LEASE BETWEEN
OMERS REALTY MANAGEMENT CORPORATION
(the "Landlord")
-and-
INTELLIGENT DETECTION SYSTEMS INC.
(the "Tenant")
September 1, 1999
11 KING WEST
TABLE OF CONTENTS
ARTICLE 1 --INTERPRETATION
Section 1.01 Defined Terms.................................................1
Section 1.02 Number, Gender, Liability.....................................8
Section 1.03 Headings and Captions.........................................8
Section 1.04 Obligations as Covenants......................................8
Section 1.05 Entire Agreement..............................................8
Section 1.06 Governing Law.................................................8
Section 1.07 Severability..................................................8
Section 1.08 Successors and Assigns........................................9
Section 1.09 Schedules.....................................................9
Section 1.10 Time of the Essence...........................................9
ARTICLE 2 --DEMISE
Section 2.01 Premises.......................................................9
ARTICLE 3 ---TERM
Section 3.01 Term...........................................................9
ARTICLE 4 ---RENT
Section 4.01 Minimum Rent.............................................10
Section 4.02 Additional Rent..........................................10
Section 4.03 Payment of Tenant's Proportionate Share..................11
Section 4.04 Accrual of Rent..........................................11
Section 4.05 Currency and Place of Payment............................11
Section 4.06 Interest on Amounts in Default...........................12
Section 4.07 Net Lease to Landlord....................................12
ARTICLE 5 ---COMMON AREAS AND FACILITIES
Section 5.01 Control of Building......................................12
Section 5.02 Landlord's Alterations, etc..............................12
ARTICLE 6 ---UTILITIES AND HEATING, VENTILATING AND AIR-CONDITIONING
Section 6.01 Heating, Ventilating and Air Conditioning................13
Section 6.02 Utilities................................................14
Section 6.03 Janitorial Services......................................14
ARTICLE 7---PROPERTY TAXES
Section 7.01 Property Taxes Payable by the Landlord...................14
Section 7.02 Property Taxes Payable by the Tenant......................15
Section 7.03 Tenant's Other Taxes......................................15
Section 7.04 Postponement..............................................16
Section 7.05 Tenant to Deliver Receipts................................16
Section 7.06 Assessment Appeals........................................16
ARTICLE 8 ---USE OF PREMISES
Section 8.01 Use.......................................................16
Section 8.02 Nuisance..................................................16
Section 8.03 Compliance with Laws......................................17
Section 8.04 Compliance with Rules and Regulations.....................17
Section 8.05 Signs and advertising.....................................17
Section 8.06 Disfiguration, Overloading, etc...........................17
Section 8.07 Energy Conservation.......................................18
Section 8.08 Remedial Action...........................................18
ARTICLE 9 ---INSURANCE
Section 9.01 Tenant's Insurance.......................................18
Section 9.02 Form of Policies.........................................19
Section 9.03 Release of Landlord......................................19
Section 9.04 Landlord's Insurance.....................................20
Section 9.05 Insurance Risks..........................................21
Section 9.06 Release of Tenant........................................21
ARTICLE 10---MAINTENANCE AND REPAIR
Section 10.01 Landlord's Obligations...................................21
Section 10.02 Maintenance and Repairs by the Tenant....................21
ARTICLE 11--DAMAGE AND DESTRUCTION
Section 11.01 Abatement and Termination................................22
ARTICLE 12 ---ASSIGNMENT AND SUBLETTING
Section 12.01 Permitted Occupants......................................23
Section 12.02 Assignment or Subletting.................................23
Section 12.03 Conditions of Consent....................................24
Section 12.04 Landlord's Option........................................24
Section 12.05 Surrender................................................25
Section 12.06 Change in Control........................................25
Section 12.07 Continuing Obligations...................................26
Section 12.08 Assignment by Landlord...................................26
ARTICLE 13 ---STATUS CERTIFICATES, ATTORNMENT, SUBORDINATION
Section 13.01 Status Certificates......................................26
Section 13.02 Subordination and Attornment.............................26
ARTICLE 14 ---LIMITATION OF LIABILITIES
Section 14.01 Unavoidable Delay........................................27
Section 14.02 Waiver...................................................27
Section 14.03 No Claim for Inconvenience...............................27
Section 14.04 Indemnity by Tenant......................................27
ARTICLE 15 ---ACCESS
Section 15.01 Entry by Landlord........................................27
Section 15.02 Exhibiting Premises......................................28
Section 15.03 Excavation...............................................28
ARTICLE 16 ---TENANT'S ALTERATIONS
Section 16.01 Restrictions.............................................28
Section 16.02 Occupational Health and Safety...........................29
Section 16.03 Leasehold Improvements...................................30
Section 16.04 Liens....................................................30
ARTICLE 17 ---REMEDIES OF LANDLORD ON TENANT'S DEFAULT
Section 17.01 Remedying by Landlord....................................31
Section 17.02 Right to Re-enter........................................31
Section 17.03 Bankruptcy of Tenant.....................................31
Section 17.04 Right to Terminate.......................................32
Section 17.05 Right to Relet...........................................32
Section 17.06 Distress.................................................33
Section 17.07 (Intentionally omitted)..................................33
Section 17.08 Failure of Tenant to Take Possession.....................33
Section 17.09 Remedies Cumulative......................................33
ARTICLE 18 ---MISCELLANEOUS
Section 18.01 Notices..................................................33
Section 18.02 Registration of Lease....................................34
Section 18.03 Overholding - No Tacit Renewal...........................34
Section 18.04 Planning Act.............................................34
Section 18.05 Partial Payment of Rent..................................35
Section 18.06 Brokerage Commissions....................................35
Section 18.07 Metric Conversion........................................35
Section 18.08 Decision of Expert.......................................35
SCHEDULE "A" DESCRIPTION OF LAND......................................A-1
SCHEDULE "B" FLOOR PLAN...............................................B-1
SCHEDULE "C" RULES AND REGULATIONS....................................C-1
SCHEDULE "D" SPECIAL PROVISIONS.......................................D-1
This lease is made as of the 1st day of September, 1999 between:
OMERS REALTY MANAGEMENT CORPORATION
(the "Landlord")
of the first part
-and-
INTELLIGENT DETECTION SYSTEMS, INC.
(the "Tenant")
In consideration of the rents, covenants and agreements hereinafter
contained, the parties agree as follows:
ARTICLE 1
INTERPRETATION
Section 1.01 Defined Terms
In this Lease, unless there is something in the subject matter or context
inconsistent therewith:
(a) "Additional Rent" means all amounts in addition to Minimum Rent payable by
the Tenant to the Landlord pursuant to any provision of this Lease;
(b) "Architect" means the architect designated from time to time by the
Landlord, who shall be independent of the Landlord;
(c) "Building" means the multi-storey building located on the Lands and at
present known as 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, XXX 0X0, together with
related parking and storage facilities, if any, as such building and facilities
may be altered, expanded, reduced or reconstructed from time to time;
(d) "Business Day" means any day which is not a Saturday, Sunday or a holiday,
as defined in the Interpretation Act (Ontario);
(e) "Business Hours" means the period from 7:00 a.m. to 7:00 p.m. on any
Business Day;
Page 1
(f) "Business Taxes" means all taxes and licence fees in respect of any business
carried on by tenants or other occupants of the Building and includes, without
limitation, business taxes levied or assessed pursuant to the Assessment Act
(Ontario);
(g) "Capital Tax" means the applicable amount as hereinafter defined of any tax
or taxes payable by the Landlord under the legislation of Canada or of a
province or of any political subdivision within a province, based upon or
computed by reference to the paid-up capital or place of business of the
Landlord or its ownership of capital employed in the Building or the
Development, as determined for the purposes of such tax; provided that for the
purpose of this definition the phrase "applicable amount" of such tax shall
mean:
(A) with respect to a tax payable under the legislation of a province or
political subdivision respectively the amount thereof that would be
payable if the Building or the Development were the only
establishment of the Landlord in the province or political
subdivision respectively and any other establishments of the
landlord therein were located outside the province or political
subdivision;
(B) with respect to a tax payable under the legislation of Canada the
amount thereof that would be payable if the Building or the
Development was the only establishment of the Landlord in Canada and
any other establishments of the Landlord were located outside
Canada; and
(C) with respect to a tax imposed in excess of a specified limit or
exemption, the amount of the limit or exemption attributable to the
Building or Development shall be allocated by the Landlord acting
equitably.
