MORGUARD REAL ESTATE INVESTMENT TRUST
Landlord
- and -
NORTHSTAR ELECTRONICS, INC
Tenant
LEASE OF OFFICE SPACE
MULTI-TENANT OFFICE PROJECT
PROJECT: Suite 0000, 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
INDEX
SECTION PAGE
TERM SHEET 1
ARTICLE 1.00- DEFINITIONS 3
1.01 Definitions 3
ARTICLE 2.00- GRANT OF LEASE AND GENERAL COVENANTS 3
2.01 Grant 3
2.02 Landlord's General Covenants 3
2.03 Tenant's General Covenants 3
ARTICLE 3.00- TERM AND POSSESSION 4
3.01 Term 4
3.02 Early Occupancy 4
3.03 Delayed Possession 4
3.04 Acceptance of Leased Premises 4
ARTICLE 4.00- RENT 4
4.01 Rent 4
4.02 Security Deposit 4
4.03 Intent 5
4.04 Payment of Rent - General 5
4.05 Partial Month 5
4.06 Payment of Tenant's Occupancy Costs 5
4.07 Estimates of Indirect Expenses and Resolution of Disputes 6
4.08 Area Determination 7
4.09 Vacancy 7
4.1O Method of Payment 7
ARTICLE 5.00-USE AND OCCUPATION 7
5.01 Use of Leased Premises 7
5.02 Compliance with Laws 7
5.03 Prohibited Uses 8
5.04 Common Elements 8
5.05 Hazardous Use 8
5.06 Security Interest 8
5.07 Rules and Regulations 9
5.08 Permitted Signs 9
5.09 Prohibited Signs 9
5.10 Window Coverings 9
5.11 Parking 9
5.12 Authorization of Enquiries 9
5.13 Records 9
5.14 Overloading 10
ARTICLE 6.00- SERVICES. MAINTENANCE. REPAIR AND
ALTERATIONS BY THE LANDLORD 10
6.01 Operation of Project 10
6.02 Building Services and Facilities 10
6.03 Maintenance, Repair, and Replacement 10
6.04 Alterations/Renovations by Landlord 11
6.05 Access by Landlord 11
6.06 Energy Conservation 11
6.07 Supervision and Extended Services 11
6.08 Landlord's Work 12
6.09 Control by the Landlord 12
ARTICLE 7.00- PAYMENT4EOR SERVICES AND MAINTENANCE. REPAIR
AND ALTERATIONS BY THE TENANT 12
7.01 Utilities 12
7.02 Lights 12
7.03 Heating, Ventilation and Air Conditioning 12
7.04 Alterations by Tenant 13
7.05 Tenant's Trade Fixtures and Personal Property 13
7.06 Maintenance and Repair 13
7.07 Inspection 13
7.08 Failure to Maintain 14
7.09 Liens 14
7.10 Roof 14
ARTICLE 8.00- TAXES 14
8.01 Taxes Payable by Landlord 14
8.02 Taxes Payable by Tenant 14
8.03 Tax Increases Attributable to Tenant 15
8.04 GST 15
8.05 Landlord's Election 15
8.06 Right to Contest 15
ARTICLE 9.00- INSURANCE. LIABILITY AND ENVIRONMENTAL 15
9.01 Landlord's Insurance 15
9.02 Tenant's Insurance 16
9.03 Placement of Tenant's Insurance by Landlord 17
9.04 Limitation of Landlord's Liability 17
9.05 Environmental Issues 17
ARTICLE 10.00-DAMAGE AND DESTRUCTION 18
10.01 Limited Damage to Leased Premises, Access or Services 18
10.02 Major Damage to Leased Premises 18
10.03 Damage to Building 18
10.04 No Abatement 19
10.05 Notify Landlord 19
10.06 Expropriation 19
ARTICLE 11.00- DEFAULT 19
11.01 Interest 19
11.02 Costs of Enforcement 19
11.03 Performance of Tenant's Obligations 20
11.04 Events of Default 20
11.05 Remedies on Default 21
11.06 Availability of Remedies 21
11.07 Waiver 22
11.08 Waiver of Exemption and Redemption 22
11.09 Companies' Creditors Arrangement Act 22
ARTICLE 12.00-ASSIGNMENT. SUBLETTING AND OTHER
TRANSFERS 22
12.01 Request for Consent 22
12.02 Basis for Consent 22
12.03 Terms and Conditions Relating to Consents 23
12.04 Subsequent Transfers 24
12.05 Profit Rents upon Transfers 24
12.06 Advertising 24
12.07 Grant of Security Interest by Assignee or Sub-tenant 24
ARTICLE 13.00 TRANSFER BY LANDLORD 24
13.01 Sale, Conveyance and Assignment 24
13.02 Effect of Transfer 24
13.03 Subordination 24
13.04 Attornment 24
13.05 Effect of Attornment 24
13.06 Repurchase 24
ARTICLE 14.00 - SURRENDER 25
14.01 Possession and Restoration 25
14.02 Tenant's Trade Fixtures and Personal Property 25
14.03 Overholding 25
ARTICLE 15.O0 - GENERAL 25
15.01 Estoppel Certificates 25
15.02 Entire Agreement 25
15.03 No Registration of Leases or Notices ... 26
15.04 Project Name and Trademarks 26
15.05 Demolition I Substantial Renovation ... 26
15.06 Relocation 26
15.07 "For Lease" Signs 26
15.08 Unavoidable Delays 26
15.09 Limitation of Recourse 26
15.10 Notice 26
15.11 Delegation of Authority 27
15.12 Relationship of Parties 27
15.13 Governing Law 27
