule from the Landlord.
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26. If the Tenant requires the supply of water, electricity, heating,
air conditioning or any other utility or service after the normal
hours during which the Landlord supplies same or on a weekend or
holiday, the Tenant shall purchase its requirements for those
utilities or services from the Landlord and the Tenant shall pay to
the Landlord as Additional Rent forthwith upon demand the cost of
same at the rates current from time to time set by the Landlord.
The Tenant acknowledges that at least twenty-four hours' prior
written notice must be given to the Landlord in the event that the
Tenant requires the supply of utilities after the hours the Landlord
normally supplies same.
27. There shall be no smoking allowed in any part of the Building
including the Leased Premises and all public areas which shall
include, but not be limited to washrooms, elevators, elevator
lobbies, common area hallways, stairwells, etc.
SCHEDULE "D"
WALL DATA STANDARD LEASE RIDER
This Lease Rider ("Rider") is attached to and incorporated by reference into
the lease (the "Lease") between Wall Data Incorporated as Tenant and as
Landlord, with respect to premises known as suite 303 (the "Premises") of the
building located at 0000 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxx (the "Building")
(this Rider, together with the Lease, are hereinafter referred to as the
"Lease"). Notwithstanding anything to the contrary in the Lease, Landlord and
Tenant agree as follows. In the event of any inconsistency between the terms
of the Lease and the terms of this Rider, this Rider shall prevail.
1. PAYMENT OF RENT
All monthly payment of rent, additional rent, and other sums of money
due from Tenant to Landlord under the terms of the Lease shall be payable on
the 1st day of the month, provided that the Tenant shall not be treated as
being in default under the Lease unless rent remains unpaid by the 10th day
of the month.
2. USE
The Premises shall be used for general office purposes, computer program
development and marketing, and uses incidental thereto, and for no other
purpose without the prior written consent of the Landlord which shall not be
unreasonably withheld, delayed or conditioned. Tenant shall comply with all
governmental rules, orders, regulations, and requirements relating to the use
and occupancy of the Premises, except that Tenant shall not be required to
make any capital improvements.
Tenant shall not allow use of the Premises in a manner which increases
Landlord's insurance premiums, in a manner which interferes with any other
tenant in the Building, in a manner which creates undue noise or vibration,
or for any illegal purpose. Tenant shall not use, store or dispose of any
hazardous or toxic waste or materials in the Premises or Building at any
time, except in small amounts as ordinarily and customarily used for general
office purposes, and then strictly in accordance with all applicable laws,
rules, regulations and ordinances.
3. SURRENDER
Upon expiration of the term or sooner termination of the Lease, the
Premises shall be surrendered to Landlord in reasonable condition, ordinary
wear and tear, and damage from fire and other casualty and condemnation
excepted.
4. LANDLORD'S SERVICES
Landlord agrees that the following utilities and services will be
available at or to the Premises at the times and in the manner that they are
ordinarily and customarily available in an office building of the quality and
in the vicinity of the Building:
(a) electricity;
(b) natural gas;
(c) hot and cold water for drinking, rest room and office cleaning
purposes;
(d) heating, ventilation and air conditioning
(e) 24 hour access to the Premises;
(f) telephone service;
(g) computer cabling;
(h) passenger and freight elevator service;
(i) sprinkler riser monitoring;
(j) janitorial and cleaning services; and
(k) window washing services
All such utilities and services shall be paid for as set forth in the
Lease. Interruption of utilities or services shall not be deemed an eviction
or excuse performance of any of Tenant's obligations under this Lease or
render Landlord liable for damages, except that Landlord shall be
2
liable for damages arising from interruption of utilities or services due to
the negligence or willful misconduct of Landlord, it agents, or employees. If
interruption of utilities and services or any other cause renders the
Premises untenantable for their intended purposes for more than ten (10)
business days, then Tenant's obligations to pay rent shall xxxxx for the time
that the Premises are so untenantable.
5. MAINTENANCE BY LANDLORD
Landlord shall maintain the Building in a first class condition
comparable to other buildings in the vicinity of like quality and use.
Landlord shall maintain in good condition (normal wear and tear excepted) the
structural and exterior components of the Building including, without
limitation, the foundations, bearing and exterior walls, subflooring, roof
unexposed electrical, plumbing and sewage systems and heating, ventilating
and air conditioning systems. Landlord shall also maintain in good condition
and repair the common areas (including light bulbs), elevators, alarm
monitoring, building systems including without limitation plumbing and
electrical systems, parking areas, lobbies, stairwells, restrooms, and
outdoor landscaping. Landlord shall not be obligated to repair or replace any
fixtures or equipment installed by or for Tenant and Landlord shall not be
obligated to make any repair or replacement occasioned by any act or omission
of Tenant, its employees, agents, invitees, or licensees.
6. HAZARDOUS SUBSTANCES
To the best of Landlord's knowledge, after reasonable inquiry, there are
no hazardous waste or substances in the soil or groundwater of the real
property on which the Building is located and Landlord has not disposed of or
approved any disposal by any other party of any hazardous wastes or
substances on or from the Building or real property. Landlord shall
indemnify, defend and save Tenant harmless for any and all cleanup costs,
charges, fees and penalties imposed by any governmental authority with
respect to the use, disposal, transportation, generation or sale of hazardous
substances or hazardous wastes on for from the Building or real property
except such use, disposal, transportation, generation or sale by Tenant.