(h) "Common Areas and Facilities" means those areas, facilities, improvements,
installations, systems and equipment which, from time to time, (i) form
part of the Lands or the Building and are not designated or intended by the
Landlord to be leased for office purposes, or (ii) serve or benefit the
Lands or the Building, regardless of location, and are designated from time
to time by the Landlord as part of the Common Areas and Facilities;
including, without limitation of the foregoing, the roof, weather walls,
structural elements and bearing walls of the Building, and any malls,
courts, and other public areas, parking areas, and access routes, loading
docks, pedestrian routes and sidewalks, stairways, escalators, elevators
and other transportation facilities or systems, landscaped areas, public
seating areas, public transportation facilities or systems, public
washrooms, utility rooms, storage rooms, mechanical, electrical, plumbing
and other installations, equipment, furniture systems or services and all
structures containing the same (including, without limitation, the HVAC
System) and security, fire, life safety, music and communication systems;
(i) "Eligible Corporation" means a corporation which controls or is controlled
by or under common control with the Tenant, control meaning the direct or
indirect beneficial ownership of more than fifty percent of the voting
shares of a corporation;
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(j) "Expert" means any architect, engineer, land surveyor, chartered
accountant or other professional consultant, in any case appointed by the
Landlord and, in the reasonable opinion of the Landlord, qualified to
perform the specified function;
(k) "HVAC System" means all heating, ventilating and air-conditioning equipment
and facilities provided or operated and maintained by the Landlord;
(l) "Indemnitor" means the Person named as the indemnitor in the Indemnity
Agreement attached to this Lease as Appendix A, if applicable;
(m) "Landlord" means the party of the first part and its successors and
assigns;
(n) "Lands" means the lands described in Schedule "A" hereto, as they may be
altered, expanded or reduced from time to time pursuant to the provisions
hereof;
(o) "Lease" means this lease as it may be amended from time to time in
accordance with the provisions hereof;
(p) "Lease Year" means a period of twelve months commencing on the first day
of January in each year except that:
(i) the first Lease Year begins on the first day of the Term and ends on
the last day of the calendar year in which the first day of the Term
occurs, and
(ii) the last Lease Year of the Term begins on the first day of the
calendar year during which the last day of the Term occurs and ends
on the last day of the Term,
provided that the Landlord may from time to time by written notice to the
Tenant specify an annual date upon which each subsequent Lease Year is to
commence, in which event the Lease Year which would otherwise be current
when such annual date first occurs shall terminate on such date;
(q) "Minimum Rent" means the rent specified in Section 4.01 of this Lease;
(r) "Mortgage" means any mortgage, charge or security instrument (including a
deed of trust and mortgage securing bonds and all indentures supplemental
thereto) which may now or thereafter affect the Lands;
(s) "Mortgagee" means the mortgagee, chargee, secured party or trustee for
bondholders, as the case may be, named in a Mortgage;
(t) "Operating Costs" means the aggregate of all costs, expenses, fees, rentals
and disbursements of every kind and nature, direct or indirect, incurred,
accrued or equitably
Page 3
attributed by or on behalf of the Landlord in the maintenance, repair,
operation, supervision and mange of the Building and, without limitation
and without duplication, shall include:
(i) the cost of cleaning, janitorial, landscaping, supervisory,
maintenance and other services;
(ii) the cost of providing interior climate control, water, electricity and
all other utilities and services not payable by any specific tenant of
the Building and the portion of the operating costs of the HVAC System
allocated by the Landlord to the Common Areas;
(iii) the cost of security, supervision and traffic control;
(iv) the cost of all insurance maintained by the Landlord in respect of the
Building or its operation, including insurance against loss of Rent;
(v) the cost of all maintenance, repairs and replacements properly
chargeable against income made from time to time by the Landlord, or
on its behalf, to the Building, including the Common Areas and
Facilities;
(vi) fees and expenses incurred for legal, accounting and other
professional services relating to the operation of the Building,
excluding legal fees for the enforcement of obligations of other
tenants;
(vii) salaries, wages and fringe benefits of all personnel, including
supervisory personnel, employed directly in the maintenance, repair,
operation or management of the Building;
(viii) payments to independent contractors for services in connection with
the Building and payments for the rental of any equipment, furniture,
installations, systems or signs used in connection with the Building;
(ix) all Property Taxes, Rental Taxes, business taxes and other taxes, if
any, from time to time payable for or attributed equitably by the
Landlord to the Common Areas and Facilities, and Capital Tax;
(x) expenditures for equipment, systems, alterations or replacements
undertaken primarily to reduce Operating Costs up to maximum aggregate
expenditure of $50,000 in any Lease Year, unless the Landlord elects
to depreciate or amortize any such expenditures;
(xi) depreciation on or amortization of:
Page 4
(A) the cost of all plant, equipment and fixtures forming part of
the Common Areas and Facilities (other than weather walls,
structural elements and bearing walls) or otherwise serving
the Building;
(B) expenditures for equipment, systems or alterations undertaken
primarily to reduce Operating Costs unless they are, pursuant
to paragraph (x) above, charged fully in the Lease Year in
which they are incurred; and
(C) the costs incurred after the Commencement Date of the Term for
repairing or replacing the Common Areas and Facilities
(including the HVAC System), or any part thereof; unless they
are, pursuant to paragraph (v) or paragraph (x) above, charged
fully in the Lease Year in which they are incurred;
in each case together with interest at a rate equal to 1% above
Prime at the beginning of each Lease Year on the undepreciated or
unamortized portion of all such items being depreciated or amortized
from time to time;
(xii) the fair market rental value of leasable space which the Landlord
uses for operating, managing or maintaining the Building, up to a
maximum of 2,500 square feet; and
(xiii)an administrative and supervisory fee equal to 15% of the Operating
Costs as otherwise determined after deducting therefrom the costs
referred to in paragraphs (ix) and (xii), and interest charged
pursuant to paragraph (xi) above.
provided that there shall be deducted or excluded, as the case may be,
from the aggregate of the amounts listed in paragraphs (i) to (xiii)
above, mutually inclusive, the following:
(A) net recoveries by the Landlord from other tenants (other than
recoveries from such tenants under clauses in their respective
leases similar to Section 4.03 and recoveries on account of
items not otherwise included in Operating Costs) which reduce
the expenses incurred by the Landlord in operating and
maintaining the Building;
(B) net proceeds received by the Landlord from its insurance
policies to the extent that such proceeds relate to costs and
expenses included in Operating Costs;
(C) the costs of procuring any lease, debt service costs, any
taxes of a personal nature of the Landlord (other than Capital
Tax) to the extent they are not imposed in lieu of Property
Taxes, and payments under any ground lease;
(D) costs determined by the Landlord, acting reasonably, to be
allocable to correction of construction or design faults;
Page 5
(E) costs incurred by the Landlord in promoting and leasing the
Building, including all commissions, advertising costs and
tenant inducements; and
(F) all amounts chargeable directly to specific tenants of the
Building under lease provisions similar to Section 6.02, to
the extent that those amounts are included in Operating Costs;
(G) the costs of repairing or replacing any structural defects in
the floors, foundations, exterior walls and interior load
bearing walls of the Building;
(H) goods and services taxes in respect of which the Landlord has
input credits;
(u) "Person", according to the context, includes any person, corporation,
firm, partnership or other entity, any group of persons, corporations,
firms, partnerships or other entities, or any combination thereof;
(v) "Premises" means the premises located on the 12th floor of the Building
shown outlined in red on Schedule "B" attached hereto and further
described in Section 2.01, provided that the Common Areas and Facilities
which are within the space enclosed by the boundaries of the Premises do
not form part of the Premises notwithstanding the definition of Rentable
Area of the Premises;
(w) "Prime" means the rate of interest from time to time announced by the
Landlord's designated Canadian chartered bank as its prime rate;
(x) "Property Taxes" means all taxes, rates, duties, levies, fees, charges,
sewer levies, local improvement rates, charges and assessments whatsoever,
imposed, assessed, levied, rated or charged against the Lands or the
Building or any part thereof from time to time by any lawful taxing
authority whether school, municipal, regional, provincial, federal,
parliamentary or otherwise and any taxes or other amounts which are imposed
in lieu of, or in addition to, any of the foregoing whether or not in
existence at the commencement of the Term and whether of the foregoing
character or not and any such taxes levied against the Landlord on account
of its ownership of the Building or its interest therein but excluding
Landlord's income taxes;
(y) "Proportionate Share" means a fraction which has: (i) as its numerator the
Rentable Area of the Premises; and (ii) as its denominator the Rentable
Area of the Building less: (A) the areas, if any, occupied by the Landlord
or its agents or contractors to maintain, repair, operate, manage and
supervise the Building; and (B) the Rentable Area of the Building which is
not leased at the time of the calculation up to a maximum of three per cent
of the Rentable Area of the Building;
(z) "Rent" means all Minimum Rent and Additional Rent payable pursuant to this
Lease;
Page 6
(aa) "Rentable Area" in the case of the Premises or any other premises,
means the area expressed in square feet, as certified by an Expert,
of all floors of the premises, determined as follows:
(A) in the case of premises on a floor occupied entirely by one
tenant the Rentable Area shall be all the floor area within the
exterior walls calculated by measuring from the inside face of
the glass of the exterior walls without deduction for columns and
projections and including elevator lobbies, service corridors,
electrical rooms, telephone rooms, janitor closets, washrooms,
mechanical rooms and any special stairs and or elevators for the
specific use of the particular tenant but excluding other stairs,
elevator shafts, flues, pipe shafts and vertical ducts and their
enclosing walls;
(B) in the case of premises on a floor occupied by more than one
tenant the Rentable Area shall be the aggregate of (i) all floor
area within the exterior walls of such premises calculated by
measuring from the inside face of the glass of the exterior walls
to the face of permanent interior walls and to the center line of
demising partitions without deduction for columns and projections
but excluding stairs and elevator shafts supplied by the Landlord
for use in common with other tenants within the relevant floors;
and (ii) a proportionate share of the area of Common Areas and
Facilities located on such floor, such proportionate share to be
of the same proportion of such area that the area of the space
referred to in clause (i) above is of the total rentable area of
such floor determined without reference to this clause (ii); and
(iii) any service areas which are for the specific use of the
particular tenant, such as special stairs and elevators,
it being acknowledged that the Rentable Area of the Premises or the
Building or any other space as at the commencement of the Term will
be adjusted from time to time to reflect any expansion, reduction,
rearrangement or relocation;
(bb) "Rental Taxes" means any tax or duty imposed upon; or collectable
by, the Landlord Which is measured by or based in whole or in part
directly upon the Rent, whether existing at the date hereof or
hereinafter imposed by any governmental authority, including without
limitation the goods and services tax, value added tax, business
transfer tax, retail sales tax, federal sales tax, excise tax or
duty, or any tax similar to any of the foregoing;
(cc) "Storage Areas" means those areas which are designated from time to
time by the Landlord to be used for storage purposes;
(dd) "Tenant" means the party of the second part and, to the extent
permissible under this Lease, its successors, assigns and legal
representatives;
Page 7
(ee) "Term" means the term of this Lease as specified in Section 3.01, as
it may be extended by the Tenant pursuant to the options to renew,
if any;
(ff) "Unavoidable Delay" means any cause beyond the control of the party
affected thereby which prevents the performance by such party of any
obligation hereunder and not caused by its default or act of
commission or omission and not avoidable by the exercise of
reasonable care, excluding financial inability.
Section 1.02 Number, Gender, Liability
The grammatical changes required to make the provisions of this Lease
apply in the plural sense where the Tenant comprises more than one Person and to
corporations, firms, partnerships, or individuals, male or female, will be
assumed as though in each case fully expressed. If the Tenant consists of more
than one Person, the covenants of the Tenant shall be deemed to be joint and
several covenants of each such Person. If the Tenant is a partnership (the
"Tenant Partnership") each Person who is presently a member of the Tenant
Partnership, and each Person who becomes a member of any successor Tenant
Partnership, shall be and continue to be liable jointly and severally for the
performance of this Lease, whether or not such Person ceases to be a member of
such Tenant Partnership or successor Tenant Partnership.