15.14 Amendment or Modification 27
15.15 Legal and Administration Costs 27
15.16 Construction 27
15.17 Captions and Headings 27
15.18 Interpretation 27
15.19 Time of the Essence 27
15.20 Successors and Assigns 27
15.21 Counterparts 27
15.22 Further Schedules 27
15.23 Independent Legal Advice 27
15.24 No Offer 28
15.25 Landlord's Security Interest 28
15.26 Survival of Covenants and Indemnities 28
15.27 Exculpatory Provisions 28
15.28 Brokerage Commissions 28
15.29 Covenants to be Performed at Landlord's 28
15.30 Radiation 28
TERM SHEET - FORMING PART-OF LEASE OF OFFICE SPACE, MULTI-TENANT
1. LANDLORD: Morguard Real Estate Investment Trust
ADDRESS: 0000 - 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
TELEPHONE: 000-0000
FAX NUMBER:000-0000
Xxxxxxxx's "Environmental Contact" Manager. Environmental Affairs
Attention: Senior Vice-President. Operations
United Kingdom Building Limited holds registered title to the Project as
nominee for the Landlord.
2. TENANT: NORTHSTAR ELECTRONICS, INC.
ADDRESS: Suite 0000, 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
3. PROJECTNAME: United Kingdom Building
MUNICIPAL ADDRESS OF PROJECT: 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X xX0
4. LEASED PREMISES:
Attached as Schedule A to the Lease is a plan of the Project showing the
Leased Premises by a distinguishing outline. The Leased Premises are
designated as unit(s) 1455.
5. RENTABLE AREA OF LEASED PREMISES:
1,775 square feet subject to adjustment in accordance with the definition
of Rentable Area and Section 4.08.
6. (i) SECURTIY DEPOSIT: $3,089.00 (Section 4.02)
(ii) OTHER DEPOSIT: $3,305.23 (Schedule E)
7. TERM: Three (3) Years
(i) FIRST DAY OF TERM: January 1, 2000
(ii) LAST DAY OF TERM: December 31, 2002
8. BASIC RENT:
For the said Term commencing on the 1st day of January, 2000, and ending on
the 31st day of December, 2002, the Basic Rent shall be Nineteen Thousand
Five Hundred Twenty Five Dollars ($19,525.00) per annum, in equal monthly
instalments of One Thousand Six Hundred Twenty Seven Dollars and Eight Cents
($1,627.08) each and payable on the first day of each month.
9. USE OF LEASED PREMISES:
The premises shall be used for no purpose other than as general office space.
The Tenant will be responsible for obtaining all necessary approvals,
including zoning, development and business permits, for its intended use of
the premises and will submit all applications for such approvals to the
Landlord for its consent prior to making application. Notwithstanding the
Landlord's consent to an application, the Tenant will indemnify and defend
the Landlord and save it harmless from and against any and all expenses,
losses or damages incurred or suffered by the Landlord.directly or indirectly
arising out of the Tenantfs application for such approvals and permits or the
resulting approvals and permits with respect to the use, intended or
otherwise, of the premises, whether such expenses, losses or damages are in
respect of the premises or in respect of the building or buildings of which
the premises form a part. The Landlord makes no representations or
warranties, express or implied, respecting the use or intended use of the
premises by the Tenant or respecting whether or not necessary approvals can
be obtained for the Tenant's use or intended use.
10. ENVIRONMENTAL ISSUES:
LEASE SECTION 9.05: Applies X Does not apply
RIDER 1 (SECTION 9.05): Applies Does not apply X
11.N/A
Additional Covenants, Agreements and Conditions (if any) listed here are more
particularly set out in Schedule E.
- DEPOSIT
- LIMITATIONS
LEASE OF OFFICE SPACE
MULTI-TENANT OFFICE BUILDING
This LEASE is made as of the 21st day of September, 1999
BETWEEN: MORGUARD REAL ESTATE INVESTMENT TRUST
(the "Landlord")
AND: NORTHSTAR ELECTRONICS INC., a Company duly
incorporated Delaware, USA
(the "Tenant")
IN CONSIDEERATION of the mutual covenants contained herein, the Landlord and
Xxxxxx hereby agree as follows:
ARTICLE l.00 DEFINITIONS
1.01 Definitions - In this Lease the terms defined in Schedule B shall have
the meanings designated therein respectively.