7. ADDITIONAL PROVISION CONCERNING OPERATING EXPENSES
Notwithstanding anything to the contrary contained in the Lease, the
following items shall be excluded (or, as applicable, deducted) from the
calculation of Tenant's share (if any) of operating costs and expenses of the
Building:
(a) the cost of repairs or other work occasioned by fire, windstorm or
other casualty or loss in excess of the insurance proceeds therefor
(or, if greater, the proceeds that would have been available had
Landlord maintained the insurance required to be maintained by
Landlord pursuant to this Lease);
(b) costs resulting from the correction of any latent construction
defects in all or any portion of the Building, or any condition
that is, as of the date of this Lease, not in compliance with
applicable laws, codes, rules or regulations;
(c) costs of initial landscaping;
(d) rental concessions or lease buyouts;
(e) the costs of renovating or otherwise improving or decorating,
painting or redecorating space (exclusive of common areas) for any
tenants or other occupants of the Building, including, without
limitation, Tenant;
(f) the amounts by which the cost of any work or service performed for
and electricity applied to any tenant or occupant (other than
Tenant) exceeds the greater of (i) the cost of the standard amount
or level of such work, service or electricity provided to tenants
or occupants of the Building in general, or (ii) the cost of the
amount or level of work, service or electricity made available by
Landlord to Tenant under this Lease;
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(g) depreciation except as specifically provided hereunder;
(h) premium rates paid on service or other contracts;
(i) overhead or profit paid to Landlord, subsidiaries or affiliates of
Landlord, for services on or to the Building if and to the extent
the cost therefor exceeds competitive costs for such services in
comparable first-class office buildings located within five (5)
miles of the Building were they not so rendered by Landlord, or by
a subsidiary or affiliate of Landlord;
(j) payment of principal interest or other payments of any kind on any
deeds to secure debt, mortgages, ground or underlying leases, or
other hypothecations for security of all or any part of the
Building by Landlord;
(k) rents payable in connection with any ground or underlying lease of
all or any portion of the Building;
(l) Landlord's general overhead and any other expense not directly
related to the Building;
(m) all items, services and/or goods for which Tenant or any other
tenant, occupant, person or other party is obligated to reimburse
Landlord or to pay third parties;
(n) advertising and promotional expenses with respect to leasing space
in or selling the Building;
(o) brokerage, legal and professional fees expended by Landlord in
connection with negotiating and entering into any leases and any
related instruments (including, without limitation, guaranties,
surrender agreements, leasing amendments and consents to assignment
or subletting) with any tenant or other occupant of any portion of
the Building, and the enforcement of any such instruments; or which
are expended or incurred by Landlord in connection with the
negotiating and entering of sale, ground lease, financing,
partnership or similar transaction pertaining to the Building or
any portion thereof, and/or to Landlord or an interest in Landlord,
including without limitation, promissory notes, security deeds,
mortgages, ground or master leases, purchase and sale agreements,
options, and any and all similar and/or related documents,
instruments and agreements;
(p) estate, inheritance, gift franchise and income taxes of Landlord;
(q) wages, salaries and other compensation paid to employees of the
Landlord at the Building who are at or above the level of Building
manager or district manager to the extent of time dedicated to the
management of the Building;
(r) the costs and expenses of maintenance and operating of any parking
facility in or serving the Building except to the extent that they
exceed any revenues for parking received from such operation;
(s) all items that would be capitalized under generally accepted
accounting principles provided that the Landlord shall be entitled
to amortize all such costs over the useful life of the item being
replaced;
(t) the cost of defending against claims in regard to the existence or
release of hazardous substances or materials at the Building and
costs of any clean-up of any such hazardous substances or material
(except with respect to those costs for which Tenant is otherwise
responsible pursuant to the express terms of this Lease);
(u) costs and expenses incurred in connection with compliance with or
the contesting or settlement of any claimed violation of law or
requirements of law;
4
(v) interest, penalties or damages incurred by Landlord for late
payment of taxes or assessments or under any agreement to which
Landlord is a party by reason of the breach or default of Landlord;
(w) expenses incurred in connection with relocating tenants in the
Building;
(x) the cost of installing, operating and maintaining any specialty
service or special facility such as an observatory, broadcasting
facilities, health club, cafeteria, or dining facility or luncheon
club, other than those facilities generally made available to
tenants of the Building without cost;
(y) the cost of acquiring, securing, cleaning and maintaining works of
art;
(z) amounts received by Landlord through proceeds of insurance to the
extent the proceeds are compensation for expenses which were
previously included in Building operating costs charged to tenants;
(aa) costs related to public transportation, transit or van pools; and
(bb) all other items for which Tenant or any other tenant, occupant or
other party compensates Landlord, so that no duplication of
payments by Tenant or to Landlord shall occur.
8. ASSIGNMENT AND SUBLETTING BY TENANT
Neither this Lease nor any right hereunder may be assigned, transferred,
encumbered, or sublet in whole or in part by Tenant, by operation of law or
otherwise, without Landlord's prior consent, which shall not be unreasonably
withheld, condition, or delayed, No ASSIGNMENT or sublease shall relieve
Tenant of its liabilities hereunder and Tenant shall continue to be primarily
liable therefor. No consent to any assignment or subleases shall be deemed a
consent to any further assignment or sublease. No merger, consolidation,
reorganization or change in ownership of or the power to vote any proportion
(including a majority) of Tenant's outstanding voting stock, shall constitute
an assignment.
Landlord hereby consents to an assignment of this Lease or a subletting
of all or part of the Premises to (a) a parent of Tenant, the parent of such
parent, or a wholly owned subsidiary of Tenant, of such parent, or of the
parent of such parent and (b) any entity to whom Tenant sells all or
substantially of its assets provided that any such entity expressly assumes
all Tenant's obligations hereunder.
9. SIGNS
Landlord shall display Tenant's name and location on the Building
directory.
10. TRANSFER OF PREMISES BY LANDLORD
Landlord may, at Landlord's sole option, sell the Building or the
property on which the Building is located and/or assign this Lease or any of
Landlord's rights hereunder. In the event of any such sale and/or assignment
by Landlord, Landlord shall not be released and relieved of Landlord's
duties, obligations or liability under any of the covenants and obligations
contained in or derived from this Lease unless the purchaser at such sale or
any subsequent sale, and/or the assignee if Landlord assigns this Lease,
assumes and agrees to carry out any and all of the covenants, duties and
obligations of the Landlord under this Lease ("Assumption"). In any event,
Landlord shall not be released or relieved from any covenants or obligations
or liability under the lease arising or incurred prior to the date of the
Assumption.