Section 1.03 Headings and Captions
The table of contents, article numbers, article headings, Section numbers
and Section headings are inserted for convenience of reference only and are not
to be considered when interpreting this Lease.
Section 1.04 Obligations as Covenants
Each obligation of the Landlord or the Tenant expressed in this Lease
shall be a covenant for all purposes.
Section 1.05 Entire Agreement
This Lease contains all the representations, warranties, covenants,
agreements, conditions and understandings between the parties concerning the
Premises and the subject matter of this Lease and may be amended only by an
agreement in writing signed by the parties hereto.
Section 1.06 Governing Law
This Lease shall be interpreted under and is governed by the laws of the
Province of Ontario.
Section 1.07 Severability
Page 8
If any provision of this Lease is illegal or unenforceable it shall be
considered severable from the remaining provisions of this Lease, which shall
remain in force.
Section 1.08 Successors and Assigns
This Lease and everything herein contained shall benefit and bind the
successors and assigns of the party of the first part and the heirs, executors,
administrators and permitted successors and assigns of the party of the second
part.
Section 1.09 Schedules
The Schedules to this Lease shall form part of this Lease and shall be
interpreted as if they were contained herein.
Section 1.10 Time of the Essence
Time shall be of the essence of this Lease and every part thereof.
ARTICLE 2
DEMISE
Section 2.01 Premises
The Landlord hereby leases to the Tenant, and the Tenant leases from the
Landlord, the Premises, which contain a Rentable Area of approximately nine
thousand four hundred and thirty (9,430) square feet. The Rentable Area of the
Premises as at commencement of the Term shall be conclusively determined by the
Landlord's Expert and shall be set out in a certificate of such Expert, a copy
of which shall be given to the Tenant. Such determination shall be in accordance
with BOMA, Standard ANSI Z65.1 1980 (reaffirmed 1989) and shall be binding upon
both the Landlord and the Tenant.
Notwithstanding the provisions of subsection 1.01 (aa) the boundaries of
the Premises are as follows: (i) the interior face of all exterior walls, doors
and windows; (ii) the interior face of all interior walls, doors and windows
separating the Premises from the Common Areas and Facilities, if any; (iii) the
center line of all interior walls separating the Premises from adjoining
leasable premises; and (iv) the top surface of the structural subfloor and the
bottom surface of the structural ceiling.
ARTICLE 3
TERM
Page 9
Section 3.01 Term
The Term shall be the period of five (5) years, 0 months and 0 days
commencing on the 1st day of January, 2000 (the "Commencement Date") and ending
on the 31st day of December, 2004 unless terminated earlier pursuant to this
Lease.
ARTICLE 4
RENT
Section 4.01 Minimum Rent
The Tenant shall pay annually to the Landlord throughout the Term as
Minimum Rent for the Premises the following:
PERIOD OF TERM ANNUALLY MONTHLY
January 1, 2000 to December 31, 2004 $212,175.00 $17,681.25
The Minimum Rent is based upon an annual rate for each square foot of
Rentable Area of:
PERIOD OF TERM RATE
January 1, 2000 to December 31, 2004 $22.50
The Minimum Rent shall be payable in equal consecutive monthly instalments each
in advance on the first day of each calendar month.
Upon determination of the Rentable Area of the Premises by the Expert the
Minimum Rent shall, if necessary, be adjusted retroactively to the Commencement
Date and the Tenant shall pay to the Landlord any deficiency in payments of
Minimum Rent made to such time or the Landlord shall refund to the Tenant any
excess Minimum Rent paid by the Tenant to such time, as the case may be, within
fifteen days after the Tenant is given written notice of such determination. At
the Landlord's request the Tenant shall enter into a supplement to this Lease to
reflect such adjustment in the Minimum Rent.
Section 4.02 Additional Rent
The Tenant shall also pay annually to the Landlord throughout the Term the
aggregate of the Tenant's Proportionate Share of Operating Costs and Property
Taxes and all other items of Additional
Page 10
Rent. Without limiting such generality whenever the Landlord performs any work
or supplies any service which is the responsibility of the Tenant or for which
expense the Tenant is responsible, the Tenant shall pay to the Landlord upon
demand, as Additional Rent, in addition to the amount otherwise payable to the
Landlord in respect thereof, a charge (the "Administrative Charge") equal to 15%
of all costs, fees and expenses incurred by the Landlord in connection
therewith. All Additional Rent shall be recoverable as Rent and the Landlord
shall have the same rights upon default in any such payment as upon non-payment
of any other Rent.
Section 4.03 Payment of Tenant's Proportionate Share
Prior to the commencement of each Lease Year the Landlord shall notify the
Tenant of its estimate of the Tenant's Proportionate Share of Operating Costs
and, subject to Section 7.02, its estimate of the Tenant's Proportionate Share
of Property Taxes for that Lease Year. The Tenant shall pay such estimated
amounts in equal monthly instalments in advance on the first day of each month
during the Lease Year. The Landlord may from time to time during a Lease Year
re-estimate the Tenant's Proportionate Share of Operating Costs or the Tenant's
Proportionate Share of Property Taxes and shall fix monthly instalments for the
then remaining balance of the Lease Year so that such share will have been
entirely paid during that Lease Year. When the necessary information becomes
available, the Landlord shall make a final determination of the Tenant's
Proportionate Share of Operating Costs and the Tenant's Proportionate Share of
Property Taxes for the relevant Lease Year, which shall be binding upon both
parties, and shall provide the Tenant, upon request, with an audited statement
of the Operating Costs for the relevant Lease Year. The Landlord and the Tenant
shall expeditiously make any necessary readjusting payments; the Landlord shall
pay any excess to the Tenant within fifteen days after such final determination
has been made, or the Tenant shall pay to the Landlord the difference, if any,
between the Tenant's share and the amount actually paid by the Tenant within
fifteen days after receiving notice of such final determination, as the case may
be.
Section 4.04 Accrual of Rent
Rent shall be considered as accruing from day to day hereunder from the
Commencement Date and where it becomes necessary for any reason to calculate
such rent for an irregular period of less than one year or less than one
calendar month, an appropriate apportionment and adjustment shall be made on a
per diem basis based upon a period of three hundred and sixty-five days. If the
Commencement Date is not the first day of a month, the Tenant shall pay upon the
Commencement Date a portion of the Minimum Rent and the Tenant's Proportionate
Share of Operating Costs and of Property Taxes pro-rated on a per diem basis
from the Commencement Date to the end of the month in which the Commencement
Date occurs. All Rent payable under this Lease, including Minimum Rent and the
Tenant's Proportionate Share of Operating Costs and of Property Taxes shall be
payable without deduction, abatement, set-off or compensation except as.
otherwise expressly provided in this Lease. If the Landlord fails to pay the
Tenant allowance set out in section 2 of Schedule "D" any unpaid amount may be
set off against Rent.
Section 4.05 Currency and Place of Payment
Page 11
All Rent hereunder shall be payable in lawful money of Canada and shall be
paid to the Landlord, or to such Person and at such place, as the Landlord may
from time to time direct by notice to the Tenant.
Section 4.06 Interest on Amounts in Default
If the Tenant fails to pay when due any amount of Rent, then at the option
of the Landlord, interest shall accrue on the unpaid amount from the due date to
the date of payment at the rate per annum which is one percent above Prime, and
shall be payable by the Tenant to the Landlord as Additional Rent forthwith on
demand.
Section 4.07 Net Lease to Landlord
The Tenant acknowledges and agrees that it is intended that this Lease
shall be a completely net lease for the Landlord, except as otherwise provided
herein.
ARTICLE 5
COMMON AREAS AND FACILITIES
Section 5.01 Control of Building
The Landlord shall operate and manage the Building in the manner it deems
appropriate from time to time but always in accordance with the then prevailing
standards for first class buildings of similar age in the area in which the
Building is located.
The tenants of the Building shall be entitled to use those parts of the
Common Areas and Facilities, as constituted from time to time, intended for the
common use of tenants of the Building subject at all times to the exclusive
control and management of the Landlord; it is agreed that the Landlord shall be
entitled to use, maintain, operate, police, reconstruct, alter and deal with the
Common Areas and Facilities and change the area, location and arrangement
thereof. In exercising such rights the Landlord shall use reasonable efforts to
minimize interference with the Tenant's access to and use of the Premises. The
Tenant and all other Persons using the Common Areas and Facilities do so at
their sole risk. Subject to Section 11.01, if there should be an interruption in
any service or use of any facility the Landlord shall proceed expeditiously to
end such interruption but in no event will the Tenant be entitled to any
compensation or to any abatement or repayment of Rent.
Section 5.02 Landlord's Alterations, etc.
The Landlord, at any time and from time to time and without compensation
to the Tenant, may:
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(a) without cost to the Tenant, make alterations or additions to, change
the location of; expand or reduce, and build structures adjoining,
any part of any buildings, facilities, improvements and areas from
time to time on the Lands, other than the Premises, but including,
without limitation, the Common Areas and Facilities;
(b) (Intentionally omitted.)
(c) deal with the Lands as it deems appropriate in its absolute
discretion including, without limitation, dedicating or conveying
portions of the Lands to any municipal or other public authority or
other Persons and granting easements, rights-of-way or other
interests in the Lands; and
(d) construct on the Lands such buildings, structures, facilities,
roadways and other improvements as it deems appropriate in its
absolute discretion including, without limitation, parking
facilities, without cost to the Tenant.