ARTICLE 2.00- GRANT OF LEASE AND GENERAL COVENANTS
2.01 Grant - The Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord the Leased Premises, to have and to bold during the
Term, subject to the terms and conditions of this Lease.
2.02 Landlord's General Covenants - The Landlord covenants with the Tenant:
(a) subject to the provisions of this Lease, for quiet enjoyment of
the Leased Premises so long as the Tenant shall observe and perform
all the covenants and obligations of the Tenant herein; and
(b) to observe and perform all the covenants and obligations of the
Landlord herein.
2.03 Tenant's General Covenants - The Tenant covenants with the Landlord;
(a)to pay Rent without any deduc4on, abatement or set-off
whatsoever; and
(b)to observe and perform all the covenants and obligations
of the Tenant herein.
ARTICLE 3.O-TERM AND POSSESSION
3.01 Term - The Term of this Lease shall begin on the Commencement
Date and end on the date set out in Item 7(b) of the Term Sheet unless
terminated earlier as provided in this Lease.
3.02 Early Occupancv - The Tenant may, with the Landlord's prior written
consent, use and occupythe Leased Premises or portions thereof before the
Commencement Date. In the event of early occupancy, the Tenant shall pay
to the Landlord on the date of occupancy a rental for the period from the
date the Tenant begins to use or occupy the Leased Premises or portions
thereof to the Commencement Date, which rental shall be that proportion
of the Rent for the first calendar year of the Term which the number of
days in such period is of 365, multiplied by that proportion that the
part of the Leased Premisesused and occupied from time to time by the
Tenant prior to the Commencement Date is of the total area of the Leased
Premises. Except where clearly inapplicable, all provisions of this Lease
shall apply during such period.
3.03 Delayed Possession - If the Landlord is unable to deliver possession
of all or any portion of the Leased Premises by the Commencement Date, this
Lease shall remain in full force and effect and the Tenant shall take
possession of the Leased Premises on the date when the Landlord delivers
possession of all of the Leased Premises, which date shall be conclusively
established by notice in writing from theLandlord to the Tenant at
least 10loss, damage or inconvenience resulting from any delay in d
deleveringpossession of the Leased Premises but, unless the delay is
caused by or attributable to the Tenant, its servants, agents or
independent contractors,no Rent shall be payable by the Tenant for
the period prior to the date on which the Landlord can deliver
possession of all of the Leased Premises,unless the Tenant elects to
take possession of a portion of the Leased Premises, in which case Rent
shall be payable in respect thereof from the date such possession is
so taken. Despite anything contained to the contrary in this Section
3.03, if the Landlord is of the opinion that it is unable
to deliver possession of all or any part of the Leased
Premises by the expiration of 6 months from the Commencement
Date, the Landlord shall have the right to terminate this Lease
upon written notice to the Tenant,whereupon neither party shall
have any liability to the other.
3.04 Acceptance of Leased Premises - Taking possession of all or any portion
of the Leased Premises by the Tenant shall be conclusive evidence as against
the Tenant that the Leased Premises or such portion thereof and the Common
Elements are in satisfactory condition on the date of taking possession,
subject only to latent defects and to deficiencies (if any) listed in
writing in a notice delivered by the Tenant to the Landlord not more
than 10 days after the date of taking possession.
ARTICLE 4.00- RENT
4.01 Rent - The Tenant shall pay to the Landlord as Rent for the Leased
Premises the aggregate of:
(a) Basic Rent in respect of each year of the Term, payable in advance and
without notice or demand in monthly instalments as set out in Item 8 of the
Term Sheet commencing on the Commencement Date and on the first day of each
calendar month thereafter during the Term;
(b) Tenant's Occupancy Costs, which shall include Tenant's Proportionate
Share of Taxes, during the Term, payable in monthly instalments at the
times and in the manner provided in Section 4.06; and
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(c) all amounts (other than payments under Subsections 4.01 (a)and(b) payable
by the Tenant to the Landlord under this Lease, at the times and in the
manner provided in this Lease or, if not so provided, as reasonably required
by the Landlord.