5
11. SUBORDINATION AND NONDISTURBANCE AGREEMENT
The Lease is and shall be prior to any mortgage recorded after the
date of the Lease affecting the Building. If, however, a lender requires that
this Lease be subordinate to any mortgage, this Lease shall be subordinate to
that mortgage only if Landlord first obtains from the lender a written
nondisturbance agreement in commercially reasonable form that provides
substantially the following:
As long as Tenant performs its obligations under this Lease, no foreclosure
of, deed given in lieu of foreclosure of, or sale under the mortgage, and no
steps or procedures taken under the mortgage, shall affect Tenant's rights
under this Lease.
Tenant shall attorn to any purchaser at any foreclosure sale, or to
any grantee or transferee designated in any deed given in lieu of
foreclosure. Tenant shall execute a written agreement reasonably required by
any lender to accomplish the purpose of this Section.
12. RELEASE AND WAIVER OR SUBROGATION
Neither Landlord nor Tenant shall be liable to the other or to any
insurance company (by way of subrogation or otherwise) insuring the other
party for any loss or damage to any building, structure or tangible personal
property of the other or of any third party occurring in or about the
Premises of Building, even though such loss or damage might have been
occasioned by the negligence of such party, its agents or employees, if such
loss or damage would fall within the scope of a fire and extended coverage
(all risk) policy of insurance, whether or not the party suffering the loss
actually maintained such insurance. Each party shall obtain from its
respective insurer under each insurance policy it maintains a waiver of all
rights of subrogation which the insurer of one party may have against the
other party, and Landlord and Tenant shall each indemnify the other against
any loss or expense, including reasonable attorney's fees, resulting from the
failure to obtain such a waiver.
13. DISCRETION TO BE EXERCISED REASONABLY
Whenever, under the terms of this Lease, either party shall have the
right to exercise its discretion, or to grant or withhold its consent, that
party shall exercise its discretion reasonably, and shall not unreasonably
withhold or delay its consent.
14. LANDLORD'S INDEMNIFICATION
Except as otherwise provided in this Section 14, Landlord shall
indemnify, defend (using legal counsel acceptable to Tenant) and save Tenant,
its board, officers, agents, employees and contractors harmless from all
claims, suits, losses, damages, fines, penalties, liabilities and expenses
(including Tenant's personnel and overhead costs and attorney's fees and
other costs incurred in connection with claims, regardless of whether such
claims involve litigation) resulting from any actual or alleged loss of or
damage to, any property arising out of or in connection with (i) Landlord's
breach of its obligations under the Lease, or (ii) any act or omission of
Landlord, or any partner, officer, agent or employee of Landlord, or of any
such entity in or about the Building outside the Premises. Landlord agrees
that the foregoing indemnity with respect to acts or omissions during the
term of the Lease shall survive termination or expiration of the Lease. The
foregoing indemnity is specifically and expressly intended to constitute a
waiver of Landlord's immunity under any applicable workmen's compensation
law, to the extent necessary to provide Tenant with a full and complete
indemnity from claims made by Landlord and its employees, to the extent of
their negligence.
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15. NOTICE
Any notice required to be given to Tenant shall be sent via
facsimile, overnight express mail or U.S. mail, postage prepaid, addressed
as follows:
Wall Data Incorporated
00000 XX 000xx Xxx
Xxxxxxxx, XX 00000
Attention: Facilities Manager
Fax Number: 000-000-0000
Notices shall be effective upon receipt.
EXTENSION OF LEASE
THIS EXTENSION OF LEASE made this 15th day of September, 1998
BETWEEN:
MENKES OFFICE PARKS LTD. and
INVESTORS GROUP TRUST CO. LTD. as Trustee for
INVESTORS REAL PROPERTY FUND
(HEREINAFTER called the "LANDLORD")
OF THE FIRST PART
- and -
WALL DATA INCORPORATED
(HEREINAFTER called the "TENANT")
OF THE SECOND PART
WITNESSETH
WHEREAS:
A. By a lease dated the 8th day of July, 1996 (herein called the "LEASE")
made between the Landlord and the Tenant, the Landlord leased to the
Tenant the premises municipally known as 0000 00xx Xxxxxx, Xxxxx 000,
Xxxxxxxx Xxxx, Xxxxxxx (the "PREMISES") for a term of two (2) years from
October 1, 1996 upon the terms and conditions therein set forth in the
Lease;
B. The Tenant has requested the Landlord grant to it this Extension of the
LEASE for the Premises for a further term of two (2) years (the
"EXTENSION TERM") from the 1st day of October, 1998 on the terms
hereinafter set forth and the Landlord has agreed to do so.
Now in consideration of the mutual covenants hereinafter contained the
Parties agree as follows:
1. The Landlord hereby leases to the Tenant the Premises subject to the
payment on the same days and in the like manner of Base Rental and
additional rent save and except that the Base Rental for the Extension
Term shall be as follows:
(a) from the 1st day of October, 1998, until the 30th day of September,
1999 shall be in the amount of $52,752.00, Canadian currency, per
annum and the Base Rental monthly payments shall be in the amount
of $4,396.00, Canadian currency, per month plus G.S.T.;
(b) from the 1st day of October, 1999 until the 30th day of September,
2000 shall be in the amount of $57,148.00, Canadian currency, per
annum and the Base Rental monthly payments shall be in the amount
of $4,762.33, Canadian currency, per month plus G.S.T.;
The Extension Term shall be for two (2) years commencing on the 1st day
of October, 1998 and terminating on the 30th day of September, 2000 and
subject to and with the benefit of the Tenant's and Landlord's
covenants, provisos and conditions contained in the Lease.
Page 1
2. Provided it is mutually agreed and understood that if the Tenant duly and
regularly pays the Base Rental and additional rental and performs all of
the provisos and agreements contained in the Lease and this Extension of
Lease on the part of the Tenant to be performed, and provided further
that the Tenant is not habitually in default under the terms of the
Lease and this Extension of Lease and is not in default at the time of
the exercise of the option herein, then the Landlord shall, at the
expiration of the Extension Term hereof, upon written request of the
Tenant, grant to the Tenant a further extension of the Lease, as
extended, for a further period of two (2) years upon the same terms and
conditions as contained herein, save as to the Base Rental rate, save
as to any Landlord's Work, save as to any further right of extension and
in an "as is" condition. Provided always that the Tenant shall have
given to the Landlord 180 days' notice in writing before the expiration
of the Extension Term of its desire to have such extension. The Base
Rental rate for such extension term shall be at the then fair market
rate at the time of the exercise by the tenant for similar premises in a
similar area and as mutually agreed between the Landlord and the Tenant.
