EXHIBIT 10.15
LICENCE TO OCCUPY
THIS SUBLEASE made the 1st day of November, 2004,
BETWEEN:
RS Group of Companies, Inc.
(the "Sublandlord")
AND
Strategy Insurance (Canada) Limited
(the "Subtenant")
WHEREAS:
1. RS Group of Companies, Inc. has leased a rentable area of
approximately 5000 square feet located on the Seventh (7) floor at
Suite 710 of the building at 000 Xxxxxxxx Xxxxxxxxx (xxx "Premises")
from Morguard Real Estate Investment Trust ("Morguard");
2. The Sublandlord has agreed to sublease to the Subtenant the Premises
on the terms and conditions contained herein; and
3. The original lease is attached at Schedule "A"
NOW THEREFORE in consideration of the mutual covenants and agreements herein
contained, and of other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereby agree and
covenant as follows:
1. SUBLEASE
The Sublandlord hereby demises and subleases the Premises to the
Subtenant, to have and to hold the Premises (unless sooner terminated pursuant
to other provisions hereof), for the period of 5 years and 0 months, less one
day (the "Term"), from and including November 1, 2004 to and including October
31, 2009.
2. BASIC RENT
(1) The Subtenant covenants and agrees to pay, during the Term, to the
Sublandlord, annual base license to occupy of Seventy Four Thousand Nine Hundred
Eighty Four dollars and Four cents ($75,984.04) in the first year, Eighty Four
Thousand Three Hundred Fifty Seven dollars ($84,357.00) in each of the second
and third years, Ninety Three Thousand Seven Hundred Twenty Nine dollars and
Ninety Six cents ($93,729.96) in each of the fourth and fifth years payable in
equal monthly installments for each year commencing on November 1, 2004, without
any prior demand therefor and without any abatement or set-off whatsoever
("Basic Rent").
(2) If the Term commences on any day other than the first (1st) day of a
month or ends on any day other than the last day of a month, Basic Rent and
Additional Rent, if any, for such fraction of a month shall be adjusted on a per
diem basis, based upon a period of 365 days.
(3) Sublandlord indemnifies the Subtenant from any liability under its
lease agreement with Morguard.
4. SUBTENANT'S GENERAL COVENANTS
The Subtenant covenants with the Sublandlord:
(a) to pay Basic Rent and Additional Rent, as well as any taxes imposed
thereon, as herein provided;
(b) to perform or cause to be performed all of the covenants of the
Sublandlord as Tenant under the Head Lease, including, without
limitation, the performance of the Tenant's repairs therein but
excluding the obligations of the Sublandlord as to Rent payable as
Tenant under the Head Lease (the obligations of the Subtenant in
that respect being the payment of Basic Rent and Additional Rent for
the Premises as provided herein);
(c) not to do or omit to be done any act or thing upon the Premises
which would cause a breach of any of the Sublandlord's obligations
as Tenant under the Head Lease;
(d) not to use the Premises for any purpose other than such uses as
permitted in the Head Lease;
(e) at its own expense, to repair and maintain and keep the Premises and
every part thereof and improvements placed therein in good order and
condition, and promptly make all needed repairs and replacements in
accordance with the terms of the Head Lease; and
(f) not to assign, sublet or part with or share possession of any part
of the Premises or allow the same to be used or occupied by any
persons other than the Subtenant without the prior consent in
writing of the Sublandlord, which consent may not be unreasonably
withheld, and of the Head Landlord in accordance with the provisions
of the Head Lease.
5. INSURANCE
The Subtenant shall take out and keep in force during the Term such
insurance policies in respect of the Premises as shall comply with the
obligations of the Sublandlord as Tenant under the Head Lease, and shall be
subject to the same obligations and the same limitations of liability with
respect to damage, loss or injury as are set out in the Head Lease. The
Subtenant shall name the Sublandlord and the Head Landlord as additional named
insureds, as their interests may appear, in such insurance policies. The
Subtenant shall provide, upon the request of the Sublandlord, certificates of
its insurance policies and shall, throughout the Term, provide evidence of
renewal or replacement of same.
6. COVENANTS OF THE SUBLANDLORD
The Sublandlord covenants with the Subtenant:
(a) for quiet enjoyment;
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(b) to pay the Rent reserved by the Head Lease; and
(c) to enforce, for the benefit of the Subtenant and other lawful
occupants of the Premises, the obligations of the Head Landlord
under the Head Lease with the intent that the benefits of such
covenants shall be enjoyed by the Subtenant and its permitted
subtenants and assigns; and, notwithstanding anything else herein
contained, the obligations of the Sublandlord with respect to the
covenants and obligations of the Head Landlord are limited to the
foregoing.
7. ABATEMENT AND TERMINATION
In the event of damage or destruction to the Premises or the building of
which the Premises forms a part by any casualty or occurrence:
(a) Basic Rent and Additional Rent hereunder shall xxxxx if and to the
extent Rent under the Head Lease abates under the terms of the Head
Lease;
(b) this Sublease shall terminate if the Head Landlord or the
Sublandlord shall become entitled to terminate and shall terminate
the Head Lease; and
(c) the Subtenant, if the Premises are restored by the Head Landlord in
accordance with the provisions of the Head Lease, shall perform all
of the obligations of the Sublandlord with respect to the repair and
restoration of the Premises.
8. FIXTURES AND IMPROVEMENTS, ETC.
(1) The rights and obligations of the Subtenant with respect to the
installation, alteration or removal of fixtures and improvements shall be
governed by the applicable provisions of the Head Lease, it being agreed that
all fixtures and improvements shall be deemed to comply with the provisions of
this Sublease if they are made in compliance with the provisions of the Head
Lease, and the approval of the Head Landlord and the Sublandlord thereto (such
approval not to be unreasonably withheld) shall have been obtained. The
Subtenant shall pay all costs and fees chargeable by the Head Landlord under the
Head Lease with respect to alterations or changes to the Premises.
(2) At the end of the Term the Subtenant shall surrender and yield up the
Premises in such state as the Sublandlord is required to surrender and yield up
the Premises at the end of the term of the Head Lease. Notwithstanding the
foregoing, the Subtenant shall not be required to restore the Premises to its
original condition as at the commencement of the term of the Head Lease nor to
remove any leasehold improvements that existed prior to the Term, but shall, at
the Sublandlord's option, at the expiration of the Term or earlier termination
of this Sublease, restore the Premises to its original condition as at the
commencement of the Term and/or remove any leasehold improvements installed by
or for the Subtenant, subject to the rights of the Head Landlord under the Head
Lease. The Subtenant's right to remove fixtures shall be limited to removal of
its fixtures and not those of the Sublandlord.
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9. CONDITION OF PREMISES
It is understood and agreed that the Subtenant shall accept the Premises
in an "as is" condition, and the Subtenant acknowledges that the Sublandlord has
made no representations or warranties with respect to the condition thereof.
10. NOTICE
(1) Any notice required or contemplated by this Sublease shall be given in
writing and either delivered or mailed by prepaid registered mail to:
the Sublandlord at: 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: General Counsel
the Subtenant at: 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: General Counsel
(2) Every such notice shall be deemed to have been given when delivered
or, if mailed as aforesaid, on the fourth business day next following the date
of mailing. The Sublandlord or Subtenant may from time to time, by notice in
writing to the other, designate another address in Canada as the address to
which notices are to be mailed to it.
11. APPLICATION OF HEAD LEASE
(1) The Subtenant acknowledges and agrees that this Sublease is subject to
and subordinate to the terms of the Head Lease and the Subtenant is subject to
all the rights and privileges of the Head Landlord under the Head Lease in the
same manner and to the same extent as the Sublandlord, except as provided
herein.
(2) Except as herein expressly provided, or as modified by the provisions
of this Sublease, all terms, conditions, covenants and agreements contained in
the Head Lease shall apply to and be binding upon the parties hereto, and their
respective successors and permitted assigns, the appropriate changes of
reference being deemed to have been made (that is, every reference therein to
"Landlord" being changed on such incorporation to a reference to the Sublandlord
and every reference to the "Tenant" being changed on such incorporation to a
reference to the Subtenant, where the context requires), with the intent that
such provisions shall govern the relationship in respect of such matters as
between the Sublandlord and the Subtenant.
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(3) Capitalized words not otherwise defined herein shall have the meaning
ascribed to them in the Head Lease.
(4) Whenever, under the terms of the Head Lease, the consent or approval
of the Head Landlord is required, the Subtenant shall be required to obtain both
the consent or the approval of the Head Landlord and the Sublandlord.
12. MISCELLANEOUS
(1) The Subtenant acknowledges and agrees that it has no rights or options
to renew the Term of the Sublease and that nothing in this Sublease shall
obligate the Sublandlord to exercise any option to renew, option to lease
additional space or other discretionary right under the Head Lease.
(2) The Sublandlord and the Subtenant hereby agree, from time to time and
at any time hereafter, to execute such further assurances as may be necessary or
desirable to more effectively sublease the interests of the Sublandlord in the
Head Lease together with all benefits and advantages to be derived therefrom and
to carry out the true intention of this Sublease.
(3) The submission of this Sublease for examination by the Subtenant,
whether or not executed by the Sublandlord, shall not constitute an offer or
agreement, and there shall be no obligation on the part of the Sublandlord to
the Subtenant hereunder until the Sublease has been fully executed and delivered
by both the Sublandlord and the Subtenant.
(4) Unless the context otherwise requires, words importing the singular in
number only shall include the plural and vice versa, words importing the use of
gender shall include the masculine, feminine and neuter genders, and words
importing persons shall include individuals, corporations, partnerships,
associations, trusts, unincorporated organizations, governmental bodies and
other legal or business entities. If this Sublease has been executed by more
than one party as Subtenant, their obligations hereunder shall be joint and
several, and all references to the "Subtenant" herein shall refer to all such
parties, as the context requires.
(5) This Sublease may be executed by the parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original. Such
counterparts together shall constitute one and the same instrument and,
notwithstanding the date of execution, shall be deemed to bear the effective
date set forth above.
(6) Delivery of an executed copy of a signature page to this Sublease by
facsimile transmission shall be effective as delivery of an original executed
copy of this Sublease, and each party hereto undertakes to provide each other
party with a copy of the Sublease bearing original signatures forthwith upon
demand.
(7) The rights and liabilities of the parties shall enure to the benefit
of their respective legal representatives, heirs, executors, administrators,
successors and permitted assigns, as the case may be.
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IN WITNESS WHEREOF the parties hereto have executed this Sublease.
RS GROUP OF COMPANIES, INC.
Per: /s/ Xxxxxxx Min
----------------------------------------
Name: Xxxxxxx Min
Title: President
I have authority to bind the Corporation
STRATEGY INSURANCE (CANADA) LIMITED
Per: /s/ Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxx Xxxx
Title: CFO
I have authority to bind the Corporation
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SCHEDULE "A"
LEASE OF OFFICE SPACE MULTI-TENANT OFFICE PROJECT
LEASE OF OFFICE SPACE MULTI-TENANT OFFICE PROJECT
MORGUARD REAL ESTATE INVESTMENT TRUST
(Landlord)
- AND -
RENT SHIELD CANADA LIMITED
(Tenant)
LEASE PREMISES:
000 XXXXXXXX XXXXXXXXX
XXXXXX 000 XXX 000
XXXXXXX, XXXXXXX
X0X 0X0
TABLE OF CONTENTS
Page
ARTICLE 1.00 DEFINITIONS..................................................4
1.01 Definitions.......................................................4
ARTICLE 2.00 GRANT OF LEASE AND GENERAL COVENANTS.........................4
2.01 Grant.............................................................4
2.02 Landlord's General Covenants......................................4
2.03 Tenant's General Covenants........................................4
ARTICLE 3.00 TERM AND POSSESSION..........................................5
3.01 Term..............................................................5
3.02 Early Occupancy...................................................5
3.03 Delayed Possession................................................5
3.04 Acceptance of Leased Premises.....................................5
ARTICLE 4.00 RENT.........................................................5
4.01 Rent..............................................................5
4.02 Security Deposit..................................................6
4.03 Intent............................................................6
4.04 Payment of Rent...................................................6
4.05 Partial Month.....................................................7
4.06 Payment of Tenant's Occupancy Costs...............................7
4.07 Resolution of Disputes............................................9
4.08 Area Determination................................................9
4.09 Vacancy...........................................................9
4.10 Method of Payment................................................10
ARTICLE 5.00 USE AND OCCUPATION..........................................10
5.01 Use of Leased Premises...........................................10
5.02 Compliance with Laws.............................................10
5.03 Prohibited Uses..................................................11
5.04 Common Elements..................................................12
5.05 Hazardous Use....................................................12
5.06 Tenant's Security Interest.......................................12
5.07 Rules and Regulations............................................12
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TABLE OF CONTENTS
(continued)
Page
5.08 Permitted Signs..................................................12
5.09 Prohibited Signs.................................................13
5.10 Window Coverings.................................................13
5.11 Parking..........................................................13
5.12 Authorization of Enquiries.......................................14
5.13 Records..........................................................14
5.14 Overloading......................................................14
5.15 Telecommunications...............................................14
ARTICLE 6.00 SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD...15
6.01 Operation of Project.............................................15
6.02 Building Services and Facilities.................................15
6.03 Maintenance, Repair and Replacement..............................16
6.04 Alterations/Renovations by Landlord..............................17
6.05 Access by Landlord...............................................18
6.06 Energy Conservation..............................................18
6.07 Supervision and Extended Services................................18
6.08 Landlord's Work..................................................18
6.09 Control by Landlord..............................................18
ARTICLE 7.00 PAYMENT FOR SERVICES AND MAINTENANCE, REPAIR AND ALTERATIONS
BY TENANT...................................................19
7.01 Utilities........................................................19
7.02 Lights...........................................................19
7.03 Heating, Ventilation and Air Conditioning........................19
7.04 Alterations by Tenant............................................20
7.05 Tenant's Trade Fixtures and Personal Property....................21
7.06 Maintenance and Repair...........................................21
7.07 Inspection.......................................................21
7.08 Failure to Maintain..............................................22
7.09 Liens............................................................22
7.10 Roof.............................................................22
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 8.00 TAXES.......................................................22
8.01 Taxes Payable by Landlord........................................22
8.02 Taxes Payable by Tenant..........................................23
8.03 Tax Increases Attributable to Tenant.............................23
8.04 GST..............................................................23
8.05 Landlord's Election..............................................23
8.06 Right to Contest.................................................23
ARTICLE 9.00 INSURANCE, LIABILITY AND ENVIRONMENTAL......................24
9.01 Landlord's Insurance.............................................24
9.02 Tenant's Insurance...............................................25
9.03 Placement of Tenant's Insurance by Landlord......................26
9.04 Limitation of Landlord's Liability...............................27
9.05 Environmental Issues.............................................27
ARTICLE 10.00 DAMAGE AND DESTRUCTION......................................28
10.01 Limited Damage to Leased Premises, Access or Services............28
10.02 Major Damage to Leased Premises..................................29
10.03 Damage to Building...............................................29
10.04 No Abatement.....................................................30
10.05 Notify Landlord..................................................30
10.06 Expropriation....................................................30
ARTICLE 11.00 DEFAULT.....................................................31
11.01 Arrears..........................................................31
11.02 Costs of Enforcement.............................................31
11.03 Performance of Tenant's Obligations..............................31
11.04 Events of Default................................................32
11.05 Remedies on Default..............................................33
11.06 Availability of Remedies.........................................34
11.07 Waiver...........................................................34
11.08 Waiver of Exemption and Redemption...............................35
11.09 Companies' Creditors Arrangement Act.............................35
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 12.00 ASSIGNMENT SUBLETTING AND OTHER TRANSFERS...................35
12.01 Request for Consent..............................................35
12.01(A) Permitted Tenants:...............................................36
12.02 Basis for Consent................................................36
12.03 Terms and Conditions Relating to Consents........................37
12.04 Subsequent Transfers.............................................38
12.05 Profit Rents upon Transfers......................................38
12.06 Advertising......................................................38
12.07 Grant of Security Interest by Transferee.........................38
ARTICLE 13.00 TRANSFERS BY LANDLORD.......................................39
13.01 Sale, Conveyance and Assignment..................................39
13.02 Effect of Transfer...............................................39
13.03 Subordination....................................................39
13.04 Attornment.......................................................39
13.05 Effect of Attornment.............................................39
13.06 Repurchase.......................................................39
ARTICLE 14.00 SURRENDER...................................................40
14.01 Possession and Restoration.......................................40
14.02 Tenant's Trade Fixtures and Personal Property....................41
14.03 Overholding......................................................41
ARTICLE 15.00 GENERAL.....................................................41
15.01 Estoppel Certificates............................................41
15.02 Entire Agreement.................................................42
15.03 No Registration of Lease or Notices..............................42
15.04 Project Name and Trademarks......................................42
15.05 Demolition / Substantial Renovation..............................42
15.06 Relocation.......................................................42
15.07 "For Lease" Signs................................................42
15.08 Unavoidable Delays...............................................42
15.09 Limitation of Recourse...........................................43
-iv-
TABLE OF CONTENTS
(continued)
Page
15.10 Notice...........................................................43
15.11 Delegation of Authority..........................................44
15.12 Relationship of Parties..........................................44
15.13 Governing Law....................................................44
15.14 Amendment or Modification........................................44
15.15 Legal and Administration Costs...................................44
15.16 Construction.....................................................44
15.17 Captions and Headings............................................44
15.18 Interpretation...................................................44
15.19 Time of the Essence..............................................45
15.20 Successors and Assigns...........................................45
15.21 Counterparts.....................................................45
15.22 Further Schedules................................................45
15.23 Independent Legal Advice.........................................45
15.24 No Offer.........................................................45
15.25 Landlord's Security Interest.....................................45
15.26 Survival of Covenants and Indemnities............................46
15.27 Exculpatory Provisions...........................................46
15.28 Brokerage Commissions............................................47
15.29 Covenants to be Performed at Landlord's Option...................47
15.30 Radiation........................................................47
SCHEDULES
Schedule "A" - Plan Showing Leased Premises
Schedule "A-1" - Legal Description of Land
Schedule "B" - Definitions
Schedule "C" - Rules and Regulations
Schedule "D" - Landlord's Work
Schedule "E" - Additional Covenants, Agreements and Conditions (if any)
Schedule "G" - Security Interest - Remedies on Default
Schedule "H" - Contents of Leased Premises
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TERM SHEET
(a) Address of Landlord's Manager: c/o Morguard Investments Limited
000 - 00 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX X0X 0X0
Telephone: 000-000-0000
Fax Number: 000-000-0000
Attention: Vice President, Property Management,
Office/Industrial, Eastern Canada
(b) Landlord's "Environmental Contact": Toronto Commercial Operations Manager
(c) Landlord's Head Office: c/o Morguard Investments Limited
000 - 00 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX X0X 0X0
Attention: President
Telephone: 000-000-0000
Fax Number: 000-000-0000
(d) Morguard Realty Holdings Inc. holds registered title to the Project as
nominee of the Landlord
2. TENANT (legal name): RENT SHIELD CANADA LIMITED
(a) Address of Leased Premises: 000 Xxxxxxxx Xxxxxxxxx
Suites 700 and 710 Toronto,
Ontario M2J 5C1
Attention: Xxxxx Xxxxx
Telephone: (416)
Fax Number: (416)
(b) Tenant's Head Office: 000 Xxxxxxxx Xxxx,
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Telephone: (000) 000-0000
Fax Number: (000) 000-0000
3. Project Name and Address: 000 Xxxxxxxx Xxxxxxxxx
4. Leased Premises: Attached as Schedule "A" to the Lease is
a plan of the Project showing the Leased
Premises by hatching. The Leased
Premises are designated as Suites 700 &
710.
5. Rentable Area of Leased Premises: Approximately 9,373 square feet, subject
to adjustment in accordance with the
definition of Rentable Area and Section
4.08.
6. (a) Security Deposit: $0.00 (Section 4.02)
(b) Other Deposit: $0.00
7. Term: 5 years, 0 months and 0 days.
(a) First Day of Term: the 1st day of November, 2004
(hereinafter referred to as the
"Commencement Date")
(b) Last Day of Term: the 31st day of October, 2009.
8. Basic Rent: The Tenant shall pay to the Landlord as
annual basic rent (the "Basic Rent"),
without any deduction, set-off or
abatement, as follows:
(a) for Lease Year November 1, 2004 to
October 31, 2005, the amount of
$74,984.04 per annum payable in equal
consecutive monthly installments of
$6,248.67 each in advance on the first
day of each and every calendar month
from the Commencement Date, based upon
an annual rate of $8.00 per square foot
per annum of the Rentable Area of the
Leased Premises;
(b) for Lease Year November 1, 2005 to
October 31, 2006, the amount of
$84,357.00 per annum payable in equal
consecutive monthly installments of
$7,029.75 each in advance on the first
day of each and every calendar month
from the Commencement Date, based upon
an annual rate of $9.00 per square foot
per annum of the Rentable Area of the
Leased Premises;
(c) for Lease Year November 1, 2006 to
October 31, 2007, the amount of
$84,357.00 per annum payable in equal
consecutive monthly installments of
$7,029.75 each in advance on the first
day of each and every calendar month
from the Commencement Date, based upon
an annual rate of $9.00 per square foot
per annum of the Rentable Area of the
Leased Premises;
2
(d) for Lease Year November 1, 2007 to
October 31, 2008, the amount of
$93,729.96 per annum payable in equal
consecutive monthly installments of
$7,810.83 each in advance on the first
day of each and every calendar month
from the Commencement Date, based upon
an annual rate of $10.00 per square foot
per annum of the Rentable Area of the
Leased Premises; and
(e) for Lease Year November 1, 2008 to
October 31, 2009, the amount of
$93,729.96 per annum payable in equal
consecutive monthly installments of
$7,810.83 each in advance on the first
day of each and every calendar month
from the Commencement Date, based upon
an annual rate of $10.00 per square foot
per annum of the Rentable Area of the
Leased Premises.
9. Use of Leased Premises: The Leased Premises shall be used solely
for the purpose of general office for
the business of insurance and for no
other purpose.
10. Environmental Issues: Lease Section 9.05:
Applies X
12. Additional Covenants, Agreements and Conditions (if any) listed here are
more particularly set out in Schedule "E".