4.02 Security Deposit - The Landlord acknowledges receipt on or before the
Commencement Date of the amount set out in Item 6(a) of the Term Sheet
(the "Security Deposit") to be held by the Landlord,without any liability
whatsoever on the part of the Landlord for the payment of interest thereon,
as a security deposit for the faithful performance by the Tenant of the
terms, covenants and conditions of this Lease during the Term hereof and not
to be applied on account of Rent except as otherwise provided in this Section
4.02. The Security Deposit will not be a limitation on the Landlord's damages
or other rights and remedies available under this Lease or at law or equity,
nor shall the Security Deposit be either a payment of liquidated damages or
an advance payment of Rent. The Landlord shall have no fiduciary
responsibilities or trust obligations whatsoever with regard to the Security
Deposit and shall not assume the duties of a trustee for the Security
Deposit. The Security Deposit shall not be mortgaged, assigned or encumbered
by the Tenant and the Landlord shall not be bound by any such mortgage,
assignment or encumbrance. It is understood and agreed between the parties
that any portion of the Security Deposit may, at the Landlord's option, be
applied toward the payment of overdue or unpaid Rent and may also be applied
as compensation to the Landlord for any loss or damage sustained with respect
to the breach on the part of the Tenant of any terms, covenants and
conditions of this Lease, provided in all cases, however, that the Tenant's
liability hereupder is not limited to the amount of the Security Deposit. If
during the Term any portion of the Security Deposit is so applied,
then the Tenant shall on written demand deliver to the Landlord a
sufficient amount iflEash or by certified cheque to restore the Security
Deposit to the original sum deposited. The Landlord shall refund to the
Tenant after the expiry date of this Lease any portion of the Security
Deposit not used by the Landlord after application by the Landlord to any
damage incurred by the Landlord by reason of the default of the Tenant
under the terms of this Lease. It is further provided that the Landlord
will be discharged from all liability to the Tenant with respect to the
Security Deposit to the extent that it is transferred to any purchaser
of the Landlord's interest in the Leased Premises.
4.03 Intent - It is the stated pumose and intent of the Landlord and the
Tenant that this Lease and the Rent shall be fully net to the Landlord.
4.04 Payment of Rent - General - All amounts payable by the Tenant to the
Landlord pursuant to this Lease shall be deemed to be Rent and shall be
payable and recoverable as Rent in the manner herein provided and the
Landlord shall have all rights against the Tenant for default in any such
payment as in the case of arrears of Rent. Rent shall be paid to the
Landlord in lawful money of Canada, without deduction, abatement or set-off,
at the local address of the Landlord set out in ltem.1 of the Term Sheet or
to such other Person or such other address as the Landlord may from time to
time designate in writing. The Tenant's obligation to pay Rent shall survive
the expiration or earlier termination of this Lease. Any Rent or other sum
received or accepted by the Landlord and paid by anyone other than the
Tenant, on behalf of the Tenant, shall not release or in any way affect the
covenants of the Tenant set out in this Lease and is not to be construed by
the Tenant as the Landlord's consent to a Transfer under Article 12.00. Any
Rent or other sum received by the Landlord from or for the account of the
Tenant while the Tenant is in default under this Lease may be applied at
the Landlord's option to the satisfaction in whole or in part of any
of the obligations of the Tenant then due under this Lease in such manner
as the Landlord sees fit regardless of any designation or instruction
of the Tenant to the contrary.
4.05 Partial Month - If the Commencement Date is a day other than
the first day of a calendar month, the instalment of Rent payable on
the Commencement Date shall be that proportion of annual Rent payable
as of the Commencement Date which the number of days from the
Commencement Date to the last day of the month in which the Commencement
Date falls is of 365. If the Term ends on a day other than the last day
of a calendar month, the instalment of Rent payable on the first day
of the calendar month in which the last day of the Term falls shall be
that proportion of annual Rent then payable which
the number of days from the first day of such last calendar month
to the last day of the Term is of 365.
4.O6 Payment of Tenant's Occupancy Costs
(1) Estimate and Payment
(a) The Landlord shall deliver to the Tenant a written estimate or
a written revised estimate of:(i) Tenant's Occupancy Costs for each
Fiscal Year; and (ii) Tenant's Proportionate Share of those Taxes
that are imposed against the Project or any part of it including the
Common elements. The Tenant shall pay to the Landlord the amount so
estimated in equal monthly instalments (except as otherwise required
in this Section 4.06 with respect to Property Taxes) in advance over
that Fiscal Year simultaneously with the Tenant's payments on account
of Basic Rent. If the Landlord does not deliver to the Tenant such an
estimate, the Tenant shall continue to pay Tenant's Occupancy Costs
and Tenant's Proportionate Share of Taxes based on the last such
estimate delivered by the Landlord until a further estimate is
delivered by the Landlord and the next payment on account of
Tenant's Occupancy Costs or Taxes shall be adjusted to take into
account any over or under payment in the preceding instalments paid
in the Fiscal Year to which the estimate or revised estimate
relates. Notwithstanding the foregoing, as soon as bills for
all or any portion of amounts included in Operating
Costs (including, without limitation, Taxes) as so estimated are
received, the landlord may bill the Tenant for the Tenant's
Proportionate Share thereof and the Tenant shall pay the Landlord
such amounts so billed (less all amounts previously paid on account
by the Tenant on the basis of the Landlord's estimate as aforesaid)
as Rent within 5 days following demand therefore.
