EXHIBIT 10.6
XXXXX PLACE LIMITED PARTNERSHIP
(the "Landlord")
-and-
IRONSIDE TECHNOLOGIES INC.
(the "Tenant")
LEASE
(Xxxxx Place)
XXXXX, XXXXXX
Barristers & Solicitors
(Xxxxxxx X. Xxxx)
00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0
Telephone: (000) 000-0000 . Facsimile: (000) 000-0000
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS, LEASED PREMISES, TERM AND CONSTRUCTION
Section 1.01 - Definitions................................................................ 1
Section 1.02 - Leased Premises............................................................ 1
Section 1.03 - Use of Additional Areas.................................................... 1
Section 1.04 - Grant and Term............................................................. 1
Section 1.05 - Tenant's Construction Work................................................. 1
ARTICLE II - RENT
Section 2.01 - Covenant to Pay............................................................ 2
Section 2.02 - Basic Rent................................................................. 2
Section 2.03 - Advance Rent............................................................... 2
Section 2.04 - Post-Dated Cheques......................................................... 3
ARTICLE III - TAXES AND OPERATING COSTS
Section 3.01 - Taxes Payable by the Landlord.............................................. 3
Section 3.02 - Taxes Payable by the Tenant................................................ 3
Section 3.03 - Business Taxes And Other Taxes of the Tenant............................... 3
Section 3.04 - Tenant's Responsibility.................................................... 3
Section 3.05 - Tenant's Proportionate Share of Operating Costs............................ 4
Section 3.06 - Payment of Taxes and Operating Costs....................................... 4
ARTICLE IV - BUILDING CONTROL AND SERVICES
Section 4.01 - Control of the Building.................................................... 4
Section 4.02 - Landlord's Services........................................................ 5
ARTICLE V - UTILITIES
Section 5.01 - Charges for Utilities...................................................... 5
Section 5.02 - Heating, Ventilating And Air-Conditioning.................................. 6
ARTICLE VI - USE OF THE LEASED PREMISES
Section 6.01 - Use of the Leased Premises................................................. 6
Section 6.02 - Observance of Law.......................................................... 6
ARTICLE VII - INSURANCE AND INDEMNITY
Section 7.01 - Tenant's Insurance......................................................... 7
Section 7.02 - Increase in Insurance Premiums............................................. 8
Section 7.03 - Cancellation of Insurance.................................................. 8
Section 7.04 - Loss or Damage............................................................. 8
Section 7.05 - Landlord's Insurance....................................................... 8
Section 7.06 - Indemnification of the Landlord............................................ 9
ARTICLE VIII - MAINTENANCE, REPAIRS AND ALTERATIONS
Section 8.01 - Maintenance, Repairs and Alterations by the Tenant......................... 9
Section 8.02 - Landlord's Approval of the Tenant's Repairs and Alterations................ 9
Section 8.03 - Maintenance, Repairs and Alterations by the Landlord....................... 10
Section 8.04 - Removal and Restoration by the Tenant...................................... 10
Section 8.05 - Repair On Notice........................................................... 11
Section 8.06 - Liens...................................................................... 11
Section 8.07 - Signs and Advertising...................................................... 11
Section 8.08 - Pest Extermination......................................................... 11
ARTICLE IX - DAMAGE AND DESTRUCTION
Section 9.01 - Destruction of the Leased Premises......................................... 11
Section 9.02 - Destruction of the Building................................................ 12
Section 9.03 - Expropriation.............................................................. 12
Section 9.04 - Architect's Certificate.................................................... 13
ARTICLE X - TRANSFER AND SALE
Section 10.01 - Assignment and Subletting................................................. 13
Section 10.02 - Permitted Transfers....................................................... 14
Section 10.03 - Increased Rental On Subletting or Assignment.............................. 14
Section 10.04 - No Advertising Of The Leased Premises..................................... 14
Section 10.05 - Assignment by the Landlord................................................ 14
ARTICLE XI - ACCESS AND ALTERATIONS
Section 11.01 - Right of Entry............................................................ 14
ARTICLE XII - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
Section 12.01 - Status Statement.......................................................... 15
Section 12.02 - Subordination and Attornment.............................................. 15
Section 12.03 - Attorney.................................................................. 15
Section 12.04 - Financial Information..................................................... 15
ARTICLE XIII - DEFAULT
Section 13.01 - Right to Re-enter......................................................... 16
Section 13.02 - Right to Relet............................................................ 16
Section 13.03 - Expenses.................................................................. 17
Section 13.04 - Waiver of Exemption from Distress......................................... 17
Section 13.05 - Landlord's Rights......................................................... 17
Section 13.06 - Rent Past Due............................................................. 17
Section 13.07 - Security Deposit......................................................... 17
Section 13.08 - Remedies Generally........................................................ 17
ARTICLE XIV - MISCELLANEOUS
Section 14.01 - Rules and Regulations..................................................... 18
Section 14.02 - Intent and Interpretation................................................. 18
Section 14.03 - Overholding............................................................... 18
Section 14.04 - Successors................................................................ 18
Section 14.05 - Tenant Partnership........................................................ 18
Section 14.06 - Waiver.................................................................... 18
Section 14.07 - Accord and Satisfaction................................................... 19
Section 14.08 - Unavoidable Delay......................................................... 19
Section 14.09 - Notices................................................................... 19
Section 14.10 - Registration.............................................................. 19
Section 14.11 - Directory Board........................................................... 19
Section 14.12 - Survival of Covenants..................................................... 19
Section 14.13 - The Planning Act.......................................................... 19
Section 14.14 - Demolition................................................................ 19
Section 14.15 - Quiet Enjoyment........................................................... 20
Section 14.16 - Obligations As Covenants.................................................. 20
Section 14.17 - Captions And Section Numbers.............................................. 20
Section 14.18 - Extended Meanings......................................................... 20
Section 14.19 - Partial Invalidity........................................................ 20
Section 14.20 - Entire Agreement.......................................................... 20
Section 14.21 - Governing Law............................................................. 21
Section 14.22 - Time Of The Essence....................................................... 21
SCHEDULE A
LEGAL DESCRIPTION OF LANDS................................................................ 1
SCHEDULE B
FLOOR PLAN................................................................................ 1
SCHEDULE C
CONSTRUCTION OF THE LEASED PREMISES....................................................... 1
SCHEDULE D
METHOD OF FLOOR MEASUREMENT............................................................... 1
SCHEDULE E
RULES AND REGULATIONS..................................................................... 1
SCHEDULE F
DEFINITIONS............................................................................... 1
SCHEDULE G
SPECIAL PROVISIONS........................................................................ 1
THIS LEASE made this 1st day of February, 0000,
X X X X X X X:
XXXXX PLACE LIMITED PARTNERSHIP, a limited
partnership formed under the laws of the Province of Ontario,
hereinafter called the "Landlord"
OF THE FIRST PART
- and -
IRONSIDE TECHNOLOGIES INC a corporation
incorporated under an ordinance of the Yukon Territory
hereinafter called the "Tenant"
OF THE SECOND PART
ARTICLE I - DEFINITIONS, LEASED PREMISES, TERM AND CONSTRUCTION
---------------------------------------------------
Section 1.01 - Definitions
The parties hereto agree that when used in this Lease or in any Schedule or
Rider attached to this Lease, the words or expressions set forth in Schedule "F"
hereto annexed shall have the meaning therein set forth.
Section 1.02 - Leased Premises
The Landlord leases to the Tenant and the Tenant leases from the Landlord the
premises (hereinafter called the "Leased Premises") which are designated as
Suite No. 200, located on the 2nd floor of the Building and are shown outlined
in red on the floor plan attached as Schedule "B". The Net Rentable Area of the
Leased Premises is approximately six thousand nine hundred and sixty (6,960)
square feet and the Gross Floor Area of the Leased Premises is approximately
eight thousand (8,000) square feet and has been or will be measured in
accordance with Schedule "D". The Leased Premises exclude any part of the
exterior face of the Building.
Section 1.03 - Use of Additional Areas
The Tenant's use of the Leased Premises includes the non-exclusive and
non-transferable right of the Tenant and persons having business with the
Tenant, in common with the Landlord and all others entitled, to the use of those
Common Areas and Facilities as are required incidental to the Tenant's business
operations.