ARTICLE 6
UTILITIES AND HEATING, VENTILATING AND AIR-CONDITIONING
Section 6.01 Heating, Ventilating and Air Conditioning
The Landlord shall provide processed air in such quantities and at such
temperatures as shall maintain in the Premises conditions of reasonable
temperature and comfort during Business Hours. In no event, however, shall the
Landlord have any obligation or liability in connection with the cessation,
interruption or suspension of the supply of such process air but the Landlord
shall use its reasonable efforts to restore it. The Landlord shall not be
responsible for the failure of the hearing, ventilating and air-conditioning
equipment and systems to perform their function if this is attributable to any
arrangement of partitioning in the premises or failure to shade windows which
are exposed to the sun, or any use of electrical power by the Tenant which, in
the Landlord's opinion, exceeds normal use by tenants in the Building, and
provided further that the Landlord shall not be liable for direct, indirect or
consequential damages or damages for personal discomfort or illness of the
Tenant, its officers, clients or customers by reason of the operation or
breakdown of such equipment or systems, nor shall there be repayment or
reduction of the Rent during any such breakdown. The interior office layout of
the Premises shall be modified by the Tenant, if necessary, in accordance with
the reasonable requirements of the Landlord to secure maximum efficiency of the
heating, ventilating and air-conditioning systems serving the Premises.
The Tenant shall comply with all rules and regulations of the Landlord
pertaining to the operation and regulation of those portions of the heating,
ventilating and air-conditioning equipment within and serving the Premises,
failing which the Landlord shall be entitled to take such steps as it deems
advisable including, without limitation, entering upon the Premises and assuming
control of such equipment, and the Tenant will pay to the Landlord forthwith
upon demand all costs and
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expenses incurred by the Landlord in so doing. If the Tenant requests that the
HVAC System be operated at times other than Business Hours, the Tenant shall pay
the Landlord as Additional Rent forthwith on demand the Landlord's charge for
such operation, which is estimated to be S25.00 per hour, per floor for 1999,
and shall be subject to change from time to time by the Landlord acting
reasonably.
Section 6.02 Utilities
The Landlord shall, subject to interruption beyond its control, provide and
permit the Tenant to use any utility services (including fuel, electricity and
water) serving the Building provided that the Tenant does not overload the
capacity of any such service. The Tenant shall pay to the Landlord, or as it
otherwise directs, as Additional Rent all costs and expenses relating to such
use, as allocated or determined by the Landlord. The Tenant shall make such
payments in monthly instalments in advance based upon estimates by the Landlord
and subject to adjustment by the Landlord within a reasonable time after the end
of the Lease Year for which such estimate has been made; if required by the
Landlord, the Tenant shall install at its own expense and in a location
designated by the Landlord its separate check meters for the purpose of
measuring, without limitation, the consumption of electricity and water in the
Premises. The Tenant shall advise the Landlord forthwith of any installations,
appliances or business machines used by the Tenant which are likely to require
large consumption of electricity or other utilities. In no event, however, shall
the electricity consumed in the Premises exceed 4 1/2 xxxxx per square foot of
the usable area of the Premises. The Landlord shall replace from time to time
electrical light bulbs, tubes and ballasts serving the Premises and the Tenant
shall pay to the Landlord forthwith upon demand as Additional Rent the cost
thereof plus the Administrative Charge.
Section 6.03 Janitorial Services
The Landlord shall provide janitorial services to the Premises to a
standard similar to that provided to comparable buildings in the area of the
Building provided that all curtains, carpets, rugs or drapes of any kind in the
Premises shall be cleaned and maintained by the Tenant. The Landlord shall not
be responsible for any omission or act of any Person employed or retained to
perform such work, or for any loss thereby sustained by the Tenant, its
servants, agents invitees or others. The Tenant shall not engage any Person to
provide janitorial services to the Premises without the written approval of the
Landlord. The Tenant shall grant access necessary for the performance of the
janitorial services (except for secured areas) and shall leave the Premises in a
reasonably tidy condition at the end of each day to permit the performance of
such services.
ARTICLE 7
PROPERTY TAXES
Section 7.01 Property Taxes Payable by the Landlord
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The Landlord shall pay all Property Taxes, subject to Section 7.02,
provided that it may defer such payments or compliance with any taxing statute,
law, by-law, regulation or ordinance to the fullest extent permitted by law, so
long as it diligently pursues any contest or appeal of any such Property Taxes,
provided the Landlord pays all penalties.
Section 7.02 Property Taxes Payable by the Tenant
(a) If separate real property tax bills and separate real property
assessment notices for the Premises are issued, the Tenant shall:
(i) pay promptly when due to the taxing authorities all Property
Taxes levied, rated, charged or assessed from time to time
against the Premises or any part thereof and forthwith provide
the Landlord with evidence of payment upon request; and
(ii) provided the Landlord with a copy of each separate real
property tax xxxx and separate assessment notice within ten
days after receipt;
provided that if the Landlord so elects by notice to the Tenant the Tenant shall
pay such Property Taxes to the Landlord in equal monthly instalments in advance,
in accordance with the provisions of Section 4.03.
(b) If separate real property tax bills and separate real property
assessment notices for the Premises are not issued, the Tenant shall pay its
Proportionate Share of Property Taxes monthly in advance, in accordance with
Section 4.03.
(c) The Tenant shall receive any Property Tax credits as determined by the
Landlord acting reasonably, even after the termination of this Lease.
Section 7.03 Tenant's Other Taxes
In addition to the Property Taxes payable by the Tenant pursuant to
Section 7.02 the Tenant shall pay promptly when due to the taxing authorities or
to the Landlord, if it so directs, as Additional Rent, all taxes, rates, duties,
levies and assessments whatsoever, whether municipal, parliamentary or
otherwise, levied, imposed or assessed in respect of operations at, occupancy
of, or conduct of business in or from the Premises by the Tenant or any other
permitted occupant, including the Tenant's Business Taxes and Rental Taxes. The
Tenant shall also pay to the Landlord promptly on demand an amount equal to any
of the following Property Taxes the Landlord may determine to recover from the
Tenant, any amounts so paid by the Tenant to the Landlord (and by other tenants
under similar clauses in other leases) shall be excluded in the determination of
Property Taxes:
Page 15
(a) all Property Taxes charged in respect of leasehold improvements,
trade fixtures, furniture and equipment made, owned or installed by
or on behalf of the Tenant in the Premises; and
(b) if the Premises, or any part of them, by reason of the act, election
or religion of the Tenant or any other occupant shall be assessed
for the support of separate schools, the amount by which the
Property Taxes so payable exceed those which would have been payable
if the Premises had been assessed for the support of public schools.
Section 7.04 Postponement
The Tenant may defer payment of any taxes, rates, duties, levies and
assessments payable by it pursuant to Sections 7.02 or 7.03 in each case to the
extent permitted by law if the Landlord is proceeding with an appeal against the
imposition thereof; provided that such postponement does not render the
Building, or any part thereof; subject to sale or forfeiture and does not render
the Landlord liable to prosecution, penalty, fine or other liability.
Section 7.05 Tenant to Deliver Receipts
Whenever requested by the Landlord, the Tenant shall deliver to the
Landlord copies of receipts for payment of all Property Taxes and other taxes,
rates, duties, levies and assessments payable by the Tenant under this Article
and furnish such other information in connection therewith as the Landlord may
reasonably require.
Section 7.06 Assessment Appeals
The Landlord, acting reasonably and prudently, alone shall be entitled to
appeal any governmental assessment or determination of the value of the Building
or any portion thereof whether or not the assessment or determination affects
the amount of tax to be paid by the Tenant.
ARTICLE 8
USE OF PREMISES
Section 8.01 Use
The Tenant shall use the Premises solely for the purpose of an office for
the conduct of the business of general office and/or any other legally permitted
use, subject to the reasonable approval of the Landlord (the "Permitted
Business") and the Tenant shall not use or allow the use of the Premises, or any
part thereof, for any other business or purpose. The Tenant shall conduct the
Permitted Business in the Premises in the first-class and reputable manner
befitting the Building.
Section 8.02 Nuisance
Page 16
The Tenant shall not carry on any business or do or suffer any act or
thing which constitutes a nuisance or which is offensive or an annoyance to the
Landlord or other occupants of the Building.
Section 8.03 Compliance with Laws
The Tenant shall promptly comply with and conform to the requirements of
every applicable statute, law, by-law, regulation, ordinance and order at any
time or from time to time in force during the Term affecting the Premises or the
leasehold improvements, trade fixtures, furniture and equipment installed by the
Tenant. If any obligation to modify, extend, alter or replace any part of the
Premises or any such improvements, fixtures, furniture or equipment is imposed
upon the Landlord, the Landlord may at its option either do or cause to be done
the necessary work, at the expense of the Tenant, or forthwith give notice to
the Tenant to do so within the requisite period of time. The costs of any work
done by the Landlord shall be payable by the Tenant to the Landlord forthwith
upon demand as Additional Rent. The Landlord warrants that the Premises so
comply as at the Commencement Date.
Section 8.04 Compliance with Rules and Regulations
The Tenant shall comply with the rules and regulations annexed hereto as
Schedule "C" and cause everyone for whom the Tenant is in law responsible or
over whom the Tenant might reasonably be expected to have control to do the
same. The Landlord shall have the right from time to time during the Term to
make reasonable amendments, deletions and additions to such rules and
regulations, applicable to all tenants. Such rules and regulations, together
with all reasonable amendments, deletions and additions made thereto by the
Landlord and of which notice shall have been given to the Tenant, shall be
deemed to be part of this Lease provided that in the event of a conflict the
other provisions of this Lease shall prevail.
Section 8.05 Signs and Advertising
The Building shall be known and identified as 00 Xxxx Xxxx, Xxxxxxx,
Xxxxxxx, or by such other name as designated by the Landlord from time to time.
The Tenant shall not erect any sign or advertising material upon any part of the
Building including the Premises. The Tenant shall be entitled to have its name
upon the directory board installed by the Landlord in the ground floor lobby of
the Building and, at its own expense, shall be entitled to require the Landlord
to affix to the entrance of the Premises its name in accordance with the
Landlord's uniform scheme of tenants' identification or such other scheme as may
be approved in writing by the Landlord, which approval may be arbitrarily
withheld.
Section 8.06 Disfiguration, Overloading, etc.
The Tenant shall not do or suffer any waste or damage, disfiguration or
injury to the Premises and shall not permit or suffer any overloading of the
floors thereof or the bringing into any part of
Page 17
the Building, including the Premises, any articles or fixtures that by reason of
their weight or size might damage or endanger the structure of the Building.
Section 8.07 Energy Conservation
The Tenant shall comply with any practices or procedures the Landlord or
any legislative authority may from time to time introduce to conserve or to
reduce consumption of energy or to reduce or control other Operating Costs or
pay as Additional Rent the cost, to be estimated by the Landlord acting
reasonably, of the additional energy consumed by reason of such non-compliance.