(b) Within a reasonable time after the date in each calendar
year when the final instalment of Property Taxes is due in
respect of commercial properties generally in the municipality in
which the Project is located (the "Final Payment Date"), the Landlord
shall deliver a statement (the "Tax Statement") to the Tenant that
(I) specifies the Tenant's Proportionate Share of Taxes for the Property
Tax Year and (ii) sets out the total (the "Prepayment Total") of
amounts payable under this Section 4.06(b) that have been paid
by the Tenant between the final Payment Date in the previous
Property Tax Year and the Final Payment Date of the current Property
Tax Year. If the Prepayment Total, less anyE amounts that were previously
credited to the Tenant, and any amounts paid for arrears in respect
of previous Property Tax Years, (the "Net Prepayment Total")
is less than the Tenant's Proportionate Share of Taxes
specified in the Tax Statement, the Tenant shall pay the
deficiency with the next monthly payment of Basic Rent If the
Net Prepayment Total exceeds the Tenant's Proportionate
Share of Taxes specified in the Tax Statement, the Landlord shall,
unless the Tenant is then in default under this Lease, credit
the excess to the Tenant on account of the next succeeding payments of
Xxxxxx's Occupancy Costs. The Landlord may estimate Property
Taxes for the Property Tax Yeai+llowing the then current Property
Tax Year, and the Tenant shall continue after the FinaL Payment Date is
to make monthly payment in advance, in amounts determined by the Landlord,
for periods determined by the Landlord. The monthly payments paid by the
Tenant after the Final Payment Date shall be credited against the Tenant's
proportionate Share of Taxes for the subsequent Property Tax Year.
(c) Any portion of the Tenant's Proportionate Share of Taxes accrued
with respect to the Term or any part thereof paid by the Landlord prior
to the Commencement Date shall be reimbursed by the Tenant to the Landlord
on the Commencement Date or on demand thereafter. Subject to Sections
8.03 and 8.05, the Tenant shall pay the Tenants Proportionate Share of
any Property Taxes or of the Landlord's reasonable estimate thereof
monthly in advance in the same manner as for payment of Tenant's Occupancy
Costs.
Notwithstanding the foregoing, the Landlord shall always have the right:
(i) to revise the amount of instalments on account of Property Taxes
payable by theTenant to an amount that allows the Landlord to collect
all Property Taxes payable by the Tenant by the final due date of
Property Taxes for the calendar year; and/or
(ii) to schedule and require payment by the Tenant of instalments
on account of Property Taxes payable by the Tenant such that by the
final due date of Property Taxes for any calendar year, the Tenant
shall have paid to the Landlord the full amount of Property
Taxes payable by the Tenant for such calendar year, which
arrangement may include payment of instalments by the Tenant
in a calendar year on account of Property Taxes
payable by the Tenant for the next calendar year; and/or
(iii) (but not the obligation) to allocate Taxes among categories
of rentable premises in the Project on the basis of such factors
as the Landlord determines to be relevant, such as, by way of example,
the types of business or activity carried on therein, the locations
in the Project, costs of construction, relative benefits
derived by rentable premises, relative assessment values, non-public
school support designations and vacancies. The Landlord shall be entitled
to adjust the Tenant's Proportionate Share of Taxes, having regard to the
category in which the Tenant is placed by the Landlord. In determining
the share of Taxes whieh is payable by the Tenant pursuant
to this Lease,Taxes shall include such additional 'amounts
as would have formed part of the Taxes had the Project been
fully assessed during the whole of the relevant period as fully
without taking into account any acEual or potential reduction of
Taxes or change of assessment category or class for rentable
premises within the Project which are vacant.
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(2) Annual Statement and Adjustment - The Landlord
shall deliver to the Tenant within 120 days after the
end of each Fiscal Year or as soon after that date as the same
shall be prepared by or for the Landlord, a written statement setting
out in reasonable detail the amount of Operating Costs and Tenant's
Occupancy Costs for such Fiscal Year. If the total of monthly
instalments of Tenant's Occupancy Costs actually paid by the Tenant
to the Landlord during that Fiscal Year differs from the amount of Tenants
Occupancy Costs payable for that Fiscal Year under Section 4.01(b), the
Tenant shall pay to the Landlordor, if the Tenant is not in
default, the Landlord shall credit to the Tenant on account of the
next succeeding payments of Tenant's Occupancy Costs, as the
case may be, the difference,without interest, within 30 days
after the date of delivery of the statement.