Section 1.04 - Grant and Term
The Tenant shall, subject to this Lease, have and hold the Leased Premises
during the Term (herein referred to as the "Term"), which is the period of five
(5) years, commencing on February 15, 2000, (the "Commencement Date") and
expiring on February 14, 2005.
Section 1.05 - Tenant's Construction Work
(a) The Tenant acknowledges that it accepts the Leased Premises on an "as is"
basis and that the Tenant will be solely responsible for all alterations,
renovations, improvements and decorations of or to the Leased Premises which
will be completed by the Tenant at its sole cost in accordance with the terms of
this Lease.
(b) The Tenant will complete the work designated as "Tenant's Work" in
accordance with Schedule "C" and will pay, as Additional Rent, any charges
specified in that Schedule.
(c) During the Fixturing Period, if any, the Tenant will:
(i) perform the Tenant's Work and cause its employees and contractors to
do their work so as not to interfere with the Landlord's contractors
and employees in the completion of the Landlord's Work or with work
being done by the Landlord or others in the Building, and
(ii) be bound by all provisions of this Lease, except those requiring
payment of Basic Rent and any payments on account of Additional Rent.
Basic Rent and payments on account of Additional Rent will commence
being payable at the end of the Fixturing Period.
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(d) The Tenant will examine the Leased Premises before taking possession and
unless the Tenant furnishes the Landlord with written notice specifying any
defects within ten (10) days after taking possession of the Leased Premises, the
Tenant will be deemed to have examined the Leased Premises and to have agreed
that they are in good order. There is no promise, representation or undertaking
by or binding upon the Landlord with respect to any alteration, remodelling or
redecorating of or installation of equipment or fixtures in the Leased Premises,
unless expressly set forth in this Lease.
(e) If there is a dispute as to:
(i) the availability of the Leased Premises for possession by the Tenant,
or
(ii) the Gross Floor Area of the Leased Premises, or
(iii) the Net Rentable Area of the Leased Premises, or
(iv) the Net Rentable Area of the Building, or
(v) the Gross Floor Area of the Building,
a certificate of the Landlord's Surveyor, Engineer or Architect will be final
and binding on the Landlord and the Tenant and the Indemnifier, if any.
(f) Subject to the provisions of that portion of Schedule "C" entitled
"Procedures", if there is a delay in the date upon which the Leased Premises are
made available to the Tenant, the Commencement Date will be postponed from time
to time as may be required and the Tenant will not be entitled to any
compensation or damages resulting from this postponement.
ARTICLE II - RENT
----
Section 2.01 - Covenant to Pay
The Tenant will pay Basic Rent and Additional Rent, as herein provided.
Section 2.02 - Basic Rent
The Tenant will throughout the Term pay the Landlord as Basic Rent, at the
office of the Landlord, or at such other place designated by the Landlord, in
lawful money of Canada, without any prior demand therefor and without any
deduction, abatement, set-off or compensation whatsoever, as Basic Rent, the
annual amounts set out in the following table based upon annual rates per square
foot of the Gross Floor Area of the Leased Premises set out in the following
table (subject to adjustment from time to time as the Gross Floor Area of the
Leased Premises changes throughout the Term, as provided in Schedule "D") plus
goods and services tax. Basic Rent is payable in advance in equal consecutive
instalments on the first day of each calendar month of each Rental Year, in the
monthly amounts set out in the following table, and will be prorated on a daily
basis for any fractional portion of a month at the beginning or end of the Term.
The table is as follows:
Period of Time Rent per square foot Annual Basic Rent Monthly Basic Rent
1. Years 1 - 3 $10.00 $80,000.00 $6,666.67
2. Years 4 - 5 $12.00 $96,000.00 $8,000.00
If the Commencement Date is on a day other than the first day of the calendar
month, then the Tenant shall pay, upon the Commencement Date, a portion of the
Basic Rent pro-rated on a per diem basis from the Commencement Date to the end
of the month in which the Commencement Date occurs, based upon a period of three
hundred and sixty-five (365) days.
Section 2.03 - Advance Rent
The Landlord acknowledges receipt of twenty-five thousand dollars ($25,000.00)
(the "Advance Rent") to be held without interest by the Landlord and applied on
account of the Rent first payable under this Lease.
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Section 2.04 - INTENTIONALLY DELETED
ARTICLE III - TAXES AND OPERATING COSTS
-------------------------
Section 3.01 - Taxes Payable by the Landlord
Subject to the provisions of Section 3.02 hereof, the Landlord will pay directly
to the appropriate taxing authority all Taxes which are levied, rated, charged
or assessed against the Building or any part thereof. The Landlord may,
nevertheless, withhold or defer payment of any such Taxes or defer compliance
with any statute, law, by-law, regulation or ordinance in connection with the
levying of any such Taxes, in each case to the fullest extent permitted by law,
so long as it diligently prosecutes any contest or appeal of any such Taxes.
Section 3.02 - Taxes Payable by the Tenant
(a) The Tenant will pay to the Landlord, in accordance with Section 3.06
hereof, its Proportionate Share of all Taxes which are from time to time levied,
rated, charged or assessed against the Building and every part thereof,
including the Common Areas and Facilities.
(b) If the Landlord, acting equitably, determines that as a result of the
construction or installation of improvements in the Leased Premises, the use of
the Leased Premises or the particular location of the Leased Premises within the
Building, the Tenant's Proportionate Share of Taxes does not accurately reflect
the proper share of Taxes which should, in the Landlord's reasonable opinion, be
payable by the Tenant, then the Landlord may increase or decrease the Tenant's
Proportionate Share of Taxes and the Tenant will pay that adjusted amount of
Taxes rather than the Proportionate Share set out in Section 3.02(a).
(c) If there is a separate tax xxxx or assessment for Taxes for the Leased
Premises, the Tenant will, if the Landlord requests, in lieu of paying its
Proportionate Share as set out in Section 3.02(a), pay:
(i) all Taxes specified by that separate xxxx and assessment, and
(ii) its proportionate Share of all Taxes levied or assessed against or
allocated by the Landlord to the Common Areas and Facilities.
The Tenant shall promptly provide the Landlord with any separate tax bills or
separate assessment notices for the Leased Premises and shall promptly deliver
to the Landlord receipts evidencing the payment of all such Taxes payable
directly to any such taxing authority and furnish such other information in
connection with all such Taxes as the Landlord reasonably requires. If the
Tenant is prohibited from paying its Proportionate Share of Taxes directly to
the Landlord, as aforesaid, and if as a result, the amount which the Tenant has
actually paid to the taxing authority during the Rental Year in question exceeds
or is exceeded by the Tenant's Proportionate Share of Taxes, there will be an
adjustment between the parties and (i) the Tenant will pay to the Landlord,
within twenty (20) days after the final tax bills are issued for such Rental
Year, the amount by which the Tenant's Proportionate Share of Taxes for such
Rental Year exceeds the amount of Taxes actually paid to the taxing authority by
the Tenant, or (ii) the Landlord will pay to the Tenant, upon receipt of
satisfactory evidence from the Tenant that the Tenant has paid the final tax
xxxx for such Rental Year the amount by which the Taxes actually paid to the
taxing authority by the Tenant exceeds the Tenant's Proportionate Share of Taxes
for such Rental Year.
Section 3.03 - Business Taxes And Other Taxes of the Tenant
The Tenant will pay to the lawful taxing authority or authorities or to the
Landlord, as the Landlord may from time to time direct, all business taxes,
personal property taxes, license fees, rates, duties, assessments or other
similar rates and assessments levied or assessed against or in relation to the
Tenant's business, assets and improvements in the Leased Premises or those of
any other person occupying the Leased Premises (collectively "Business Taxes").
Business Taxes include all such taxes, fees, rates and assessments and whether,
in any case, any such taxes, rates, duties, assessments or license fees are
rated, charged or assessed by any federal, provincial, municipal, school or
other body during the Term. Business Taxes include all such taxes, fees, rates
and assessments which may in the future be levied against the Landlord on
account of its ownership of or interest in the Building or may in the future be
levied, charged or assessed in addition to or in replacement of any Business
Taxes charged or in effect as of the Commencement Date. If there are not
separate tax bills provided for Business Taxes, the Tenant shall pay its
Proportionate Share of all Business Taxes with respect to the entire Building.