1. PARKING
2. OPTION
3. EARLY OCCUPANCY
4. LEASEHOLD IMPROVEMENTS
5. CROSS DEFAULT
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LEASE OF OFFICE SPACE
MULTI-TENANT OFFICE BUILDING
THIS LEASE is made as of the 16th day of June, 2004.
BETWEEN:
MORGUARD REAL ESTATE INVESTMENT TRUST
(the "Landlord")
OF THE FIRST PART
- and -
RENT SHIELD CANADA LIMITED
a company incorporated under the laws of the Province of Ontario
(the "Tenant")
OF THE SECOND PART
IN CONSIDERATION of the mutual covenants contained herein, the parties hereby
agree as follows:
ARTICLE 1.00 DEFINITIONS
1.01 Definitions. In this Lease the terms defined in Schedule "B" shall have the
meanings designated therein respectively.
ARTICLE 2.00 GRANT OF LEASE AND GENERAL COVENANTS
2.01 Grant. The Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord the Leased Premises, to have and to hold during the
Term, subject to the terms and conditions of this Lease.
2.02 Landlord's General Covenants. The Landlord covenants with the Tenant:
(a) subject to the provisions of this Lease, for quiet enjoyment of the
Leased Premises so long as the Tenant shall observe and perform all of the
covenants and obligations of the Tenant herein; and
(b) to observe and perform all the covenants and obligations of the
Landlord herein.
2.03 Tenant's General Covenants. The Tenant covenants with the Landlord:
(a) to pay Rent without any deduction, abatement or set-off whatsoever;
and
(b) to observe and perform all the covenants and obligations of the Tenant
herein.
4
ARTICLE 3.00 TERM AND POSSESSION
3.01 Term. The Term of this Lease shall begin on the Commencement Date and end
on the date set out in Item 7(b) of the Term Sheet unless terminated earlier as
provided in this Lease.
3.02 Early Occupancy. The Tenant may, with the Landlord's prior written consent,
use and occupy the Leased Premises or portions thereof before the Commencement
Date. In the event of early occupancy, the Tenant shall pay to the Landlord on
the date of occupancy a rental for the period from the date the Tenant begins to
use or occupy the Leased Premises or portions thereof to the Commencement Date,
which rental shall be that proportion of the Rent for the first calendar year of
the Term which the number of days in such period is of 365, multiplied by that
proportion that the part of the Leased Premises used and occupied from time to
time by the Tenant prior to the Commencement Date is of the total area of the
Leased Premises. Except where clearly inapplicable, all provisions of this Lease
shall apply during such period.
3.03 Delayed Possession. If the Landlord is unable to deliver possession of all
or any portion of the Leased Premises by the Commencement Date, this Lease shall
remain in full force and effect and the Tenant shall take possession of the
Leased Premises on the date when the Landlord delivers possession of all of the
Leased Premises, which date shall be conclusively established by notice in
writing from the Landlord to the Tenant at least ten (10) days before such date.
The Landlord shall not be liable to the Tenant for any loss, damage, or
inconvenience resulting from any delay in delivering possession of the Leased
Premises but, unless the delay is caused by or attributable to the Tenant, its
servants, agents or independent contractors, no Rent shall be payable by the
Tenant for the period prior to the date on which the Landlord can deliver
possession of all of the Leased Premises, unless the Tenant elects to take
possession of a portion of the Leased Premises, in which case Rent shall be
payable in respect thereof from the date such possession is so taken. Despite
anything contained to the contrary in this Section 3.03, if the Landlord is of
the opinion that it is unable to deliver possession of all or any part of the
Leased Premises by the expiration of six (6) months from the Commencement Date,
the Landlord shall have the right to terminate this Lease upon written notice to
the Tenant, whereupon neither party shall have any liability to the other.
3.04 Acceptance of Leased Premises. Taking possession of all or any portion of
the Leased Premises by the Tenant shall be conclusive evidence as against the
Tenant that the Leased Premises or such portion thereof and the Common Elements
are in satisfactory condition on the date of taking possession, subject only to
latent defects and to deficiencies (if any) listed in writing in a notice
delivered by the Tenant to the Landlord not more than ten (10) days after the
date of taking possession.
ARTICLE 4.00 RENT
4.01 Rent. The Tenant shall pay to the Landlord as Rent for the Leased Premises
the aggregate of:
(a) Basic Rent in respect of each year of the Term, payable in advance and
without notice or demand in monthly installments as set out in Item 8 of the
Term Sheet commencing on the Commencement Date and on the first day of each
calendar month thereafter during the Term;
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(b) the Tenant's Proportionate Share of Operating Costs and the Tenant's
Proportionate Share of Taxes during the Term, in each case payable in monthly
installments at the times and in the manner provided in Section 4.06; and
(c) all amounts (other than payments under Subsections 4.01 (a) and (b))
payable by the Tenant to the Landlord under this Lease, at the times and in the
manner provided in this Lease or, if not so provided, as reasonably required by
the Landlord.
4.02 Security Deposit. The Landlord acknowledges receipt on or before the
Commencement Date of the amount set out in Item 6(a) of the Term Sheet (the
"Security Deposit") to be held by the Landlord, without any liability whatsoever
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 to be applied on account
of Rent except as otherwise provided in this Section 4.02. The Security Deposit
will not be a limitation on the Landlord's damages or other rights and remedies
available under this Lease or at law or equity, nor shall the Security Deposit
be either a payment of liquidated damages or an advance payment of Rent. The
Landlord shall have no fiduciary responsibilities or trust obligations
whatsoever with regard to the Security Deposit and shall not assume the duties
of a trustee for the Security Deposit. The Security Deposit shall not be
mortgaged, assigned or encumbered by the Tenant and the Landlord shall not be
bound by any such mortgage, assignment or encumbrance. It is understood and
agreed between the parties that any portion of the Security Deposit may, at the
Landlord's option, be applied toward the payment of overdue or unpaid 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 the
Tenant's liability hereunder is not limited to the amount of the Security
Deposit. If during the Term any portion of the Security Deposit is so applied,
then the Tenant shall on written demand deliver to the Landlord a sufficient
amount by certified cheque to restore the Security Deposit to the original sum
deposited. The Landlord shall refund to the Tenant after the expiry date of this
Lease any portion of the Security Deposit not used by the Landlord after
application by the Landlord to any damage incurred by the Landlord by reason of
the default of the Tenant under the terms of this Lease. It is Further provided
that the Landlord will be discharged from all liability to the Tenant with
respect to the Security Deposit to the extent that it is transferred to any
purchaser of the Landlord's interest in the Leased Premises.
4.03 Intent. It is the stated purpose and intent of the Landlord and the Tenant
that this Lease and the Rent shall be fully net to the Landlord.
4.04 Payment of Rent. General - All amounts payable by the Tenant to the
Landlord pursuant to this Lease shall be deemed to be Rent and shall be payable
and recoverable as Rent in the manner herein provided and the Landlord shall
have all rights against the Tenant for default in any such payment as in the
case of arrears of Rent. Rent shall be paid to the Landlord in lawful money of
Canada, without deduction, abatement or set-off, at the local address of the
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Landlord set out in Item 1 of the Term Street or to such other Person or such
other address as the Landlord may from time to time designate in writing. The
Tenant's obligation to pay Rent shall survive the expiration or earlier
termination of this Lease. Any Rent or other sum received or accepted by the
Landlord and paid by anyone other than the Tenant, on behalf of the Tenant,
shall not release or in any way affect the covenants of the Tenant set out in
this Lease and shall not be deemed to constitute or evidence the Landlord's
consent to a Transfer under Article 12.00. Any Rent or other sum received by the
Landlord from or for the account of the Tenant while the Tenant is in default
under this Lease may be applied at the Landlord's option to the satisfaction in
whole or in part of any of the obligations of the Tenant then due under this
Lease in such manner as the Landlord sees fit regardless of any designation or
instruction of the Tenant to the contrary.
4.05 Partial Month. If the Commencement Date is a day other than the first day
of a calendar month, or if the Term ends on any day other than the last day of a
calendar month, Rent for the fractions of a month at the beginning and at the
end of the Term shall be adjusted pro rata on a per diem basis.
4.06 Payment of Tenant's Occupancy Costs.
(1) Estimate and Payment
(a) The Landlord shall deliver to the Tenant a written estimate or a
written revised estimate of: (i) the Tenant's Proportionate Share of Operating
Costs for each Fiscal Year; and (ii) the Tenant's Proportionate Share of Taxes
for each Fiscal Year. The Tenant shall pay to the Landlord the amount so
estimated in equal monthly installments (except as otherwise required in this
Section 4.06 with respect to Property Taxes) in advance over that Fiscal Year
simultaneously with the Tenant's payments on account of Basic Rent. If the
Landlord does not deliver to the Tenant such an estimate, the Tenant shall
continue to pay the Tenant's Proportionate Share of Operating Costs and the
Tenant's Proportionate Share of Taxes based on the last such estimate delivered
by the Landlord until a further estimate is delivered by the Landlord and the
next payment on account of the Tenant's Operating Costs or Taxes shall be
adjusted to take into account any over or under payment in the preceding
installments paid in the Fiscal Year to which the estimate or revised estimate
relates. Notwithstanding the foregoing, as soon as bills for all or any portion
of amounts included in Operating Costs and Taxes as so estimated are received,
the Landlord may xxxx the Tenant for the Tenant's Proportionate Share thereof
and the Tenant shall pay the Landlord such amounts so billed (less all amounts
previously paid on account by the Tenant on the basis of the Landlord's estimate
as aforesaid) as Rent within five (5) days following demand therefor.
(b) Within a reasonable time after the date in each calendar year when the
final installment of Property Taxes is due in respect of commercial properties
generally in the municipality in which the Project is located (the "Final
Payment Date"), the Landlord shall deliver a statement (the "Tax Statement") to
the Tenant that (i) specifies the Tenant's Proportionate Share of Taxes for the
Property Tax Year and (ii) sets out the total (the "Prepayment Total") of
amounts payable under this Subsection 4.06(1)(b) that have been paid by the
Tenant between the Final Payment Date in the previous Property Tax Year and the
Final Payment Date of the current Property Tax Year. If the Prepayment Total,
less any amounts that were previously credited to the Tenant, and any amounts
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paid for arrears in respect of previous Property Tax Years, (the "Net Prepayment
Total") is less than the Tenant's Proportionate Share of Taxes specified in the
Tax Statement, the Tenant shall pay the deficiency with the next monthly payment
of Basic Rent. If the Net Prepayment Total exceeds the Tenant's Proportionate
Share of Taxes specified in the Tax Statement, the Landlord shall, unless the
Tenant is then in default under this Lease, credit the excess to the Tenant on
account of the next succeeding payments of the Tenant's Occupancy Costs. The
Landlord may estimate Property Taxes for the Property Tax Year following the
then current Property Tax Year, and the Tenant shall continue after the Final
Payment Date, to make monthly payments in advance, in amounts determined by the
Landlord, for periods determined by the Landlord. The monthly payments paid by
the Tenant after the Final Payment Date shall be credited against the Tenant's
Proportionate Share of Taxes for the subsequent Property Tax Year.
(c) Any portion of the Tenant's Proportionate Share of Taxes accrued with
respect to the Term or any part thereof paid by the Landlord prior to the
Commencement Date shall be reimbursed by the Tenant to the Landlord on the
Commencement Date or on demand thereafter. Subject to Sections 8.03 and 8.05,
the Tenant shall pay the Tenant's Proportionate Share of any Property Taxes or
the Landlord's reasonable estimate thereof monthly in advance in the same manner
as for payment of the Tenant's Proportionate Share of Operating Costs.
Notwithstanding the foregoing, the Landlord shall always have the right:
(i) to revise the amount of installments on account of Property
Taxes payable by the Tenant to an amount that allows the Landlord to
collect all Property Taxes payable by the Tenant by the final due
date of Property Taxes for the calendar year; and/or
(ii) to schedule and require payment by the Tenant of installments
on account of Property Taxes payable by the Tenant such that by the
final due date of Property Taxes for any calendar year, the Tenant
shall have paid to the Landlord the full amount of Property Taxes
payable by the Tenant for such calendar year, which arrangement may
include payment of installments by the Tenant in a calendar year on
account of Property Taxes payable by the Tenant for the next
calendar year.
(2) Annual Statement and Adjustment - The Landlord shall deliver to the Tenant
within one hundred and twenty (120) days after the end of each Fiscal Year or as
soon after that date as the same shall be prepared by or for the Landlord, a
written statement setting out in reasonable detail the amount of the Tenant's
Proportionate Share of Operating Costs for such Fiscal Year. If the total of
monthly installments of the Tenant's Occupancy Costs actually paid by the Tenant
to the Landlord during that Fiscal Year differs from the amount of the Tenant's
Operating Costs payable for that Fiscal Year under Subsection 4.01(b), the
Tenant shall pay to the Landlord or, if the Tenant is not in default, the
Landlord shall credit to the Tenant on account of the next succeeding payments
of the Tenant's Operating Costs, as the case may be, the difference, without
interest, within thirty (30) days after the date of delivery of the statement.
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(3) Disputes - If the Tenant disputes the Landlord's statement setting out
Operating Costs or the Tax Statement for any Fiscal Year, the Tenant shall
provide notice thereof in writing to the Landlord within sixty (60) days of
delivery of the applicable statement in respect of that Fiscal Year.
Notwithstanding delivery of such notice, the Tenant shall continue to pay Rent
in accordance with the terms of this Lease. In the event of a dispute, the
determination of the Tenant's Proportionate Share of Operating Costs or the
Tenant's Proportionate Share of Taxes as made by the Landlord's auditors shall
be conclusive and binding upon both the Landlord and the Tenant. All costs of
obtaining such determination shall be included in Operating Costs; provided that
if the Landlord's auditors confirm the Landlord's calculations within a variance
of five percent (5%), the Tenant shall be solely responsible for the entire cost
of such determination and shall pay such costs to the Landlord forthwith upon
demand. If the Tenant and any one or more of the other tenants in the Project
are responsible to pay such costs, the Tenant shall be jointly and severally
liable with such other tenant or tenants.
4.07 Resolution of Disputes. In the event of any disagreement as to the amount
or propriety of any amount included in Operating Costs, a certificate of the
auditor of the Landlord, acting reasonably, shall be conclusive as to the amount
of Operating Costs for any period to which such certificate relates.
4.08 Area Determination. The Landlord may from time to time, as it deems
necessary, cause the Rentable Area of the Leased Premises and the Total Rentable
Area of the Building or any part thereof to be recalculated or remeasured and
the cost thereof shall be included in Operating Costs (except as otherwise
provided in this Section 4.08). Upon any such recalculation or remeasurement,
Rent (including without limitation Basic Rent) shall be adjusted accordingly. If
any calculation or determination by the Landlord of the Rentable Area of any
premises (including the Leased Premises) is disputed or called into question, it
shall be calculated or determined by the Landlord's architect or surveyor from
time to time appointed for that purpose, whose certificate shall be conclusive
and binding upon the parties hereto. The cost of such calculation or
determination shall be included in Operating Costs; provided that if the Tenant
disputes the Landlord's calculation or determination and the calculation or
determination by the Landlord's architect or surveyor agrees with the Landlord's
calculation or determination within a two percent (2%) variance, the Tenant
shall pay the full cost of such calculation or determination forthwith upon
demand. If the Tenant and any one or more of the other tenants in the Project
are responsible to pay such costs, the Tenant shall be jointly and severally
liable with such other tenant or tenants.
If any error shall be found in the calculation of the Rentable Area of the
Leased Premises or in the calculation of the Tenant's Proportionate Share, Rent
(including without limitation Basic Rent) shall be adjusted for the Fiscal Year
in which the error is discovered and for the Fiscal Year preceding the Fiscal
Year in which the error was discovered, if any, and thereafter but not for any
prior period.
4.09 Vacancy. If any part of the Building available for leasing is not occupied,
the Landlord shall have the right, in respect of amounts forming part of
Operating Costs which vary proportionately with occupancy, to include in
Operating Costs a larger amount of costs, which larger amount shall be based on
a reasonable estimate of the actual cost which would have been incurred if the
unoccupied parts of the Building available for leasing were occupied, it being
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intended hereby that the Landlord shall obtain, to the extent reasonably
possible, full reimbursement of Operating Costs attributable to or in respect of
occupied premises, and not that: (a) the Tenant shall subsidize Operating Costs
incurred by the Landlord attributable to or in respect of vacant premises; or
(b) the Landlord shall recover more than actual Operating Costs.
4.10 Method of Payment.
(1) Unless the Landlord advises otherwise in writing, the Tenant shall provide
to the Landlord on or before the Commencement Date and thereafter on or before
the beginning of each Fiscal Year during the Term and within ten (10) days after
delivery of the Landlord's estimate of any payment constituting Rent, postdated
cheques in the amount of Rent for each month during that Fiscal Year.
(2) At the Landlord's request, the Tenant shall participate in a pre-authorized
payment plan whereby the Landlord will be authorized to debit the Tenant's bank
account each month or from time to time for Rent payable on a monthly basis, and
any amount payable provisionally on an estimated basis. The Tenant hereby
undertakes to execute and deliver such documents as may reasonably be required
to give full force and effect to this Subsection 4.10(2) within five (5) days of
such request.
ARTICLE 5.00 USE AND OCCUPATION
5.01 Use of Leased Premises. The Tenant shall use and occupy only the usable
part of the Leased Premises and only for office purposes to carry on the
business set out in Item 9 of the Term Sheet and shall not use or permit the
Leased Premises or any part thereof to be used or occupied for any other purpose
or business, except as otherwise expressly permitted under this Lease or by any
Person other than the Tenant, The Tenant shall be responsible for obtaining at
its expense all necessary approvals, licences and permits, including but not
limited to zoning, development, building, occupancy and business approvals,
licences and permits, for its intended use of the Leased Premises and shall
submit all applications for such approvals, licences and permits to the Landlord
for its consent (which consent, if the application pertains to the zoning
applicable to the Project or may adversely affect the value or use of the
Project or any part thereof, may be arbitrarily withheld by the Landlord) prior
to making application. Notwithstanding the Landlord's consent to an application,
the Tenant shall indemnify and defend the Landlord and save it harmless from and
against any and all Claims incurred or suffered by the Landlord directly or
indirectly arising out of the Tenant's application for such approvals, licences
or permits or the resulting approvals, licences and permits with respect to the
use, intended or otherwise, of the Leased Premises whether such Claims are in
respect of the Leased Premises or in respect of the Building or the Project. The
Landlord makes no representation whether or not necessary approvals can be
obtained for the Tenant's use or intended use. The Landlord makes no
representation or warranty, express or implied, that the present or future use
of the Leased Premises, if such use is anything other than office use, is
legally fit for the intended use, or complies with any law, by-law or regulation
governing the use of the Leased Premises.
5.02 Compliance with Laws. The Tenant shall promptly and at its own cost comply
with all present and future laws, regulations and orders relating to, and obtain
and maintain in force all approvals, permits, licences and registrations
required for, any of the following:
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(a) the occupation or use of and the conduct of any business in or from
the Leased Premises;
(b) the condition of the Leasehold Improvements, fixtures, furniture and
equipment installed therein;
(c) Pollutants and the protection of the environment so far as those laws,
regulations and orders or any of them relate to the Project; and
(d) the making by the Tenant of any repairs, changes or improvements in or
to the Project; and the Tenant shall immediately give written notice to the
Landlord of the occurrence of any event in the Leased Premises constituting an
offence thereunder or being in breach thereof and if the Tenant shall, either
alone or with others, cause the happening of any such event, the Tenant shall
immediately give the Landlord notice to that effect and thereafter give the
Landlord from time to time written notice of the extent and nature of the
Tenant's compliance with the foregoing provisions of this Section.
The Tenant agrees that if the Landlord determines in its sole discretion that
the Landlord, its property, its reputation or the Leased Premises or any one or
more of the foregoing is placed in any jeopardy, as determined by the Landlord,
by the requirements for any work required to ensure compliance with the
foregoing provisions of this Section 5.02, or the Tenant is unable to fulfil its
obligations under this Section, the Landlord may itself undertake such work or
any part thereof at the cost and expense of the Tenant.
The Tenant shall, at its own expense, remedy any damage to the Leased Premises
caused by such event or work or by the performance of the Tenant's obligations
under this Section.
If alterations or improvements to the Leasehold Improvements or to the Leased
Premises are necessary to comply with any of the foregoing provisions of this
Section or with the requirements of insurance carriers, the Tenant shall
forthwith complete such work, complying always with the applicable provisions of
this Lease, to the extent that it can be done within the Leased Premises and in
any event shall pay the entire cost of alterations and improvements so required.
In the event that structural repairs or upgrading of the Building, including but
not limited to seismic upgrading, is required to permit the Tenant's use, the
Landlord may, at its sole discretion, terminate the Lease.
5.03 Prohibited Uses. The Tenant shall not commit, cause or permit any nuisance
in or about or any damage to the Leased Premises or any part thereof, the
Building, the Project or any of the Leasehold Improvements or goods or fixtures
therein, any overloading of the floors of the Leased Premises or any use or
manner of use causing annoyance to other tenants or occupants of the Project.
Without limiting the generality of the foregoing, the Tenant shall not use or
permit the use of any portion of the Leased Premises for any dangerous, illegal,
noxious, odorous or offensive trade, business or occurrence. The Tenant shall
keep the Leased Premises free of debris, Pollutants and anything of a dangerous,
noxious, odorous or offensive nature or which could create a fire hazard
(through undue load on electrical circuits or otherwise) or vibration, heat,
odour or noise detectable outside the Leased Premises in the sole discretion of
the Landlord. The Tenant shall not use equipment in the Leased Premises in a
manner that results in its being seen or heard outside the Leased Premises.
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5.04 Common Elements. The Tenant and its employees and invitees shall be
entitled to use, in common with others entitled thereto, for purposes for which
they are intended and only during such hours as the Landlord may designate from
time to time, the Common Elements. The Tenant and its employees and invitees
shall not obstruct the Common Elements or use the Common Elements other than for
their intended purposes and then only in accordance with the rules and
regulations set by the Landlord from time to time.