(3) Disputes - If the Tenant disputes the Landlord's statement setting
out Operating Costs and Xxxxxx's Occupancy Costs or the Tax Statement for
any Fiscal Year, the Tenant shall provide notice thereof in writing to
the Landlord within 60 days of delivery of the statement in respect of
that Fiscal Year. Notwithstanding delivery of such notice, the
Tenant shall continue to pay Rent in accordance with the terms of
this Lease. In the event of a dispute, the determination of
Operating Costs and Xxxxxx's Occupancy Costs or Tenants Proportionate
Share of Taxes as made by the Landlord's auditors shall be conclusive
and binding upon both the Landlord and the Tenant. All costs
of obtaining such determination shall be included in Operating
Costs; provided that if the Landlord's auditors confirm the
Landlord's calculations within a variance of 5%,
the Tenant shall be solely responsible for the entire cost of such
determination and shall pay such costs to the Landlord forthwith
upon demand. If the Tenant and anyone or more of the other tenants in
the Project are responsible to pay such costs, the Tenant shall be
jointly and severally liable with such other tenant or tenants.
4.07 Estimates of Indirect Expenses and Resolution of Disputes -
Any expense not directly incurred by the Landlord but which
is included in Operating Costs may be estimated by the Landlord
onwhatever reasonable basis the Landlord may select if and to
the extent that the Landlord cannot ascertain the actual amount
of the expense from the party who incurred it. In the event
of any disagreement as tothe amount or propriety of any amount
included in Operating Costs, a certificate of the auditor
of theLandlord, acting reasonably, shall be conclusive as
to the amount of Operating Costs for any period which such
certificate relates.
4.08 Area Determination - The LandlotEEinay from time to time, as it deems
necessary, cause the Rentable Area of the Leased. Premises, the Building or
any part thereof to be recalculated or remeasured and the cost thereof shall
be included in Operating Costs (except as otherwise provided in this Section
4.08). Upon any such recalculation or remeasurement, Rent (including without
limitation Basic Rent) shall be adjusted accordingly. If any calculation or
determination by the Landlord of the Rentable Area of any premises (including
the Leased Premises) is disputed or called in question, it shall be
calculated or determined by the Landlord's architect or surveyor from time
to time appointed for that purpose, whose certificate shall be
conclusive and binding upon the parties hereto. The cost of
such calculation or determination shall be included In Operating
Costs; provided that if the Tenant disputes the Landlord's calculation
or determination and the calculation or determination by the
Landlord's architect or surveyor agrees with the Landlord's
calculation or determination within a 2% variance, the Tenant shall
pay the full cost of such calculation or determination forthwith
upon demand. If the Tenant and any one or more of the other tenants in the
Project are responsible to pay such costs, the Tenant shall be jointly
and severally liable with such other tenant or tenants.
If any error shall be found in the calculation of the Rentable Area of the
Leased Premises or in the calculation of Tenant's Proportionate Share, Rent
(including without limitation Basic Rent) shall be adjusted for the Fiscal
Year in which that error is discovered and for the Fiscal Year preceding the
Fiscal Year in which the error was discovered, if any, and thereafter but
not for any prior period.
4.09 Vacancy - If any part of the Building available for leasing is not
occupied, the Landlord shall have the right, in respect of amounts forming
part of Operating Costs which vary with occupancy, to include in Operating
Costs a larger amount of costs, which larger amount shall be based on a
reasonable estimate of the actual cost which would have been incurred if
the unoccupied parts of the Building available for leasing were occupied,
it being intended hereby that the Landlord shall obtain, to the extent
reasonably possible, full reimbursement of Operating Costs attributable
to or in respect of occupied premises, and not that (a) the Tenant shall
subsidize Operating Costs incurred by the Landlord attributable to or in
respect of vacant premises; or (b) the Landlord shall recover more than
actual Operating Costs.
4.10 Method of Payment
(1) Unless the Landlord advises otherwise in writing, the Tenant shall
provide to the Landlord on or before the Commencement Date and thereafter on
cir before the beginning of each Fiscal Year during the Term and within 10
days after the delivery of the Landlord's estimate of any payment
constituting Rent, postdated cheques in the amount of Rent for each month
during that Fiscal Year.
(2) At the Landlord's mquest, the Tenant shall paijticipate in a
preauthorized payment plan whereby the Landlord will be authorized to debit
the Tenant's bank account each month or from time to time for Rent payable
on a monthly basis, and any amount payable provisionally on an estimated
basis. The Tenant hereby undertakes to execute and deliver such documents
as may reasonably be required to give full force and elect to this
Subsection 0.xX(2) within 5 days of presentation.
ARTICLE 5.00-USE AND OCCUPATION
5.O1 Use of Leased Premises - The Tenant shall use and occupy only the
usable part of the Leased Premises and only for office purposes to carry
on the business set out in Item 9 of the Term Sheet and shall not use or
permit the Leased Premises or any part thereof to be used or occupied for
any other purpose or business, except as otherwise expressly permitted
under this Lease or by any Person other than the Tenant. The Tenant shall
be responsible for obtaining at its expense all necessary approvals,
licences and permits, including but not limited to zoning, development,
building, occupancy and business approvals, licences and permits, for its
intended use of the Leased Premises and shall submit all applications for
such approvals, licences and permits to the Landlord for its consent (which
consent, if the application pertains to the zoning applicable to the
Project or may adversely affect the value or use of the Project or any part
thereot may be arbitrarily withheld by the Landlord) prior to making
application. Notwithstanding the Landlord's consent to an application, the
Tenant shall indemnify and defend the Landlord and save it harmless from
and against any and all Claims incurred or suffered by the Landlord
directly or indirectly arising out of the Tenant's application
for such approvals,licences or permits or the resulting approvals,
licences and permits with respect to the use, intended or otherwise,
of the Leased Premises whether such Claims are in respect of
the Leased Premises or in respect of the Building or the Project.