In addition to the Taxes hereinbefore set out, the Tenant shall pay as
Additional Rent to the Landlord, at the same time or times as the Tenant shall
make payment of either or both of Basic Rent and/or Additional Rent, all Goods
and Services Tax payable with respect to such Basic Rent and/or Additional Rent
pursuant to the Excise Tax Act (Canada).
Section 3.04 - Tenant's Responsibility
The Tenant will deliver to the Landlord:
(a) receipts for the payment of all Business Taxes;
(b) notices of any assessments of Business Taxes; and
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(c) any additional information in connection with Business Taxes which the
Landlord reasonably requests;
in each case, within five (5) days after request by the Landlord. In addition,
the Tenant will deliver to the Landlord, at least ten (10) days prior to the
last day permitted for filing an appeal, notice of any appeal or contestation
which the Tenant intends to institute with respect to Taxes or Business Taxes
and the Tenant will consult with the Landlord and obtain the prior written
approval of the Landlord with respect to any appeal or contestation. If the
Tenant obtains the approval of the Landlord, as aforesaid, the Tenant shall
deliver to the Landlord such security for the payment of such Taxes or Business
Taxes as the Landlord deems advisable and the Tenant shall diligently prosecute
any such appeal or contestation to a speedy resolution and shall keep the
Landlord informed of its progress in that regard from time to time. The Tenant
will indemnify the Landlord and hold the Landlord harmless from and against the
payment of all losses, costs, charges and expenses, including any increase in
Taxes or Business Taxes relating to the Leased Premises or the Building, which
arise directly or indirectly out of any appeal or contestation by the Tenant of
Taxes or Business Taxes.
Section 3.05 - Tenant's Proportionate Share of Operating Costs
The Tenant will pay, in accordance with Section 3.06, as Additional Rent the
Tenant's Proportionate Share of Operating Costs, as defined in Schedule "F".
Section 3.06 - Payment of Taxes and Operating Costs
(a) The amounts payable by the Tenant under Sections 3.02 and 3.05 may be
estimated from time to time by the Landlord and the Tenant agrees to pay to the
Landlord the Tenant's Proportionate Share thereof. The Landlord estimates that
the Operating Costs and Realty Taxes for the Leased Premises for 1999 are Seven
Dollars and Thirty Eight Cents ($7.38) per square foot plus G.S.T. This is an
estimation only and the Landlord makes no representations or warranties with
respect to the accuracy of this estimation. Operating Costs and Taxes, as
reasonably estimated by the Landlord from time to time,shall be paid in monthly
instalments, in advance on the same dates, at the same time and in the same
manner as Basic Rent and the failure of the Tenant to pay the Tenant's
Proportionate Share of Taxes or Operating Costs shall entitle the Landlord to
the same remedies as if the Tenant were in default of payment of Basic Rent. The
Landlord's estimate of Taxes or Business Taxes, if payable to the Landlord, or
both of them may be such that, by the due date of the last instalment of taxes
payable to the Municipality with respect to the Building, the Landlord will have
received from the Tenant the full amount of the Tenant's Proportionate Share of
Taxes or Business Taxes for the then current calendar year. The Landlord's
estimates may be revised from time to time and as soon as the Landlord has
received bills for Taxes, Business Taxes and Operating Costs, the Landlord may
xxxx the Tenant for the Tenant's Proportionate Share thereof and the Tenant will
pay as Additional Rent the amounts billed less all amounts previously paid by
the Tenant in accordance with the estimates.
(b) Within a reasonable period of time after the end of the period for which
the estimated payments of Taxes, Business Taxes and Operating Costs have been
made, the Landlord will determine and shall advise the Tenant of the exact
amount of the Tenant's Proportionate Share of Taxes, Business Taxes and
Operating Costs respectively and, if necessary, an adjustment will be made
between the parties within fifteen (15) days after the Tenant has been advised
of the actual amount of Taxes, Business Taxes or Operating Costs.
ARTICLE IV - BUILDING CONTROL AND SERVICES
-----------------------------
Section 4.01 - Control of the Building
(a) The Landlord will operate and maintain the Building in such manner as would
a prudent Landlord of a similar type of building having regard to size, age and
location.
(b) The Building is at all times subject to the exclusive control, management
and operation of the Landlord. The Landlord has the right, in its control,
management and operation of the Building, to perform all acts which, in the use
of reasonable business judgement, the Landlord determines advisable for the
efficient and proper operation of the Building and the Lands. This includes,
without limitation:
(i) obstructing or closing off all or any part of the Building or the
Lands for the purpose of maintenance, repair or construction;
(ii) from time to time, change the area, level, location, arrangement or
use of the Building or any part thereof, including the Common Areas
and Facilities;
(iii) employing all personnel necessary for the operation of the Building
and the Lands. The Tenant acknowledges that the Building and the
Lands may be managed by any persons designated by the Landlord;
(iv) constructing other improvements on other portions of the Lands and
making alterations, additions, subtractions or rearrangements,
building additional storeys and constructing facilities on, within,
adjoining or proximate to the Building and the Lands; and
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(v) relocate or rearrange the various buildings, parking areas and other
parts of the Building from those existing at the Commencement Date
or, prior to the Commencement Date, relocate or rearrange the Leased
Premises from that shown on Schedule "B". The Tenant hereby
acknowledges that the sole purpose of Schedule "B" is to show the
approximate location of the Leased Premises.
(c) The Landlord may, from time to time, prohibit the Tenant and its employees,
suppliers and customers from parking anywhere on the Lands. If the Landlord
designates tenant parking areas on the Lands or elsewhere, the Tenant and its
employees shall park their vehicles only in such parking areas. The Tenant shall
furnish the Landlord, upon request, with the current license numbers of all
vehicles owned or used by the Tenant and its employees and the Tenant shall,
thereafter, notify the Landlord of any changes within five (5) days after any
such change occurs. If the Tenant or its employees park their vehicles in any
such prohibited parking areas, the Landlord, in addition to all rights and
remedies hereunder, shall have the right to charge the Tenant a per diem fee per
vehicle parked in any area other than a designated area. Such fee is payable as
Additional Rent on demand. The Landlord reserves the right to impose reasonable
charges upon any Person (including the general public) for the use of the
parking facilities. Notwithstanding the foregoing, the existing parking for the
Building is 3.3 surface parking stalls per thousand square feet of Rentable Area
at no charge.
Notwithstanding anything contained in this Lease, it is understood and agreed
that if as a result of the exercise by the Landlord of its rights set out in
this Section 4.01, the Common Areas and Facilities are diminished or altered in
any manner whatsoever, the Landlord is not subject to any liability, nor is the
Tenant entitled to any compensation or diminution or abatement of Rent nor is
any alteration or diminution of the Common Areas and Facilities deemed
constructive or actual eviction or a breach of any covenant for quiet enjoyment
contained in this Lease.
(d) The Landlord will, in the exercise of its rights conferred under Section
4.01, proceed as expeditiously as possible to minimize interference with the
Tenant's business.
Section 4.02 - Landlord's Services
(a) The Landlord will furnish, except temporarily when repairs are being made,
elevator service within the Building, at all times in common with others.
(b) The Landlord will make water and electricity available in normal
quantities. If the Tenant's equipment requires utilities in excess of normal
quantities, facilities to supply the excess quantities or to meter or otherwise
monitor the Tenant's consumption thereof, if available, may, at the Landlord's
sole option, be provided by the Landlord, at the expense of the Tenant, such
expense to be payable as Additional Rent.
(c) The Landlord will provide heating and air-conditioning to the Leased
Premises during Normal Business Hours, when determined necessary by the
Landlord, to maintain the Leased Premises at a temperature adequate for
reasonable occupancy. The Landlord will have no responsibility or liability for
failure to supply heating or air-conditioning services when stopped for
temporary repairs or maintenance or by strikes or other causes beyond the
Landlord's reasonable control.