5.05 Hazardous Use. The Tenant shall not do, omit to do or permit to be done
anything which will cause or may have the effect of causing the cost of the
Landlord's insurance in respect of the Project or any part thereof to be
increased at any time during the Term or any policy of insurance on or relating
to the Project to be subject to cancellation. Without waiving or limiting the
foregoing prohibition, the Landlord may demand and the Tenant shall pay to the
Landlord upon demand, the amount of any increase in the cost of insurance caused
by anything so done or omitted or permitted to be done. The Tenant shall
forthwith upon the Landlord's request comply with the requirements of the
Landlord's insurers, cease any activity complained of and make good any
circumstance which has caused any increase in insurance premiums or the
cancellation or threatened cancellation of any insurance policy. In determining
the amount of increased premiums for which the Tenant is responsible, a schedule
or statement issued by the Person who computes the insurance rates for the
Landlord showing the components of the rate shall be conclusive evidence of the
items that make up the rate. If any policy of insurance in respect of the
Project or any part thereof is cancelled or becomes subject to cancellation by
reason of anything so done or omitted or permitted to be done, the Landlord may
without prior notice terminate this Lease and re-enter the Leased Premises.
5.06 Tenant's Security Interest. The Tenant shall not, without the Landlord's
prior written consent, create a security interest in Leasehold Improvements
installed by the Tenant or the Landlord in the Leased Premises.
5.07 Rules and Regulations. The Tenant shall observe and cause its employees,
servants, agents, invitees, customers, subtenants, licensees and others over
whom the Tenant can reasonably be expected to exercise control to observe the
rules and regulations attached as Schedule "C" hereto and such further and other
reasonable rules and regulations and amendments and additions thereto as may be
made by the Landlord and notified to the Tenant by mailing a copy thereof to the
Tenant or by posting same in a conspicuous place in the Building. All such rules
and regulations now or hereafter in force shall be read as forming part of this
Lease; provided that if there is a conflict between the rules and regulations
and this Lease, the terms of this Lease shall prevail. The Landlord shall not be
responsible to the Tenant for the non-observance of any rule or regulation or
the terms of any lease or agreement to lease by any other tenant of the Project.
5.08 Permitted Signs. The Tenant shall use only such identification signs as are
prescribed by the Landlord from time to time and as comply with all applicable
by-laws, regulations and codes as to size, location, arrangement, type of
lettering, colour, appearance and design for uniform use by office tenants in
the Building. Such signs shall contain only the name under which the Tenant
carries on business.
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5.09 Prohibited Signs. Except with the prior written consent of the Landlord,
which consent may be arbitrarily withheld or rescinded in the Landlord's sole
discretion, or as provided in Section 5.08, the Tenant shall not paint, display,
inscribe, place or affix any sign, symbol, notice, advertisement, display or
direction of any kind anywhere outside the Leased Premises or on the interior of
any glass, windows or doors or elsewhere within the Leased Premises so as to be
visible from the outside of the Leased Premises.
5.10 Window Coverings. Without the prior written consent of the Landlord, the
Tenant shall not install any blinds, drapes, curtains or any other window
coverings in the Leased Premises and shall not remove, add to or change the
blinds, drapes, curtains or other window coverings installed by the Landlord
from time to time. The Tenant shall keep all window coverings open or closed at
various times as the Landlord may from time to time direct by the rules and
regulations or otherwise.
5.11 Parking. Any Parking Facilities provided by the Landlord shall at all times
be subject to the exclusive control and management of the Landlord or those whom
the Landlord may designate from time to time. The Landlord shall have the right
from time to time to establish, modify and enforce reasonable rules and
regulations with respect to any Parking Facilities and shall have the right from
time to time:
(a) to expand, reduce, or change the area, level, location and arrangement
of the Parking Facilities and to construct any Parking Facilities;
(b) to enforce parking charges with appropriate provisions for free
parking ticket validating by tenants of the Building;
(c) to temporarily close all or any portion of the Parking Facilities to
such extent as may, in the Landlord's opinion, be legally sufficient to prevent
a dedication thereof or the accrual of rights to any Person or the public;
(d) to temporarily obstruct or close off all or any part of the Parking
Facilities for the purpose of maintenance or repair; and
(e) to do and perform such other acts in and to the Parking Facilities as,
in the judgment of the Landlord, shall be advisable with a view to the
improvement of the convenience of and use of the Building by tenants, their
employees and invitees.
The Landlord will operate and maintain the Parking Facilities in such manner as
the Landlord in its sole discretion shall determine from time to time. Without
limiting the scope of such discretion, the Landlord shall have the sole right to
employ all personnel and make all rules and regulations pertaining to and
necessary for the proper operation and maintenance of the Parking Facilities.
The Tenant shall participate in any free parking or other ticket validation
system established by the Landlord and abide by all rules and regulations
pertaining thereto and the Tenant shall pay to the Landlord monthly, together
with payments on account of Basic Rent, all parking charges attributable to the
Tenant as evidenced by parking tickets validated by the Tenant in accordance
with any system established by the Landlord.
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5.12 Authorization of Enquiries. The Tenant hereby authorizes the Landlord to
make enquiries from time to time of any government or municipality or
governmental or municipal agency with respect to the Tenant's compliance with
any and all laws and regulations pertaining to the Tenant or the business
conducted in the Leased Premises including, without limitation, laws and
regulations pertaining to Pollutants and the protection of the environment; and
the Tenant covenants and agrees that the Tenant shall from time to time provide
to the Landlord such written authorization as the Landlord may reasonably
require in order to facilitate the obtaining of such information.
5.13 Records. The Tenant shall keep on the Leased Premises or at the Tenant's
head office complete records of all goods stored on, or processed, manufactured,
packaged or used in any process in the Leased Premises by the Tenant and by any
other occupant of the Leased Premises or any part thereof. The Landlord may
examine such records and the Tenant shall provide extracts from or copies
thereof all as required by the Landlord from time to time. This requirement to
maintain such records shall survive the expiry or earlier termination of the
Term.
5.14 Overloading. The Tenant shall not install or permit the installation of
equipment or storage of items that, in the opinion of the Landlord's engineer,
overloads the capacity of any utility or of any electrical or mechanical
facility in the Project or which may exceed the load-bearing capacity of the
floors of the Project. If damage is caused to the Leased Premises or to the
Project as a result of any installation in contravention of this Section, the
Tenant shall repair the damage or, at the Landlord's option, pay to the Landlord
on demand the cost of repairing the damage incurred by the Landlord.
5.15 Telecommunications.
(1) The Tenant may utilize a telecommunication service provider of its choice
with the Landlord's prior written consent, which consent shall not be
unreasonably withheld, subject to the provisions of this Lease, including but
not limited to the following:
(a) prior to commencing any work in the Project, the service provider
shall execute and deliver the Landlord's standard form of licence agreement,
which shall include a provision for the Landlord to receive compensation for the
use of the space for the service provider's equipment and materials;
(b) the Landlord shall incur no expense or liability whatsoever with
respect to any aspect of the provision of telecommunication services, including
without limitation, the cost of installation, service, materials, repairs,
maintenance, removal, interruption or loss of telecommunication service;
(c) the Landlord must first reasonably determine that there is sufficient
space in the risers of the Building for the installation of the service
provider's wiring and cross connect;
(d) the Tenant shall indemnify and hold harmless the Landlord for all
losses, claims, demands, expenses and judgments against the Landlord caused by
or arising out of, either directly or indirectly, any acts or omissions by the
service provider or the Tenant or those for whom either of them is responsible
at law; and
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(e) the Tenant shall incorporate in its agreement with its service
provider a provision granting the Tenant the right to terminate the service
provider agreement if required to do so by the Landlord and the Landlord shall
have the right at any time and from time to time during the Term to require the
Tenant, at its expense, to exercise the termination right and to contract for
telecommunication service with a different service provider.
(2) The Tenant shall be responsible for the costs associated with the supply and
installation of telephone, computer and other communication equipment and
systems and related wiring within the Leased Premises to the boundary of the
Leased Premises for hook up or other integration with telephone and other
communication equipment and systems of a telephone or other communication
service provider, which equipment and systems of the service provider are
located or are to be located in the Building pursuant to the Landlord's standard
form of licence agreement and, subject to the provisions of Section 14.01, for
the removal of same.
(3) The Landlord shall supply space in risers in the Building and space on
floor(s) of the Building in which the Leased Premises are located, the location
of which shall be designated by the Landlord in its discretion, to
telecommunication service providers who have entered into the Landlord's
standard form of licence agreement for the purpose, without any cost or expense
to the Landlord therefor, of permitting installation in such risers and on such
floor(s) of telephone and other communication services and systems (including
data cable patch panels) to the Leased Premises at a point designated by the
Landlord.
(4) The Landlord shall have the right to assume control of wiring, cables and
other telecommunication equipment in the Building and may designate them as part
of the Common Elements.
ARTICLE 6.00 SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD
6.01 Operation of Project. During the Term, and so long as no Event of Default
shall exist, and so long as no event shall occur which, with the passage of time
or the giving of notice or both, would constitute an Event of Default, the
Landlord shall operate and maintain the Project in accordance with applicable
laws and regulations and with standards from time to time prevailing for similar
projects in the area in which the Project is located and, subject to payment by
the Tenant of Rent, shall provide the Services set out in this Article 6.00;
provided that the Landlord shall not be responsible for operating, maintaining,
repairing or replacing any systems, facilities or equipment to the extent that
the operation, maintenance, repair or replacement thereof are specifically
stated in this Lease to be the responsibility of the Tenant.
6.02 Building Services and Facilities. The Landlord shall provide:
(a) washrooms accessible to the Leased Premises for the use of the Tenant,
its employees and invitees in common with other persons entitled thereto;
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(b) domestic running water to the building standard washrooms in the
Leased Premises, if any, and to washrooms available for the Tenant's use in
common with others entitled thereto;
(c) access to and egress from the Leased Premises for use by the Tenant,
its employees and invitees in common with other persons entitled thereto,
provided that the Landlord may restrict access for security purposes or require
that all persons seeking access produce identification;
(d) heating, ventilation and air conditioning to the Building, including
the Leased Premises, to a level sufficient to maintain therein conditions of
reasonable temperature and comfort provided that, unless otherwise agreed by the
parties, a full standard of interior climate control shall only be maintained
during those hours and on those days established from time to time by the
Landlord as being operating periods for the Building, having reasonable regard
to energy conservation;
(e) lighting and electrical power to the Common Elements as reasonably
required;
(f) electrical power to the Leased Premises for lighting and for standard
office equipment capable of operating from the voltage circuits available and
then standard for the Building;
(g) janitorial services to the Leased Premises and Common Elements to a
standard consistent from time to time with similar buildings in the area in
which the Building is located;
(h) a directory board located in the Common Elements providing
identification of the tenants in the Building in such manner and containing such
information as the Landlord may determine; and
(i) subject to Section 5.15, appropriate ducts for bringing telephone
services to the Leased Premises.
6.03 Maintenance, Repair and Replacement. Subject to the provisions of Article
10.00 and payment by the Tenant of Rent, the Landlord shall operate, maintain,
repair and replace the systems, facilities and equipment necessary for the
proper operation of the Project and for provision of the Landlord's Services set
out in Section 6.02 (except as may be installed by or be the property of the
Tenant) and shall maintain and repair the foundations, structure and roof of the
Building and repair damage to the Building which the Landlord is obligated to
insure against under Article 9.00, provided that:
(a) if and so long as all or part of the systems, facilities and equipment
in the Project or the supply of utilities to the Project are destroyed, damaged
or interrupted, the Landlord shall have a reasonable time within which to
complete any necessary repair or replacement and, during that time, shall only
be required to maintain such Services as are reasonably possible in the
circumstances;
(b) the Landlord may temporarily discontinue such Services or any of them
at such times as may reasonably be necessary;
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(c) the Landlord shall use reasonable diligence in carrying out its
obligations under this Section 6.03, but shall not be liable under any
circumstances for any consequential damages, whether direct or indirect, to any
Person or property resulting from any failure to do so;
(d) no reduction or discontinuance of Services under this Section 6.03
shall be construed as a breach of the Landlord's covenant for quiet enjoyment or
as an eviction of the Tenant or, except as specifically provided otherwise in
this Lease, release the Tenant from any obligation under this Lease;
(e) the Landlord shall not be liable under any circumstances for any
damage caused by interruption or failure of any satellite, telecommunications
system, utility, wiring, elevator or escalator;
(f) the Landlord shall have no responsibility for any inadequacy of
performance of any systems within the Leased Premises if the Leased Premises or
the use thereof depart from the design criteria for such systems as established
by the Landlord for the Building; and
(g) nothing contained herein shall derogate from the provisions of Article
10.00.
6.04 Alterations/Renovations by Landlord. During the Term or any renewal or
extension thereof, it is understood and agreed that if the Landlord intends to
make changes, additions or improvements to or renovate the Project or any part
thereof, of which the Leased Premises form a part (the "Renovation Work"),
notwithstanding anything contained in this Lease to the contrary, the Landlord,
its servants, agents, contractors and representatives may proceed with the
Renovation Work without further consent or approval of the Tenant and the Tenant
hereby irrevocably grants to the Landlord its consent to the carrying out of the
Renovation Work. It is specifically understood and agreed that there shall be no
compensation paid to the Tenant nor shall there be any abatement of Rent in
connection with the Renovation Work. In exercising its rights pursuant to this
Section 6.04, the Landlord shall be entitled to:
(a) enter the Leased Premises from time to time to make changes or
additions to the structure, systems, facilities and equipment in the Leased
Premises where necessary to serve the Leased Premises or other or parts of the
Building;
(b) limit from time to time as may be necessary by reason of the
Renovation Work, ingress to and egress from the Leased Premises and/or the
Project;
(c) change, add to, diminish, demolish, dedicate for public purposes part
or parts of, improve or alter any part of the Project; and
(d) change, add to, diminish, improve or alter the location and extent of
the Common Elements.
The Landlord agrees to use commercially reasonable efforts to give to the Tenant
notice of its intention to proceed with the Renovation Work and the Tenant shall
cooperate with the landlord in order to allow the Renovation Work to be
completed as expeditiously as possible. It is specifically agreed by the
Landlord and the Tenant that the Landlord shall not, by reason of exercising its
rights pursuant to this Section 6.04, be in default or be deemed to be in
default of any covenant or proviso contained in this Lease or at law.
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6.05 Access by Landlord. The Tenant shall permit the Landlord to enter the
Leased Premises at any time in case of an emergency, either real or perceived,
and otherwise during normal business hours upon twenty-four (24) hours prior
notice (except in the event of an emergency where no notice is required) to: (a)
examine, inspect and show the Leased Premises for purposes of leasing, sale or
financing; (b) provide Services or make repairs, replacements, changes or
alterations as provided for in this Lease; and (c) take such steps as the
Landlord may deem necessary for the safety, improvement or preservation of the
Leased Premises or the Project. The Tenant shall cooperate with the Landlord in
any such showing of the Leased Premises. The Landlord shall, whenever possible,
consult with or give reasonable notice to the Tenant prior to entry but no such
entry shall constitute an eviction or a breach of the Landlord's covenant for
quiet enjoyment or entitle the Tenant to any abatement of Rent.
6.06 Energy Conservation. The Landlord shall be deemed to have observed and
performed its obligations under this Lease, including those relating to the
provision of utilities and Services, if in so doing it acts in accordance with a
directive, policy or request of an authority having jurisdiction in the field of
energy conservation, security or environmental matters.
6.07 Supervision and Extended Services. The Landlord, if it shall from time to
time so elect, shall have the right to supervise the moving of furniture or
equipment of the Tenant and (in addition to supervising the Tenant's work as
provided for in this Lease) to supervise the making of repairs conducted within
the Leased Premises and the exclusive right to supervise or make deliveries to
the Leased Premises. In addition, and by arrangement with the Tenant, the
Landlord may provide extended cleaning or other services to the Tenant in
addition to those normally supplied and referred to in this Lease. In each case,
the Landlord's costs and expenses incurred with respect thereto together with a
reasonable administration fee shall be paid to the Landlord by the Tenant from
time to time promptly upon receipt of invoices from the Landlord.
6.08 Landlord's Work. The Tenant agrees that it has entered into this Lease on
the express understanding that, unless otherwise specifically provided in
Schedule "D" or Schedule "E", the Leased Premises are being leased "as is" and
that the Landlord's work in respect of the Leased Premises is limited to the
scope delineated as Landlord's work in Schedule "D". All other improvements to
the Leased Premises shall be performed at the sole expense of the Tenant in
accordance with the terms of this Lease, including but not limited to Section
7.04.
6.09 Control by Landlord. The Tenant agrees that the Landlord shall have control
of the Project and, without limiting the generality of anything contained
elsewhere in this Lease, the Landlord may make such use of the Common Elements
and permit others to make such use of the Common Elements as the Landlord may
from time to time determine subject, in the case of use by others, to such terms
and conditions and for such consideration as the Landlord may in its discretion
determine, and the Landlord may temporarily close all or any part or parts of
the Project to such extent as may, in the opinion of the Landlord or any
Consultants engaged by the Landlord in that regard, be legally sufficient to
prevent a dedication thereof or the accrual of rights therein to any Person or
the public.
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ARTICLE 7.00 PAYMENT FOR SERVICES AND MAINTENANCE, REPAIR AND ALTERATIONS BY
TENANT
7.01 Utilities. In addition to the payment of the Tenant's Occupancy Costs and
notwithstanding Sections 6.01 and 6.02, the Tenant shall be responsible for the
cost of all utilities including electricity supplied to the Leased Premises. The
Tenant shall not, without the prior written approval of the Landlord, which may
be arbitrarily withheld, install or cause to be installed in the Leased Premises
any equipment that will require additional utility usage or any
telecommunications lines and/or conduits in excess of that normally required for
office premises. If, with the Landlord's approval, such additional equipment is
installed, the Tenant shall be solely responsible for such excess utility usage.
If utilities are supplied to the Tenant through a meter common to other tenants
in the Project (there being no obligation on the Landlord to install separate
meters), the Landlord shall pay the cost of the utilities and apportion the cost
pro rata among the tenants supplied through the common meter, based on all
relevant factors including, but not limited to, the hours of use, number and
types of lights and electrical equipment and the proportion of each tenant's
Rentable Area to the Rentable Area of all tenants to which the common meter
relates. Upon receipt of the Landlord's statement of apportionment, the Tenant
shall promptly reimburse the Landlord for all amounts apportioned to the Tenant
by the Landlord provided that the Landlord may elect by notice to the Tenant to
estimate the amount which will be apportioned to the Tenant and require the
Tenant to pay that amount in monthly installments in advance simultaneously with
the Tenant's payments of Basic Rent. Notwithstanding the foregoing, and whether
the Leased Premises are separately metered or not, the Landlord may purchase in
bulk from the utility supplier the aggregate utility requirements of the Project
at the applicable rates determined by a single meter on the Project and may, in
billing the Tenant for its share of such utility, apply a scale of rates not
greater than the current scale of rates at which the Tenant would from time to
time be purchasing the whole of its utilities required and consumed in respect
of the Leased Premises if the Tenant were purchasing directly from the utility
supplier. The Tenant shall upon the Landlord's request install a separate
utility meter or meters in the Leased Premises at the Tenant's expense.
In addition to the payments to the Landlord required by this Article 7.00, the
Tenant shall pay all rates, charges, costs and expenses as may be assessed or
levied by any supplier of utilities to the Tenant other than those supplied by
the Landlord.
7.02 Lights. In addition to the payment of the Tenant's Occupancy Costs and
notwithstanding Sections 6.01 and 6.02, except to the extent the same is
included in Operating Costs, the Tenant shall pay to the Landlord monthly in
advance, with its payments of Basic Rent, a reasonable amount as determined by
the Landlord in respect of replacement of building standard fluorescent tubes,
light bulbs and ballasts in the Leased Premises on a periodic basis or as
required from time to time and the costs of cleaning, maintaining and servicing
of the electrical light fixtures in the Leased Premises.
7.03 Heating, Ventilation and Air Conditioning. In addition to the payment of
the Tenant's Occupancy Costs and notwithstanding Sections 6.01 and 6.02, the
Tenant shall he responsible for the cost of all heating, ventilation and air
conditioning required in the Leased Premises or any part thereof in excess of
that required to be provided by the Landlord under Section 6.02(d). If at any
time during the Term the Landlord shall determine that the cost of the heating,
ventilation and air conditioning required in the Leased Premises or any part
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thereof is in excess of that normally required in other parts of the Building
which are used for normal office purposes, the Landlord may deliver to the
Tenant a statement in writing setting out the cost of the excess and upon
receipt of the statement from time to time the Tenant shall promptly reimburse
the Landlord for the amount shown in the statement as attributable to the Leased
Premises.
7.04 Alterations by Tenant. The Tenant may from time to time at its own expense
make changes, additions and improvements to the Leased Premises to better adapt
the same to its business, provided that any change, addition or improvement
shall:
(a) comply with the requirements of the Landlord's insurers and any
governmental or municipal authority having jurisdiction;
(b) be made only if, prior to preparation of any plans and specifications
and prior to commencement of any work in the Leased Premises, including, without
limiting the generality of the foregoing, any demolition, construction or
alterations, the Tenant has determined through testing at its own cost and
expense what Pollutants, if any, are present in the Leased Premises and, if the
Tenant fails to do so, the Tenant acknowledges and agrees that it shall
indemnify and save harmless the Landlord from and against any and all Claims
growing or arising out of the Tenant's failure to do so;
(c) be made only after detailed plans and specifications therefor have
been submitted to the Landlord and received the prior written approval of the
Landlord, all at the expense of the Tenant, and should the Landlord provide its
written approval, such approval shall not be deemed to mean that the proposed
changes, additions or improvements comply with any existing or future municipal
by-laws or any other applicable laws, by-laws, codes or requirements. All costs
incurred with respect to such approval shall be at the expense of the Tenant.
Any changes, additions and/or improvements affecting the Building's electrical,
mechanical and/or structural components shall only be performed by contractors
selected by the Landlord (the "Landlord's Contractors"). A list of the
Landlord's Contractors is available upon request;
(d) equal or exceed the then current standard for the Building;
(e) be carried out in a good and workmanlike manner and, subject to
Subsection 7.04(c), only by Persons selected by the Tenant and approved in
writing by the Landlord who shall, if required by the Landlord, deliver to the
Landlord before commencement of the work, performance and payment bonds as well
as proof of workers' compensation and public liability and property damage
insurance coverage, with the Landlord and the Landlord's agent and nominee (if
any) named as additional insureds, in amounts, with companies and in a form
reasonably satisfactory to the Landlord, which shall remain in effect during the
entire period in which the work will be carried out; and
(f) be made only after the Tenant has provided to the Landlord evidence of
all requisite permits and licences and any other information reasonably required
by the Landlord,
Upon completion of such change, addition or improvement, the Tenant shall
provide to the Landlord as-built drawings and/or a CAD disk of same in a format
useable by the Landlord, together with evidence satisfactory to the Landlord of
a final inspection of such change, addition or improvement (including inspection
of mechanical and electrical systems where applicable) by the authority which
issued the permit or licence for same.