The Tenant shall also convert to whatever system or units of measurement of
energy consumption the Landlord may from time to time adopt.
Section 8.08 Remedial Action
If the Tenant is in breach of any of its obligations or restrictions
stipulated in this Article 8, the Landlord may, in addition to any other
remedies that it may have hereunder, enter upon the Premises and take such
remedial action as is necessary to remedy the breach and repair any damage
caused thereby and the Tenant shall forthwith upon demand pay to the Landlord as
Additional Rent the Landlord's costs incurred in connection therewith.
ARTICLE 9
INSURANCE
Section 9.01 Tenant's Insurance
The Tenant shall effect and maintain during the Term:
(a) "all risks" insurance upon all property owned by the Tenant or
installed by or on behalf of the Tenant which is located in the
Building including, without limitation, stock-in-trade, furniture,
fixtures and leasehold improvements made or installed by or on
behalf of the Tenant in an amount equal to not less than the
replacement cost thereof;
(b) broad form boiler and machinery insurance on a blanket repair and
replacement basis with limits for each accident in an amount not
less than the full replacement cost of all leasehold improvements
and of all boilers, pressure vessels, air-conditioning equipment and
miscellaneous electrical apparatus owned or operated by the Tenant
or by others (other than the Landlord) on behalf of the Tenant in
the Premises, or relating to or serving the Premises;
(c) comprehensive general liability insurance against claims for bodily
injury (including death), personal injury and property damage in or
about the Premises in amounts satisfactory from time to time to the
Landlord acting reasonably but in any event in
Page 18
an amount not less than $5,000,000 per occurrence for bodily
injury (including death), personal injury and property damage;
(d) business interruption insurance in an amount that will reimburse the
Tenant for direct or indirect loss of earnings attributable to all
perils insured against in subsection 9.01(a) or attributable to
prevention of access to the Premises or the Building as a result of
such perils;
(e) "all risks" tenants' legal liability insurance for the actual cash
value of the Premises; and
(f) any other form of insurance that the Landlord or any Mortgagee may
reasonably require from time to time in form, amounts and for
insurance risks acceptable to the Landlord and any Mortgagee and
agreeable to the Tenant, acting reasonably.
Section 9.02 Form of Policies
(a) Each policy required pursuant to Section 9.01 shall be in form and
with insurers acceptable to the Landlord, acting reasonably. The Insurance
described in subsections 9.01 (a),(b) and (c) shall name as an additional
insured the Landlord and anyone else designated in writing by the Landlord. All
property damage and public liability insurance shall contain a provision for
cross-liability or severability of interests as between the Landlord and the
Tenant. Each policy maintained pursuant to subsections 9.01 (a),(b),(c) and (d)
shall contain a waiver of any rights of subrogation which the insurer may have
against the Landlord and those for whom the Landlord is in law responsible
whether the damage is caused by the act, omission or negligence of the Landlord
or such other Persons.
(b) Each policy required pursuant to Section 9.01 shall provide that: the
insurer must notify the Landlord and any Mortgagee in writing at least thirty
days prior to any material change or cancellation thereof; the policy shall not
be invalidated in respect ,of the interests of the Landlord and any Mortgagee by
reason of any breach of violation of any warranties, representations,
declarations or conditions contained in such policies; and the policy will be
considered as primary insurance and shall not call into contribution any other
insurance that may be available to the Landlord.
(c) The Tenant shall furnish to the Landlord, prior to the commencement of
the Term, certified copies of all such policies and shall provide written
evidence of the continuation of such policies not less than ten days prior to
their respective expiry dates. The cost of premium for each and every such
policy shall be paid by the Tenant. If the Tenant fails to maintain such
insurance the Landlord shall have the right, but not the obligation, to do so,
and to pay the cost of premium therefor, and in such event the Tenant shall
repay to the Landlord, as Additional Rent, forthwith on demand the amount so
paid.
Section 9.03 Release of Landlord
Page 19
The Tenant hereby releases the Landlord, its agents, officers, employees,
and any other Person for whom the Landlord is legally responsible from any
liability for loss to the extent of all insurance proceeds paid under the
policies of insurance maintained by the Tenant or which would have been paid if
the Tenant had maintained the insurance required under this Lease and had
diligently processed any claims thereunder. Furthermore, it is agreed that, the
Landlord, its officers, employees, agents and others for whom it is legally
responsible shall not be liable for damage to or destruction or loss of (i) any
property of the Tenant entrusted to the care or control of the Landlord, or any
of them, and (ii) the Premises or any property in or upon the Premises; and any
personal or consequential injury (including, without limitation, loss of
business income) sustained by the Tenant or any of its agents, employees,
customers, invitees or licensees or any other Person who may be upon the
Premises.
Section 9.04 Landlord's Insurance
Subject to its general availability on reasonable commercial terms the
Landlord shall effect and maintain during the Term:
(a) "all risks" insurance which shall insure the Building for an amount
not less than the replacement cost thereof from time to time
(including foundations), against loss or damage by perils now or
hereafter from time to time embraced by or defined in a standard all
risks insurance policy including but not limited to fire, explosion,
impact by aircraft or vehicles, lightning, riot, vandalism or
malicious acts, smoke, leakage from fire protective equipment,
windstorm or hail, collapse or earthquake;
(b) boiler and machinery insurance on objects defined in a standard
comprehensive boiler and machinery policy against accidents as
defined therein, with limits of not less than $10,000,000, which
coverage shall include, without limitation, loss or damage of
whatsoever kind or nature by reason of explosion or collapse by
vacuum or cracking, burning, or bulging of any steam or hot water
boilers, pipes and accessories and loss of rental income;
(c) all risks rent and rental value insurance in an amount sufficient to
replace all Minimum Rent and Additional Rent payable under the
provisions of this Lease for an indemnity period of three years;
(d) comprehensive general liability insurance covering claims for
personal injury and property damage arising out of all operations in
connection with the management and administration of the Building
with limits of $5,000,000 inclusive of any one occurrence; and
(e) such other coverage, or increases in the amount of coverage
specified above in this section 9.04, as any Mortgagee may require
from time to time or as the Landlord may deem prudent from time to
time.
Page 20
If any policies for such insurance shall contain any co-insurance clause, a
sufficient amount of such insurance shall be maintained at all times to meet the
requirements of any co-insurance clause so as to prevent the Landlord from
becoming a co-insurer under the terms of such policy or policies and to permit
full recovery up to the amount insured in the event of loss.
Section 9.05 Insurance Risks
The Tenant shall not do, omit to do, or permit to be done or omitted to be
done upon the Premises anything that may contravene or be prohibited by any of
the Landlord's insurance policies in force from time to time covering or in
respect of any part of the Building or which would prevent the Landlord from
procuring such policies with companies acceptable to the Landlord. If the
occupancy of the Premises, the conduct of business in the Premises or any acts
or omissions of the Tenant in the Premises or any other portion of the Building
causes or results in any increase in premiums for any of the Landlord's
insurance policies, the Tenant shall pay any such increase as Additional Rent
forthwith upon receipt of the invoices of the Landlord for such additional
premiums. If the Tenant shall be in breach of these provisions and the Landlord
has given it at least four days prior notice the Tenant shall be responsible for
all direct consequences, caused by the Tenant, flowing therefrom and shall
indemnify the Landlord in respect thereof and if the rate of insurance is
substantially increased or the coverage of such insurance is substantially
decreased, or such insurance is cancelled as a result thereof, at the option of
the Landlord, the Term shall immediately terminate upon written notice to that
effect to the Tenant.
Section 9.06 Release of Tenant
The Landlord hereby releases the Tenant, and its officers and employees,
from liability for loss and from any claim that may be made by the Landlord
against the Tenant under the provisions of this Lease with respect thereto to
the extent: (i) that the amount of such loss exceeds the amount of insurance the
Tenant is required to maintain pursuant to Section 9.01 (c) and (ii) of all
insurance proceeds actually paid to the Landlord under the policies of insurance
maintained by the Landlord (or which would have been paid if the Landlord had
maintained the insurance it is required to maintain under this Lease and had
diligently processed any claims thereunder), whichever is the lesser amount.
ARTICLE 10
MAINTENANCE AND REPAIR
Section 10.01 Landlord's Obligations
The Landlord shall at all times during the Term keep the Common Areas and
Facilities in a good and substantial state of repair, consistent with the
general standards for comparable first-class office buildings in the same area
as the Building, having regard to size, age and location, subject to reasonable
wear and tear and Section 10.02 and 11.01.
Section 10.02 Maintenance and Repairs by the Tenant
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The Tenant shall, at its own expense, keep the Premises and all leasehold
improvements and fixtures therein in first-class condition and repair, subject
to reasonable wear and tear, insured damage and Section 11.01. The Tenant shall
also, at its own expense, keep those portions of the HVAC System which
exclusively serve the Premises and do not form part of the Common Areas and
Facilities in first-class condition and repair, subject to reasonable wear,
insured damage and tear and Section 11.01.