ARTICLE V - UTILITIES
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Section 5.01 - Charges for Utilities
(a) The Tenant shall be solely responsible for and shall promptly pay to the
Landlord, or as the Landlord otherwise directs, in the manner hereinafter
provided as Additional Rent, the aggregate, without duplication, of:
(i) all electricity, water and steam charges and other utility charges
applicable to the Leased Premises (the "Utilities");
(ii) the costs of any other charges levied or assessed in lieu of or in
addition to such Utilities as determined by the Landlord including,
without limitation, the equitable allocation to the Leased Premises of
any additional charge, as determined by the Landlord, for the excess
supply to and usage of water, electricity, steam and other utilities
in the Leased Premises.
The charges for the Utilities shall be included in Operating Costs unless
the Landlord determines that the Tenant shall pay an additional charge for the
supply to the Tenant and usage of water, electricity, steam and other Utilities
in the Leased Premises in excess of the standard usage of general office
premises in the Building, in which event the additional charge for Utilities
shall be calculated on the basis of the Net Rentable Area of the Leased
Premises, together with an administration fee of fifteen percent (15%) of the
additional charge and the additional charge and administration fee shall be
payable within five (5) days after invoicing. If the public utility rate and
other taxes and charges in connection therewith for the supply of electric
current or other utilities to the Building is increased or decreased during the
Term, the charges for same, payable as Additional Rent pursuant to this Lease,
shall be equitably adjusted and the decision of the Landlord, acting reasonably,
shall be final and binding upon the parties hereto with respect to any such
adjustments of the Additional Rent payable and the Tenant agrees to pay such
increased charges on demand as Additional Rent.
(b) The Landlord will have the exclusive right to attend to any replacement of
electric light bulbs, tubes and ballasts in the Leased Premises throughout the
Term on the basis determined by the Landlord in accordance with good commercial
practice.
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The Tenant will pay a monthly charge (subject to adjustment based on actual
costs) per bulb, tube and ballast on account of the cost of replacement. If the
Landlord elects not to relamp and reballast, then the replacement of electric
light bulbs, tubes and ballasts in the Leased Premises will be undertaken by the
Landlord at such time as they actually burn out and after notice from the Tenant
that replacement is required. In such last mentioned event, the cost of
replacement and installation will be paid by the Tenant within five (5) days
after invoicing.
(c) The Tenant shall pay for:
(i) the cost of any metering which the Tenant requests the Landlord to
install in the Leased Premises or the Building or which the Landlord
wishes to install in the Building for the purpose of assisting in
determining the consumption of any Utility (including electricity and
water) in the Leased Premises; and
(ii) any other costs incurred by the Landlord in determining or allocating
the additional charge for Utilities, including without limitation,
professional engineering and consulting fees.
Section 5.02 - Heating, Ventilating And Air-Conditioning
The Landlord shall maintain in the Leased Premises conditions of reasonable
temperature and comfort during Normal Business Hours in accordance with
standards of interior climate control generally pertaining at the date of this
Lease applicable to normal occupancy of premises for office purposes, such
conditions to be maintained by means of a system for heating and cooling,
humidifying and dehumidifying, filtering and circulating air and processed air
and, subject to what is hereinafter set forth, the cost thereof shall be
included in Operating Costs. The Landlord shall not be responsible for any
inadequacy of performance of the said system if the number of persons per square
foot of floor area or the amount of electrical power consumed in the Leased
Premises exceeds the guidelines set out in the Landlord's design criteria or if
the Tenant installs partitions or other installations in locations which
interfere with the proper operation of the system of interior climate control or
if the window coverings on exterior windows are not kept fully closed while the
windows are exposed to direct sunlight. If the use of the Leased Premises does
not accord with the aforementioned requirements and changes in the system are
(in the reasonable opinion of the Landlord) desirable to accommodate such use
the Landlord may make such changes and the entire expense of such changes plus
fifteen percent (15%) thereof as an administration and supervision charge will
be reimbursed by the Tenant to the Landlord and shall be recoverable by the
Landlord as if the same were Additional Rent reserved and in arrears. If, in the
opinion of the Landlord, such changes result in maintenance costs or operating
costs in excess of those which would have occurred had such changes not been
made, the Landlord may estimate the amount of such excess on a reasonable basis
and such amount shall not be included in Operating Costs but shall be paid by
the Tenant to the Landlord as Additional Rent reserved and shall be recoverable
as if the same were in arrears.
ARTICLE VI - USE OF THE LEASED PREMISES
--------------------------
Section 6.01 - Use of the Leased Premises
The Leased Premises will be used solely for the purpose of business offices and
for no other purpose. The Tenant acknowledges that it is only one of the many
tenants of the Lands and accordingly will conduct its business in the Leased
Premises in a reputable and first-class manner and in the best interests of the
Building as a whole. Any business, conduct or practice carried on by the Tenant
which, in the Landlord's reasonable opinion, may harm the business or reputation
of the Landlord or reflect unfavourably on the Building or its tenants, will be
immediately discontinued by the Tenant at the request of the Landlord.
Section 6.02 - Observance of Law
The Tenant will, at its expense, and subject to Section 8.02:
(a) comply with all provisions of law including, without limitation, all
statutes, regulations, by-laws, ordinances and other requirements of
municipal, provincial, federal and other governmental bodies, agencies or
departments which now or hereafter pertain to or affect the Leased Premises
or require or govern the making of any repairs, alterations, improvements
or other changes of or to the Leased Premises or the Tenant's use of it;
(b) obtain all necessary permits, licenses and approvals, including occupancy
permission, relating to the use of the Leased Premises and the conduct of
business therein;
(c) co-operate with the Landlord in and comply with the Landlord's requests and
with all laws, by-laws, regulations and orders relating to the conservation
of all forms of energy serving the Building;
(d) observe and comply with all police, fire and sanitary regulations imposed
by any governmental authorities (whether federal, provincial or municipal),
or made by fire insurance underwriters or by the Insurer's Advisory
Organization or any successor thereto; and
(e) carry out all modifications, alterations, or changes of or to the Leased
Premises and the Tenant's conduct of business in or use of the Leased
Premises which are required by any such authorities as set out above.
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ARTICLE VII - INSURANCE AND INDEMNITY
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Section 7.01 - Tenant's Insurance
(a) The Tenant will, at its expense, take out and maintain in full force and
effect and in the names of the Tenant, the Landlord and the Mortgagee, as their
respective interests may appear, the following insurance:
(i) fire and standard extended perils insurance coverage, including
sprinkler leakages, vehicle impact and collapse, insofar as any
collapse occurs as a result of the negligence of the Tenant or any
officers, employees, servants, agents, customers, invitees or
licensees of the Tenant, in an amount equal to the full replacement
cost of all improvements, equipment and chattels in or serving the
Leased Premises or for which the Tenant is legally liable, together
with, if applicable, standard broad form boiler and machinery
insurance covering, as a minimum, all boilers, pressure vessels,
air-conditioning equipment and miscellaneous electrical apparatus in
or serving the Leased Premises;
(ii) Comprehensive general liability insurance, including personal injury
liability, contractual liability, employers' liability, non-owned
automobile liability and owners' and contractors' protective
insurance coverage, with such coverage to include the activities and
operations of the Tenant and any other person in or at the Leased
Premises or performing work for the Tenant and all others for whom
the Tenant is in law responsible in any other part of the Building
and the Lands. The aforesaid policies will:
(A) be written on a comprehensive basis with inclusive limits of
not less than two million dollars ($2,000,000.00) for bodily
injury to any one or more persons or property damage or such
higher limits or covering such other risks as the Landlord,
acting reasonably, or the Mortgagee requires from time to
time; and
(B) contain severability of interests and cross-liability
clauses;
(iii) tenant's legal liability insurance for the actual cash value of the
Leased Premises, including loss of use thereof;
(iv) business interruption insurance in such amount as will reimburse the
Tenant for direct or indirect loss of earnings attributable to all
perils insured against in clause 7.01(a)(i) above, when applicable,
and other perils commonly insured against by prudent tenants or
attributable to prevention of access to the Leased Premises or to
the Building as a result of such perils;
(v) any other form of insurance as the Tenant or the Landlord, acting
reasonably, or the Mortgagee requires from time to time.