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7.05 Tenant's Trade Fixtures and Personal Property. The Tenant may install in
the Leased Premises its usual trade fixtures and personal property in a proper
manner; provided that no installation or repair shall interfere with or damage
the mechanical or electrical systems or the structure of the Building. If the
Tenant is not then in default hereunder, the trade fixtures and personal
property installed in the Leased Premises by the Tenant may be removed by the
Tenant from time to time in the ordinary course of the Tenant's business or in
the course of reconstruction, renovation or alteration of the Leased Premises by
the Tenant, subject to the provisions of Article 14.00, and provided that the
Tenant promptly repairs at its own expense any damage to the Leased Premises and
the Building resulting from the installation and removal and provided further
that in the event of removal of trade fixtures, except at the expiration of the
Term, the Tenant shall promptly replace such trade fixtures with trade fixtures
of equal or greater quality and value, subject to the provisions of Section
14.01.
7.06 Maintenance and Repair. Except to the extent that the Landlord is
specifically responsible therefor under this Lease, the Tenant, at its cost,
shall maintain, repair and replace the Leased Premises, all Leasehold
Improvements and all apparatus therein in good order and condition, and in
compliance with the requirements of all authorities having jurisdiction
including without limitation:
(a) keeping the Leased Premises and the immediate surrounding area in a
clean and tidy condition and free of debris and garbage;
(b) repainting and redecorating the Leased Premises and cleaning and
maintaining window coverings and carpets at reasonable intervals as reasonably
required by the Landlord;
(c) making repairs and replacements as needed to the Leased Premises
including, without limitation, to internal and external glass within or on the
exterior of the leased Premises (with the exception of glass comprising the
curtain wall), doors, hardware, partitions, walls, fixtures, lighting and
plumbing fixtures, wiring, piping, ceilings, floors and thresholds in the Leased
Premises; and
(d) keeping the Leased Premises in such condition as to comply with the
requirements of any authority having jurisdiction.
7.07 Inspection. The Landlord and its Consultants may from time to time enter
upon the Leased Premises:
(a) to inspect the Leased Premises and its condition; and
(b) to inspect any work being done by the Tenant both during the course of
such work and following completion thereof.
If the Landlord or its agents shall determine that the work being done by the
Tenant is in breach of this Lease or fails to comply with the requirements of
this Lease in any respect, the Tenant shall forthwith remedy such breach or
failure to comply and shall desist from continuing the same. The Tenant shall,
at its own cost, make good any deficiency in such work and remedy any failure to
comply with the requirements of this Lease.
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7.08 Failure to Maintain. If the Tenant fails to perform any obligation under
this Article 7.00, then on not less than five (5) days notice to the Tenant, the
Landlord may enter the Leased Premises and perform the obligation without
liability to the Tenant for any loss or damage thereby incurred. The Tenant
shall promptly after receiving the Landlord's invoice therefor reimburse the
Landlord for all costs incurred by the Landlord in performing the obligation
plus twenty percent (20%) of the costs for overhead and supervision.
7.09 Liens. The Tenant shall:
(a) pay promptly when due all costs for work done or caused to be done or
goods affixed by the Tenant in the Leased Premises which could result in any
lien or encumbrance on the Landlord's interest in the Project or any part
thereof, or the filing or registration of any security interest or notice
thereof;
(b) keep the title to the Project, including every part thereof and the
Leasehold Improvements, free and clear of any lien, encumbrance or security
interest or notice thereof; and
(c) indemnify and hold harmless the Landlord against any Claims arising
out of the supply of goods, materials, services or labour for the work.
The Tenant shall immediately notify the Landlord of any lien, encumbrance, claim
of lien, security interest, or notice thereof or other action of which it has,
or reasonably should have, knowledge and which affects the title to the Project
or any part thereof and, except for those contemplated by Section 15.25, shall
cause the same to be removed within five (5) business days (or such additional
time as the Landlord may consent to in writing), failing which the Landlord may
take such action as the Landlord deems necessary to remove same and the entire
cost thereof shall immediately become due and payable by the Tenant to the
Landlord. The Tenant shall not affix or cause to be affixed to the Project any
goods acquired under conditional sale or with respect to which any lien,
encumbrance or security interest exists. The Landlord may from time to time post
such notices in such places on the Leased Premises as the Landlord considers
advisable to prevent or limit the creation of any liens upon the Project or any
part thereof.
7.10 Roof. The Tenant shall not be entitled to install upon the roof of the
Building any equipment except as consented to in writing by the Landlord, which
consent may be arbitrarily withheld, but if given shall be subject to whatever
conditions the Landlord, in its sole discretion, deems necessary in the
circumstances.
ARTICLE 8.00 TAXES
8.01 Taxes Payable by Landlord. The Landlord covenants and agrees to pay all
Taxes assessed against the Landlord or the Project on account of its ownership
when due (except for Business Taxes payable directly to the taxing authority by
the Tenant under Subsection 8.02(b) and similar taxes levied or assessed
separately from Taxes and payable directly to the taxing authority by other
tenants or occupants of the Project) and subject to the provisions hereinafter
contained in this Article 8.00. Provided however, that the Landlord may defer
payment of any such Taxes or defer compliance with any statute, law, by-law,
regulation or ordinance in connection with the levy of such Taxes in each case
to the fullest extent permitted by law as long as it shall diligently prosecute
any contest or appeal of such Taxes.
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8.02 Taxes Payable by Tenant. The Tenant shall pay promptly when due all Taxes
upon or on account of the following:
(a) to the Landlord, the Tenant's Proportionate Share of Taxes; and
(b) to the taxing authority or to the Landlord at the Landlord's
direction, any Taxes imposed or assessed against or in respect of the personal
property and Leasehold Improvements of the Tenant in the Leased Premises or in
respect of any business operations carried on or in respect of the use or
occupancy thereof by the Tenant or by any subtenant or licensee, if levied or
assessed separately from Taxes upon the remainder of the Land and Building and
referred to herein as "Business Taxes".
The Tenant agrees to provide to the Landlord within three (3) days of receipt
thereof, an original or duplicate copy of any separate xxxx for Taxes. The
Tenant shall deliver promptly, upon request of the Landlord, receipts for all
such payments and will furnish such other information as the Landlord may
require.
8.03 Tax Increases Attributable to Tenant. If any Taxes in respect of the Leased
Premises or Project are greater than they otherwise would have been by reason of
the constitution or ownership of the Tenant, the use of the Leased Premises by
the Tenant, the school support of the Tenant, or any other reason peculiar to
the Tenant, the portion of such Taxes in each year attributable to such reason,
as determined by the Landlord, shall be paid by the Tenant to the Landlord at
least fifteen (15) days prior to the due date for payment thereof by the
Landlord, and in addition to Property Taxes and other Taxes otherwise payable by
the Tenant under this Lease.
8.04 GST. The Tenant shall pay to the Landlord the amount of all GST accruing
due with respect to Rent at the time the Rent is due and payable to the Landlord
under this Lease. The Tenant's obligation to pay GST under this Section shall
not be limited or precluded by any limitation contained in this Lease upon the
Landlord's right to recover or receive payment from the Tenant of taxes upon the
Landlord's income or profits or otherwise.
8.05 Landlord's Election. Notwithstanding that any Taxes (including without
limitation, any of the foregoing payable by the Tenant under Subsection 8.02(a))
may be separately imposed, levied, assessed or charged by the appropriate
authority for or in respect of the Leased Premises and other portions of the
Project, the Tenant shall nevertheless be obligated to pay the Tenant's
Proportionate Share of Taxes as part of the Tenant's Occupancy Costs.
Notwithstanding the foregoing, the Tenant's Proportionate Share of Taxes so
determined may be adjusted by the Landlord, acting reasonably and equitably to
the extent necessary, to ensure that the Tenant's Proportionate Share of Taxes
is the same as it would have been following application of any special provision
of real property tax related legislation applicable to this Lease.
8.06 Right to Contest. Each of the Landlord and the Tenant (provided the Tenant
is legally entitled to do so) shall have the right to contest in good faith the
validity or amount of any Taxes which, in the case of the Landlord, the Landlord
is responsible to pad under this Article 8.00, and which, in the case of the
23
Tenant, the Tenant is responsible to pay under Subsection 8.02(b) and for which
it is separately assessed. Notwithstanding anything to the contrary herein, the
Tenant may, upon prior written notice to the Landlord, defer payment of any
amount payable by it pursuant to Subsection 8.02(b) for which it is separately
assessed, to the extent permitted by law; provided that no contest by the Tenant
shall involve the possibility of forfeiture, sale or disturbance of the
Landlord's interest in the Leased Premises or the imposition of any penalty or
interest, charge or lien and that, upon the final determination of any contest
by the Tenant, the Tenant shall immediately pay and satisfy the amount found to
be due, together with any costs, penalties and interest. If, as a result of any
contest by the Tenant, any tax, rate, levy, assessment, fee or other charge is
increased, the Tenant shall be responsible for the full amount of such increase
in respect of the period to which the contest relates and to any subsequent tax
periods which commence during the Term.
The Tenant shall not contest any amount payable by it under Subsection 8.02(a)
but may contest any amount payable by it under Subsection 8.02(b) or appeal any
assessment therefor subject to complying with the following:
(a) the Tenant shall deliver to the Landlord any notices of appeal or
other like instrument and obtain the Landlord's consent thereto, which consent
shall not be unreasonably withheld, before filing the same;
(b) the Tenant shall deliver whatever security the Landlord reasonably
requires;
(c) the Tenant shall promptly and diligently prosecute the contest or
appeal at its sole expense; and
(d) the Tenant shall keep the Landlord fully informed thereof.
ARTICLE 9.00 INSURANCE, LIABILITY AND ENVIRONMENTAL
9.01 Landlord's Insurance. During the Term, the Landlord shall place insurance
coverage on and with respect to the Project excluding the area(s) to be insured
by the Tenant as set out in Section 9.02, which coverage shall include the
following, if available at reasonable cost in the opinion of the Landlord:
(a) all risks insurance for the full reconstruction value of the Project,
excluding Leasehold Improvements, as determined by the Landlord;
(b) as an extension to the insurance maintained pursuant to Subsection
9.01(a), insurance on the rental income derived by the Landlord from the Project
on a gross rental income form with a period of indemnity of not less than the
period as estimated by the Landlord from time to time which would be required to
rebuild and, if necessary, to re-tenant the Project in the event of the complete
destruction thereof;
(c) boiler and machinery insurance, including repair or replacement and
rental income coverage, if applicable;
24
(d) plate glass insurance (not including plate glass fronting or within
the Leased Premises) if deemed appropriate by the Landlord;
(e) commercial general liability insurance; and
(f) such other insurance which is or may become customary or reasonable
for owners of projects similar to the Project to carry in respect of loss of, or
damage to, the Project or liability arising therefrom.
The insurance referred to in this Section shall be carried in amounts determined
reasonably by the Landlord. The insurance shall be written in the name of the
Landlord with loss payable to the Landlord and to any mortgagee (including any
trustee under a deed of trust and mortgage) of the Project from time to time.
The policies of insurance referred to in Subsections 9.01(a), (b), (c), (d) and
(e) shall contain a waiver of the insurer's right of subrogation as against the
Tenant if available to the Landlord at no additional cost.
Notwithstanding any contribution by the Tenant to insurance premiums as provided
for in this Lease, no insurable interest is conferred upon the Tenant under
policies carried by the Landlord. Except as specifically provided in this Lease,
the Landlord shall in no way be accountable to the Tenant regarding the use of
the insurance proceeds arising from any Claims.
9.02 Tenant's Insurance. At its own expense the Tenant shall take out and
thereafter maintain in force at all times during the Term and at all times when
the Tenant is in possession of the Leased Premises insurance policies as
follows:
(a) all risks insurance on Leasehold Improvements and on all other
property of every description, nature and kind owned by the Tenant or for which
the Tenant is legally liable, which is installed, located or situate within the
Leased Premises or elsewhere in the Project, including without limitation, all
inventory or stock-in-trade in an amount not less than the full replacement cost
thereof without deduction for depreciation; such insurance shall be subject to a
replacement cost endorsement and shall include a stated amount co-insurance
clause and a breach of conditions clause;
(b) commercial general liability insurance to respond to any and all
incidents occurring in the Leased Premises in the minimum amount of $3,000,000
per occurrence including the following extensions: owners and contractors
protective; limited pollution coverage endorsement; products and completed
operations; personal injury; occurrence basis property damage; blanket
contractual and non-owned automobile liability; such insurance shall include the
Landlord and the Landlord's agent and nominee (if any) as named additional
insureds, and shall protect and indemnify the Landlord and the Landlord's agent
and nominee (if any) in respect of all Claims, including Claims by the Tenant,
as if the Landlord and the Landlord's agent and nominee (if any) were separately
insured; such insurance shall include cross liability and severability of
interest clauses;
(c) boiler and machinery insurance, if applicable, including repair or
replacement endorsement in an amount satisfactory to the Landlord and providing
coverage with respect to all objects introduced into the Leased Premises by or
on behalf of the Tenant or otherwise constituting Leasehold Improvements;
25
(d) plate glass insurance on all internal and external glass within or
fronting the Leased Premises;
(e) business interruption insurance on the profit form providing all risks
coverage with a period of indemnity of not less than twelve (l2) months and
subject to a stated amount co-insurance clause; and
(f) any other form of insurance in such amounts and against such risks as
the Landlord may from time to time reasonably require.
The Tenant acknowledges and agrees that it shall be solely responsible for
insuring the Leasehold Improvements, its equipment and stock and any other
property owned or brought into the Leased Premises by the Tenant whether affixed
to the Building or not.
The insurance policies referred to in this Section shall be subject to such
higher limits as the Tenant, or the Landlord acting reasonably, or any mortgagee
of the Landlord's interest in the Project may require from time to time. The
policies of insurance referred to in Subsections 9.02(a), (b), (c), (d), (e),
and (f) shall contain a waiver of the insurer's right of subrogation as against
the Landlord. The Tenant hereby waives its right of recovery against the
Landlord, its employees and those for whom the Landlord is in law responsible
with respect to occurrences required to be insured against by the Tenant
hereunder. Any and all deductibles in the Tenant's insurance policies shall be
borne solely by the Tenant and shall not be recovered or attempted to be
recovered from the Landlord. In addition, all such policies shall be
non-contributing with, and will apply only as primary and not excess to, any
insurance proceeds available to the Landlord.
The Tenant shall provide to the Landlord at the commencement of the Term and at
least thirty (30) days prior to the renewal of all insurance referred to in this
Section 9.02, and promptly at any time upon request, a certificate of insurance
evidencing the insurance coverage maintained by the Tenant in accordance with
this Section 9.02. The delivery to the Landlord of a certificate of insurance or
any review thereof by or on behalf of the Landlord shall not limit the
obligation of the Tenant to provide and maintain insurance pursuant to this
Section 9.02 or derogate from the Landlord's rights if the Tenant shall fail to
fully insure.
All policies shall provide that the insurance shall not be cancelled or changed
to the prejudice of the Landlord without at least thirty (30) days prior written
notice given by the insurer to the Landlord. All policies of insurance shall be
placed with a company licensed to sell commercial insurance in Canada.
The Tenant acknowledges and agrees that, if it fails to obtain and maintain in
force any of the insurance policies set out in this Section 9.02, then the
Tenant shall indemnify the Landlord in respect of any losses arising therefrom.
9.03 Placement of Tenant's Insurance by Landlord. If the Tenant fails to place
or maintain all or any of the insurance coverage referred to in Section 9.02,
the Landlord may, at its option, place all or any part of such insurance in the
name of or on behalf of the Tenant and the Tenant shall pay to the Landlord upon
demand all costs incurred by the Landlord in so doing including, without
limitation, the premium or premiums for such insurance together with the
Landlord's administrative fee of fifteen percent (15%) of such premium.
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9.04 Limitation of Landlord's Liability. The Landlord, its agents and employees
and any Person for whom it is in law responsible shall not be liable under any
circumstances for any damage caused by anything done or omitted to be done by
any other tenant of the Project or any Person for whom such tenant is in law
responsible or any damage resulting from the exercise of the Landlord's control
over the Project or any part thereof.
9.05 Environmental Issues.
(1) Landlord's Requirements - The Tenant shall not bring into or allow to be
present in the Leased Premises or the Project any Pollutants except such as are
disclosed in Schedule "H" hereto. If the Tenant shall bring, create, discharge
or release upon, in or from the Project, including the Leased Premises, any
Pollutants, whether or not disclosed in Schedule "H" and whether during the Term
of this Lease or any prior lease by the Tenant, then such Pollutants shall be
and remain the sole property of the Tenant and the Tenant shall promptly remove
same at its sole cost at the expiration or sooner termination of the Term or
sooner if required by the Landlord.
(2) Governmental Requirements - If, during the Term or any renewal or extension
of this Lease or at any time thereafter, any governmental authority shall
require the clean-up of any Pollutants:
(a) held in, discharged in or from, released from, abandoned in, or placed
upon the Leased Premises or the Project by the Tenant or its employees or those
for whom it is in law responsible; or
(b) released or disposed of by the Tenant or its employees or those for
whom it is in law responsible;
whether during the Tenant's occupancy of the Leased Premises or any other
premises in the Project pursuant to this Lease or any prior lease by the Tenant
of the Leased Premises or any other premises in the Project, then the Tenant
shall, at its own expense, carry out all required work, including preparing all
necessary studies, plans and approvals and providing all bonds and other
security required by any governmental authority or required by the Landlord and
shall provide full information with respect to all such work to the Landlord
provided that the Landlord may, at its option, perform any such work at the
Tenant's sole cost and expense, payable on demand as additional Rent.
(3) Environmental Covenants - In addition to and without restricting any other
obligations or covenants herein, the Tenant covenants that it will:
(a) comply in all respects with all Environmental Laws relating to the
Leased Premises or the use of the Leased Premises;
(b) promptly notify the Landlord in writing of any notice by any
governmental authority alleging a possible violation of or with respect to any
other matter involving any Environmental Laws relating to operations in the
Leased Premises or relating to any Person for whom it is in law responsible or
any notice from any other party concerning any release or alleged release of any
Pollutants; and
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(c) permit the Landlord to:
(i) enter and inspect the Leased Premises and the operations
conducted therein; and
(ii) conduct tests and environmental assessments or appraisals; and
(iii) remove samples from the Leased Premises; and
(iv) examine and make copies of any documents or records relating to
the Leased Premises and interview the Tenant's employees as
necessary; and
(d) promptly notify the Landlord of the existence of any Pollutants in the
Project,
(4) Environmental Indemnification - The Tenant shall, during the Term and at all
times thereafter, indemnify and hold the Landlord harmless at all times from and
against any and all losses, damages, penalties, fines, costs, fees and expenses
(including legal fees on a solicitor and client or substantial indemnity basis
and Consultants' fees and expenses) resulting from:
(a) any breach of or non-compliance with the environmental obligations and
covenants of the Tenant as set out in this Lease; and
(b) any legal or administrative action commenced by, or claim made or
notice from, any third party, including, without limitation, any governmental
authority, to or against the Landlord and pursuant to or under any Environmental
Laws or concerning a release or alleged release of Pollutants at the Leased
Premises into the environment and related to or as a result of the operations of
the Tenant or those acting under its authority or control at the Leased Premises
or any other premises in the Project, and any and all costs associated with air
quality issues, if any, and whether during the Term of this Lease or any prior
lease by the Tenant of the Leased Premises or any other premises in the Project.
ARTICLE 10.00 DAMAGE AND DESTRUCTION
10.01 Limited Damage to Leased Premises, Access or Services. If during the Term,
the Leased Premises or any part thereof, or other portions of the Building
providing access or Services essential to the Leased Premises, shall be
destroyed or damaged by any hazard against which the Landlord is obligated to
insure pursuant to Section 9.01, the Landlord, if permitted by law to do so,
shall proceed with reasonable diligence to rebuild and restore or repair the
Leased Premises or comparable premises or such access routes or Service systems,
as the case may be, in conformance with current laws to the extent of insurance
proceeds received. The covenants of the Tenant to repair shall not include any
repairs of damage required to be made by the Landlord under this Section 10.01.
For greater certainty, it is understood and agreed that, upon substantial
completion of the Landlord's work, the Tenant shall repair or restore the Leased
Premises as required by Section 7.06, Rent payable by the Tenant shall xxxxx
from the date of such damage or destruction to the date of substantial
28
completion of the Landlord's work as determined by the Landlord's architect or
engineer or restoration of access or Services, as the case may be. If less than
all of the Leased Premises is destroyed or damaged as contemplated in this
Section 10.01, Rent payable by the Tenant shall xxxxx from the date of such
damage or destruction to the date of substantial completion of the Landlord's
work in the same proportion as the Rentable Area of the Leased Premises so
damaged or destroyed is of the total Rentable Area of the Leased Premises.
10.02 Major Damage to Leased Premises. Notwithstanding any other right of
termination contained herein, if the Leased Premises shall be damaged or
destroyed by any hazard against which the Landlord is obligated to insure under
this Lease, and if in the opinion of the Landlord's architect or engineer, given
within 30 business days of the happening of said damage or destruction, said
damage or destruction is to the extent that the Leased Premises shall be
incapable of being rebuilt or repaired or restored with reasonable diligence
within 6 months after the occurrence of such damage or destruction, then the
Landlord may, at its option, terminate this Lease by notice in writing to the
Tenant given within 15 days after the giving of the opinion by the Landlord's
architect or engineer. If such notice is given by the Landlord under this
Section 10.02, then this Lease shall terminate on the date of such notice and
the Tenant shall immediately surrender the Leased Premises and all interest
therein to the Landlord and Rent shall be apportioned and shall be payable by
the Tenant only to the date of such damage or destruction and the Landlord may
thereafter re-enter and repossess the Leased Premises. For greater certainty, it
is understood and agreed that: (a) if the Landlord does not elect to terminate
this Lease as aforesaid, upon substantial completion of the Landlord's work, the
Tenant shall repair or restore the Leased Premises as required by Section 7.06;
and (b) if the Landlord elects to terminate this Lease as aforesaid, the Tenant
shall pay to the Landlord forthwith upon demand the cost of repairing or
restoring the Leased Premises, as determined by the Landlord's architect or
engineer, acting reasonably (but not in any event to exceed the replacement cost
of the then existing Leasehold Improvements), by way of insurance proceeds
available to the Tenant or otherwise.