In the event that the Landlord and the Tenant are unable to agree upon
the base rental rate for such extension term by 120 days prior to the
maturity date, the matter shall be submitted to arbitration by notice
given by either party to the other. Upon such notice being given, the
dispute shall be determined by the award of 3 arbitrators, or by a
majority of them, one to be named by the Landlord and one by the Tenant
within 30 days of the giving of such notice, and the 3rd to be selected
by these 2 arbitrators within 7 days after both have been nominated. If
either the Landlord or the Tenant shall neglect to refuse to name its
arbitrator in the time period specified or to proceed with the
arbitration, the arbitrator named by the other party shall proceed with
the arbitration, and the award of such arbitrator shall be final and
binding upon the Landlord and the Tenant. The Arbitrators shall have all
the power given by the Arbitrations Act of Ontario and may at any time
proceed in such manner as they see fit on such notice as they deem
reasonable in the absence of either party, if such party fails to
attend. Each party shall pay its own costs and shall share equally the
costs of arbitration. The award and determination of the arbitrators
shall be final and binding upon both parties hereto and each party
agrees not to appeal any such award or determination.
In no event shall the base rental for the extension period be less than
the highest Base Rental payable under the final year of the Extension
Term.
If the award of the arbitrators is not given before the commencement
date of such extension term, then the Tenant shall commence paying base
rental at the market rate as determined by the Landlord together with
additional rental, which shall be adjusted forthwith after the award of
the arbitrators has become final and binding, to be calculated from the
commencement date of the extension term.
The extension of lease form shall be prepared by the Landlord at its own
expense.
3. The Landlord and Tenant hereby mutually covenant that they will perform
and observe the several covenants, provisos and conditions in the Lease
as fully as if such covenants, provisos and conditions have been
repeated herein in full with such modifications only as are necessary to
make them applicable to this Extension of Lease. It is further
understood and agreed that any clauses in the Lease relating to
Landlord's work, Base Rental free or additional rent free periods,
Landlord's warranties, early occupancy, early access, additional rent
estimates and any other such tenant inducements are not applicable to
this extension term unless otherwise stated herein.
Page 2
4. The Tenant covenants and agrees to deliver to the Landlord forthwith
upon execution of this Extension of Lease a cheque in the amount of
$2,743.83 which, when added to the amount being held by the Landlord as
a security deposit, will provide the Landlord with a sum equal to the
last month's base rental for a security deposit.
5. The Landlord shall, at its own expense, and in accordance with its
standard plans and specifications, complete the following work to the
Premises:
1. Repaint the Premises. Paint colour to be chosen by Tenant from
Landlord's standard samples.
2. Shampoo carpet and glue/repair any pulls in carpet.
Tenant agrees to move within the premises any of its furniture,
equipment, etc., at its own cost, to allow the Landlord unimpeded access
in order to complete its work;
6. This Agreement is not personally binding upon and resort shall not be
had nor shall recourse or satisfaction to be sought from the private
property of any of the unit holders of Investors Real Property Fund (the
"FUND"), trustees, officers, directors, employees of agents of the
trustee or manager of the Fund, it being intended and agreed that only
the property of the Fund shall be bound by this Agreement. Only the
co-tenancy interests of Menkes and Investors Group shall be bound hereby
and the obligations hereunder are not binding upon either of Menkes or
Investors Group in any other respect nor shall resort be had to any
other property of any of Menkes or Investors Group. The rights and
obligations of each of Menkes and Investors Group hereunder shall, in
every case, be several and proportionate and not either joint or joint
and several.
7. The Parties agree to execute such further and other documentation as may
be necessary to give this Extension of Lease full force and effect.
8. This Extension of Lease shall be binding upon the respective heirs,
executors, administrators, successors and permitted assigns of the
Parties hereto.
IN WITNESS WHEREOF the Parties have hereunto set their hands and seals or
caused their corporate seals to be affixed, duly attested by the hands of
their proper signing officers in that behalf.
SIGNED, SEALED AND DELIVERED)MENKES OFFICE PARKS LTD.
IN THE PRESENCE OF )
) Per: Illegible
) ---------------------------------
) Name:
) Title:
)
) INVESTORS GROUP TRUST CO. LTD. AS
) TRUSTEE FOR INVESTORS REAL PROPERTY
) FUND
) Per: Illegible
) ---------------------------------
SEAL ) Name:
) Title:
)
) WALL DATA INCORPORATED
)
) Per: Illegible
) ---------------------------------
) Name:
) Title:
Page 3
OFFER TO SUBLEASE
B E T W E E N :
WALL DATA INCORPORATED
(SUBLANDLORD)
- AND -
CHANGEPOINT CORPORATION
(SUBTENANT)
------------------------------------------------------------------------------
COLLIERS XXXXXXXX XXXXXXX (ONTARIO) INC.
(AGENT)
------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx
492-2001 ext. 437
Xxxx Xxxxxx
777-2200 ext. 275
OFFER TO SUBLEASE
25th day of January, 2000
1595 SIXTEENTH AVENUE
(the "Building")
TO: WALL DATA INCORPORATION
("SUBLANDLORD")
WE, CHANGEPOINT CORPORATION
("SUBTENANT")
hereby offer to sublease from the Sublandlord, through Colliers Xxxxxxxx
Xxxxxxx (Ontario) Inc., ("Agent") upon the following terms and conditions,
approximately 4,396 square feet of Rentable Area (hereafter referred to as
the "Subleased Premises") in the Building located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx being a portion of the third (3rd) floor.
The area of the Subleased Premises is shown outlined in heavy black on the
plan attached hereto as Schedule "A".