(b) The Tenant's policies will:
(i) contain the Mortgagee's standard mortgage clause and contain a
waiver of any subrogation rights which the Tenant's insurers 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 those for whom the Landlord is in law
responsible;
(ii) be taken out with insurers reasonably acceptable to the Landlord and
the Mortgagee and in a form reasonably satisfactory to the Landlord;
(iii) be non-contributing with and apply only as primary and not as excess
to any other insurance available to the Landlord;
(iv) not be invalidated as respects the interests of the Landlord and the
Mortgagee by reason of any breach or violation of any warranties,
representations, declarations or conditions contained in the
policies; and
(v) contain an undertaking by the insurer or insurers to notify the
Landlord and the Mortgagee in writing not less than thirty (30) days
prior to any material change, cancellation or termination.
The Tenant agrees that either certified copies of the aforesaid insurance
policies or certificates of insurance, as may be acceptable to the Landlord,
will be delivered to the Landlord as soon as practicable after the placing of
the required insurance.
(c) If there is damage or destruction to the leasehold improvements in the
Leased Premises, the Tenant will use the insurance proceeds for the sole purpose
of repairing or restoring the leasehold improvements. If there is damage to or
destruction of the Building entitling the Landlord to terminate this Lease under
Section 9.02, then, if the Leased Premises have also been damaged or destroyed,
the Tenant will pay the Landlord all of its insurance proceeds relating to the
leasehold improvements and if the Leased Premises have not been damaged or
destroyed, the Tenant shall, upon demand, deliver to the Landlord, in accordance
with this Lease, the leasehold improvements and the Leased Premises.
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(d) The Tenant agrees that if the Tenant fails to take out or to maintain in
force any such insurance referred to in this Section 7.01 or should any such
insurance not be approved by either the Landlord or the Mortgagee and should the
Tenant not commence to diligently rectify (and thereafter proceed diligently to
rectify) the situation within forty-eight (48) hours after written notice by the
Landlord to the Tenant (stating if the Landlord or the Mortgagee does not
approve of such insurance, the reasons therefor), the Landlord has the right,
without assuming any obligation in connection therewith, to effect such
insurance at the sole cost of the Tenant and all outlays by the Landlord shall
be immediately paid by the Tenant to the Landlord as Additional Rent on the
first day of the next month following said payment by the Landlord, without
prejudice to any other rights and remedies of the Landlord under this Lease or
otherwise.
Section 7.02 - Increase in Insurance Premiums
If:
(a) the occupancy of the Leased Premises;
(b) the conduct of business in the Leased Premises; or
(c) any acts or omissions of the Tenant in or on the Building, the Lands or the
Leased Premises
causes or results in any increase in premiums for the insurance carried from
time to time by the Landlord with respect to the Building and the Lands, the
Tenant will pay the increase in premiums within five (5) days after invoices for
additional premiums are rendered by the Landlord.
Section 7.03 - Cancellation of Insurance
If any insurance policy in respect of the Building or the Lands is cancelled or
threatened by the insurer or insurers to be cancelled or the coverage reduced by
the insurer by reason of the use and occupation of the Leased Premises and if
the Tenant fails to remedy the condition giving rise to cancellation, threatened
cancellation or reduction of coverage within forty-eight (48) hours after notice
by the Landlord, the Landlord may, at its option, either:
(a) exercise its rights of re-entry including termination under Article XIII,
or
(b) at the Tenant's expense, enter upon the Leased Premises and remedy the
condition giving rise to the cancellation, threatened cancellation or
reduction.
Section 7.04 - Loss or Damage
The Landlord shall not be liable for any death or injury arising from or out of
any occurrence in, upon, at or relating to the Building or the Lands or damage
to property of the Tenant or of others wherever located, whether or not
resulting from
(a) the negligence of the Landlord or those for whom it may in law be
responsible,
(b) the exercise by the Landlord of any of its rights under this Lease, or
(c) by Landlord's failure to supply any services, facilities or Utilities
required by this Lease.
This exculpation of the Landlord from liability extends to and includes all
damages, direct, indirect or consequential, damages for personal discomfort,
illness, inconvenience, damage to health, injury, damage to property or other
loss resulting from any cause including, without limitation, fire, explosion,
falling plaster, falling ceiling tile, falling ceiling fixtures and diffuser
coverings, steam, gas, electricity, water, rain, flood, snow or leaks from any
part of the Building, including pipes, sprinklers, appliances, plumbing works,
roofs, windows or the subsurface of any floor or ceiling of the Building or from
portions of the Lands or any lands adjoining the Building. The intent of this
Section is that the Tenant (and all employees, customers and other persons
having business with the Tenant) is to look solely to its insurers to satisfy
any claim which may arise on account of death, injury, loss or damage,
irrespective of its cause.
Section 7.05 - Landlord's Insurance
The Landlord shall at all times throughout the Term carry:
(a) insurance on the Building (including the foundations and excavations) and
the equipment contained in or servicing the Building against damage by fire
and extended perils;
(b) public liability and property damage insurance with respect to the
Landlord's operations in the Building and on the Lands; and
(c) other forms of insurance considered advisable by the Landlord and its
Mortgagee,
-9-
in each case, in such reasonable amounts and with such reasonable deductions as
would be carried by a prudent owner of a similar building.
Notwithstanding the Landlord's covenant and the Tenant's contribution to the
cost of the Landlord's insurance premiums,
(a) the Tenant is not relieved of any liability arising from or contributed to
by its negligence or its wilful acts or omission,
(b) no insurable interest or other benefit (including an implied waiver of
subrogation from the Landlord's insurers) is conferred upon the Tenant
under the Landlord's insurance policies, and
(c) the Tenant has no right to receive proceeds from the Landlord's insurance
policies.
Section 7.06 - Indemnification of the Landlord
The Tenant will indemnify the Landlord and save it harmless from and against all
loss including loss of rentals, claims, actions, damages, costs, liability and
expense in connection with loss of life, personal injury, damage to property
(including any portion of the Building and its equipment, machinery, services
and improvements) or any other loss or injury whatsoever arising from or out of
this Lease or any occurrence in the Leased Premises, or the Tenant's occupancy
of the Leased Premises, the Building or the Lands or occasioned wholly or in
part by any act or omission of the Tenant or by anyone permitted to be on the
Leased Premises, the Building or the Lands by the Tenant. The Tenant's
indemnity, however, will not extend to any matters to the extent contributed to
by the negligent acts, but not negligent omissions, of the Landlord or those for
whom the Landlord is in law responsible. If the Landlord is, without fault on
its part, made a party to any litigation commenced by or against the Tenant,
then the Tenant will protect, indemnify and hold the Landlord harmless and pay
all expenses and reasonable legal fees incurred or paid by the Landlord in
connection with such litigation or the threat thereof. The Tenant will also pay
all costs, expenses and legal fees (on a solicitor and his own client basis)
that may be incurred or paid by the Landlord or for which the Landlord is
responsible in enforcing the terms, covenants and conditions in this Lease,
unless a Court shall decide otherwise.
ARTICLE VIII - MAINTENANCE, REPAIRS AND ALTERATIONS
------------ ------------------------------------
Section 8.01 - Maintenance, Repairs and Alterations by the Tenant
(a) The Tenant will at all times, at its expense, maintain the whole of the
Leased Premises including, without limitation, electrical, lighting, wiring,
plumbing fixtures and equipment and the heating, ventilating and
air-conditioning systems and equipment within or exclusively serving the Leased
Premises in good order, first-class condition and repair, as determined by the
Landlord, and the Tenant will make all needed repairs and replacements thereto
and thereof with due diligence and dispatch, unless the Landlord informs the
Tenant that the Landlord will do some or all of the aforesaid work, in which
event the cost of the work done by the Landlord in this regard shall, at the
option of the Landlord, either be paid by the Tenant upon the receipt of the
Landlord's invoice therefor or be included in Operating Costs.
(b) The Tenant will leave the Leased Premises in a reasonably tidy condition at
the end of each business day in order that the Landlord's cleaning services, if
any such cleaning services are provided by the Landlord, can be performed.
(c) The Tenant will pay for the cost of replacement of glass broken on the
Leased Premises including outside windows and doors of the perimeter of the
Leased Premises.