10.03 Damage to Building. Notwithstanding anything to the contrary contained in
this Lease or that the Leased Premises may not be affected, if in the reasonable
opinion or determination of the Landlord or the Landlord's architect or
engineer, rendered within thirty (30) business days of the happening of damage
or destruction, the Building shall be damaged or destroyed to the extent that
any one or more of the following conditions exist:
(a) in the reasonable opinion of the Landlord the Building must be totally
or partially demolished, whether or not to be reconstructed in whole or in part;
or
(b) in the reasonable opinion of the Landlord's architect or engineer the
Building shall be incapable of being rebuilt or repaired or restored with
reasonable diligence within six (6) months after the occurrence of such damage
or destruction; or
(c) any tenant of the Building which, in the Landlord's absolute
discretion, is a major tenant of the Building becomes entitled to terminate its
lease as a result of such damage or destruction; or
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(d) more than thirty-five percent (35%) of the Total Rentable Area of the
Building is damaged or destroyed as reasonably determined by the Landlord's
architect or engineer; or
(e) any or all of the heating, ventilating, air conditioning, electrical,
mechanical or elevator systems in the Building are damaged or destroyed as
reasonably determined by the Landlord's architect or engineer;
then the Landlord may at its sole option terminate this Lease by notice in
writing to the Tenant effective thirty (30) days after the notice. If notice is
given by the Landlord under this Section 10.03, then this Lease shall terminate
from the date of such notice and the Tenant shall immediately surrender the
Leased Premises and all interest therein to the Landlord and Rent shall be
apportioned and shall be payable by the Tenant only to the data of such notice
and the Landlord may thereafter re-enter and repossess the Leased Premises. If
the Building is damaged to the extent described in this Section 10.03 and the
Landlord does not terminate this Lease, the Landlord will, to the extent of
insurance proceeds received, rebuild or repair the Building to base building
standards, but the rebuilt or repaired Building may be different in
configuration and design from that comprising the Project prior to the damage or
destruction.
10.04 No Abatement. Except as specifically provided in this Article 10.00, there
shall be no abatement of Rent and the Landlord shall have no liability to the
Tenant by reason of any injury to, loss of or interference with the Tenant's
business or property arising directly or indirectly from fire or other casualty,
howsoever caused, or from the making of any repairs resulting therefrom or to
any portion of the Building or the Leased Premises.
10.05 Notify Landlord. The Tenant shall immediately notify the Landlord or its
representative in the Project of any accident or defect in the Project, the
Leased Premises or any systems thereof and, as well, of any matter or condition
which may cause injury or damage to the Project or any person or property
located therein.
10.06 Expropriation. In the event of Expropriation of all or part of the Leased
Premises and/or the Building, neither the Landlord nor the Tenant shall have a
claim against the other for the shortening of the Term, nor the reduction or
alteration of the Leased Premises or the Building. The Landlord and the Tenant
shall each look only to the Expropriating authority for compensation. The
Landlord and the Tenant agree to cooperate with one another so that each is able
to obtain the maximum compensation from the Expropriating authority as may be
permitted in law in relating to their respective interests in the Leased
Premises and the Building. Nothing herein contained shall be deemed or construed
to prevent the Landlord or the Tenant from enforcing and prosecuting a claim for
the value of their respective interests in any Expropriation proceedings.
However, to the extent that a part of the Project other than the Leased Premises
is Expropriated, the full proceeds paid or awarded therefor will belong solely
to the Landlord and the Tenant will assign to the Landlord any rights it might
have or acquire in respect of such proceeds or awards and will execute those
documents that the Landlord reasonably requires in order to give effect to this
intention.
Where used in this Section 10.06 "Expropriation" means expropriated by a
governmental or municipal authority, or transferred, conveyed or dedicated in
contemplation of a threatened expropriation and "Expropriated" and
"Expropriating" have corresponding meanings.
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ARTICLE 11.00 DEFAULT
11.01 Arrears. The Tenant shall pay monthly to the Landlord interest at a rate
per annum equal to the lesser of the Prime Rate plus five percent (5%) and the
maximum rate permitted by applicable law upon all Rent required to be paid
hereunder from the due date for payment thereof until the same is fully paid and
satisfied.
In addition to the interest charges, in order to cover the extra expense
involved in handling delinquent payments, the Tenant, at the Landlord's sole
option, shall pay a "Late Charge" of One Hundred Dollars ($100.00) when any
installment of Rent is received by the Landlord after the relevant due date
thereof.
In addition, if any cheque presented to the Landlord by the Tenant representing
payment of Rent is not honoured by the Tenant's bank or such cheque is returned
to the Landlord indicating that there are not sufficient funds in the Tenant's
account to honour such cheque, the Tenant shall pay to the Landlord a "N.S.F.
Charge" of Fifty Dollars ($50.00) for the first such occurrence; One Hundred and
Fifty Dollars ($150.00) for the second such occurrence; and Two Hundred and
Fifty Dollars ($250.00) for each such successive occurrence thereafter. It is
hereby understood and agreed that the Late Charge and the N.S.F. Charge is
charged as Additional Rent, and not as a penalty or interest, for the purpose of
defraying the Landlord's expenses incident to the processing of such overdue
payments and that such Additional Rent is due and payable on and from the day
immediately following the due date of such overdue payments or, if no due date
is specified in this Lease, then on the tenth (10th) day following demand for
same by the Landlord.
At the sole option of the Landlord and upon notice to the Tenant, the amount of
the Late Charge and the N.S.F. Charge shall be subject to increase for each
succeeding Lease Year on the basis of the increase in C.P.I. for such Lease Year
over the said index for the previous Lease Year.
11.02 Costs of Enforcement. The Tenant shall indemnify the Landlord against all
costs and charges (including legal fees on a solicitor and client or substantial
indemnity basis and the Landlord's reasonable administration charges) reasonably
incurred either during or after the Term in enforcing payment of Rent hereunder
and in obtaining possession of the Leased Premises after default of the Tenant
or upon expiration or earlier termination of this Lease or in enforcing any
covenant, proviso or agreement of the Tenant herein contained or in determining
the Landlord's rights or the Tenant's obligations under this Lease or both. All
such costs and charges shall be paid by the Tenant to the Landlord forthwith
upon demand.
11.03 Performance of Tenant's Obligations. All covenants and agreements to be
performed by the Tenant under any of the terms of this Lease shall be performed
by the Tenant, at the Tenant's sole cost and expense, and without any abatement
of Rent. If the Tenant fails to perform any act to be performed by it hereunder,
then, in the event of an emergency, either real or perceived, or if the failure
continues for ten (10) days following notice thereof, the Landlord may (but
shall not be obligated to) perform the act without waiving or releasing the
Tenant from any of its obligations relative thereto, but having commenced to do
so may cease to do so without completing performance thereof. All sums paid and
costs incurred by the Landlord in so performing the act, plus twenty percent
(20%) of the cost for overhead and supervision together with interest thereon at
the rate set out in Section 11.01 from the date payment was made or such cost
was incurred by the Landlord, shall be payable by the Tenant to the Landlord on
demand.
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11.04 Events of Default. If and whenever:
(a) all or any part of the Rent hereby reserved is not paid when due; or
(b) the Term or any goods, merchandise, stock in trade, chattels or
equipment of the Tenant or any Indemnifier is or are seized or taken or exigible
in execution or in attachment or if a creditor takes possession thereof or if a
writ of execution is issued against the Tenant or any Indemnifier; or
(c) the Tenant or any Indemnifier or any Person bound to perform the
obligations of the Tenant in this Lease either as guarantor or indemnifier or as
one of the parties constituting the Tenant takes any steps in furtherance of or
suffers any order to be made for its winding-up or other termination of its
corporate existence or becomes insolvent or commits an act of bankruptcy or
becomes bankrupt or takes the benefit of any statute that may be in force for
bankrupt or insolvent debtors or becomes involved in voluntary or involuntary
winding-up proceedings or if a receiver or receiver/manager shall be appointed
for all or any part of the business, property, affairs or revenues of the Tenant
or such Indemnifier or Person; or
(d) the Tenant makes a bulk sale of its goods or moves or commences,
attempts or threatens to move its goods, chattels and equipment, or any of them,
out of the Leased Premises (other than in the normal course of its business) or
ceases to conduct business in the Leased Premises; or
(e) the Tenant fails to move into or take possession of the Leased
Premises or vacates or abandons the Leased Premises in whole or in part or fails
to actively carry on business therein; or
(f) the Tenant or any Indemnifier or any Person bound to perform the
obligations of the Tenant pursuant to this Lease either as guarantor or
indemnifier or as one of the parties constituting the Tenant fails to observe,
perform and keep each and every covenant, agreement, provision, stipulation and
condition herein contained to be observed, performed and kept by the Tenant or
the Indemnifier (other than payment of Rent) and persists in the failure after
ten (10) days' notice by the Landlord requiring the Tenant to remedy, correct,
desist or comply (or if any breach would reasonably require more than ten (10)
days to rectify, unless the Tenant commences rectification within the ten (10)
day notice period and thereafter promptly, effectively and continuously proceeds
with the rectification of the breach); or
(g) any Transfer occurs except as permitted by and in accordance with
Article 12.00; or
(h) any Pollutant is present in the Leased Premises without the prior
written consent of the Landlord or otherwise than in compliance with all terms
and conditions imposed by the Landlord in giving its consent thereto; or
32
(i) a report or statement required from the Tenant under this Lease is
materially false or misleading except if it results from an innocent clerical
error as determined by the Landlord; or
(j) any policy of insurance taken out by either the Landlord or the Tenant
with respect to the Project shall be cancelled by reason of any act or omission
of the Tenant; or
(k) the Tenant fails to observe and perform the rules and regulations; or
(l) the use of the Leased Premises is not in accordance with that set out
in Item 9 of the Term Sheet;
then the Landlord shall be entitled to any or all of those remedies set out in
Section 11.05. Each of the foregoing circumstances constitutes an "Event of
Default" for the purposes of this Lease.
11.05 Remedies on Default. Upon the happening of an Event of Default the
Landlord may, at its option, and in addition to and without prejudice to all
rights and remedies of the Landlord available to it either by any other
provision of this Lease or by statute or the general law, exercise any one or
more of the following remedies:
(a) be entitled to the full amount of the current month's and the next
ensuing three (3) months' installments of Rent which shall immediately become
due and payable and the Landlord may immediately distrain for the same, together
with any arrears then unpaid; or
(b) without notice or any form of legal process, forthwith re-let or
sublet the Leased Premises or any part or parts thereof for whatever term or
terms and at whatever rent and upon whatever other terms, covenants and
conditions the Landlord considers advisable including, without limitation, the
payment or granting of inducements all on behalf of the Tenant; and on each such
re-letting or subletting the rent received by the Landlord therefrom will be
applied first to reimburse the Landlord for any such inducements and for any
expenses, capital or otherwise, incurred by the Landlord in making the Leased
Premises ready for re-letting or subletting; and secondly to the payment of any
costs and expenses of re-letting or subletting including brokerage fees and
legal fees on a solicitor and client or substantial indemnity basis; and third
to the payment of Rent; and the residue, if any, will be held by the Landlord
and applied to payment of Rent as it becomes due and payable. If rent received
from re-letting or subletting during any month is less than Rent to be paid
during that month hereunder, the Tenant will pay the deficiency which will be
calculated and paid monthly on or before the first day of every month; and no
re-letting or subletting of the Leased Premises by the Landlord or entry by the
Landlord or its agents upon the Leased Premises for the purpose of re-letting or
subletting or other act of the Landlord relating thereto including, without
limitation, changing or permitting a subtenant to change locks, will be
construed as an election on its part to terminate this Lease unless a written
notice of termination is given to the Tenant; and if the Landlord elects to
re-let or sublet the Leased Premises without terminating, it may afterwards
elect to terminate this Lease at any time by reason of any Event of Default then
existing; or
(c) seize and sell such goods, chattels and equipment of the Tenant as are
in the Leased Premises and the Landlord may, but shall not be obligated to,
apply the proceeds thereof to all Rent to which the Landlord is then entitled
under this Lease. Any such sale may be effected by public auction, private sale
or otherwise, and either in bulk or by individual item, or partly by one means
and partly by another, all as the Landlord in its sole discretion may decide; or
33
(d) terminate this Lease by leaving upon the Leased Premises notice in
writing of the termination, and such termination shall be without prejudice to
the Landlord's right to damages, it being agreed that the Tenant shall pay to
the Landlord on demand as damages the loss of income of the Landlord to be
derived from this Lease and the Leased Premises for the unexpired portion of the
Term had it not been terminated; or
(e) re-enter into and upon the Leased Premises or any part thereof in the
name of the whole and repossess and enjoy the same as of the Landlord's former
estate, anything herein contained to the contrary notwithstanding;
and the Tenant shall pay to the Landlord forthwith upon demand all expenses of
the Landlord in re-entering, terminating, re-letting, collecting sums due or
payable by the Tenant or realizing upon assets seized or otherwise exercising
its rights and remedies under this Section 11.05 including tenant inducements,
leasing commissions, legal fees on a solicitor and client or substantial
indemnity basis and all disbursements and the expense of keeping the Leased
Premises in good order, repairing the same and preparing the same for
re-letting.
In addition, and without limiting the generality of the foregoing provisions of
this Section 11.05, upon the happening of an Event of Default, and whether or
not this Lease is terminated in accordance with such provisions: (i) the
Landlord shall have no further liability to pay to the Tenant or any third party
any amount on account or in respect of a refund of any Security Deposit, prepaid
Rent or prepaid Taxes or any tenant inducement, leasehold improvement allowance,
lease takeover or lease subsidy or any other concession or inducement otherwise
provided to the Tenant under or with respect to this Lease, and any Rent free
period otherwise provided to the Tenant hereunder shall be null and void and of
no further force or effect and Rent shall be payable in full hereunder without
regard to any such Rent free period; and (ii) any cash allowance, inducement
payment, and the value of any other benefit paid to or conferred on the Tenant
by or on behalf of the Landlord in connection with the Leased Premises or this
Lease shall be recoverable in full as additional Rent and shall be payable to
the Landlord on demand.
11.06 Availability of Remedies. The Landlord may from time to time resort to any
or all of the rights and remedies available to it upon the occurrence of an
Event of Default either by any provision of this Lease or by statute or the
general law, all of which rights and remedies are intended to be cumulative and
not alternative, and the express provisions herein as to certain rights and
remedies are not to be interpreted as excluding any other or additional rights
or remedies available to the Landlord by statute or the general law.
11.07 Waiver. If the Landlord shall overlook, excuse, condone or suffer any
default, breach or non-observance by the Tenant of any obligation hereunder,
this shall not operate as a waiver of the obligation in respect of any
continuing or subsequent default, breach or non-observance and no such waiver
shall be implied but shall only be effective if expressed in writing.
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The Landlord's acceptance of Rent after a default is not a waiver of any
preceding default under this Lease even if the Landlord knows of the preceding
default at the time of acceptance of the Rent. No term, covenant or condition of
this Lease shall be considered to have been waived by the Landlord or the Tenant
unless the waiver is in writing. The Tenant waives any statutory or other rights
in respect of abatement, set-off or compensation in its favour that may exist or
come into existence hereafter with respect to Rent.
11.08 Waiver of Exemption and Redemption. Notwithstanding anything contained in
any statute now or hereafter in force limiting the right of distress, none of
the Tenant's goods or chattels in the Leased Premises at any time during the
Term shall be exempt from levy by distress for Rent in arrears, and this
agreement of the Tenant in this Section may be pleaded as an estoppel against
the Tenant.
11.09 Companies' Creditors Arrangement Act. By virtue of its interest in this
Lease, the importance of the Tenant continuing to carry on business in the
Leased Premises in accordance with this Lease, and the Landlord's entitlement to
damages where this Lease is terminated by reason of an Event of Default, the
Landlord does and will (despite any changes in circumstances of the Tenant or
its business) constitute a separate class or category of creditor in any plan of
arrangement or other proposal submitted by or on behalf of the Tenant under the
Companies' Creditors Arrangement Act (Canada) or any similar legislation for
bankrupt or insolvent debtors.
ARTICLE 12.00 ASSIGNMENT SUBLETTING AND OTHER TRANSFERS
12.01 Request for Consent. The Tenant shall not effect a Transfer of this Lease
or of all or part of the Leased Premises without the prior consent in writing of
the Landlord, which consent shall not, provided no Event of Default has
occurred, be unreasonably withheld. Provided that the Tenant shall, at the time
the Tenant shall request the consent of the Landlord, deliver to the Landlord
such information in writing (herein called the "required information") as the
Landlord may reasonably require respecting the proposed Transferee including,
without limitation, the name, address, nature of business, financial
responsibility and standing of such proposed Transferee. Provided further that
after receiving such request, the Landlord shall have the right, at its option,
to terminate this Lease if the request relates to all of the Leased Premises or,
if the request relates to a portion of the Leased Premises only, to terminate
this Lease with respect to such portion, by giving, within ten (10) days after
receiving the required information, not less than thirty (30) days nor more than
sixty (60) days written notice of termination to the Tenant. In the event of
such termination the Rent and other payments required to be made by the Tenant
hereunder shall be adjusted to the date of termination and in the case of a
partial termination, Rent shall xxxxx in the proportion that the area of the
portion of the Leased Premises for which this Lease is terminated bears to the
area of the Leased Premises and this Lease shall be deemed to be amended
accordingly.
If the Landlord elects to terminate this Lease as to all or part of the leased
Premises, the Tenant may by written notice (given within ten (10) days or such
longer time as the Landlord may consent to in writing after receipt of the
Landlord's notice of termination) notify the Landlord of the Tenant's intention
to refrain from the Transfer which gave rise to the Landlord's notice of
termination or of the Tenant's intention to accept such notice of termination.
If the Tenant gives written notice to the Landlord within such time period that
it intends to refrain from such Transfer, then the Landlord's election to
terninate this Lease in whole or in part shall become null and void, Otherwise,
the Landlord's termination shall take effect on the date stipulated by the
Landlord in its notice of termination.
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12.01(A) Permitted Tenants:
The landlord consents that Strategy Insurance and Lux Group to be occupiers of
the premises.
12.02 Basis for Consent. Notwithstanding anything in the Landlord and Tenant
Act, the commercial Tenancies Act or any other statute or law and without
limiting the grounds upon which a consent may be refused, the Landlord will not
be deemed to be unreasonable in refusing consent when:
(a) the giving of such consent would place the Landlord in breach of any
other tenant's lease in the Project or the proposed use by the Transferee is not
substantially the same as that of the Tenant;
(b) such consent is requested for a mortgage, charge, debenture (secured
by floating charge or otherwise) or other encumbrance of, or in respect of, this
Lease or the Leased Premises or any part of them;
(c) the Transferee, in the opinion of the Landlord, (i) does not have a
history of successful business operation in the business to be conducted in the
Leased Premises, (ii) does not have a good credit rating or a substantial net
worth, or (iii) there is a history of default under other leases by the
Transferee or by companies or partnerships that the Transferee was a principal
shareholder of or a partner in at the time of the default;
(d) the Transferee is an existing tenant in the Project or in any other
project of the Landlord; or has been within three (3) months prior to the
proposed assignment or sublease taking effect;
(e) the Landlord has other premises in the Project available for leasing
to the Transferee;
(f) in the case of a Transfer to a subtenant of less than the entire
Leased Premises, if such would result in a configuration which:
(i) would require access to be provided through space leased or held
for lease to another tenant or improvements to be made outside of
the Leased Premises; or
(ii) would, in the sole opinion of the Landlord, be unreasonable to
attempt to re-lease to a third party;
(g) the required information received from the Tenant or the proposed
Transferee is not sufficient in the Landlord's opinion to enable the Landlord to
make a determination concerning the matters set out above;
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(h) the use of the Leased Premises by the proposed Transferee, in the
Landlord's opinion arrived at in good faith, could result in excessive use of
the systems or Services in the Project, be inconsistent with the image and
standards of the Project or expose the occupants of the Project to risk of harm,
damage or interference with their use and enjoyment thereof, or reduce the value
of the Project;
(i) the proposed Transferee pays or gives or proposes to pay or give to
the Tenant money or other consideration that is reasonably attributable to the
desirability of the location of the Leased Premises or to improvements thereto
which are owned by the Landlord or which the Landlord has paid for in whole or
in part; or
(j) the proposed Transferee pays or proposes to pay to the Tenant an
increase in rent over that payable by the Tenant under this Lease.
The Landlord shall not be liable for any claims, actions, damages, liabilities,
losses or expenses of the Tenant or any proposed Transferee arising out of the
Landlord's unreasonably withholding its consent to any Transfer and the Tenant's
only recourse will be to bring an application for a declaration that the
Landlord must grant its consent to the Transfer.
In no event shall any Transfer to which the Landlord may have consented release
or relieve the Tenant or any Indemnifier from its obligations fully to perform
all the terms, covenants and conditions of this Lease, the Indemnity Agreement
or any renewals or extensions of this Lease or the Term, on its part to be
performed and, in any event, the Tenant shall be liable for the Landlord's costs
incurred in connection with the Tenant's request for consent as set out in
Subsection 12.03(g).