1. TERM
The Term of the lease shall be seven (7) months commencing on the 1st
day of March, 2000 (the "Commencement Date") and ending on the 30th day of
September, 2000, (the "Termination Date").
2. GROSS RENT
Based on the Subleased Premises containing approximately 4,390 square
feet of Rentable Area, the Subtenant shall pay to the Sublandlord the
following gross rent (the "Gross Rent") payable in advance on the 1st day
of each and every month during the Term in accordance with the following
schedule:
$8,571.43 PER MONTH GROSS, PLUS APPLICABLE G.S.T., CANADIAN DOLLARS
Gross rent includes all net or basic rent and the provision for realty
taxes, hydro and operating costs.
OFFER TO SUBLEASE Page 2
3. "AS IS" CONDITION
The Premises shall be accepted on an "as is" basis. The Subtenant shall
be permitted to install new leasehold improvements or make alterations to
the existing leasehold improvements upon approval by the Sublandlord and
Head Landlord, subject to the provisions as contained in the Head Lease.
4. SUBLANDLORD'S WORK
The Sublandlord will complete the following work in the Subleased Premises
at its expense prior to the Commencement Date:
(a) Subleased Premises clean and free of debris or garbage; and
5. FURNITURE
THE SUBLANDLORD WILL INCLUDE FOR THE SUBTENANT ALL EXISTING FURNITURE IN
THE SUBLEASED PREMISES AT NO ADDITIONAL COST TO THE SUBTENANT. ALL
FURNITURE WILL BECOME THE PROPERTY OF THE SUBTENANT UPON THE COMMENCEMENT
DATE.
6. DEPOSIT
A CHEQUE FOR SEVENTEEN THOUSAND ONE HUNDRED AND FORTY TWO DOLLARS AND
EIGHTY SIX CENTS ($17,142.86) (the "Deposit") payable to the Agent,
Colliers Xxxxxxxx Xxxxxxx, in trust, shall be tendered within five (5)
business days of unconditional acceptance of this agreement to apply as a
deposit and to be applied in payment of the first rents due hereunder.
Such Deposit shall be held by the Agent "in Trust" in an interest bearing
account with interest credited to the Subtenant until the Commencement
Date or as otherwise agreed between the parties.
7. HEAD LEASE
The Subtenant shall abide by the terms and conditions of the Head Lease
dated July 8, 1996 and as extended October 15, 1998 between Menkes Office
Parks Ltd., Investors Group Trust Company Ltd. As Trustee for Investors
Real Property Fund (herein referred to as "Head Landlord") and Wall Data
Incorporated (herein referred to as "Sublandlord"). The Subtenant
acknowledges receiving a true copy of the Head Lease Agreement.
OFFER TO SUBLEASE Page 3
8. SUBLEASE
Should the parties so elect, a Sublease Agreement shall be executed and
shall be in the Head Landlord's standard form, incorporating the terms of
this Offer (the "Sublease") and subject to the changes as are mutually
agreed upon by the Sublandlord, Subtenant and Head Landlord acting
reasonably. The form of Sublease shall be prepared by the Head Landlord
and shall be delivered by the Head Landlord to the Subtenant or
Sublandlord within ten (10) days after acceptance of this Offer. If
required, the Sublease shall be executed and delivered by the Subtenant to
the Sublandlord within thirty (30) days of receipt by the Subtenant but in
any event before commencement of any construction and before the date of
Commencement of the Term and prior to the Subtenant taking occupancy.
9. FIXTURING PERIOD & EARLY OCCUPANCY
The Subtenant shall have access to the Building and Subleased Premises
for the purposes of planning, engineering, design and staff announcements
free of any Basic Rent of Additional Rent charges.
Provided the Sublease has been executed by both parties or upon written
approval of the Sublandlord and Head Landlord, the Subtenant will have
access to the Subleased Premises free of Basic Rent, Additional Rent and
Hydro immediately upon unconditional acceptance by both parties of this
Agreement until the Commencement Date for the purpose of carrying out the
Subtenant's Work ("Fixturing Period"). During said Fixturing Period, there
shall be no supervision fees payable by the Subtenant relating to the
initial construction of the
OFFER TO SUBLEASE Page 4
Subtenant's leasehold construction. Contractor(s) must abide by the
Building's rules and regulations relating to construction, as per the Head
Lease.
10. PARKING
The Subtenant shall be entitled but not obligated during the Term of the
Sublease to have the use of up to twelve (12) unreserved parking stalls
located in the parking facility of the Building at no additional cost AS
PER THE HEADLEASE.
11. USE
The Subtenant shall use the Subleased Premises as an office for the
provision a general sales and administrative office in all its aspects as
offered by the Subtenant, in accordance with existing zoning by-laws.
12. ASSIGNMENT/SUBLET
The Subtenant shall not assign this Offer to Sublease or the Sublease
resulting herefrom or sublet or part with possession of all or part of the
Subleased Premises or mortgage or encumber the Sublease without the prior
written consent of the Sublandlord and Head Landlord and in accordance
with the terms of the Sublease, which consent shall not be unreasonably
withheld or delayed.
13. NO REPRESENTATIONS
There are no covenants, representations, agreements, warranties or
conditions in any way relating to the subject matter of this agreement
expressed or implied, collateral or otherwise, except as expressly set
forth herein and in the Sublease.
14. HEAD LANDLORD APPROVAL - CONDITION
This Offer to Sublease shall be subject to the approval of the Head
Landlord as contained in the provisions of the Head Lease.
15. NO RESTORATION
The Subtenant shall not be required to return the Subleased Premises to
base building condition or remove its leasehold improvement at the expiry
of the sublease term or earlier
OFFER TO SUBLEASE Page 5
termination thereof. The Subtenant shall have the right but not the
obligation to remove its fixtures, subject to the Sublandlord's approval,
acting reasonably, provided any damage is repaired by the Subtenant.
16. SIGNAGE
The Subtenant shall be permitted to have Building standard directory
board signage at the cost of the Subtenant.