(d) At the expiration or earlier termination of the Term, or any renewal
thereof, the Tenant will surrender the Leased Premises to the Landlord in "as
is" condition, which shall be the condition that the Tenant is required to
maintain them throughout the Term, or any renewal thereof. The Tenant shall not
be required to remove or restore any fixtures or leasehold improvements in the
Leased Premises.
Section 8.02 - Landlord's Approval of the Tenant's Repairs and Alterations
(a) The Tenant will not make any repairs, alterations, replacements, decoration
or improvements ("Alterations") to the whole or any part of the Leased Premises
without first obtaining the Landlord's written approval. The Tenant will submit
to the Landlord in document form:
(i) details of the proposed work including professionally prepared
drawings and specifications;
(ii) any indemnification against liens which the Landlord reasonably
requires; and
(iii) evidence satisfactory to the Landlord that the Tenant has obtained,
at its expense, all necessary consents, permits, licenses and
inspections from all governmental and regulatory authorities having
jurisdiction.
(b) All Alterations will be performed:
(i) at the Tenant's expense;
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(ii) by competent workmen whose labour union affiliations are compatible
with others employed by the Landlord and its contractors;
(iii) in a good and workmanlike manner;
(iv) in accordance with the drawings and specifications approved by the
Landlord; and
(v) subject to the reasonable regulations, controls and inspection of
the Landlord.
(c) Any Alterations made by the Tenant without the prior consent of the
Landlord or not made in accordance with the drawings and specifications approved
by the Landlord will, if requested by the Landlord, be promptly removed by the
Tenant at the Tenant's expense. No Alterations may be permitted if the Landlord
determines that they may weaken or endanger the structure of the Building,
adversely affect the operation of or diminish the value of the Building or the
Lands, affect the Landlord's coverage for zoning purposes or cause the Landlord
to buy or provide additional parking spaces or make payments in lieu thereof.
(d) If, however, the proposed Alterations or any of them affect any part of the
structure of the Building or any of the electrical, mechanical or other basic
systems of the Building, the Alterations (or the appropriate portion of them)
will be performed only by the Landlord, at the Tenant's expense and the Tenant
will promptly reimburse the Landlord for the cost of the Alterations (including
architectural and other consulting fees) plus fifteen percent (15%) of the total
cost representing the Landlord's overhead and supervision.
(e) Forthwith after the completion of any Alterations, the Tenant will lodge
with the Landlord "AS BUILT" plans and specifications setting forth a complete
description of the Alterations as the same have been completed.
Section 8.03 - Maintenance, Repairs and Alterations by the Landlord
(a) The Landlord will maintain and repair the structure of the Building,
including, without limitation, the foundations, exterior wall assemblies,
including weather walls, sub-floor, roof, bearing wall and structural columns
and beams of the Building and the mechanical, electrical and other basic systems
of the Building, as would a prudent owner of a similar building. The cost of
this maintenance, repairs and alterations will be included in Operating Costs.
However, if the Landlord is required, due to the business carried on by the
Tenant, to make structural repairs or replacements by reason of the application
of laws, ordinances or other regulations of any governmental body or by reason
of any act, omission or default of the Tenant or those for whom the Tenant is in
law responsible, then the Tenant will be liable for the total cost of those
repairs or replacements plus fifteen percent (15%) of the total cost
representing the Landlord's overhead and supervision.
(b) If any elevator servicing the Building or if any mechanical or basic
equipment, facilities or systems of the Building are damaged or destroyed or get
out of repair, the Landlord will have a reasonable time in which to make the
required repairs or replacements necessary for the resumption of the services to
the Leased Premises (to the extent of the Landlord's obligation under this
Lease) and the Tenant shall not be entitled to any compensation or damages, but
if any of the foregoing items had become impaired, damaged or destroyed in any
of the circumstances referred to in Section 8.03(c), then the Tenant will be
responsible for the cost of repairing, restoring or making good the damage in
accordance with the provisions of Section 8.03(c).
(c) If the Building or any part of it, or any equipment, machinery, facilities
or improvements of the Building, or the roof or outside walls or any other
structural portions of the Building require repair or replacement or become
damaged or destroyed through the negligence, carelessness, misuse or other act
of the Tenant or those for whom the Tenant is in law responsible or by any
employee, customer or person having business with the Tenant or by the Tenant or
those for whom it is in law responsible in any way stopping up or damaging the
climate control, heating apparatus, water pipes, drainage pipes or other
equipment or facilities or parts of the Building, then the costs of the
resulting repairs, replacements or alteration plus a sum equal to fifteen
percent (15%) of the cost will be paid by the Tenant to the Landlord within five
(5) days after presentation of an account.
(d) If any equipment installed by the Tenant requires additional electrical or
mechanical facilities, the Landlord may, in its sole discretion, if they are
available, elect to install them at the Tenant's expense and in accordance with
plans and specifications to be approved in advance in writing by the Landlord.
Section 8.04 - Removal and Restoration by the Tenant
(a) All alterations, decorations, additions and improvements made by the Tenant
or made by the Landlord on the Tenant's behalf (other than the Tenant's trade
fixtures) immediately become the property of the Landlord upon affixation or
installation and will not be removed from the Leased Premises at any time unless
permitted or required by the Landlord. The Landlord is under no obligation to
repair, maintain or insure these alterations, decorations, additions or
improvements. The Tenant will, at the expiration of the Term, at its cost,
remove those leasehold improvements and fixtures which the Landlord requires the
Tenant to remove and will make good any damage to the Leased Premises or the
Building resulting from their installation or removal.
-11-
(b) The Tenant may during the Term in the normal course of its business and
with the prior written consent of the Landlord remove its trade fixtures, but
only if they have become excess for the Tenant's purposes or if the Tenant is
substituting new and similar trade fixtures and, in each case, only when the
Tenant is not in default under the terms of this Lease. At the expiration of the
Term, the Tenant will, at its own cost, remove all of its trade fixtures and
will make good any damage to the Leased Premises or the Building caused as a
result of their installation or removal. If the Tenant does not remove its trade
fixtures at the end of the Term, the trade fixtures will, at the Landlord's
option, become the property of the Landlord and may be removed from the Leased
Premises and sold or disposed of by the Landlord in such manner as it deems
advisable.
(c) For greater certainty, the Tenant's trade fixtures exclude:
(i) heating, ventilating or air-conditioning systems, facilities and
equipment, if the same are required to service only the Leased
Premises;
(ii) floor covering affixed to the floor of the Leased Premises;
(iii) light fixtures;
(iv) internal stairways and doors, if any; and
(v) any fixtures, facilities, equipment or installations existing in the
Leased Premises when the Leased Premises were delivered to the Tenant
or installed by or at the expense of the Landlord;
all of which are deemed to be leasehold improvements.
Section 8.05 - Repair On Notice
In addition to the obligations of the Tenant contained in this Article VIII, the
Tenant shall effect all work referred to therein according to notice from the
Landlord but failure to give notice shall not relieve the Tenant from its
obligations under this Article VIII.
Section 8.06 - Liens
If any mechanics', construction or similar lien is made, filed or registered
against title to the Building or the Lands or against the Tenant's leasehold
interest as a result of any work, materials or services supplied or performed by
or on behalf of the Tenant or otherwise in respect of the Leased Premises, the
Tenant will discharge it forthwith at the Tenant's expense. If the Tenant fails
to discharge the lien, then in addition to any other right or remedy of the
Landlord, the Landlord may elect to discharge the lien by paying the amount
claimed to be due and any additional amounts as may be required at law or
otherwise, into Court or directly to the lien claimant and the amount paid by
the Landlord and all costs and expenses including all solicitor's fees (on the
basis of a solicitor and his own client) incurred as a result of the lien
including, without limitation, procuring and registering its discharge will be
immediately paid by the Tenant to the Landlord.
Section 8.07 - Signs and Advertising
The Tenant will not place or permit any notice, lettering or other signage on
any part of the outside of the Building or the Leased Premises or anywhere in
the interior of the Leased Premises which is visible from the outside of the
Building or the Leased Premises. The Landlord may prescribe a uniform pattern of
identification signs for tenants to be placed in the lobby of the Building and
on the outside of the doors leading into the Building or the Leased Premises.