12.03 Terms and Conditions Relating to Consents. The following terms and
conditions apply in respect of a consent given by the Landlord to a Transfer;
(a) the consent by the Landlord is not a waiver of the requirement for
consent to subsequent Transfers, and no Transfer shall relieve the Tenant of its
obligations under this Lease, unless specifically so provided in writing;
(b) no acceptance by the Landlord of Rent or other payments by a
Transferee is: (i) a waiver of the requirement for the Landlord to consent in
writing to the Transfer; (ii) the acceptance of the Transferee as tenant or
subtenant, or (iii) a release of the Tenant or Indemnifier from its obligations
under this Lease or any Indemnity Agreement;
(c) the Landlord may apply amounts collected from the Transferee to any
unpaid Rent;
(d) the Transferor, unless the Transferee is a subtenant of the Tenant,
will retain no rights under this Lease in respect of obligations to be performed
by the Landlord or in respect of the use or occupation of the Leased Premises
after the Transfer and will execute an Indemnity Agreement on the Landlord's
standard form in respect of obligations to be performed after the Transfer by
the Transferee;
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(e) the Transferee shall, when required by the Landlord, jointly and
severally with the Tenant, enter into an agreement directly with the Landlord
agreeing to be bound by this Lease as if the Transferee had originally executed
this Lease as the Tenant, and the Tenant will not be released nor relieved from
its obligations under this Lease including, without limitation, the obligation
to pay Rent;
(f) in the event that this Lease is disaffirmed, disclaimed or terminated
by any trustee in bankruptcy of a Transferee, the original Tenant named in this
Lease shall be deemed, upon notice by the Landlord given within thirty (30) days
of such disaffirmation, disclaimer, or termination to have entered into a lease
with the Landlord, containing the same terms and conditions as in this Lease,
with the exception of the Term of such Lease which shall expire on the date on
which this Lease would have ended save for such disaffirmation, disclaimer or
termination; and
(g) any documents relating to a Transfer or the Landlord's consent will be
prepared by the Landlord or its solicitors and a reasonable administration
charge of at least Two Hundred and Fifty Dollars ($250.00) and the greater of:
(i) a reasonable document preparation fee of at least Four Hundred and Fifty
Dollars ($450.00); or (ii) those legal fees on a solicitor and client or
substantial indemnity basis incurred by the Landlord will be paid to the
Landlord by the Tenant on demand.
12.04 Subsequent Transfers. The Landlord's consent to a Transfer shall not be
deemed to be consent to any Subsequent Transfer, whether or not so stated.
12.05 Profit Rents upon Transfers. In the event of any Transfer by the Tenant by
virtue of which the Tenant receives a rent in the form of cash, goods or
services from the Transferee which is greater than the Rent payable hereunder to
the Landlord, the Tenant shall pay any such excess to the Landlord in addition
to all Rent payable under this Lease, and such excess rent shall be deemed to be
further Rent payable hereunder.
12.06 Advertising. The Tenant shall not advertise the Leased Premises or any
part thereof as being available for leasing or this Lease as being available for
transfer in any medium and will not cause or permit any such advertisement,
unless the Landlord has permitted the Tenant to do so in writing and has given
written approval of the wording of such advertisement, which permission and
approval may be arbitrarily withheld.
12.07 Grant of Security Interest by Transferee. The Tenant will cause any
Transferee and any new Indemnifier of this Lease to grant a mortgage, charge and
security interest to the Landlord in form corresponding to the Security Interest
granted in Section 15.25 by delivery of a written security agreement in form and
substance satisfactory to the Landlord prior to the effective date of the
Transfer.
The Tenant shall pay all costs associated with the granting and perfection of
mortgages, charges and security interests granted pursuant to this Lease upon
any Transfer.
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ARTICLE 13.00 TRANSFERS BY LANDLORD
13.01 Sale, Conveyance and Assignment. Nothing in this Lease shall restrict the
right of the Landlord to sell, convey, assign, pledge or otherwise deal with the
Project, subject (except as provided in Section 13.03) only to the rights of the
Tenant under this Lease.
13.02 Effect of Transfer. A sale, conveyance or assignment of the Project by the
Landlord shall operate to release the Landlord from liability from and after the
effective date thereof in respect of all of the covenants, terms and conditions
of this Lease, express or implied, except as they may relate to the period prior
to the effective date, and the Tenant shall thereafter look solely to the
Landlord's successor in interest.
13.03 Subordination. Subject to Section 13.04, this Lease, at the option of any
mortgagee, trustee or chargee, is and shall be subject and subordinate in all
respects to any and all mortgages (including deeds of trust and mortgage) now or
hereafter registered against title to the Building or Land and all advances
thereunder, past, present and future and to all renewals, modifications,
consolidations, replacements and extensions thereof. The Tenant agrees to
execute promptly and in any event within ten (10) days after request therefor by
the Landlord or the mortgagee or trustee under any such mortgage or deed of
trust and mortgage an instrument of subordination as may be requested.
13.04 Attornment. The Tenant agrees, whenever requested by any mortgagee,
trustee or chargee (in this Section 13.04 and in Section 13.05 called the
"Mortgagee") taking title to the Project by reason of foreclosure or other
proceedings for enforcement of any mortgage or deed of trust, or by delivery of
a deed in lieu of such foreclosure or other proceeding, to attorn to such
Mortgagee as a tenant under all of the terms of this Lease. The Tenant agrees to
execute promptly and in any event within ten (10) days after a request by any
Mortgagee an instrument of attornment as may be required by it.
13.05 Effect of Attornment. Upon attornment pursuant to Section 13.04, this
Lease shall continue in full force and effect as a direct lease between the
Mortgagee and the Tenant, upon all of the same terms, conditions and covenants
as are set forth in this Lease except that, after attornment, the Mortgagee and
its successors in title shall not be:
(a) liable for any act or omission of the Landlord; or
(b) subject to any offset or defence which the Tenant might have against
the Landlord; or
(c) bound by any prepayment by the Tenant of more than one (1) month's
installment of Rent unless the prepayment shall have been approved in writing by
the Mortgagee or by any predecessor of the Mortgagee's former interest as
mortgagee of the Project.
13.06 Repurchase. The Tenant acknowledges and agrees that should the Landlord
sell, convey, assign, pledge or otherwise deal with the Project, or any interest
therein, or intend to deal with the Project, or any interest therein, in any
manner described herein then the Landlord may, at its option, if the Landlord
has provided the Tenant with Basic Rent free periods, Rent free periods and/or
other inducements during the Term and/or any renewal or extension of the Term of
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this Lease, reimburse the Tenant for the then present value of any then
unexpired Basic Rent free periods or Rent free periods and/or other inducements
provided to the Tenant under this Lease, in an amount equal to the discounted
cash value thereof determined by applying the then current yield of 10 year
Canadian Government Bonds plus four percent (4%) (hereinafter referred to in
this Section 13.06 as the "Discounted Cash Value") to the dollar amount of such
outstanding Basic Rent free periods, Rent free periods and/or other inducements
and the Tenant agrees that any such periods or inducements for which it has
received such Discounted Cash Value from the Landlord will no longer exist or be
payable or be of any force or effect from and after the date on which such
Discounted Cash Value is received by the Tenant from the Landlord. The Tenant
agrees to forthwith execute any agreement prepared by the Landlord, the purpose
of which agreement is to amend this Lease by deleting such Basic Rent free
periods, Rent free periods and/or other inducements from the Lease for which the
Tenant has received the Discounted Cash Value from the Landlord.
ARTICLE 14.00 SURRENDER
14.01 Possession and Restoration.
(1) Upon the expiration or other termination of the Term, the Tenant shall
immediately quit and surrender possession of the Leased Premises and all
Leasehold Improvements, in substantially the condition in which the Tenant is
required to maintain the Leased Premises, excepting only reasonable wear and
tear and damage covered by the Landlord's insurance under Section 9.01, and the
Tenant shall deliver to the Landlord the keys, mechanical or otherwise, and
combinations, if any, to the locks in the Leased Premises and entries thereto.
Notwithstanding the foregoing, the Landlord shall have the right, at its sole
option upon expiration or other termination of the Term, to require that the
Tenant remove or cause to be removed at the Tenant's cost all or any part of
Leasehold Improvements in the Leased Premises whether or not installed by or on
behalf of the Tenant or installed by or on behalf of a previous tenant or during
a previous term and to restore the Leased Premises and other parts of the
Project affected by the installation or removal thereof to base building
standards. In addition, the Landlord shall have the right, at its sole option
upon expiration or other termination of the Term, to require that the Tenant
remove or cause to be removed at the Tenant's cost all or any part of any
wiring, cables, risers or similar installations appurtenant thereto installed by
the Tenant or on the Tenant's behalf in the risers of the Building (the
"Wiring") and to restore the risers and other parts of the Project affected by
the installation or removal of the Wiring to their condition existing prior to
the installation of the Wiring (the "Wire Restoration Work"). Notwithstanding
the foregoing, the Landlord may, at its sole option, perform the Wire
Restoration Work at the Tenant's sole cost and expense. Upon surrender, all
right, title, and interest of the Tenant in the Leased Premises and all
Leasehold Improvements located therein and in all Wiring shall cease.
(2) Ninety (90) days (or as soon after such date as is reasonably possible)
prior to the expiration of the Term the Landlord may inspect the Leased Premises
to determine the extent of the Wire Restoration Work and the work required to
restore the Leased Premises and other parts of the Project affected by any
installation or removal of Leasehold Improvements to base building standards and
upon receipt of the Landlord's estimate of the costs thereof (the "restoration
cost") the Tenant shall provide to the Landlord by certified cheque the
restoration cost.
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14.02 Tenant's Trade Fixtures and Personal Property. After the expiration or
other termination of the Term or in the event of the abandonment of the Leased
Premises by the Tenant, all of the Leasehold Improvements and the Tenant's trade
fixtures, and personal property remaining in the Leased Premises shall be deemed
conclusively to have been abandoned by the Tenant and may be appropriated, sold,
destroyed or otherwise disposed of by the Landlord without notice or obligation
to compensate the Tenant or to account therefor, and the Tenant shall pay to the
Landlord upon written demand all of the costs incurred by the Landlord in
connection therewith.
14.03 Overholding. If the Tenant remains in the Leased Premises or any part
thereof after the expiration or other termination of the Term:
(a) without the consent of the Landlord, no yearly or other periodic
tenancy shall be created but the Tenant shall be bound by the terms and
provisions of this Lease except any options thereby granted to the Tenant and
except the Basic Rent which shall be twice the greater of: (i) the rate provided
for herein for the final year of the Term; and (ii) the market rate for similar
premises as determined by the Landlord at the time of such overholding, plus, in
either case, the sum of $200 daily and subject to such additional obligations
and conditions as the Landlord may impose by notice to the Tenant; or
(b) with the consent of the Landlord and agreement as to the Rent payable,
the tenancy shall be month-to-month at the Rent agreed and otherwise on the
terms and conditions of this Lease but without any option to renew or for a new
lease.
The Landlord may recover possession of the Leased Premises during any period
with respect to which the Tenant has prepaid the amount payable under Subsection
14.03(a).
The Tenant shall promptly indemnify and hold harmless the Landlord from and
against all Claims against the Landlord as a result of the Tenant remaining in
possession of all or any part of the Leased Premises after the expiry of the
Term without the consent of the Landlord (including, without limitation, any
compensation to any new tenant or tenants which the Landlord may elect to pay
whether to offset the cost of overtime work or otherwise).
ARTICLE 15.00 GENERAL
15.01 Estoppel Certificates. The Tenant shall whenever requested by the
Landlord, a prospective purchaser or any mortgagee (including any trustee under
a deed of trust and mortgage) promptly, and in any event within ten (10) days
after request, execute and deliver to the Landlord or to any party or parties
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 each element hereof and
the then state of the accounts between the Landlord and the Tenant, the
existence or non-existence of defaults, and any other matters pertaining to this
Lease in respect of which the Landlord shall request a certificate, and provide
such other information as may reasonably be required, including a copy of the
Tenant's most recent audited financial statements. The party or parties to whom
such certificates are addressed may rely upon them.
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15.02 Entire Agreement. There is no promise, warranty, representation,
undertaking, covenant or understanding by or binding upon the Landlord except
such as are expressly set forth in this Lease, and this Lease including the Term
Sheet and schedules hereto contains the entire agreement between the parties
hereto.
15.03 No Registration of Lease or Notices. The Tenant shall not register or
apply to register this Lease or any notice of this Lease or any interest under
this Lease and waives any statutory obligation upon the Landlord to execute and
deliver this Lease in registrable form, The Tenant shall, at its own cost,
promptly on request discharge any registration or filing or notice that
contravenes this Section. Notwithstanding the foregoing, the Landlord may elect
to require that this Lease or notice of this Lease be registered.
15.04 Project Name and Trademarks. The Tenant shall not refer to the Project or
Building by any name other than that designated from time to time by the
Landlord and the Tenant shall use the name of the Building for the business
address of the Tenant but for no other purpose. Compliance with this Section
shall be at the sole cost and expense of the Tenant and the Tenant shall have no
claim against the Landlord for any costs or expenses incurred by the Tenant,
whether direct or indirect, in complying with this Section.
15.05 Demolition / Substantial Renovation. Notwithstanding any other provision
of this Lease, the Landlord may terminate this Lease at any time upon giving to
the Tenant not less than twelve (12) months notice of such termination if it is
the Landlord's intention to demolish, redevelop or substantially renovate all or
part of the Building.
15.06 Relocation. The Landlord shall have the right, at any time and from time
to time before and during the Term and any renewal or extension of the Term of
this Lease, to change the location of the Leased Premises from the location
described in this Lease to another location of similar size and finishes
anywhere else in the Project. Provided that the Landlord shall give the Tenant
reasonable notice of such relocation and the Landlord shall reimburse the Tenant
for all reasonable costs directly related to such relocation, but not including
any indirect costs such as lost profits during the relocation period or damages
for inconvenience.
15.07 "For Lease" Signs. The Landlord shall have the right during the last
twelve (12) months of the Term to place upon the Leased Premises a notice of
reasonable dimensions stating that the Leased Premises are "for lease" and the
Tenant shall not obscure or remove such notice or permit the same to be obscured
or removed.
15.08 Unavoidable Delays. If the Landlord or the Tenant (the "delayed party")
shall be delayed hindered or prevented in or from the performance of any of its
covenants under this Lease by any cause not within the control of the delayed
party as determined by the Landlord acting reasonably (excluding lack of
finances of the delayed party), the performance of the covenant shall be excused
for the period during which performance is rendered impossible and the time for
performance thereof shall be extended accordingly, but this shall not excuse the
Tenant from the prompt payment of Rent or from the performance of any of its
other obligations under this Lease not related to such cause.
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15.09 Limitation of Recourse. The Tenant acknowledges that, notwithstanding any
other provision contained in this Lease, the obligations of and rights against
the Landlord under this Lease shall be performed, satisfied and paid only out of
and enforced against, and recourse hereunder shall be had only after judgment
and only against, the right, title and interest of the Landlord from time to
time in, and the Landlord's revenue derived from, the Project. No obligation of
the Landlord hereunder or in respect hereof is personally binding upon, nor
shall any resort or recourse be had, judgment issued or execution or other
process levied against, the Landlord (except to the extent necessary for
enforcement under the first sentence of this Section 15.09 and only for that
purpose), or against any other assets or revenues of the Landlord. The only
remedy against the Landlord shall be an action for damages, except that if the
Tenant is of the opinion that any consent requested pursuant to Article 12.00
hereof has been wrongfully withheld, its remedies are as set out in Section
12.02.
The parties acknowledge and agree that the obligations of Morguard Real Estate
Investment Trust hereunder and under all documents delivered pursuant hereto
(and all documents to which this document may be pursuant) or which give effect
to, or amend or supplement, the terms of this Lease are not personally binding
upon any trustee hereof, any registered or beneficial holder of units (a
"Unitholder") or any annuitant under a plan of which a Unitholder acts as a
trustee or carrier, or any officers, employees or agents of Morguard Real Estate
Investment Trust and resort shall not be had to, nor shall recourse or
satisfaction be sought from, any of the foregoing or the private property of any
of the foregoing, but the Project only shall be bound by such obligations and
recourse or satisfaction may only be sought from the revenue of the Project.
15.10 Notice. Notice, demands, requests or other instruments required or
contemplated by any provision of this Lease shall be given in writing and shall
be: (i) delivered in person; or (ii) sent by facsimile with confirmation of
transmission; or (iii) sent by registered mail, postage prepaid, and addressed:
(a) if to the Landlord at the Landlord's head office as specified in Item 1(c)
of the Term Sheet, with a copy to the Landlord's manager c/o the address as
specified in Item 1(a) of the Term Sheet; and (b) if to the Tenant, at the
Leased Premises, or, at the Landlord's option, to the Tenant's head office
address as specified in Item 2 of the Term Sheet (whether or not the Tenant has
departed from, vacated or abandoned the same).
Any notice, demand, request or consent shall be considered to have been given or
made on the day that it is delivered by hand, or, if sent by facsimile, it shall
be considered to have been given if received on or before 4:30 p.m. on the day
of transmission (if after 4:30 p.m. it shall be deemed to have been given on the
next business day following), or, if mailed, shall be deemed to have been given
three (3) days following the date upon which it was mailed. Either party may
from time to time by notice in writing to the other designate another address or
addresses in Canada as the address to which notices are to be sent. If the
postal service is interrupted or substantially delayed, any notice, demand, or
request or other instrument shall only be delivered by one of the alternate
methods stated above. A notice given by or to one Tenant is a notice by all or
to all of the Persons who are the Tenant under this Lease. Any notice given to
the Indemnifier or the Tenant shall be deemed to have been given simultaneously
to the other of them and to all Persons bound by their obligations hereunder.
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Notwithstanding the provision of any statute or law relating thereto, service by
means of electronic mail of any notice(s) required to be given in writing by
either party hereto pursuant to the Lease shall not constitute good and
effective service.
Any notice which the Landlord intends to give to the Tenant and to other tenants
may be addressed by the Landlord to the group of tenants to which that notice is
intended to be given described either by reference to location or other
identifying aspects of the group of tenants to which the Tenant belongs.
15.11 Delegation of Authority. The managing agent of the Landlord may act on
behalf of the Landlord in any manner provided for herein.
15.12 Relationship of Parties. Nothing contained in this Lease shall create any
relationship between the parties hereto other than that of landlord and tenant
and, if applicable, indemnifier.
15.13 Governing Law. This Lease shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the
province in which the Project is situate and the laws of Canada applicable
therein.
15.14 Amendment or Modification. No amendment, modification or supplement to
this Lease shall be valid or binding unless set out in writing and executed by
the Landlord and the Tenant with the same degree of formality as the execution
of this Lease.
15.15 Legal and Administration Costs. The Tenant shall indemnify the Landlord
against all legal fees on a solicitor and client or substantial indemnity basis
and disbursements incurred by the Landlord or by its manager or agents in
connection with the negotiation, preparation and execution of any renewal,
amendment, assignment, cancellation, approval or consent in connection with this
Lease, including the Landlord's reasonable administration charges. All such
costs and charges shall be paid by the Tenant to the Landlord forthwith upon
demand.
15.16 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 provision had never been included. Any provision in this Lease which has
been struck out shall be deemed not to have ever been included herein and shall
not be considered in construing or interpreting any other provision of this
Lease.
15.17 Captions and Headings. The captions and headings contained in this Lease
are for convenience of reference only and are not intended to limit, enlarge or
otherwise affect the interpretation of the Articles, Sections or parts hereof to
which they apply.
15.18 Interpretation. In this Lease, "herein", "hereof", "hereunder",
"hereafter" and similar expressions refer to this Lease and not to any
particular Article, Section or other portion thereof unless there is something
in the subject matter or context inconsistent therewith. Wherever necessary or
appropriate in this Lease, the plural shall be interpreted as singular, the
masculine gender as feminine or neuter and vice versa; and when there are two or
more parties bound by the Tenant's covenants herein contained, their obligations
shall be joint and several. If the Tenant is a partnership, each Person who is
presently a member of such partnership and each Person who becomes a member of
any successor partnership shall be and continue to be liable jointly and
severally for the performance of the obligations of this Lease, whether or not
such Person ceases to be a member of such partnership or successor partnership
and after the partnership ceases to exist.
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15.19 Time of the Essence. Time shall be of the essence hereof and no extension
or variation of this Lease shall operate as a waiver of this provision.
15.20 Successors and Assigns. Subject to specific provisions contained in this
Lease to the contrary, this Lease shall enure to the benefit of and be binding
upon the successors and assigns of the Landlord and the heirs, executors and
administrators and the permitted successors and assigns of the Tenant.
15.21 Counterparts. This Lease may be executed in counterparts and the
counterparts together shall constitute an original.
15.22 Further Schedules. Any additional covenants agreements and conditions
forming part of this Lease will be attached as Schedule "E" and the Tenant
agrees with the Landlord to comply with the provisions of Schedule "E". If an
Indemnifier is a party hereto the form of Indemnity Agreement to be executed by
the Indemnifier and the Landlord as a separate agreement will be attached as
Schedule "F".
15.23 Independent Legal Advice. The Tenant and the Indemnifier each acknowledge
that the Landlord hereby advises each of the Tenant and the Indemnifier to
obtain advice from independent legal counsel prior to signing this Lease and/or
the Indemnity Agreement. The Tenant and the Indemnifier further acknowledge that
any information provided by the Landlord is not to be construed as legal, tax or
any other expert advice and the Tenant and the Indemnifier are cautioned not to
rely on any such information without seeking legal, tax or other expert advice.
The Landlord and the Tenant understand, acknowledge and agree that this Lease
has been freely negotiated by both parties and that, in any dispute or contest
over the meaning, interpretation, validity or enforceability of this Lease or
any of its terms or conditions, there shall be no inference, presumption or
conclusion drawn whatsoever against either party by virtue of that party having
drafted this Lease or any portion thereof.
15.24 No Offer. The Landlord will not be deemed to have made an offer to the
Tenant by furnishing an unexecuted copy of this Lease with particulars inserted.
Notwithstanding that a Security Deposit or payment of advance Rent is received
by the Landlord when this Lease is received by the Landlord for execution, no
contractual or other right will exist between the Landlord and the Tenant with
respect to the Leased Premises until the Landlord, the Tenant and the
Indemnifier, if any, have executed and delivered this Lease and any required
Indemnity Agreement.
15.25 Landlord's Security Interest.
(1) As security for the Tenant's performance of its obligations under this
Lease, including but not limited to the payment of Rent and GST, the Tenant
grants to the Landlord by way of security interest, mortgage, pledge, charge,
45
assignment and hypothec a continuing security interest (the "Security Interest")
in the Tenant's present and future undertaking and all of its present and after
acquired personal property and assets including without limitation the assets
described in Schedule "G" attached hereto and forming part hereof and all goods
(including inventory), trade fixtures and other personal property of the Tenant
located from time to time on the Leased Premises and any Leasehold Improvements
which the Tenant effects on or in respect of the Leased Premises (collectively
the "Collateral"). The Tenant may however, prior to the occurrence of an Event
of Default, sell or dispose of its inventory to its customers, in the ordinary
course of business, in accordance with the terms and conditions of this Lease,
without the consent of the Landlord. The Tenant will promptly execute additional
documents and will provide additional information required by the Landlord from
time to time in connection with the Security Interest. The Tenant authorizes the
Landlord to file a financing statement and any other form of document required
in connection with the Security Interest to perfect, protect or preserve its
Security Interest. The Landlord's Security Interest is in addition to and not in
lieu of its right of distress.