17. TIME OF THE ESSENCE
Time shall be of the essence of this agreement and the transactions
contemplated herein, provided that the time for doing or completing any
matter herein may be amended by an agreement in writing signed by both
parties.
18. DEFINITIONS
Words defined in the Sublease and used herein shall have the same
meaning ascribed to them by the Head Lease.
19. ENUREMENT
This Offer and the agreement resulting herefrom shall enure to and be
binding upon the parties hereto there, and their respective successors and
assigns.
20. WAIVER TO AGENT
The parties to this agreement acknowledge that the Agent has recommended
that they obtain advice from their legal Counsel prior to signing this
document. The parties further acknowledge that the information provided by
the Agent is not legal, accounting, environmental or tax advice, and the
parties are cautioned not to rely on any such information without seeking
specific legal, accounting, environmental or tax advice with respect to
their unique circumstances.
21. G.S.T.
All amounts referred to in this Offer are quoted prior to inclusion of
goods and services taxes.
OFFER TO SUBLEASE Page 6
22. NOTICE
Any notice, document or other communication required or permitted to be
given under this Agreement shall be in writing and shall be delivered to:
SUBLANDLORD: WALL DATA CORPORATION
(NOW OPERATING AS NETMANAGE)
00000 X.X. 000XX XXX
XXXXXXXX, XX
X.X.X. 00000-0000
ATTN: MATT ROYAL, FACILITIES MANAGER
PH: 000-000-0000
FX: 000-000-0000
SUBTENANT: CHANGEPOINT CORPORATION
0000 XXXXXXXXX XXXXXX
XXXXX 000
XXXXXXXX XXXX, XXXXXXX
XXXXXX X0X 0X0
ATTN: XXXX XXXXXX, CFO AND VICE PRESIDENT
PH: 000-000-0000
FX: 000-000-0000
OFFER TO SUBLEASE Page 7
23. TIME FOR ACCEPTANCE
This Offer shall be irrevocable and open for acceptance until 3:00 p.m.
on the 22st day of February, 2000 after which time, if not accepted, this
Offer shall be null and void and the Deposit shall be returned in full.
Acceptance of this Offer may be communicated by facsimile transmission
of an accepted Offer or by delivery of such facsimile without limiting
other methods of communicating acceptance available to the parties.
Dated at Richmond Hill this 14th day of February , 2000.
------------------- ---------- --------------
CHANGEPOINT CORPORATION
[ILLEGIBLE] per: /s/ Xxxx Xxxxxx
----------------------- -------------------------
Witness Date
Title: VP & CFO
-----------------------
ACCEPTANCE
We hereby agree that the above correctly sets forth the terms of our
agreement and undertake to carry out the provisions thereof.
Dated at ___________________ this __________ day of ______________, 2000.
WALL DATA INCORPORATED
_______________________ per: _________________________
Witness Date
Title: _______________________
SCHEDULE "A"
Attached hereto and forming an integral part of this Offer to Sublease
between WALL DATA INCORPORATED (Sublandlord) and CHANGEPOINT CORPORATION
(Subtenant) to be initialled by both parties for identification purposes.
-------------------------------------------------------------------------
OFFER TO SUBLEASE
B E T W E E N :
WALL DATA INCORPORATED
(SUBLANDLORD)
- AND -
CHANGEPOINT CORPORATION
(SUBTENANT)
------------------------------------------------------------------------------
COLLIERS XXXXXXXX XXXXXXX (ONTARIO) INC.
(AGENT)
------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx
492-2001 ext. 437
Xxxx Xxxxxx
777-2200 ext. 275
OFFER TO SUBLEASE
25th day of January, 2000
1595 SIXTEENTH AVENUE
(the "Building")
TO: WALL DATA INCORPORATION
("SUBLANDLORD")
WE, CHANGEPOINT CORPORATION
("SUBTENANT")
hereby offer to sublease from the Sublandlord, through Colliers Xxxxxxxx
Xxxxxxx (Ontario) Inc., ("Agent") upon the following terms and conditions,
approximately 4,396 square feet of Rentable Area (hereafter referred to as
the "Subleased Premises") in the Building located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx being a portion of the third (3rd) floor.
The area of the Subleased Premises is shown outlined in heavy black on the
plan attached hereto as Schedule "A".
1. TERM
The Term of the lease shall be seven (7) months commencing on the 1st
day of March, 2000 (the "Commencement Date") and ending on the 30th day of
September, 2000, (the "Termination Date").
2. GROSS RENT
Based on the Subleased Premises containing approximately 4,390 square
feet of Rentable Area, the Subtenant shall pay to the Sublandlord the
following gross rent (the "Gross Rent") payable in advance on the 1st day
of each and every month during the Term in accordance with the following
schedule:
$8,571.43 per month gross, plus applicable G.S.T.
Gross rent includes all net or basic rent and the provision for realty
taxes, hydro and operating costs.
OFFER TO SUBLEASE Page 2
3. "AS IS" CONDITION
The Premises shall be accepted on an "as is" basis. The Subtenant shall
be permitted to install new leasehold improvements or make alterations to
the existing leasehold improvements upon approval by the Sublandlord and
Head Landlord, subject to the provisions as contained in the Head Lease.
4. SUBLANDLORD'S WORK
The Sublandlord will complete the following work in the Subleased Premises
at its expense prior to the Commencement Date:
(a) Subleased Premises clean and free of debris or garbage; and
5. SYSTEM FURNITURE
The Sublandlord will include for the Subtenant the existing system
furniture in the Subleased Premises at no additional cost.
6. DEPOSIT
A cheque for SEVENTEEN THOUSAND ONE HUNDRED AND FORTY-TWO DOLLARS AND
EIGHTY-SIX CENTS ($17,142.86) (the "Deposit") payable to the Agent,
Colliers Xxxxxxxx Xxxxxxx, in trust, shall be tendered within five (5)
business days of unconditional acceptance of this agreement to apply as a
deposit and to be applied in payment of the first rents due hereunder.
Such Deposit shall be held by the Agent "in Trust" in an interest bearing
account with interest credited to the Subtenant until the Commencement
Date or as otherwise agreed between the parties.