All signage is to be supplied, installed and maintained by the Tenant at its
sole cost. At the expiration of this Lease, the Tenant will remove all signs,
pictures, advertisements, notices, letterings or decorations from the Leased
Premises at the Tenant's expense and will promptly repair all damage caused by
its installation and removal. Notwithstanding the foregoing, and subject to the
Landlord's prior approval as to design, size, content and exact location, and
provided that the Tenant is not in default under the terms of this Lease and
continues to lease and occupy the Leased Premises in its entirety, the Tenant
shall be permitted to place signage on the lobby directory (front and rear), at
the entrance of the Leased Premises, on an outdoor monument sign (non-
exclusively), and at the top of the east face of the Building.
Section 8.08 - Pest Extermination
In order to maintain satisfactory and uniform pest control throughout the
Building, the Tenant shall engage for the Leased Premises at its cost such pest
extermination contractor as the Landlord directs and at such intervals as the
Landlord requires.
ARTICLE IX - DAMAGE AND DESTRUCTION
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Section 9.01 - Destruction of the Leased Premises
(a) If the Leased Premises are destroyed or damaged as a result of fire or
other casualty, then if:
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(i) the Leased Premises are rendered wholly or partially untenantable,
this Lease will continue in effect and the Landlord will commence
diligently to restore the Leased Premises to the extent only of the
Landlord's Work described in Schedule "C" and then only to the extent
of the insurance proceeds actually received by the Landlord and only
Basic Rent (but not Additional Rent, unless compensation from
insurance proceeds for Additional Rent is received by the Landlord)
will xxxxx entirely or proportionately, as the case may be, to the
portion of the area of the Leased Premises rendered untenantable from
the date of the destruction or damage until the Landlord has
completed its restoration work; or
(ii) the Leased Premises are not rendered untenantable in whole or in
part, this Lease will continue in effect and the Basic Rent and other
amounts payable by the Tenant will not xxxxx and the Landlord will
commence diligently to restore the Leased Premises to the extent
required by this Section 9.01(a).
(b) Notwithstanding Section 9.01(a), if the Leased Premises are damaged or
destroyed by any cause whatsoever, and if, in the opinion of the Landlord
reasonably arrived at, the Leased Premises cannot be rebuilt or made fit for the
purposes of the Tenant within one hundred and eighty (180) days of the damage or
destruction, the Landlord, instead of rebuilding or making the Leased Premises
fit for the Tenant in accordance with Section 9.01(a), may, at its option, elect
to terminate this Lease by giving the Tenant, within forty-five (45) days after
the damage or destruction, notice of termination and thereupon Basic Rent and
Additional Rent will be apportioned and paid to the date of damage or
destruction. If, however, whether pursuant to Section 9.01(a) or if, pursuant to
the provisions of the within Section 9.01(b), the Landlord elects to repair,
reconstruct or rebuild the Building or any part thereof, the Landlord may use
plans and specifications and working drawings other than those used in the
original construction of the Building or any part thereof and nothing in this
Section 9.01 requires the Landlord to rebuild the Leased Premises in the
condition and state that existed before the damage, but the Leased Premises, as
re-built, will have reasonably similar facilities and services to those in the
Leased Premises prior to the damage.
Section 9.02 - Destruction of the Building
(a) Notwithstanding Section 9.01, if either:
(i) during the last two (2) years of the Term, the Leased Premises are
damaged or destroyed by any cause whatsoever, or
(ii) at any time, twenty-five percent (25%) or more of the total amount of
the Net Rentable Area of all rentable premises contained within the
Building is damaged or destroyed (irrespective of whether the Leased
Premises are damaged or destroyed)
and if, in the opinion of the Landlord reasonably arrived at, the damage or
destruction cannot be rebuilt within one hundred and eighty (180) days of the
damage or destruction, then, the Landlord may, at its option (to be exercised by
written notice to the Tenant within sixty (60) days following the occurrence),
elect to terminate this Lease. Basic Rent and Additional Rent will be payable
without reduction or abatement subsequent to the destruction or damage and until
the date of termination, unless the Leased Premises have been destroyed or
damaged as well, in which event Section 9.01 will apply.
(b) If any part of the Building is destroyed or damaged and the Landlord does
not elect to terminate this Lease, the Landlord will commence diligently to
restore the Building, but only to the extent of the Landlord's responsibilities
pursuant to the terms of the various leases for the premises in the Building,
and exclusive of any tenant's responsibilities set out therein. If the Landlord
elects to restore the Building, the Landlord may restore according to plans and
specifications and working drawings other than those used in the original
construction of the Building.
Section 9.03 - Expropriation
Both the Landlord and the Tenant agree to co-operate with the other regarding an
expropriation of the Leased Premises, the Building or the Lands, or any part
thereof, so that each may receive the maximum award to which they are
respectively entitled at law. To the extent that any portion of the Lands or any
portion of the Building other than the Leased Premises is expropriated, then the
full proceeds accruing or awarded as a result will belong to the Landlord and
the Tenant will abandon or assign to the Landlord any rights which the Tenant
may have or acquire by operation of law to those proceeds or awards and will
execute all such documents as in the opinion of the Landlord are necessary to
give effect to this intention.
If at any time during the Term or any renewal thereof,
(a) more than twenty percent (20%) of the total of the Net Rentable Area of all
rentable premises in the Building, or
(b) more than twenty percent (20%) of the area of the Common Areas and
Facilities, excluding the parking areas, or
(c) more than twenty percent (20%) of the parking areas forming a part of the
Building,
is acquired or expropriated by any lawful expropriating authority or if
reasonable access to the Leased Premises is materially and adversely affected by
any such acquisition or expropriation, then in any such event, at the option of
the Landlord, this Lease shall cease and terminate as of the date of the
interest acquired or expropriated vesting in such expropriating authority and
the Tenant shall have no claim against the Landlord for the value of any
unexpired Term or for damages or for any reason
-13-
whatsoever. If the Landlord does not so elect to cancel this Lease by notice as
aforesaid, this Lease shall continue in full force and effect without any
reduction or abatement of Rent, provided that if any part of the Leased Premises
is expropriated and as a result thereof the area of the Leased Premises is
physically reduced, then from and after the date of such physical reduction, the
Net Rentable Area of the Leased Premises shall be adjusted to take into account
any such reduction in area and the Basic Rent payable by the Tenant pursuant to
Section 2.02 shall be adjusted on the basis of the rental rate set out therein.
Section 9.04 - Architect's Certificate
The certificate of the Architect or the Landlord's surveyor, who shall be an
Ontario Land Surveyor, shall bind the parties as to (a) the percentage of the
Net Rentable Area of rentable premises in the Building or the percentage of the
area of the Common Areas and Facilities or of the parking facilities damaged or
destroyed; (b) whether or not the Leased Premises are rendered untenantable and
the extent of such untenantability; (c) the date upon which the Landlord's Work
or Tenant's Work of reconstruction or repair is completed or substantially
completed and the date when the Leased Premises are rendered tenantable; (d) the
state of completion of any work of either the Landlord or the Tenant under this
Lease; (e) whether reasonable access to the Leased Premises is materially and
adversely affected by any such acquisition or expropriation; and (f) the
percentage of the Net Rentable Area of rentable premises in the Building or the
area of the Common Areas and Facilities or of the parking facilities which is
acquired or expropriated pursuant to this Lease.
ARTICLE X - TRANSFER AND SALE
-----------------
Section 10.01 - Assignment and Subletting
(a) The Tenant will not:
(i) assign this Lease,
(ii) sublet, share or part with possession of all or any part of the
Leased Premises, nor
(iii) mortgage or encumber this Lease or the Leased Premises, to or in
favour of any person
(collectively, a "Transfer") without the prior written consent of the Landlord
which consent will not be unreasonably withheld. However, notwithstanding any
statutory provisions to the contrary, it will not be considered unreasonable for
the Landlord to take into account the following factors in deciding whether to
grant or withhold its consent:
(A) whether the Transfer is contrary to any covenants or
restrictions granted by the Landlord to other existing or
prospective tenants or occupants of the Building;
(B) whether, in the Landlord's opinion, the financial background,
business history and capability of the Transferee is
satisfactory; and
(C) whether the Landlord will have in the next ensuing period of one
(1) month, other premises elsewhere in the Building which might
be suitable for the needs of the Transferee.