(2) The Landlord may enforce its Security Interest upon the occurrence of an
Event of Default in the manner outlined in Schedule "G" attached hereto and
forming part hereof or in any other manner available at law or in equity.
(3) The grant of the Security Interest shall not effect or result in a merger of
any rights or interests of any party hereto.
(4) To the extent permitted by law, the Tenant hereby waives its right to
receive a copy of any financing statement, financing change statement or
verification statement relating to the Security Interest.
(5) The Landlord and the Tenant acknowledge that they have not agreed to
postpone the time for attachment of the Security Interest with respect to
existing Collateral, and that the Security Interest shall attach to after
acquired Collateral as soon as the debtor has rights in such Collateral.
15.26 Survival of Covenants and Indemnities. All obligations of the Tenant which
arise during the Term pursuant to this Lease and which have not been satisfied
at the end of the Term and all indemnities of the Tenant contained in this Lease
shall survive the expiration or other termination of this Lease.
15.27 Exculpatory Provisions. In all provisions of this Lease containing a
release, indemnity or other exculpatory language in favour of the Landlord,
reference to the Landlord includes reference also to the Landlord's agents and
nominee (if any) and any Person for whom it is in law responsible and the
directors, officers and employees of the Landlord, its agents and nominee (if
any) and any Person for whom it is in law responsible and its agents while
acting in the ordinary course of their employment (collectively the "Released
Persons"), it being understood and agreed that, for the purposes of this Section
15.27, the Landlord is deemed to be acting as the agent or trustee on behalf of
and for the benefit of the Released Persons solely to the extent necessary for
the Released Persons to take the benefit of this Section 15.27.
46
15.28 Brokerage Commissions. The Tenant covenants that no act of the Tenant has
given rise nor shall give rise to any Claims against the Landlord for any
brokerage commission, finder's fee or similar fee in respect of this Lease. The
Tenant hereby indemnifies and agrees to hold the Landlord harmless from any
Claims for such commission or fees with respect to this Lease except any which
were directly contracted for by the Landlord.
15.29 Covenants to be Performed at Landlord's Option. Where any provision in
this Lease gives the Landlord the option of having the Landlord or the Tenant
perform the covenants set out in such provision, the Tenant shall perform such
covenants unless the Tenant is otherwise directed by way of written notice from
the Landlord.
15.30 Radiation. Only if the Landlord believes on reasonable grounds that
radiation is or has been used or created by the Tenant or any Person permitted
by the Tenant to be in the Leased Premises shall this Section 15.30 apply to the
Tenant.
The Tenant agrees, if so requested by the Landlord, to conduct at its own
expense a survey by an accredited firm of consultants acceptable to the Landlord
to determine the level of radiation in the Leased Premises, and if such levels
are in excess of those allowable under Environmental Laws and set by the
applicable regulatory authorities governing radiation, the Tenant agrees, at its
own cost and expense and on terms and conditions approved by the Landlord, to
reduce the level of radiation to a level allowable under Environmental Laws and
set by such applicable regulatory authorities.
47
IN WITNESS WHEREOF, the parties have executed this ____________ as of the date
first above written.
LANDLORD:
MORGUARD REAL ESTATE INVESTMENTS TRUST
by its agent
MORGUARD INVESTMENTS LIMITED
By:_____________________________________
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
By:_____________________________________
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
I/We have authority to bind the
Corporation which has authority to bind
the Trust
WITNESS TO SIGNATURE OF TENANT: TENANT:
signature: /s/ Xxx Xxxxxxx RENT SHIELD CANADA LIMITED,
--------------------------
print name: Xxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
-------------------------- --------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
address: 0000 Xxxxxxx Xxx. X.
----------------------------- By:_____________________________________
Name:
Xxxxxxx, X0X 544 Title:
-----------------------------
I/We have authority to bind the
Corporation
occupation: Associate Broker
--------------------------
48
SCHEDULE "A"
PLAN SHOWING LEASED PREMISES
[GRAPHIC OMITTED][GRAPHIC OMITTED]
1
SCHEDULE "A-1"
LEGAL DESCRIPTION OF LAND
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the City of North York, in the Municipality of Metropolitan
Toronto and being composed of part of Blocks G, H, and K, Registered Plan 7612
York, in the said City of Toronto designated as Part 1 on Reference Plan
66R-16126.
The boundary of the east and south side of Yorkland Boulevard was confirmed
under the Boundaries Act by Plan BA-1802, registered as Instrument Xx. 000000
Xxxxx Xxxx.
The said land is registered in the Land Registry Office for the Land Titles
Division of Metropolitan Toronto as P.I.N. 10085-0112.
Municipally known as 000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxx.
1
SCHEDULE "B"
DEFINITIONS
"Article", "Item", "Section", "Schedule" and "Subsection" mean the specified
article, item, section, schedule or subsection, as the case may be, of this
Lease.
"Basic Rent" means the amount set out in item 8 of the Term Sheet payable by the
Tenant to the Landlord in respect of each year of the Term.
"Bio-Medical Waste" shall mean and include the following:
(a) (i) surgical waste including all materials discarded from
surgical procedures, including but not limited to, disposable
gowns, soiled dressings, sponges, casts, lavage tubes,
drainage sets, underpads and surgical gloves; and
(ii) pathological waste including all human tissues and
anatomical parts which emanate from surgery, obstetrical
procedures, autopsy and laboratory, and
(iii) biological waste including blood and blood products,
excretions, exudates, secretions, suctionings and other body
fluids including solid/liquid waste from renal dialysis; and
(iv) isolation waste including all waste emanating from the
care or treatment of a patient on any type of isolation or
precaution except reverse (protective) isolation; and
(v) cultures and stocks of etiologic agents and associated
biologicals including, without limitation, specimen cultures,
cultures and stocks of etiologic agents, wastes from
production of biologicals and serums, and discarded live and
attenuated vaccines; and
(vi) laboratory waste which has come in contact with
pathogenic organisms, including but not limited to, culture
dishes, devices used to transfer, inoculate and mix cultures,
paper and cloth which has come in contact with specimens or
cultures; and
(vii) animal carcasses exposed to pathogens in research, their
bedding and other waste from such animals; and
(viii) sharps, including any discarded article that may cause
punctures or cuts, including but not limited to, needles, IV
tubing with needles attached, scalpel blades, glassware, and
syringes that have been removed from their original sterile
containers; and
(ix) any other wastes identified as infectious or similar
wastes in any other applicable federal, provincial or
municipal laws, regulations and guidelines; and
1
(b) "Chemotherapy Waste" (also known as antineoplastic or cytotoxic
waste) means and includes discarded items, including but not limited to, masks,
gloves, gowns, empty IV tubing bags, vials, syringes and other contaminated
materials which have been contaminated by chemotherapeutic drugs or
antineoplastic agents; and
(c) any waste defined as bio-medical waste under any applicable law or
regulation.
"Building" means the buildings, structures and improvements from time to time
during the Term erected in, upon or under the Land municipally identified in
Item 3 of the Term Sheet and all alterations and additions thereto and
replacements thereof.
"Capital Tax" means the applicable amount of any tax or taxes including but not
limited to Large Corporations Tax payable based upon or computed by reference to
the paid-up capital or place of business of the Landlord as determined for the
purposes of such tax or taxes; provided that for the purposes hereof, the
"applicable amount" of such tax or taxes shall mean the amount thereof that
would be payable if the Project were the only establishment of the Landlord in
the jurisdiction of the taxing authority or if any other establishment of the
Landlord therein were located outside that jurisdiction.
"Claims" means claims, losses, actions, suits, proceedings, causes of action,
demands, damages (direct, indirect, consequential or otherwise), judgments,
executions, liabilities, responsibilities, costs, charges, payments and expenses
including, without limitation, any professional, consultant and legal fees on a
solicitor and client or substantial indemnity basis and any associated
disbursements.
"Collateral" has the meaning ascribed in Section 15.25.
"Commencement Date" means the first day of the Term as specified in Item 7(a) of
the Term Sheet.
"Common Elements" means the areas, facilities, utilities, improvements,
equipment and installations (collectively, "elements") in the Project that, from
time to time, are not intended to be leased to tenants of the Project
(including, without limitation, elements within rentable premises that are
intended for the benefit of tenants of the Project and their invitees and
employees) or are designated from time to time as Common Elements by the
Landlord and includes access roads, driveways and parking areas and facilities.
"Consultants" means any reference in this Lease to the Landlord's accountant,
auditor, architect, surveyor or other consultant shall be deemed to be such duly
qualified consultant appointed by the Landlord in its absolute discretion for
the purposes of this Lease or of any provision hereof; and they will act in
accordance with this Lease and the principles and standards of their
professions. In determining any cost allocation the Landlord may rely on, and
the parties shall be bound by, the decision or determination of the Landlord's
Consultants.
"CPI" means the Consumer Price Index (All Items for Regional Cities, base year
1992 = 100) published by Statistics Canada (or by a successor or other
governmental agency, including a provincial agency), for the city in Canada
nearest the Project for which such a Consumer Price Index is published, or if
the Consumer Price Index is no longer published, an index published in
2
substitution for the Consumer Price Index or any replacement index designated by
the Landlord. If a substitution is required, the Landlord shall make the
necessary conversions. If the base year for the Consumer Price Index (or the
substituted or replacement index) is changed by Statistics Canada (or by its
successors or other governmental agency) the Landlord shall make the necessary
conversion.
"Environmental Laws" shall include any domestic and foreign federal, provincial,
municipal, or local laws, statutes, regulations, ordinances, guidelines,
policies, judge made laws or common laws and any orders of a court or
governmental authority, relating in any way to the natural or human environment
(including and, surface water, groundwater, and real, personal, moveable and
immoveable property), public or occupational health and safety, and the
manufacture, importation, handling, use, reuse, recycling, transportation,
storage, disposal, elimination and treatment of a substance, hazardous or
otherwise.
"Event of Default" has the meaning ascribed in Section 11.04.
"Expropriated", "Expropriating" and "Expropriation" have the meanings ascribed
in Section 10.06.
"Fiscal Year" means a period, from time to time determined by the Landlord all
or part of which falls within the Term, at the end of which the Landlord's
accounts in respect of the Project are balanced for auditing or bookkeeping
purposes. Such period shall be twelve (12) months except when the Landlord
designates a new date upon which the fiscal year shall end.
"GST" means goods and services tax being that tax payable pursuant to Parts VIII
and IX of the Excise Tax Act, as amended and re-enacted from time to time and
other like taxes levied from time to time and includes any blended sales tax
which combines GST and provincial sales tax.
"Indemnifier" means the Person(s) who has executed or agreed to execute the
agreement (the "Indemnity Agreement") in form and content attached as Schedule
"F" hereto, or any other agreement in favour of the Landlord.
"Indemnity Agreement" means the agreement attached as Schedule "F".
"Land" means those lands legally described in Schedule "A-1" as same may be
expanded or contracted from time to time.
"Lease" means this lease, the Term Sheet, and all Schedules attached hereto
which are referred to in this lease and every properly executed instrument which
by its terms amends, modifies or supplements this lease.
"Lease Year" means a period of twelve (12) consecutive full calendar months; the
first Lease Year shall commence on the Commencement Date if that date occurs on
the first day of a calendar month; but if it does not so occur, the first Lease
Year shall commence on the first day of the calendar month next following the
Commencement Date and each succeeding Lease Year shall commence on the
anniversary date of the first day of the first Lease Year.
3
"Leased Premises" means those premises in the Building which are described and
identified in Item 4 of the Term Sheet and which are marked in a distinguishing
manner on the plan attached as Schedule "A".
"Leasehold Improvements" means:
(a) all improvements fixtures, installations, alterations and additions from
time to time made, erected or installed to or in the Leased Premises, in
addition to, beyond or replacing the base building standards, including all
partitions however affixed (including moveable and demountable partitions),
millwork and affixed wall units, internal stairways, doors, hardware, light
fixtures, carpeting and other applied floor finishes, and heating, ventilating
and air conditioning equipment and other building services not forming part of
the Landlord's base building equipment and services; and
(b) alterations, improvements and equipment made or installed for the exclusive
benefit of the Tenant elsewhere in the Project;
in either case whether or not installed by or on behalf of the Tenant and
whether or not installed during the Term including, without limitation, all
fixtures (except trade fixtures) in the Leased Premises.
"Mortgagee" has the meaning ascribed in Section 13.04.
"Operating Costs" means in respect of any Fiscal Year the total of all costs,
expenses and amounts, incurred or accrued in that Fiscal Year for or with
respect to ownership, management, operation, maintenance, repair, upkeep,
insurance, supervision, decoration, cleaning and upgrading of the Project and
the determination and allocation of such costs, expenses and amounts, whether
incurred or accrued by or on behalf of the Landlord or by or on behalf of any
manager or agent of the Landlord including, without limitation and without
duplication:
A. Inclusions - if provided by the Landlord (subject to certain exclusions and
deductions as hereinafter set out):
(a) the cost of providing and maintaining security, landscaping,
gardening and snow and refuse removal;
(b) the cost of heating, air conditioning and ventilating the Building
and investigating and remedying air quality and moisture issues and issues
related thereto, if any;
(c) the cost of providing hot and cold or tempered water, electricity
(including lighting) and all other utilities to all parts of the Project not
otherwise paid by tenants;
(d) tile cost of providing janitor, window cleaning and general
cleaning services including supplies to all parts of the Project including all
premises leased to tenants of the Project;
(e) the cost of replacement of building standard fluorescent tubes,
light bulbs and ballasts in the Leased Premises and the costs of cleaning,
maintaining and servicing of the electrical light fixtures in tile Leased
Premises if not separately invoiced pursuant to Section 7.02;
4
(f) the cost of all insurance taken out and maintained by the Landlord
under Article 9.00 and the cost of any deductible amount paid by the Landlord in
connection with a claim under its insurance;
(g) the rental or lease cost of all rented or leased equipment acquired
for the operation or maintenance of the Project;
(h) accounting costs incurred in connection with the Project including
computations required for the imposition of charges to tenants and audit fees
incurred for the determination of any costs hereunder and the reasonable costs
of collecting and enforcing payment of such charges;
(i) the cost of all equipment acquired for operation or maintenance of
the Project if expensed fully in the Fiscal Year in which such equipment is
acquired;
(j) if expensed fully in the Fiscal Year in which the expense is
incurred, the cost of any improvement, replacement, repair or alteration whether
with respect to buildings, improvements, equipment, fixtures or otherwise and
whether on-site or off-site which, in tile opinion of tile Landlord, is
necessary to reduce or limit increases in Operating Costs or is required by tile
Landlord's insurance carriers or by any changes in the laves, rules, regulations
or orders of any governmental authority having jurisdiction, including those
necessary to comply with energy conservation, pollution and environmental
control standards and the costs of any procedures required with respect thereto;
(k) the cost of investigating, testing, monitoring, removing,
enclosing, encapsulating or abating any Pollutants which are in or about the
Project or any part thereof or which have entered the environment from the
Project, if the Landlord is required to do so or if, in tile Landlord's opinion,
it is harmful or hazardous to any Person or to the Project or any part thereof
or to the environment;
(1) the cost of repairs and replacements to or in respect of the
Project including those resulting from normal wear and tear and otherwise and
including those necessary with respect to the window coverings, decorations,
elevators and escalators (if any), roof or any parking area or facility;
(m) the cost of repairs, replacements and improvements to systems in
the Project including, without limitation, the heating, ventilating, air
conditioning and energy-saving and security systems and devices;
(n) at the Landlord's election (such election to be evidenced by the
method of calculating Operating Costs for each Fiscal Year), either
amortization, in an amount determined by the Landlord's accountant, of the cost
(whether incurred before or during the Term and whether or not incurred by the
party constituting the Landlord at any time or its predecessor in title or
interest) of any repair, replacement, decoration or improvement of the Project
not expensed within tile Fiscal Year in which the expenditure was incurred and
of all equipment required for the operation and maintenance of the Project not
5
included within Operating Costs for the Fiscal Year in which the expenditure
occurred in accordance with Subsections (i) and (j) above, or depreciation in an
amount determined by the Landlord's accountant based on the cost (whether
incurred before or during the Term and whether or not incurred by the party
constituting tile Landlord at any time or its predecessor in title or interest)
of any of those items which the Landlord in its absolute discretion has elected
to treat as capital in nature together with, in each case, an amount equal to
interest at the Prime Rate plus one and one-half percent (1.5%) per annum on the
undepreciated or unamortized amount thereof;
(o) the amount of all salaries, wages and fringe benefits paid to or
for the benefit of employees and others engaged either full-time or part-time in
the operation or maintenance of the Project;
(p) amounts paid for service contracts with independent contractors;
(q) tile cost of energy audits, conservation studies and other measures
taken to conserve energy or reduce costs or liability;
(r) the cost of renting, operating and maintaining Project signs and
providing directional signage;
(s) all other expenses of every nature incurred in connection with the
maintenance and operation of the Project;
(t) the cost of direct supervision attributable to any of the above;
(u) the fair rental value of space in the Building occupied by the
Landlord, its manager or personnel in connection with the Services; and
(v) any Capital Tax imposed upon the Landlord provided that if the
Capital Tax payable by the Landlord in this connection is for a period not
coinciding with the Fiscal Year, the amount of the Capital Tax included in
Operating Costs in each Fiscal Year shall be that amount payable by the Landlord
accruing during the Fiscal Year;
plus a management fee equal to that amount paid to any managing agent engaged by
the Landlord in respect of management of the Project or any part thereof or the
Landlord's reasonable charges in lieu thereof if the Landlord elects to self
manage the Project or any part thereof, which fee shall be in keeping with the
industry standard.
B. Exclusions - Operating Costs shall exclude, without duplication and without
limiting the generality of the foregoing, and except to the extent expressly
included above:
(a) debt service;
(b) costs determined by the Landlord from time to time to be fairly
allocable to the correction of initial construction faults or initial
maladjustments in operating equipment but only to the extent that such costs are
recovered from the contractor or others responsible;
6
(c) any ground rent payable by the Landlord in respect of a lease of
the Land or part thereof; and
(d) tenant improvement allowances, leasing commissions and leasing
costs.
C. Deductions - There shall be deducted from Operating Costs:
(a) the proceeds of insurance recovered by the Landlord applicable to damage,
the cost of repair of which was included in the calculation of Operating Costs
paid by the Tenant; and
(b) amounts recovered as a result of direct charges to the Tenant and other
tenants to the extent that the cost thereof was included in the calculation of
Operating Costs.
"Parking Facilities" means that part of the Project containing parking
facilities with vehicular access thereto including, without limitation, parking
spaces, ramps, circulation space, vehicular entrances and exits, the structural
elements thereof and services, facilities and systems contained in or servicing
such parking facilities.
"Person" means an individual, partnership, firm, corporate entity, trust,
government or any department or agency thereof or any combination of them.
"Pollutants" means any substance which is regulated by or which would be
considered a contaminant, pollutant, waste or deleterious or hazardous substance
under Environmental Laws, or which is or may be hazardous to persons or property
or detrimentally affect property value and includes, without limiting in any way
the generality of the foregoing:
(a) radioactive materials;
(b) explosives;
(c) any substance that, if added to any air, land and/or water, would
degrade or alter or form part of a process of degradation or alteration of the
quality of that air, land and/or water, to the extent that it is detrimental to
its use by human beings or by any animal or plant;
(d) any solid, liquid, gas, microorganism, mould, sound, vibration,
ray, heat, radiation, odour or combinations of any of them that is likely to
alter the quality of the environment (including air, land and water) in any way
or the presence of which in the environment is prohibited by regulation or is
likely to affect the life, health, safety, welfare or comfort of human beings or
animals or to cause damage to or otherwise impair the quality of soil,
vegetation, wildlife or property;
(e) toxic substances;
(f) substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental or
municipal authority having jurisdiction over the Landlord, the Tenant, the
Leased Premises or the Project of which the Leased Premises form a part;
7
(g) any substance the use or transportation of which or the release of
which into the environment is prohibited, regulated, controlled or licensed
under Environmental Laws;
(h) anything contaminated by any Pollutants; and
(i) Bio-Medical Waste.
"Prime Rate" means the rate of interest per annum established from time to time
by The Bank of Nova Scotia (or such other bank being one of the five (5) largest
Canadian chartered banks measured by assets as the Landlord may designate from
time to time) at its head office in Toronto, Ontario as the reference rate of
interest to determine interest rates it will charge on Canadian dollar loans to
its Canadian customers and which it refers to as its "prime rate".
"Protect" means the Land and Building and includes, without limitation, all
Common Elements.
"Property Tax Year" means the twelve (l2) month period set by the municipal
taxing authorities as the period for and over which Property Taxes and, where
applicable, business taxes are assessed, charged and payable by the owner or
occupant of the Project or Leased Premises respectively, whether on a calendar
or fiscal year or any other basis.
"Property Taxes" means all taxes, rates, levies, duties and assessments
whatsoever whether municipal, school, provincial, parliamentary or otherwise
levied, charged, imposed or assessed against the Project or upon the Landlord in
respect thereof or from time to time levied, charged, imposed or assessed in the
future in lieu thereof or in addition thereto, including, without limitation,
those levied, charged, imposed or assessed for education, school and local
improvements and all business taxes, if any, from time to time payable by the
Landlord or levied against the Landlord on account of its ownership of, or
interest in, or the operation of the Project; and all costs and expenses
incurred by the Landlord in good faith in contesting, resisting or appealing any
such taxes, rates, duties, levies or assessments including, without limitation,
legal fees on a solicitor and client or substantial indemnity basis and other
professional fees and interest and penalties on deferred payments, but excluding
income or profits taxes upon the income of the Landlord. If any portion of the
Project is assessed or taxed other than at the prevailing commercial assessment
rates and mill rates due to the occupancy of any tenants or the nature of any
tenant's operation, then the amount of such taxes, rates, levies, duties or
assessments shall be adjusted to be an amount equal to the amount which would
have been incurred had such portion of the Project been assessed and taxed at
the prevailing commercial assessment rates and mill rates throughout the entire
period for which the calculation is being made. Any tax levied on commercial
property or other like tax based on the area or use of the Project or the Leased
Premises or any tax on rent imposed in lieu of the foregoing taxes are included
herein. Property Taxes shall not include any Business Taxes payable by the
Tenant pursuant to Section 8.02 and any similar Taxes levied or assessed
separately against other rentable premises in the Project.