The Landlord makes no representation whether or not necessary
approvals can be obtained for the Tenant's use or intended
use. The Landlord makes no representations or warranties,
express or implied, that the present or future use of the
Leased Premises, if such use is anything other than office use,
is legally fit for the intended use, or complies with any law,
by-law or regulation governing the use of the
Leased Premises.
5.02 Compliance with Laws - The Tenant shall promptly and at its own cost
comply with all present and future laws, regulations and orders relating to,
and obtain and maintain in force all approvals, permits, licences and
registrations required for, any of the following:
(a) the occupation or use of and the conduct of any business in or from the
Leased Premises;
(b) the condition of the LeaseholcEknprnvements, fixtures, furniture and
equipment installed therein;
(c) Pollutants and the protection of the environment so far as those laws,
regulations and orders or any of them relate to the Project; and
(d) the making by the Tenant of any repairs, changes or improvements in or
to the Project; and the Tenant shall immediately give written notice to the
Landlord of the occurrence of any event in the Leased Premises constituting
an offence thereunder or being in breach thereof and if the Tenant shall,
either alone or with others, cause the happening of any such event, the
Tenant shall immediately give the Landlord notice to that effect and
thereafter give the Landlord from time to time written notice of the extent
and nature of the Tenant's compliance with the foregoing provisions of
this Section.
The Tenant agrees that if the Landlord determines in its sole discretion that
the Landlord, its property, its reputation or the Leased Premises or any one
or more of the foregoing is placed in any jeopardy, as determined by the
Landlord, by the requirements for any work required to ensure compliance with
the foregoing provisions of this Section 5.02, or the Tenant is unable to
fulfil its obligations under this Section, the Landlord may itself undertake
such work or any part thereof at the cost and expense of the Tenant.
The Tenant shall, at its own expense, remedy any damage to the Leased
Premises caused by such event or work or by the performance of the
Tenant's obligations under this Section.
If altemtions or impmvements to the Leasehold Improvements or to the
Leased Premises are necessary to comply with any of the foregoing
provisions of this Section or with the requirements of insurance
carriers, the Tenant shall forthwith complete such work, complying
always with the applicable provisions of this Lease, to the extent
that it can be done within the Leased Premises and in any event
shall pay the entire cost of alterations and improvements so required.
In the event that structural repairs or upgrading of the Building,
including but not limited to seismic upgmding, is required to permit
the Tenantts use, the Landlord may, at its sole discretion,
terminate the Lease.
5.03 Prohibited Uses - The Tenant shall not commit, cause or permit any
nuisance in or about or any damage to the Leased Premises or any part
thereof, the Building or any of the Leasehold Improvements or goods or
fixtures therein, any overloading of the floors of the Leased Premises
or any use or manner of use causing annoyance to other tenants or
occupants of the Project. Without limiting the generality of the foregoing,
the Tenant shall not use or permit rndE use of any portion of the Leased
Premises for any dangerous, illegal, noxious, odorous or offensive trade,
business or occurrence. The Tenant shall keep the Leased Premises free of
debris, Pollutants and anything of a dangerous, noxious, odorous or
offensive nature or which could create a fire hazdrd (through undue load
on electrical circuits or otherwise) or vibration, heat or noise detectable
outside the Leased Premises in the sole discretion of the Landlord. The
Tenant shall not use equipment in the Leased Premises in a manner that
results in its being seen or heard outside the Leased Premises.
5.04 Common Elements - The Tenant and its employees and invitees shall be
entitled to use, in common with others entitled thereto, for purposes for
which they are intended and only during such hours as the Landlord may
designate from time to time, the Common Elements. The Tenant and its
employees and invitees shall not obstmct the Common Elements or use the
Common Elements other than for their intended purposes and then only in
accordance with the rules and regulations set by the Landlord from time
to time.
5.05 Hazardous Use - The Tenant shall not do, omit to do or permit to be
done anything which will cause or may have the effect of causing
the cost of the Landlord's insurance in respect of the Project
or any part thereof to be increased at any time during the
Term or any policy of insurance on or relating to the Project
to be subject to cancellation. Without waiving or
limiting the foregoing prohibition, the Landlord may
demand and the Tenant shall pay to the Landlord upon demand,
the amount of any increase in the cost of insurance caused by
anything so done or omitted or permitted to be done.