ARTICLE 11
DAMAGE AND DESTRUCTION
Section 11.01 Abatement and Termination
The Landlord and the Tenant agree that:
(a) If there is damage to the Premises such that the Premises or any
substantial part thereof are rendered not reasonably capable of use
by the Tenant for the purposes of its business for any period in
excess of ten days, then:
(i) The Rent payable under Section 4.01 and Section 4.02 shall
xxxxx until the Premises are repaired, such abatement to be
from time to time in the proportion that the Rentable Area
of the part or parts of the Premises rendered not reasonably
capable of such use bears to the Rentable Area of the
Premises but not to exceed the amount of rental income
insurance proceeds paid to the Landlord for the relevant
period; provided that any abatement of Rent to which the
Tenant is otherwise entitled shall not extend beyond the
time by which, in the reasonable opinion of the Landlord,
repairs which are the responsibility of the Tenant ought to
have been completed; and
(ii) unless this Lease is terminated as hereinafter provided, the
Landlord or the Tenant, as the case may be, will repair such
damage with all reasonable diligence (according to their
respective obligations to repair set forth in Sections 10.01 and
10.02); provided that the Landlord's and Tenant's respective
repair obligations shall be limited always to the extent of
insurance proceeds actually received by it;
(b) in the event that:
(i) thirty-five per cent or more of the Rentable Area of the Building
or thirty-five per cent or more of the area of the Common Areas
and Facilities is damaged or destroyed;
(ii) the Premises are damaged or destroyed; or
Page 22
(iii) portions of the Building which affect access or services
essential to the Premises are damaged or destroyed;
such that, in each case, in the reasonable opinion of the Landlord's
Expert, such damage cannot with reasonable diligence be repaired within
180 days after the occurrence thereof then the Landlord or the Tenant may
at its option, exercisable by notice to the other given within 90 days of
the occurrence of such damage or destruction, terminate this Lease, in
which event the Tenant shall forthwith deliver up possession of the
Premises to the Landlord and Rent shall be apportioned and paid to the
date upon which possession is so delivered up, subject to any abatement to
which the Tenant may be entitled under subsection 11.01(a) and the parties
shall each thereafter be released of all obligations;
(c) the certificate of an Expert shall be conclusive as to the
percentage of the Premises, the Common Areas and Facilities or the
Building destroyed or damaged or capable of use by the Tenant, the
state of completion of any work or repair of either the Landlord or
Tenant and the computation of the area of any premises including the
Premises; and
(d) in repairing or rebuilding the Building or the Premises in
accordance with its obligations herein the Landlord may use
drawings, designs, plans and specifications other than those used in
the original construction and may alter or relocate the Common Areas
and Facilities, or any part thereof, and other improvements,
including the Premises, provided that the Premises as altered or
relocated shall be of substantially the same size and in all
material respects (including view and access) comparable to the
original Premises.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
Section 12.01 Permitted Occupants
The Tenant shall not permit or suffer any part of the Premises to be used
or occupied by any Person other than the Tenant and any subtenant or assignee
permitted under Section 12.02 nor shall it permit any Persons to be upon the
Premises other than the Tenant, such permitted subtenant or assignee and their
respective employees, customers and others having lawful business with them.
Section 12.02 Assignment or Subletting
The Tenant shall not assign this Lease or sublet the Premises, or any
portion thereof, unless it has obtained the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, delayed or subject
to conditions. Any request for the Landlord's consent shall be accompanied by a
true copy of the offer to take such assignment or sublease and all information
available to the Tenant, and any additional information requested by the
Landlord, as to the reputation, financial standing and business of the proposed
assignee or subtenant. The Landlord,
Page 23
acting reasonably, shall not be deemed to be unreasonably withholding its
consent if it refuses such consent upon the basis that the proposed assignee or
subtenant is an existing tenant of the Building. If such consent is given the
Tenant shall assign or sublet, as the case may be, only upon the terms set out
in the offer submitted to the Landlord. Whether or not the Landlord consents to
any request as aforesaid, the Tenant shall pay to the Landlord all reasonable
costs incurred by the Landlord, including reasonable legal fees, in considering
any such request and in completing any of the documentation involved in
implementing any such assignment or sublease, such costs not to exceed $350.00.
Any advertisement of the availability of the Premises, or a portion thereof, for
assignment or sublease without the written approval of the Landlord is
prohibited, which approval may be withheld by the Landlord in its absolute
discretion, but acting reasonably.
Notwithstanding anything herein to the contrary, the Tenant shall be
entitled to assign this Lease or sublet the whole or any part of the Premises,
without the Landlord's consent, but upon written notice to the Landlord, to (i)
a subsidiary, parent or affiliated corporation of the Tenant (within the meaning
of the Business Corporations Act (Ontario)); and (ii) a corporation formed as a
result of a merger or amalgamation of the Tenant (within the meaning of the
Business Corporations Act (Ontario)) with another corporation.
For the purpose of this Lease, the sale or transfer of the Tenant's
capital stock through any public exchange, or redemption or issuance of
additional stock of any class shall not be deemed an assignment, subletting or
any other transfer of this Lease or the Premises.
Section 12.03 Conditions of Consent
The Landlord may require as a condition of its consent that the proposed
assignee or subtenant agree with the Landlord to observe and to perform all the
obligations of the Tenant under this Lease and the Tenant agrees with the
Landlord that:
(a) in the case of an assignment, if the Tenant is to receive from any
assignee, either directly or indirectly, consideration in any form
whatsoever for the assignment of this Lease, the Tenant shall
forthwith pay an amount equal to 50% of such consideration to the
Landlord after deduction of all expenses and commissions; and
(b) if the Tenant sublets and receives consideration in any form
whatsoever from the subtenant, either directly or indirectly, which
is in excess of the Minimum Rent payable under this Lease (on a per
square foot basis) for the sublet area, the Tenant shall pay 50% of
any such excess to the Landlord in addition to all Rent payable
hereunder after deduction of all expenses and commissions.
Section 12.04 Landlord's Option
Subject to the second and third paragraph of Section 12.02 and Section
12.06 the sale of the Tenant's business or a sublet of 2,000 square feet or
less, and otherwise notwithstanding any other
Page 24
provisions of this Article 12 upon receipt of the Tenant's request for consent
to assignment of this Lease or subletting whole of the Premises for the balance
of the Term, the Landlord shall have the right (exercisable by notice to the
Tenant within 10 Business Days after receipt of the Tenant's request for consent
and the accompanying material required pursuant to Section 12.02) to terminate
this Lease in respect of the whole or the part of the Premises which is affected
by the proposed assignment or subletting and the Tenant's obligations thereafter
shall be released. If the Landlord exercises this right then this Lease shall so
terminate upon the proposed date of assignment or subletting (or if none is
proposed, upon a date selected by the Landlord) unless the Tenant notifies the
Landlord in writing within 10 Business Days after receiving notice from the
Landlord of such termination that the Tenant has decided not to proceed with
such assignment or subletting, as the case may be.
Section 12.05 Surrender
If the Landlord exercises its right of termination pursuant to Section
12.04, and this termination is not subsequently nullified pursuant to Section
12.04, the Tenant shall surrender the Premises upon the date specified in the
Landlord's notice. If the whole of the Premises is required to be surrendered
all Rent shall be apportioned and paid to the date of surrender. If a part of
the Premises is required to be surrendered all Rent which is fairly attributable
to such part shall be apportioned by the Landlord and paid to the date of
surrender of such part and Minimum Rent payable hereunder shall thereafter xxxxx
and be adjusted consistent with such attribution made by the Landlord. The
Tenant shall compensate the Landlord for the cost of partitioning, entrances and
separate services all other work required to make the part so surrendered
functionally separate and suitable for separate use and occupancy. The Tenant
shall be responsible for any appropriate modifications which are necessary in
the portion of the Premises retained by the Tenant. The provisions of this Lease
shall apply to the remaining part of the Premises as if such part were the whole
of the Premises subject to the aforementioned abatement of Minimum Rent.
Section 12.06 Change in Control
If after the date of this Lease there is to be a change in control of the
Tenant or if other steps are to be taken to accomplish a change of control the
Tenant shall promptly notify the Landlord of the proposed change, which will be
considered to be an assignment of this Lease to which Sections 12.02, 12.03 but
not 12.04 apply. For the purpose of this Section "change in control" means, in
the case of any corporation or partnership, the transfer by sale, assignment,
trust, operation of law or otherwise of any shares, interest or voting rights
which may result in a change of identity of the Person or Persons exercising
effective control of such corporation or partnership. Provided that this Section
shall not apply to a change in control of the Tenant if and so long as the
Tenant is a Public Corporation and provided further that, in either case, such
change of control does not affect the continuity of the existing management of
the Tenant and of its business practices and policies. For the purposes of this
Section "Public Corporation" means a corporation the shares of which are listed
on any recognized stock exchange in Canada or the United States.
Page 25
Section 12.07 Continuing Obligations
The Landlord's consent to any assignment or sublease shall not release the
Tenant from its obligation to perform fully all the terms, covenants and
conditions of this Lease on its part to be performed. No consent by the Landlord
to any assignment or sublease shall be construed to mean that the Landlord has
consented or will consent to any further assignment or any other sublease.
Section 12.08 Assignment by Landlord
OMERS Realty Management Corporation shall be liable for the performance of
its covenants and obligations pursuant to this Lease so long as it owns the
Building. In the event of any sale or other transfer of the Building, OMERS
Realty Management Corporation shall thereupon and without further agreement be
relieved of all liability with respect to such covenants and obligations except
to the extent that they relate to the period prior to such sale or other
transfer.
ARTICLE 13
STATUS CERTIFICATES, ATTORNMENT, SUBORDINATION
Section 13.01 Status Certificates
The Tenant shall at any time and from time to time execute and deliver to
the Landlord or as the Landlord may direct within ten Business Days after it is
requested a statement in writing, in the form supplied by the Landlord,
certifying that this Lease is unmodified and in full force and effect (or if
modified, stating the modification and stating that the Lease is in full force
and effect as modified), the Commencement Date, the amount of the Minimum Rent
and other Rent then being paid hereunder, the dates to which such Rent hereunder
has been paid, whether or not there is any existing default on the part of the
Landlord of which the Tenant is aware and any other particulars that the
Landlord may reasonably request.
Section 13.02 Subordination and Attornment
This Lease and the rights of the Tenant hereunder shall be subject and
subordinate to all existing or future Mortgages and to all renewals,
modifications, consolidations, replacements and extensions thereof Whenever
requested by the Landlord or a Mortgagee the Tenant shall enter into an
agreement with the Mortgagee whereby the Tenant postpones or subordinates this
Lease to the interest of any stipulated Mortgagee and agrees that if such
Mortgagee becomes a mortgagee in possession or realizes on its security it shall
attorn to such Mortgagee as a tenant upon all the terms of this Lease. The
Landlord shall use reasonable efforts to obtain a non-disturbance agreement from
any Mortgagee with an interest in the Lands prior to that of the Tenant. If the
Lands are held by the Landlord pursuant to a ground lease, then the Tenant
shall, at the request of the Landlord or the landlord under the ground lease,
enter into an agreement with the landlord under the ground lease to the effect
that if such landlord should take possession of the Lands as a result of a
default under the ground lease then the Tenant shall attorn to such Person as a
tenant upon all terms of this Lease.