"Rent" means the aggregate of all amounts payable by the Tenant to the Landlord
under this Lease. Provided that any and all amounts so payable which are
collectible by the Landlord as agent of a taxing authority and which are Taxes
imposed by that authority on the Tenant are included in Rent so as to determine
the Landlord's rights and remedies in the case of delay or failure to pay the
same notwithstanding that the same do not accrue to the Landlord as rent
hereunder.
8
"Rentable Area" means the area of the Leased Premises, the Building or any part
thereof as determined by the Landlord, which may be adjusted from time to time
to give effect to any structural or functional change and any change in the
leasing pattern in the Building and which shall be calculated in accordance with
the BOMA ANSI standards ANSI Z65.1-1980 (Reaffirmed in 1989) (except to the
extent altered by this definition) as follows:
(a) in the case of premises occupying the whole of one or more floors, the
Rentable Area of such premises shall be determined by measuring to and from the
inside finish of permanent outer Building walls or from the glass line,
whichever extends further, but shall not include stairs and elevator shafts
(except stairs and elevators exclusively serving the Tenant where the Leased
Premises consist of more than one floor), flues, stacks, pipe shafts and
vertical ducts with their enclosing walls. Washrooms, air conditioning equipment
rooms, fanrooms, janitors' closets, electrical closets, and other closets
serving that floor or floors shall be included in the Rentable Area of such
premises. No deductions shall be made for columns and projections necessary to
the Building;
(b) in the case of premises occupying part of a floor, the Rentable Area of such
premises shall be determined by measuring form and to whichever of the following
form the boundaries of such premises: the inside finish of permanent outer
Building walls or from the glass line, whichever extends further; the centre of
partitions which separate such premises from adjoining premises or public and/or
service areas; and the office side of the corridor walls or other permanent
partitions, without in any case, deduction for columns and projections necessary
to the Building, and includes washrooms, air conditioning equipment rooms, fan
rooms, janitors' closets, electrical closets and other closets within and
serving the Leased Premises exclusively, but does not include stairs and
elevator shafts supplied by the Landlord for use in common with other tenants,
and flues, stacks, pipe , shafts or vertical ducts with their enclosing walls
within the Leased Premises; the Rentable Area as so determined shall have added
thereto a portion of the area of the public and/or service areas on such floor
which, without limitation, shall include corridors, elevator lobbies, washrooms,
air conditioning equipment rooms, fan rooms, janitors' closets, electrical
closets and other closets serving that floor. The portion of such area of the
public and/or service areas so added shall be that portion from time to time
which the Rentable Area of such premises bears to the Rentable Area of all
premises leased or set aside from time to time for leasing by the Landlord on
that floor (including such premises).
"Security Deposit" has the meaning ascribed in Section 4.02.
"Security Interest" has the meaning ascribed in Section 15.25.
"Services" means those activities, personnel, facilities, systems and supplies
required for the complete decoration, repair, administration, replacement,
maintenance, improvement and operation of the Project.
9
"Taxes" means comprehensively all various classes and types of taxes, rates,
levies, fees, duties, charges and assessments from whatever source arising and
levied, rated, imposed, assessed, conferred or chargeable against the Project,
the Leased Premises or in respect of the occupancy and activity carried on
therein or on account of the Landlord's ownership of or interest in the Project
or on account of rents payable with respect therefor and includes Property
Taxes, business taxes or any like tax or other amount levied or assessed in lieu
of, in addition to, or in substitution therefor, whether or not, similar to or
of the foregoing character and whether or not in existence on the date hereof
together with an administrative charge for allocation of Taxes and all costs and
expenses incurred by the Landlord in good faith in contesting, resisting or
appealing any such taxes, rates, duties, levies or assessments including,
without limitation, legal fees on a solicitor and client or substantial
indemnity basis and other professional fees and interest and penalties on
deferred payments; but excluding income or profits taxes upon the income of the
Landlord.
"Tenant's Occupancy Costs" means for each Fiscal Year the Tenant's Proportionate
Share of the Operating Costs and the Tenant's Proportionate Share of Taxes, in
each case for that Fiscal Year.
"Tenant's Proportionate Share" means that proportion that the Rentable Area of
the Leased Premises bears to the Total Rentable Area of the Building.
"Term" means the period of time set out in Item 7 of the Term Sheet unless
sooner terminated.
"Term Sheet" means the pages identified as Term Sheet attached to this Lease;
and all information and particulars contained therein shall form part of this
Lease.
"Total Rentable Area of the Building" means the total Rentable Area of the
Building located at or above grade level.
"Transfer" means:
(a) an assignment, sublease, licensing or other disposition by the
Tenant of this Lease or any interest therein or any interest in the Leased
Premises (whether or not by operation of law) or in a partnership that is the
Tenant under this Lease, or a mortgage or charge (floating or otherwise) or
other encumbrance of or upon this Lease by the Tenant except a Transfer that
occurs on the death of the Transferor;
(b) a parting with or sharing of possession of all or part of the
Leased Premises; and
(c) a transfer or issue by sale, assignment, bequest, inheritance,
operation of law or other disposition, or by subscription, of all or part of the
corporate shares of the Tenant which results in a change in the effective voting
control of the Tenant (unless the Tenant is a corporation whose shares are
traded or a stock exchange in Canada or the United States or is a subsidiary of
such a corporation).
"Transferor" and "Transferee" have meanings corresponding to the definition of
"Transfer". In the case of a Transfer described in item (c) of the definition of
Transfer, the Transferor is the Person that has or would have effective voting
control before the Transfer and the Transferee is the Person that has or would
have effective voting control after the Transfer. The singular and plural forms
of defined words and phrases shall have corresponding meanings.
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SCHEDULE "C"
RULES AND REGULATIONS
1. Definition - In these rules and regulations, "Tenant" includes the employees,
servants, agents, invitees, subtenants and licensees of the Tenant and others
over whom the Tenant can reasonably be expected to exercise its control.
2. Common Elements - The Landlord reserves entire control of the Common Elements
and will maintain them in such manner as it deems best for the benefit of the
tenants generally. The Landlord reserves the right to restrict and regulate the
use of the Common Elements by the Tenant and by persons making deliveries to the
Tenant.
3. Smoking - Smoking is not permitted in the Common Elements, except as may be
otherwise designated. The Landlord shall have the right, in its sole discretion,
to determine whether any designated smoking area shall be established, and the
size and location of any such area.
4. Obstructions - The sidewalks, driveways, entrances, vestibules, passages,
corridors, halls, elevators and stairways shall not be encumbered or obstructed
by the Tenant or be used by it for any purpose other than for entrance to and
exit from the Leased Premises.
5. Deliveries - The Tenant shall not permit the parking of delivery vehicles so
as to interfere with the use of any driveway, walkway, parking area, or other
Common Elements. The Tenant shall ensure that deliveries of materials and
supplies to the Leased Premises are made through such entrances, elevators and
corridors and at such times as may from time to time be designated by the
Landlord and shall promptly pay or cause to be paid to the Landlord the cost of
repairing any damage in or to the Building caused by any person making such
deliveries. The Landlord reserves the right to remove at the expense and risk of
the owner any vehicle not using designated "vehicle standing" areas.
6. Security - Tile Landlord may from time to time adopt appropriate systems and
procedures for the security and safety of the Building including restricting
access during non-business hours and the Tenant shall comply with the Landlord's
reasonable requirements relating thereto.
7. Locks - No additional locks or bolts of any kind shall be placed by the
Tenant upon any of the doors or windows of the Leased Premises, nor shall any
changes whatsoever be made to existing locks or the mechanics thereof except by
the Landlord at its option. The Tenant shall not permit any duplicate keys to be
made, but additional keys as reasonably required shall be supplied by the
Landlord when requested by the Tenant in writing and at the Tenant's expense.
Upon termination of the Lease, the Tenant shall surrender to the Landlord all
keys to the Leased Premises and any other parts of the Building together with
any parking passes or other devices permitting entry.
8. Antennae - The Tenant shall not mount or place an antenna or aerial of any
nature on the exterior of the Leased Premises or Building.
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9. Garbage - The handling and disposal of garbage shall comply with arrangements
prescribed by the Landlord from time to time. No disproportionate or abnormal
quantity of waste material shall be allowed to accumulate in the Leased Premises
and the cost of removal or clearing of quantities in excess of such normally
provided service may be charged to the Tenant.
10. Repairs, Alterations and Improvements - The Tenant shall carry out repairs,
maintenance, alterations and improvements in the Leased Premises only during
times agreed to in advance by the Landlord and in a manner which will not
interfere with the rights of other tenants in the Building.
11. Maintenance - The Tenant shall provide adequate facilities and means to
prevent the soiling of walls, floors and carpets in and abutting the Leased
Premises whether by shoes, overshoes, any acts or omissions of the Tenant or
otherwise.
12. Installations and Wiring - The Tenant shall not xxxx, paint, drill into or
in any way deface the walls, ceilings, partitions, floors or other parts of the
Leased Premises and the Building except with the prior written consent of the
Landlord and as it may direct. If the Tenant desires electrical or
communications connections, the Landlord reserves the right to direct qualified
persons as to where and how the wires should be introduced, and without such
directions, no boring or cutting for wires will be permitted. No gas pipe or
electric wire will be permitted which has not been ordered or authorized in
writing by the Landlord.
13. Heating, Air Conditioning and Plumbing Systems - The Tenant shall not
attempt any repairs, alterations or modifications to the heating, air
conditioning or plumbing systems.
14. Water Fixtures - The Tenant shall not use the plumbing facilities for any
other purpose than that for which they are constructed, and no foreign substance
of any kind shall be thrown therein, and the Tenant shall pay the cost of any
breakage, stoppage or damage resulting from a violation of this provision.
15. Personal Use of Leased Premises - The Leased Premises shall not be used for
residential, lodging or sleeping purposes or for the storage of personal effects
or property not required for business purposes as permitted under the Lease.
16. Solicitations - The Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
17. Heavy Articles - The Tenant shall not, in the Leased Premises or the
Building, bring in, take out, position, construct, install or move anything
liable to injure or destroy any part of the Building including, without limiting
the generality of the foregoing, any safe, business machinery or other heavy
machinery or equipment without the prior written consent of the Landlord. In
giving such consent, the Landlord shall have the right, in its sole discretion,
to prescribe the permitted weight and the position thereof, and the use and
design of planks, skids or platforms required to distribute the weight thereof.
All damage done to the Building by moving or using any such heavy equipment or
machinery shall be repaired at the expense of the Tenant. The moving of all
heavy equipment or other machinery shall occur only by prior arrangement with
the Landlord.
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18. Bicycles, Animals - The Tenant shall not bring any animals, except for guide
dogs, into the Building, and shall not permit bicycles or other vehicles inside
or on the sidewalks outside the Building except in areas designated from time to
time by the Landlord for such purposes.
19. Furniture and Equipment - The Tenant shall ensure that furniture, equipment
and fixtures being moved into or out of the Leased Premises are moved through
such entrances, elevators and corridor, and at such times as may from time to
time be designated by the Landlord and shall promptly pay or cause to be paid to
the Landlord the cost of repairing any damage in the Building caused thereby.
20. Heating/Cooling - The Tenant shall not use any means of heating or cooling
the Leased Premises other than that provided by or specifically otherwise
permitted in writing by the Landlord.
21. Undue Electrical Loads Heat Vibration - No material or equipment which could
cause undue loads on electrical circuits, or undue vibration, heat or noise
shall be brought into the Building or used therein by or on behalf of the
Tenant, and no machinery or tools of any kind shall be affixed to or used in the
Leased Premises without the prior written consent of the Landlord.
22. Fire Regulations - No Tenant shall do or permit anything to be done in the
Leased Premises or bring or keep anything therein which will in any way increase
the risk of fire, or obstruct or interfere with the rights of other tenants, or
violate or act at variance with the laws relating to fires or with the
regulations of the fire department or the board of health. The Tenant shall
cooperate in any fire drills and shall participate in all fire prevention or
safety programs designated by the Landlord.
23. Flammable Materials - No flammable oils or other flammable, dangerous or
explosive materials shall be kept or permitted to be kept in the Leased
Premises.
24. Food and Beverages - Only persons approved from time to time by the Landlord
may prepare, solicit orders for, sell, serve or distribute foods or beverages in
the Building, or use the elevators, corridors or other Common Elements for any
such purpose. The Tenant shall not permit in the Leased Premises the use of
equipment for the preparation, serving, sale, distribution, or dispensing of
food and beverages except with the prior written consent of the Landlord and in
accordance with arrangements approved by the Landlord.
25. Notice of Accidents - The Tenant shall give immediate notice to the Landlord
in case of fire or accident in the Leased Premises or in the Building, or in
case of defects therein or in any fixtures or equipment thereof, notwithstanding
the Landlord may have no obligations with respect thereto.
26. Janitorial Services - The Tenant shall not use or engage any person or
persons other than the janitor or janitorial contractor of the Landlord for the
purpose of any cleaning of the Leased Premises, except with the prior written
consent of the Landlord.
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27. Dangerous or Immoral Activities - The Tenant shall not make any use of the
Leased Premises which could result in risk or injury to any person, nor shall
the Leased Premises be used for any immoral or criminal purpose.
28. Proper Conduct - The Tenant shall not perform any acts or carry on any
practice which may damage the Common Elements or be a nuisance to any other
tenant in the Project.
29. Additional Rules and Regulations - The Landlord shall have the right to make
such other and further reasonable rules and regulations as in its sole judgment
may from time to time be necessary or of benefit for the safety, care,
cleanliness and appearance of the Project, and for the preservation of good
order therein.
4
SCHEDULE "D"
LANDLORD'S WORK
INTENTIONALLY DELETED
1
SCHEDULE "E"
ADDITIONAL COVENANTS, AGREEMENTS AND CONDITIONS (IF ANY)
1. PARKING
During the Term, the Landlord shall provide the Tenant with
twenty-seven (27) unreserved surface parking stalls at the Building on
a first come, first served basis at a monthly charge of $35.00 + GST
per unreserved surface stall, subject to change from time to time.
Notwithstanding the foregoing there shall be no charge for parking
during the first year of the Term.
2. OPTION
Provided that, and for so long only as:
(a) the Tenant pays the rents and performs each and every of the
covenants, conditions and agreements in the Lease reserved and
contained and on the part of the Tenant to be paid and
performed and is not and has not been in default in respect of
any of the same and there has been no adverse change of any
sort in the Tenant's financial condition or capacity; and
(b) the Tenant is RENT SHIELD CANADA LIMITED and is itself in
possession of and occupying and conducting its business in the
whole of the Leased Premises and the Lease has not been
assigned and no part of the Leased Premises has been subleased
by the Tenant,
the Landlord will, upon the request in writing by the Tenant given at
least 9 months and not more than 12 months prior to the expiration of
the Term (the "Notice Period"), grant to the Tenant a new lease of the
Leased Premises for 1 further term of 5 years upon and subject to the
covenants, conditions and agreements as are set forth in the Landlord's
standard form of lease for the Building then in use, and the new lease
shall not contain any provision for further new leases or for renewal
and the annual Basic Rent shall be the market rate for similar premises
of similar size, use and location 120 days prior to the expiry date of
this Lease, without deduction or allowance for or consideration of any
tenant inducements, leasehold improvement allowances, rent-free
periods, lease takeovers, turnkey or "build-to-suit" arrangements or
other concessions or inducements offered or given by landlords to
achieve such rental (the "New Annual Basic Rent"). If requested by the
Tenant during the Notice Period, the Landlord will provide the Tenant
with a copy of its standard form of lease for the Building then in use.
The New Annual Basic Rent shall be mutually agreed to by the Landlord
and the Tenant at least 90 days prior to the expiration of the Term.
In no event shall the New Annual Basic Rent be less than the annual
Basic Rent payable during the last 12 months of the Term.
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3. EARLY OCCUPANCY
The Tenant shall have early occupancy of the Leased Premises on the
date which is the later of the date all documentation required by the
Landlord has been fully executed by all parties in accordance with the
provisions of Paragraph 3.02 of the Lease, or June 15, 2004, save as to
payment of Rent.
4. LEASEHOLD IMPROVEMENTS
In the event that the Tenant wishes to install or make additional
Leasehold Improvements to the Leased Premises, the Landlord shall make
said improvements in accordance with plans and specifications to be
mutually agreed upon to a maximum cost of $10.00 per square foot. Said
cost shall be amortized over the Term of the Lease using an interest
rate factor of 10% and the Basic Rent shall be adjusted accordingly,
Should the Tenant exercise such Leasehold Improvements priviledge, then
it shall supply a Security Deposit equal to two (2) mouths Basic and
additional Rent forthwith upon request by the Landlord.
5. CROSS DEFAULT
The Tenant has also leased premises located at 000 Xxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxx, Xxxxxxx, from the Landlord pursuant to a lease
dated the 21st day of November, 2003 (the "First Lease"). It is
understood and agreed that any default in respect of any of the
covenants, conditions and agreements in the First Lease shall
constitute an Event of Default under this Lease and any default in
respect of any of the covenants, conditions and agreements in this
Lease shall constitute an Event of Default as defined under the First
Lease.
2
SCHEDULE "F"
INDEMNITY AGREEMENT
INTENTIONALLY DELETED
1
SCHEDULE "G"
SECURITY INTEREST - REMEDIES ON DEFAULT
TENANT: RENT SHIELD CANADA LIMITED
ADDRESS OF LEASED PREMISES: 000 XXXXXXXX XXXX.
SUITES 700 and 000
XXXXXXX, XXXXXXX
DATE: June 16, 2004
1 If the Security Interest becomes enforceable, the Landlord may, at
its option:
(a) appoint any Person as receiver of all or any part of the
Collateral. The word "receiver" as used in this section 1 includes both a
receiver and a receiver and manager. The Landlord may, from time to time, remove
or replace any appointed receiver, or may institute proceedings in any court of
competent jurisdiction for the appointment of a receiver or for the sale of all
or any part of the Collateral. Any receiver will have and may exercise all
rights and powers conferred upon the Landlord under this Lease together with
such other rights and powers which such receiver may have at law or in equity,
Any receiver will be considered to be the agent of the Tenant so far as the
responsibility for the receiver's acts is concerned and the Landlord will not be
responsible for any act or omission on the part of the receiver, whether wilful,
negligent, imprudent or otherwise;
(b) take such steps as it considers necessary or desirable to obtain
possession of all or any part of the Collateral and the Tenant agrees that the
Landlord may, by its servants, agents or receiver, at any time during the day or
night and without prior notice, enter the Leased Premises where the Collateral
may be found for the purpose of taking possession of or removing or immobilizing
the Collateral or any part of it;
(c) in connection with the realization of the Collateral, carry on all
or any part of the business and undertaking of the Tenant and may enter upon,
occupy and use all or any part of the property owned or used by the Tenant
(including the Collateral) for such time as the Landlord sees fit, free of
charge, and neither the Landlord nor any agent or receiver appointed by the
Landlord will be liable to the Tenant for any negligent or imprudent act or
omission in so doing or in respect of any rent, charges, depreciation or damages
in connection with such actions;
(d) seize, collect, realize, borrow money on the security of, sell,
obtain payment for, give valid receipts and discharges for, release to third
parties or otherwise deal with or dispose of the Collateral or any part of it in
the manner, upon the terms and conditions and at the time or times as may seem
to it advisable, without notice to the Tenant. The mode, terms and conditions of
disposition of the Collateral or any part of it will be in the sole discretion
of the Landlord and it will be deemed to be commercially reasonable for the
Landlord to dispose of the Collateral or any part of it in the ordinary course
of its business. Without limiting any other rights the Landlord may have, the
Landlord may purchase all or any part of the Collateral at a private sale,
auction, tender, public sale or any other mode of disposition;
1
(e) charge on its own behalf and pay to others reasonable sums for
expenses incurred and for services rendered (including legal fees on a solicitor
and client or substantial indemnity basis and fees for receivers, managers,
accountants and other professionals) in connection with the Landlord's realizing
or preparing to realize on the Collateral (including without limitation
obtaining advice in preparation for or otherwise, in respect of such
realization) or otherwise dealing with the Collateral in accordance with the
provisions of the Lease and all such sums will be payable by the Tenant to the
Landlord on the earlier of demand and payment of any such sum by the Landlord,
and will be secured by the Security Interest; or
(f) if it deems it necessary for the proper realization of all or any
part of the Collateral, pay any claim, lien, security interest or other
encumbrance that may exist or be threatened against the Collateral, and the
amount paid, together with all costs and expenses of the Landlord incurred in
that connection, will be payable by the Tenant to the Landlord on the earlier of
demand and payment thereof by the Landlord, and will be secured by the Security
Interest.
None of the foregoing remedies shall be exclusive of or dependent on any other
remedy, but any one or more of such remedies may be exercised from time to time
independently or in combination.
2 The Landlord will have the right to postpone indefinitely the sale of the
Collateral or any part of it and shall further have the right, pending that
sale, to lease the Collateral or any part of it to any person for any period as
the Landlord in its absolute discretion deems necessary in order to recover or
to attempt to recover any indebtedness secured by the Security Interest.
3. The Landlord will not be liable or accountable for any failure to realize or
othewise deal with the Collateral or any part of it and will not be bound to
institute proceedings for the purpose of effecting any of the foregoing or for
the purpose of preserving any rights of the Landlord, the Tenant or any other
person in respect of the Collateral.
4. All monies received or collected by the Landlord in respect of the Collateral
may be reapplied and reapplied as the Landlord deems fit.
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SCHEDULE "H"
CONTENTS OF LEASED PREMISES
The following Schedule "H" is referred to in Section 9.05, Environmental Issues,
in the Lease.
All contents and materials, other than standard office furnishings and supplies,
stored in the Leased Premises are as follows:
(please include, in detail, all materials, Pollutants, including but not limited
to, chemicals and related items that are used and/or stored in the Leased
Premises):
1. ______________________________________________________________________;
2. ______________________________________________________________________;
3. ______________________________________________________________________;
4. ______________________________________________________________________;
5. ______________________________________________________________________;
6. ______________________________________________________________________;
7. ______________________________________________________________________;
8. ______________________________________________________________________;
9. ______________________________________________________________________;
10. ______________________________________________________________________;
11. ______________________________________________________________________;
12. ______________________________________________________________________.
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