7. HEAD LEASE
The Subtenant shall abide by the terms and conditions of the Head Lease
dated July 8, 1996 and as extended October 15, 1998 between Menkes Office
Parks Ltd., Investors Group Trust Company Ltd. As Trustee for Investors
Real Property Fund (herein referred to as "Head Landlord") and Wall Data
Incorporated (herein referred to as "Sublandlord"). The Subtenant
acknowledges receiving a true copy of the Head Lease Agreement.
OFFER TO SUBLEASE Page 3
8. SUBLEASE
Should the parties so elect, a Sublease Agreement shall be executed and
shall be in the Head Landlord's standard form, incorporating the terms of
this Offer (the "Sublease") and subject to the changes as are mutually
agreed upon by the Sublandlord, Subtenant and Head Landlord acting
reasonably. The form of Sublease shall be prepared by the Head Landlord
and shall be delivered by the Head Landlord to the Subtenant or
Sublandlord within ten (10) days after acceptance of this Offer. If
required, the Sublease shall be executed and delivered by the Subtenant to
the Sublandlord within thirty (30) days of receipt by the Subtenant but in
any event before commencement of any construction and before the date of
Commencement of the Term and prior to the Subtenant taking occupancy.
9. FIXTURING PERIOD & EARLY OCCUPANCY
The Subtenant shall have access to the Building and Subleased Premises
for the purposes of planning, engineering, design and staff announcements
free of any Basic Rent of Additional Rent charges.
Provided the Sublease has been executed by both parties or upon written
approval of the Sublandlord and Head Landlord, the Subtenant will have
access to the Subleased Premises free of Basic Rent, Additional Rent and
Hydro immediately upon unconditional acceptance by both parties of this
Agreement until the Commencement Date for the purpose of carrying out the
Subtenant's Work ("Fixturing Period"). During said Fixturing Period, there
shall be no supervision fees payable by the Subtenant relating to the
initial construction of the Subtenant's leasehold construction.
Contractor(s) must abide by the Building's rules and regulations relating
to construction, as per the Head Lease.
OFFER TO SUBLEASE Page 4
10. PARKING
The Subtenant shall be entitled but not obligated during the Term of the
Sublease to have the use of up to twelve (12) unreserved parking stalls
located in the parking facility of the Building at no additional cost as
per the Head Lease.
11. USE
The Subtenant shall use the Subleased Premises as an office for the
provision a general sales and administrative office in all its aspects as
offered by the Subtenant, in accordance with existing zoning by-laws.
12. ASSIGNMENT/SUBLET
The Subtenant shall not assign this Offer to Sublease or the Sublease
resulting herefrom or sublet or part with possession of all or part of the
Subleased Premises or mortgage or encumber the Sublease without the prior
written consent of the Sublandlord and Head Landlord and in accordance
with the terms of the Sublease, which consent shall not be unreasonably
withheld or delayed.
13. NO REPRESENTATIONS
There are no covenants, representations, agreements, warranties or
conditions in any way relating to the subject matter of this agreement
expressed or implied, collateral or otherwise, except as expressly set
forth herein and in the Sublease.
14. HEAD LANDLORD APPROVAL - CONDITION
This Offer to Sublease shall be subject to the approval of the Head
Landlord as contained in the provisions of the Head Lease.
15. NO RESTORATION
The Subtenant shall not be required to return the Subleased Premises to
base building condition or remove its leasehold improvement at the expiry
of the sublease term or earlier termination thereof. The Subtenant shall
have the right but not the obligation to remove its
OFFER TO SUBLEASE Page 5
fixtures, subject to the Sublandlord's approval, acting reasonably,
provided any damage is repaired by the Subtenant.
16. SIGNAGE
The Subtenant shall be permitted to have Building standard directory
board signage at the cost of the Subtenant.
17. TIME OF THE ESSENCE
Time shall be of the essence of this agreement and the transactions
contemplated herein, provided that the time for doing or completing any
matter herein may be amended by an agreement in writing signed by both
parties.
18. DEFINITIONS
Words defined in the Sublease and used herein shall have the same
meaning ascribed to them by the Head Lease.
19. ENUREMENT
This Offer and the agreement resulting herefrom shall enure to and be
binding upon the parties hereto there, and their respective successors and
assigns.
20. WAIVER TO AGENT
The parties to this agreement acknowledge that the Agent has recommended
that they obtain advice from their legal Counsel prior to signing this
document. The parties further acknowledge that the information provided by
the Agent is not legal, accounting, environmental or tax advice, and the
parties are cautioned not to rely on any such information without seeking
specific legal, accounting, environmental or tax advice with respect to
their unique circumstances.
21. G.S.T.
All amounts referred to in this Offer are quoted prior to inclusion of
goods and services taxes.
OFFER TO SUBLEASE Page 6
22. TIME FOR ACCEPTANCE
This Offer shall be irrevocable and open for acceptance until 3:00 p.m.
on the 9th day of February, 2000 after which time, if not accepted, this
Offer shall be null and void and the Deposit shall be returned in full.
Acceptance of this Offer may be communicated by facsimile transmission
of an accepted Offer or by delivery of such facsimile without limiting
other methods of communicating acceptance available to the parties.
Dated at _____________ this __________ day of ______________, 2000.
CHANGEPOINT CORPORATION
______________________ per: _________________________
Witness Date
Title: _______________________
ACCEPTANCE
We hereby agree that the above correctly sets forth the terms of our
agreement and undertake to carry out the provisions thereof.
Dated at Kirkland this 9th day of February , 2000.
-------------- --------- --------------
WALL DATA INCORPORATED
per: /s/ [ILLEGIBLE] 2/09/00
---------------------- -------------------------
Witness Date
Title: _______________________
SCHEDULE "A"
Attached hereto and forming an integral part of this Offer to Sublease
between WALL DATA INCORPORATED (Sublandlord) and CHANGEPOINT CORPORATION
(Subtenant) to be initialled by both parties for identification purposes.