Page 26
ARTICLE 14
LIMITATION OF LIABILITIES
Section 14.01 Unavoidable Delay
Except as otherwise expressly provided in this Lease, if and to the extent
that either the Landlord or the Tenant shall be prevented, delayed or restricted
by reason of Unavoidable Delay in the fulfilment of any obligation hereunder
other than a monetary obligation it shall be deemed not to be in default in the
performance of such covenant or obligation and any period for the performance of
such obligation shall be extended accordingly and the other party to this Lease
shall not be entitled to compensation for any loss, inconvenience, nuisance or
discomfort thereby occasioned.
Section 14.02 Waiver
The Landlord's or Tenant's failure or omission to take action in respect
of any default by the Tenant or the Landlord under this Lease shall not operate
as a waiver of the relevant obligation in respect of any continuing or
subsequent default. No waiver shall be effective unless expressed in writing.
The acceptance of Rent by the Landlord from the Tenant or any other Person will
not constitute a waiver of a breach by the Tenant of this Lease.
Section 14.03 No Claim for Inconvenience
The Tenant shall not be entitled to any compensation for any interruption,
inconvenience, nuisance or discomfort arising from the necessity of repair,
renovation, alteration, rebuilding, or expansion of any portion of the Building
(including the Common Areas and Facilities) or any construction or other work on
the Lands.
Section 14.04 Indemnity by Landlord
Subject to Section 9.06, the Tenant shall indemnify and save harmless the
Landlord against any and all claims, actions, damages, losses, liabilities and
expenses (including, without limitation, those in connection with loss of life,
bodily injury, personal injury or damage to property) arising from or out of the
occupancy or use by the Tenant of the Premises or any other part of the Building
occasioned wholly or in part by any act or omission of the Tenant, its officers,
employees, agents, customers, contractors or other invitees, licensees or
concessionaires or by any Person permitted by the Tenant to be on the Premises
or due to or arising out of any breach by the Tenant of this Lease.
ARTICLE 15
ACCESS
Section 15.01 Entry by Landlord
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The Landlord and its authorized agents, employees and contractors shall be
permitted, at any time and from time to time, upon 24 hours' prior written
notice to the Tenant (except in an emergency, when no notice shall be required)
to enter the Premises to inspect, provide services and maintenance, make
repairs, alterations, improvements or additions to the Common Areas and
Facilities or to the other parts of the Building or to gain access to utilities
and services; in exercising its rights hereunder the Landlord shall use
reasonable efforts to minimize interference with the Tenant's business. In no
event shall the Tenant be entitled to compensation for any interruption,
inconvenience, nuisance or discomfort caused thereby. The Tenant shall not alter
the standard locks on the doors of the Premises or place any additional locks or
other security devices upon any such doors without the prior written approval of
the Landlord, which may be withheld by the Landlord in its sole discretion or
granted on a conditional basis. All locks on doors of the Premises shall operate
on the building master key system and the Tenant shall provide the Landlord with
one original key for any such lock upon installation.
Section 15.02 Exhibiting Premises
The Tenant will permit the Landlord or the agents of the Landlord, upon
receiving 24 hours' prior written notice, to exhibit the Premises to prospective
tenants at all reasonable hours during the last six months of the Term. The
Landlord shall have the right to enter upon the Premises, upon 24 hours' written
notice to the Tenant, at all reasonable hours during the Term for the purpose of
exhibiting the Building to any prospective purchaser or Mortgagee.
Section 15.03 Excavation
The Tenant shall upon reasonable notice grant entrance to the Premises for
the performance of such work as the Landlord considers necessary to preserve the
walls of the Building of which the Premises form a part from injury or damage
from any excavation or other construction upon adjacent land and to support the
same in any appropriate manner, without giving rise to any claim for damages or
indemnification against the Landlord or diminution or abatement of Rent.
ARTICLE 16
TENANT'S ALTERATIONS
Section 16.01 Restrictions
After the commencement of the Term the Tenant shall not make, erect, or
install any leasehold improvements, alterations, fixtures (including trade
fixtures) or partitions in or about the Premises without the prior written
consent of the Landlord acting reasonably. In addition the following provisions
shall be applicable:
(a) all such work shall be performed in accordance with any reasonable
conditions or regulations imposed by the Landlord and shall be
completed in a good and
Page 28
workmanlike manner, in accordance with the description of the work
approved by the Landlord, all applicable laws and the requirements of
all governmental authorities;
(b) the Tenant shall, at the time of its application for such consent,
furnish the Landlord with such plans, specifications and designs as
the Landlord may require;
(c) the Landlord shall have the right to supervise any work done and to
select or approve (at its option) the contractors and workmen to be
employed by the Tenant, workmen shall have labor union affiliations
compatible with others employed by the Landlord and its contractors;
and if the work proposed by the Tenant may affect the structure of the
Premises or any part of the Building or any of the electrical,
mechanical or base building systems of the Building, the Landlord may
elect that it be performed either by the Landlord or by its
contractors, in which case the Tenant shall pay to the Landlord as
Additional Rent the costs of the Landlord relating to such work,
including reasonable fees of Experts;
(d) if the Tenant performs any work without complying with the provisions
of this Section and does not remove it upon notice the Landlord shall
have the right to do so and to restore the Premises to their previous
condition, in which case the Tenant shall pay to the Landlord as
Additional Rent the costs of such work; and
(e) the Tenant shall pay to the Landlord as Additional Rent to compensate
the Landlord for its services under this Section a supervisory fee
which is reasonable in all the circumstances, except in respect of the
initial leasehold improvements.
Section 16.02 Occupational Health and Safety
The Tenant agrees that it will ensure that a comprehensive and rigorous
health and safety program to protect workers in the Premises is implemented to
ensure that no accidents or injuries occur in connection with the performance of
any Tenant's work. The Tenant will indemnify the Landlord in respect of all
claims, infractions, prosecutions, alleged infractions, losses, cost and
expenses and any fines or proceedings relating to fines or other offences or
contravention's under all occupational health and safety and any similar
legislation that might be brought, or imposed against or suffered by the
Landlord or any of its officers, directors and employees in connection with the
performance of any Tenant's work. Without limiting the obligations set out above
in this section, the Tenant will do at least the following
(a) ensure that all obligations imposed by statute, law or regulation on
"constructors" or other persons completing or coordinating any
Tenant's work are diligently and properly completed;
(b) co-operate with the Landlord in having any Tenant's work designated as
a separate project so that the Landlord does not incur any obligations
as a constructor or
Page 29
obligations similar to those of a constructor at law or by regulation
imposed in connection with the performance of any Tenant's work;
(c) ensure it provides in any tender and contract documentation for work,
a list of designated substances, if any, present in the Premises;
(d) comply with all directions that the Landlord may give to the Tenant in
connection with the performance of any Tenant's work having regard to
construction health and safety requirements; and
(e) provide to the Landlord whatever rights of access, inspection, and
whatever information, documents and other matters the Landlord
requires in order to ensure that the Tenant's obligations under this
section are complied with.
Section 16.03 Leasehold Improvements
All leasehold improvements, alterations, fixtures or permanent drywall
partitions made, erected or installed in the Premises by the Tenant, including
carpeting and light fixtures, shall become the property of the Landlord upon
installation or affixation and upon the expiration or other termination of this
Lease they shall remain upon and be surrendered with the Premises as part
thereof. Notwithstanding the foregoing, (i) the Landlord may, by notice to the
Tenant, require the removal immediately prior to the end of the Term, at the
expense of the Tenant, of all leasehold improvements, alterations, fixtures and
partitions installed by or on behalf of the Tenant and the restoration of the
Premises, such work to be done by or at the direction of the Landlord, and (ii)
if the Tenant is not in default under this Lease it shall, at the end of the
Term, have the right to remove its trade fixtures, data communication equipment
and cabling, telephone and PBX equipment and cabling, computer equipment and
cabling, custom cabinets, furniture and equipment, work stations whether or not
bolted, wired or affixed, and non standard light fixtures provided it repairs
the damage caused to the Premises by their installation or removal. Any trade
fixtures not removed by the Tenant prior to the end of the Term shall thereupon
become the property of the Landlord. No trade fixtures, furniture or equipment
may be removed by the Tenant from the Premises during the Term unless it is
being replaced by similar new furniture or equipment. If the Tenant fails to
perform any obligation set out in this Section the Landlord shall have the right
to perform it, in which case the Tenant shall pay to the Landlord as Additional
Rent the costs of such work. The Landlord shall be entitled to all insurance
proceeds and expropriation compensation payable with respect to all such
leasehold improvements, alterations, fixtures and partitions whether such
proceeds or compensation is payable or paid before or after the end of the Term.
Section 16.04 Liens
The Tenant shall comply with all the provisions of the Construction Lien
Act and other statutes from time to time applicable to any work done on or
improvements made to the Premises by or on behalf of the Tenant (including any
provision requiring or enabling holdbacks) and shall take
Page 30
all steps necessary to ensure that no lien attaches to the Premises or any part
of the Building. If any lien arises the Tenant shall immediately cause it to be
discharged and any registration thereof discharged or vacated, and if the Tenant
doe snot do so within a period of three Business Days after receiving notice
requiring it to do so the Landlord shall be entitled to make such payment or
take such action as may be necessary or expedient to discharge or vacate such
lien and the registration thereof. The Tenant shall, forthwith on demand and as
Additional Rent, indemnify and reimburse the Landlord for any reasonable
payment, cost or expense, including reasonable legal fees, incurred by the
Landlord in taking any action permitted under this Section.
ARTICLE 00
XXXXXXXX XX XXXXXXXX XX TENANT'S DEFAULT
Section 17.01 Remedying by Landlord
In addition to all of its other rights and remedies, the Landlord shall
have the right, on five days prior written notice to the Tenant (except in an
emergency, when no notice shall be required), to remedy or attempt to remedy any
default of the Tenant, and in so doing may make any payments which appear to be
payable by the Tenant to other Persons and may enter upon the Premises; all
expenses of the Landlord in remedying or attempting to remedy such default shall
be payable by the Tenant to the Landlord as Additional Rent forthwith upon
demand.