The Tenant shall forthwith upon the Landlord's request comply with the
requirements of the Landlord's insurers, cease any
activity complained of and make good any circumstance which has
caused any increase in insurance premiums or the cancellation
or threatened cancellation of any insurance policy.
In determining the amount of increased premiums for which the
Tenant is responsible, a schedule or statement issued by the Person who
computes the insurance rates for the Landlord showing the components of
the rate shall be conclusive evidence of the items that make up the rate.
If any policy of insurance in respect of the Project or any part thereof
is cancelled or becomes subject to cancellation by reason of anything so
done or omitted or permitted to be done, the Landlord may without prior
notice terminate this Lease and rEenter the Leased Premises.
5.06 Security Interest - The Tenant shall not, without the
Landlord's prior written consent, create a security interest
in Leasehold Improvements installed by the Tenant or the Landlord
in the Leased Premises.
5.07 Rules and Regulations - The Xxxx#f shall observe and cause its
employees, servants, agents, invitees, customers, subtenants, licencees
and others over whom the Tenant can reasonably be expected to exercise
control to observe the rules and regulations attached as Schedule C hereto
and such further and other reasonable rules and regulations and amendments
and additions thereto as may be made by the Landlord and notified to the
Tenant by mailing a copy thereof to the Tenant or by posting same in a
conspicuous place in the Building. All such rules and regulations now or
hereafter in force shall be read as forming part of this Lease; pmvided
that if there is a conflict between the rules and regulations and this
Lease, the terms of this Lease shall prevail. The Landlord shall not be
responsible to the Tenant for the nonobservance of any mle or regulation
or the terms of anyElease or agreement to lease by any other tenant of
the Project.
5.08 Permitted Signs - The Tenant shall use only such identification
signs as are prescribed by the Landlord from time to time and
as comply with all applicable by-laws, regulations and codes as to
size, location, arrangement, type of lettering, colour, appearance
and design for uniform use by office tenants in the Eullding.
Such signs shall contain only the name under which
the Tenant carries on business.
5.09 Prohibited Signs - Except with the prior written consent of the
Landlord, which consent may be arbitrarily withheld or rescinded
in the Landlord's sole discretion, or as provided in Section 5.08,
the Tenant shall not paint, display, inscribe, place or affix any
sign, symbol, notice, advertisement,display or direction of any kind
anywhere outside the Leased Premises or on the interior of any glass,
windows or doors or elsewhere within the Leased Premises
so as to be visible from the outside of the Leased Premises.
5.1O Window Coverings - Without the prior written consent of the
Landlord, the Tenant shall not install any blinds, drapes, curtains
or any other window coverings in the Leased Premises and shall not
remove, add to or change the blinds, curtains, drapes or other
window coverings installed by the Landlord from time to time. The
Tenant shall keep all window coverings open or closed at various times
as the Landlord may from time to time direct by the rules
and regulations or otherwise.
5.11 Parking - Any parking area or facility provided by the
Landlord shall at all times be subject to the exclusive control
and management of the Landlord or those whom the Landlord may
designate from time to time. The Landlord shall have the right
from time to time to establish, modify and enforce reasonable
rules and regulations with respect to any parking area or facility
and shall have the right from time to time:
(a) to expand, reduce, or change the area, level, location and
arrangement of the parking area or facility and to construct
any parking facility;
(b) to enforce parking charges with appropriate provisions
for free parking ticket validating by tenants of the Building;
(c) to close all or any portion of the parking area or facility to such
extent as may, in the Lajidlord's opinion, be legally sufficient to prevent
a dedication thereof or the accrual of rights to any Person or the public;
(d) to obstruct or close off all or any part of the parking area or facility
for the purpose of maintenance or repair; and
(e) to do and perform such other acts in and to the parking area or facility
as, in the judgment of the Landlord, shall be advisable with a view to the
improvement of the convenience of and use of the Building by tenants, their
employees and invitees.
The Landlord will operate and maintain the parking area or facility in such
manner as the Landlord in its sole discretion shall determine from time to
time. Without limiting the scope of such discretion, the Landlord shall have
the sole right to employ all personnel and make all rules and regulations
pertaining to and necessary for the proper operation and maintenance of
the parking area or facility. The Tenant shall participate in any free
parking or other ticket validation system established by the Landlord and
abide by all rules and regulations pertaining thereto and the Tenant shall
pay to the Landlord monthly, together with payments on account of Basic
Rent, all parking charges attributable to the Tenant as evidenced by
parking tickets validated by the Tenant in accordance with any system
established by the Landlord.
5.12 Authorization of Enquiries - The Tenant hereby authorizes the Landlord
to make enquiries from time to time of any government or municipality or
governmental or municipal agency with respect to the Tenanrs compliance
with any and all laws and regulations pertaining to the Tenant or the
business conducted in the Leased Premises including, without limitation,
laws