-------------------------------------------------------------------------
0000 00xx XXXXXX
XXXXX 000
XXXXXXXX XXXX
[FLOOR PLAN]
CONSENT TO SUBLEASE
THIS AGREEMENT made as of this 1st day of March, 0000,
X X X X X X X :
MENKES OFFICE PARKS LTD. and INVESTORS GROUP
TRUST CO. LTD., as Trustee for INVESTORS REAL
PROPERTY FUND
(hereinafter called the "LANDLORD")
OF THE FIRST PART
A N D :
WALL DATA INCORPORATED
(hereinafter called the "TENANT")
OF THE SECOND PART
A N D :
CHANGEPOINT CORPORATION
(hereinafter called the "SUBTENANT"
OF THE THIRD PART
WHEREAS:
(a) by a lease dated the 8th day of July, 1996 (the "Lease"), the
Landlord leased to the Tenant premises known as Xxxxx 000,
0000-00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxx (xxx
"Premises"), subject to the terms, covenants, provisos and
conditions therein set forth;
(b) the Tenant intends to sublease by an offer to sublease agreement
dated January 25th, 2000, a copy of which the Landlord is in
receipt of, (the "Sublease") to the Subtenant and the Tenant and the
Subtenant have applied to the Landlord for consent to the Sublease.
NOW THIS INDENTURE WITNESSETH that in consideration of the covenants herein
exchanged the Parties agree as follows:
1. Subject to the provisions of this Agreement, the Landlord does herein
consent to such Sublease.
2. The Tenant acknowledges that notwithstanding such consent and Sublease,
the Tenant shall not be relieved of any of the covenants, provisos,
conditions and agreements set forth in the Lease and that this Consent
shall not be deemed to permit any further subletting. The Tenant further
acknowledges that the execution of this Consent to Sublease by the
Landlord does not imply approval by the Landlord of the provisions of
the sublease agreement to be entered into by the Tenant and Subtenant.
3. The Tenant and Subtenant acknowledge and agree that the payment of Base
Rent and Additional Rent required under the Lease shall continue to be
payable to the Landlord by the Tenant at the times required, provided
that in the event of default by the Tenant in the payment of Base Rent
or Additional Rent, the Landlord shall have the right to collect the
rent payable by the Subtenant pursuant to the terms and conditions of
the Sublease directly from the Subtenant as agent for the Tenant
2
and to apply any rent so collected against rental arrears owing by the
Tenant to the Landlord.
The Tenant and the Subtenant hereby acknowledge that the Landlord shall
exercise this right to collect the rent payable pursuant to the Sublease
by giving written notice to the Tenant and the Subtenant. The Subtenant
covenants and agrees to thereafter pay such rent to the Landlord until
such time as the Landlord notifies the Subtenant that the default has
been cured by the Tenant. It is acknowledged that any such collection of
rent by the Landlord from the Subtenant shall not be construed as to
create a landlord/tenant relationship between the Landlord and the
Subtenant and shall in no way limit the Tenant's liability to pay all
rent outstanding under the Lease or in any way limit the Landlord's
rights and remedies under the Lease or at law.
4. The Tenant and Subtenant covenant and agree with the Landlord that no
leasehold improvements or alterations to the Premises will be performed
until the Landlord's prior written consent has been obtained. It is
acknowledged and agreed by the Tenant that any improvements or
alterations to be performed by the Subtenant shall be subject to the
requirement of the Landlord that same are removed on the termination
date of the Lease and the Premises restored to their former condition.
The Tenant acknowledges that any installation of cabling shall be
construed as an alteration to be removed and restored.
5. This Consent to Sublease is not personally binding upon and resort shall
not be had nor shall recourse or satisfaction be sought from the private
property of any of the unit holders of Investors Real Property Fund (the
"Fund"), trustees, officers, directors, employees or agents of the
trustee or manager of the fund, it being intended and agreed that only
the property of the fund shall be bound by this Consent to Sublease.
Only the co-tenancy interests of the Landlord shall be bound hereby and
the obligations hereunder are not binding upon the Landlord in any other
respect nor shall resort be had to any other property of the Landlord.
The rights and obligations of the Landlord hereunder shall in every case
be several and proportionate and not joint or joint and several.
6. The Tenant and Subtenant covenant and agree with the Landlord not to
amend the terms of the Sublease without the consent in writing of the
Landlord.
7. The Subtenant covenants and agrees to abide by all the terms,
covenants, provisos, conditions and agreements contained in the Lease
save for the payment of Base Rent and Additional Rent.
8. The Tenant agrees that in consideration of the Landlord giving such
consent, it shall pay any fee charged by the Landlord or its solicitor
for processing this Agreement.
9. The Subtenant covenants and agrees with the Landlord that if the Lease
is terminated for any reason or surrendered, that from such date of
termination or surrender the Sublease shall be deemed to be terminated.
10. This Agreement shall enure to and be binding upon the respective heirs,
executors, administrators and successors and permitted assigns of the
Parties hereto.
3
IN WITNESS WHEREOF the parties hereto have hereunto caused to be affixed
their corporate seals duly attested to by the hands of their respective
proper signing officers authorized in that behalf the day and year first
above written.
MENKES OFFICE PARKS LTD.
Per: /s/ illegible
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[Authorized Signing Officer]
Per: __________________________________
[Authorized Signing Officer]
INVESTORS GROUP TRUST CO. LTD.
as Trustee for INVESTORS REAL PROPERTY
FUND
Per: /s/ Xxxxxx X. Xxxxxxx
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[Authorized Signing Officer]
Xxxxxx X. Xxxxxxx Vice President
Per: /s/ Xxxxxx X. Xxxxxxxx
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[Authorized Signing Officer]
Xxxxxx X. Xxxxxxxx Assistant Secretary
WALL DATA INCORPORATED
Per: /s/ illegible
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[Authorized Signing Officer]
Per: __________________________________
[Authorized Signing Officer]
CHANGEPOINT CORPORATION
Per: /s/ Xxxx Xxxxxx
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[Authorized Signing Officer]
Per: __________________________________
[Authorized Signing Officer]