Section 17.02 Right to Re-enter
If the Tenant fails to pay Rent within five days after receiving written
notice that it is due, or fails to observe or perform any of its other
obligations under this Lease after receiving five days written notice, the
Landlord, in addition to any other right or remedy it may have, shall be
entitled to re-enter the Premises, remove all Persons and property from the
Premises and store the property in a public warehouse or elsewhere at the cost
of and for the account of the Tenant, all without service of further notice or
resort to legal process and without liability for loss or damage occasioned
thereby, provided that otherwise than in the case of default in payment of Rent
notice has been given to the Tenant specifying the default and the period
allowed for it to be remedied, which will not be less than the later of (i)
fifteen days from the giving of such notice, or (ii) such longer period of time
as is reasonably necessary in the circumstances, provided that the Tenant
diligently begins to rectify such default forthwith upon receiving such notice
and diligently continues to do so until such default is rectified.
Section 17.03 Bankruptcy of Tenant
If the Term or a substantial portion of the goods and chattels of the
Tenant on the Premises are seized or taken in execution or attachment by a
creditor of the Tenant, or if the Tenant makes an assignment for the benefit of
creditors or if proceedings are commenced for the appointment of receiver,
receiver-manager or liquidator to control the conduct of the business on or from
the Premises, or if the Tenant becomes bankrupt or insolvent or commences
proceedings to take the
Page 31
benefit of a statute now or hereafter in force for bankrupt or insolvent
debtors, or if proceedings are commenced for the winding-up of the Tenant, or if
the Premises, without the written consent of the Landlord, become abandoned for
a period of fifteen consecutive days or are used or occupied by any Persons
other than those entitled to do so under the terms of this Lease ('which default
is not remedied after 10 days notice), the next ensuing three months' Rent
immediately will become due and payable as accelerated rent and the Landlord may
re-enter and take possession of the Premises as though the Tenant or the
servants of the Tenant or any other occupant of the Premises were holding over
after the expiration of the Term and this Lease, at the option of the Landlord
exercisable by written notice to the Tenant, forthwith will become forfeited and
determined. Any accelerated rent will be recoverable by the Landlord in the same
manner as the Rent reserved under this Lease and as if Rent were in arrears.
Section 17.04 Right to Terminate
If it becomes entitled to re-enter the Premises under any provision of
this Lease the Landlord, in addition to all other rights and remedies, shall
have the right to terminate this Lease forthwith by leaving upon the Premises
written notice of such termination. If such notice is given, pursuant to this or
any other provision of this Lease, this Lease and the Term shall terminate,
Minimum Rent and all other payments for which the Tenant is liable under this
Lease shall be apportioned and paid in full to the date of such termination, and
the Tenant shall immediately deliver up possession of the Premises to the
Landlord.
Section 17.05 Right to Relet
If the Landlord re-enters the Premises it may either terminate this Lease
or it may from time to time, without terminating the Tenant's obligations under
this Lease, make any alterations and repairs considered by the Landlord
advisable to facilitate a reletting, and relet the Premises or any part thereof
as agent of the Tenant for such term or terms and at such rental or rentals and
upon such other terms and conditions as the Landlord in its reasonable
discretion considers advisable. Upon each reletting all Rent and other moneys
received by the Landlord from the reletting will be applied to the payment of
(a) indebtedness other than Rent due hereunder from the Tenant to the Landlord
(b) costs and expenses of the reletting and (c) Rent as it becomes due and
payable. If the rent received from the reletting during a month is less than the
Rent to be paid during that month by the Tenant, the Tenant shall pay the
deficiency to the Landlord. The deficiency will be calculated and paid monthly.
No re-entry by the Landlord will be construed as an election on its part
to terminate this Lease unless a written notice of that intention is given to
the Tenant. Despite a reletting without termination, the Landlord may
subsequently elect at any time to terminate this Lease for a breach which is
then continuing. If the Landlord terminates this Lease for any breach, in
addition to other remedies it may have, it may recover from the Tenant all
damages it incurs by reason of the breach including the cost of recovering the
Premises, legal fees (on a solicitor and his client basis) and the worth at the
time of termination of the excess, if any, of the amount of Rent and charges
equivalent to rent reserved in this
Page 32
Lease for the remainder of the Term over the then reasonable rental value of the
Premises for the remainder of the Term, all of which amounts shall be
immediately due and payable by the Tenant to the Landlord.
Section 17.06 Distress
If any circumstance occurs which would entitle the Landlord to exercise
the rights set out in Section 17.02, in addition to any and all other rights,
the Landlord may immediately distrain for the full amount of the current month's
instalment of Minimum Rent and Additional Rent and any other payments required
to be made monthly hereunder, which shall immediately become due and payable
together with any Rent accelerated pursuant to Section 17.03 and any arrears
then unpaid. Notwithstanding anything contained in any statute now or hereafter
in force limiting or abrogating the right of distress, none of the goods,
chattels or trade fixtures of the Tenant on the Premises at any time during the
Term shall be exempt from levy by distress, save and except for the Tenant's
computers, software and proprietary information.
Section 17.07 (Intentionally omitted.)
Section 17.08 Failure of Tenant to Take Possession
The Tenant may take possession of the Premises upon receiving notification
by the Landlord that they are ready for occupancy.
Section 17.09 Remedies Cumulative
Notwithstanding any other provision in this Lease, the Landlord may from
time to time resort to any or all of the rights and remedies available to it in
the event of any default hereunder by the Tenant, either by any provision of
this Lease, by statute or common law, all of which rights and remedies are
intended to be cumulative and not alternative, and the express provisions
hereunder as to certain rights and remedies are not to be interpreted as
excluding any other or additional rights and remedies available to the Landlord
by statute or the general law.
ARTICLE 18
MISCELLANEOUS
Section 18.01 Notices
Any notice, demand, statement or request ("Notice") herein required or
permitted to be given under this Lease shall be in writing and shall be deemed
to have been sufficiently and effectually given if signed by or on behalf of the
party giving the notice and delivered or mailed by registered prepaid post,
Page 33
(a) in the case of Notice to the Landlord, to it at: 00 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Property Manager and
a copy to 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx, XXX
0X0, attention: Leasing Department;
(b in the case of Notice to the Tenant, to it at the Premises.
Any such Notice given as aforesaid shall be conclusively deemed to have been
given, if delivered, on the first Business Day following the date of such
delivery or, if mailed, on the fifth Business Day following the date of such
mailing. The Landlord may from time to time by Notice change the address to
which Notices to it are to be given. Notwithstanding the foregoing during any
interruption, threatened interruption or substantial delay in postal services,
Notice shall be delivered. If a copy of any Notice to the Tenant is to be sent
to a second address or to another Person other than the Tenant, the failure to
give any such copy shall not vitiate the delivery of the Notice to the Tenant.
Section 18.02 Registration of Lease
Neither the Tenant nor anyone on the Tenant's behalf or claiming under the
Tenant shall register this Lease or any other instrument pertaining to this
Lease against the Lands. Provided that if either party intends to register a
document for the purpose only of giving notice of this Lease or of any dealing
with it then, upon request of such party, the other party shall join in the
execution of a short form or notice of this Lease ("Notice of Lease") solely for
the purpose of supporting an application for registration of notice of this
Lease or any subsequent dealing therewith. The form of such documentation shall
be prepared immediately by the Landlord's solicitors without cost, failing which
the Tenant's solicitors may do so.
Section 18.03 Overholding - No Tacit Renewal
If the Tenant remains in possession of the Premises after the end of the
Term with the consent of the Landlord but has not executed and delivered a new
lease, there shall be no tacit renewal of this Lease and the Term,
notwithstanding any statutory provisions or legal presumption to the contrary,
and the Tenant shall be deemed to be occupying the Premises as a Tenant from
month to month at a monthly Minimum Rent payable in advance on the first day of
each month equal to the aggregate of 200% of the monthly amount of Minimum Rent
payable during the last month of the Term and one-twelfth of the amount of
Additional Rent payable by the Tenant in the last full twelve-month Lease Year
of the Term; and otherwise upon the same terms, covenants and conditions as are
set forth in this Lease insofar as these are applicable to a monthly tenancy.
Section 18.04 Planning Act
Page 34
This Lease is expressly conditional upon compliance with the Planning Act
(Ontario) and any amendments thereto.
Section 18.05 Partial Payment of Rent
Acceptance by the Landlord of a lesser amount than the monthly payment of
Rent herein stipulated shall be deemed to be only payment on account of the
earliest stipulated Rent, and any endorsement or statement on any cheque or
documentation accompanying any payment of Rent shall not be deemed an
acknowledgment of full payment or an accord and satisfaction, and the Landlord
may accept such payment without prejudice to the Landlord's right to recover the
balance of such Rent or pursue any other remedy provided in this Lease.
Section 18.06 Brokerage Commissions
The Tenant warrants that it has not dealt with any agent or broker
representing or purporting to represent the Landlord in connection with its
leasing of the Premises other than X.X. Xxxxxxxx and Royal LePage (the
"Landlord's Agent"). The Landlord shall pay any fees or commissions of the
Landlord's Agent relating to this Lease and the Tenant shall pay and indemnify
the Landlord from any other brokerage fees or commissions payable in respect of
this Lease.
Section 18.07 Metric Conversion
The Landlord may express any measurement in this Lease in metric measure
in which case the following conversion factors apply: 1 metre = 3,2808 feet; 1
square metre = 10.7639 square feet; 1 foot = .3048 metres; and 1 square foot =
.0929 square metres.
Section 18.08 Decision of Expert
The decision of any Expert whenever provided for under this Lease and any
certificate related thereto shall be final and binding on the parties hereto and
there shall be no further right of dispute or appeal.
Section 18.09 (Intentionally omitted.)
Page 35
IN WITNESS WHEREOF the parties hereto have executed this Lease under seal.
OMERS REALTY MANAGEMENT CORPORATION
By:
------------------------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Director, Office Leasing
By: c/s
------------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice-President,
Development and Operations
INTELLIGENT DETECTION SYSTEMS INC.
By:
------------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior V.P. Operations
By: c/s
------------------------------------------------------
Name: Xxxxxx Xxx Xxxxxxxxxx
Title: CFO
I/We have authority to bind the corporation
Page 36