The consent by the Landlord to any Transfer will not constitute a waiver of the
necessity for consent to any subsequent Transfer. This restriction on Transfer
includes a change in the direct or indirect effective voting control of the
Tenant from the persons holding voting control at the date of this Lease (or if
the Tenant is not a corporation, at the date of the assignment of this Lease to
a corporation) and also includes an assignment by operation of law.
(b) If the Tenant intends to effect a Transfer, then the Tenant will give prior
written notice to the Landlord of such intent, specifying the proposed assignee,
subtenant, occupant or other person taking the Transfer (hereinbefore and
hereinafter collectively called "Transferee") and will provide additional
information including, without limitation, information concerning financial or
business information relating to the Transferee. The Landlord will, within
thirty (30) days after having received such notice and all necessary
information, notify the Tenant in writing either that:
(i) it consents or does not consent to the Transfer; or
(ii) it elects to cancel this Lease in preference to giving consent. If
the Landlord elects to cancel this Lease, the Tenant will notify the
Landlord in writing within fifteen (15) days thereafter of the
Tenant's intention either to refrain from the Transfer or to accept
the cancellation of this Lease. If the Tenant fails to deliver its
notice within the 15 day period, this Lease will be terminated upon
the expiration of the 15 day period. If the Tenant advises the
Landlord it intends to refrain from the Transfer, then the Landlord's
election to cancel this Lease will be void.
Notwithstanding that the Landlord elects not to consent to a proposed Transfer,
the Tenant will pay the Landlord all legal costs incurred by the Landlord in
connection with the requested Transfer.
(c) If there is a permitted Transfer, the Landlord may collect Rent from the
Transferee and apply the net amount collected to the Rent required to be paid
pursuant to this Lease, but no acceptance by the Landlord of any payments by a
Transferee will
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be a waiver of the covenant of the Tenant to pay Rent and the acceptance of the
Transferee as the occupant or an occupant of the Leased Premises shall not be
deemed to be or shall not act as a release of the Tenant from the further
performance by the Tenant of its covenants or obligations herein. Any document
evidencing the Transfer will be prepared by the Landlord or its solicitors, will
contain an agreement on behalf of the Transferee whereby it covenants directly
with the Landlord to be bound by all of the terms, covenants and obligations in
this Lease to be observed by the Tenant and all legal costs will be paid by the
Tenant to the Landlord or its solicitors as Additional Rent. Notwithstanding a
Transfer, the Tenant will be jointly and severally liable with the Transferee
under all of the obligations of this Lease and will not be released from
performing any of its obligations.
(d) If the Tenant receives consent under Section 10.01(a), it will be subject
to the condition that the Basic Rent payable by the Transferee will be not less
than the greatest of:
(i) the Landlord's current posted rental rate for Leased Premises in the
Building similar to the Leased Premises at the time of the Landlord's
consent;
(ii) the Basic Rent otherwise payable under the provisions of Section
2.02; or
(iii) an amount equal to the Basic Rent payable for the twelve (12)
calendar month period immediately preceding the Transfer increased to
equal the amount obtained by multiplying that Basic Rent by a
fraction which has as its numerator the C.P.I. for the last month
immediately preceding the Transfer and as its denominator the C.P.I.
for the month in which the last increase in Basic Rent has taken
place under the provisions of Section 2.02 (or, if the Basic Rent has
not increased since the Commencement Date, then the denominator will
be the C.P.I. for the month in which the Commencement Date occurred).
Section 10.02 - Permitted Transfers
Notwithstanding Section 10.01, the Tenant may without the consent of the
Landlord (but on prior written notice to the Landlord) effect a Transfer of this
Lease to a corporation which is a subsidiary body corporate of the Tenant or the
holding body corporate of the Tenant or a corporation which is affiliated with
the Tenant (as those terms are defined in the Canada Business Corporations Act)
so long as, in each case, the Transferee corporation retains that status. That
portion of Section 10.01 placing restrictions on a change in the effective
voting control of the Tenant will not apply so long as the Tenant is, at the
time of the change, a corporation the shares of which are listed and traded on a
recognized stock exchange in Canada or the United States.
Section 10.03 - Increased Rental On Subletting or Assignment
If the Tenant receives consent under Section 10.01(a), it is understood and
agreed that the Landlord shall be entitled to receive for its own account any
increase in the rental or Additional Rental required to be paid by the
Transferee (calculated on a per square foot basis) in excess of the Rent payable
by the Tenant under this Lease; provided, however, that if the Tenant makes any
expenditure for Alterations to accommodate the occupancy of the Transferee, the
Tenant shall be entitled to receive from the Transferee reimbursement of the
cost of such Alterations amortized, with interest not exceeding the prime rate
of the Bank of Nova Scotia as of the time of such Transfer, over the period of
the sublease or the remainder of the Term but not including renewals thereof.
Section 10.04 - No Advertising Of The Leased Premises
The Tenant shall not advertise the whole or any part of the Leased Premises or
this Lease for the purpose of a Transfer and shall not print, publish, post,
display or broadcast any notice or advertisement to that effect and shall not
permit any broker or other Person to do any of the foregoing, unless the
complete text and format of any such notice, advertisement or offer is first
approved in writing by the Landlord. Without in any way restricting or limiting
the Landlord's right to refuse any text or format on other grounds, any text or
format proposed by the Tenant shall not contain any reference to the rental rate
of the Leased Premises.
Section 10.05 - Assignment by the Landlord
If there is a sale, Lease or other disposition by the Landlord of the Building
or the Lands or any part thereof or the assignment by the Landlord of this Lease
or any interest of the Landlord hereunder and to the extent that the purchaser
or assignee assumes the covenants and obligations of the Landlord hereunder, the
Landlord will, thereupon and without further agreement, be relieved of all
further liability with respect to its covenants and obligations.
ARTICLE XI - ACCESS AND ALTERATIONS
----------------------
Section 11.01 - Right of Entry
(a) The Landlord and its agents have the right to enter the Leased Premises at
all reasonable times (except in the event of an emergency, when the Landlord can
enter at any time) to show them to prospective purchasers, lessees or mortgagees
and to examine them and make repairs, alterations or changes to the Leased
Premises, the Building or portions of the Lands as the Landlord considers
necessary including, without limitation, repairs, alterations or changes to the
pipes, conduits, wiring, ducts
-15-
and other installations in the Leased Premises where necessary to serve another
part of the Building. For that purpose, the Landlord may take all required
material into the Leased Premises and may have access to the underfloor ducts
and access panels to mechanical shafts and the Landlord has the right to check,
calibrate, adjust and balance controls and other parts of the heating,
ventilating and air-conditioning systems and equipment. The Rent will not xxxxx
while any repairs, alterations or changes are being made due to loss or
interruption of the business of the Tenant or otherwise and the Landlord will
not be liable for any damage, injury or death caused to any person or to the
property of the Tenant or of others located on the Leased Premises as a result
of the entry. If the Tenant is not present to permit an entry into the Leased
Premises at the time that the entry is necessary, then the Landlord may, in the
case of an emergency, forcibly enter the Leased Premises to exercise its rights
under this Section.
(b) The Landlord and its agents have the right to enter the Leased Premises at
all times to show them to prospective purchasers, lessees or mortgagees and
during the twelve (12) months prior to the expiration of the Term and any
renewal thereof, the Landlord may place upon the Leased Premises "For Rent"
notices which the Tenant shall permit to remain thereon without molestation or
complaint.
(c) Provided that the Leased Premises are vacant and the Tenant has provided
the Landlord with confirmation of its insurance coverage as required by the
terms of this Lease, the Tenant shall have access to the Leased Premises from
the date of execution of this Lease until the Commencement Date without payment
of Basic Rent, Operating Costs and Taxes prior to the Commencement Date and all
other terms and conditions of this Lease shall apply and be in full force and
effect.
ARTICLE XII - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
----------------------------------------------
Section 12.01 - Status Statement
Within ten (10) days after written request by the Landlord, the Tenant will
deliver in a form supplied by the Landlord, a status statement or a certificate
(which will be certified under corporate seal, if the Tenant is a corporation
which executes documents under corporate seal, by the Tenant to be accurate) to
any proposed purchaser, assignee, lessor, mortgagee or to any Person as may be
directed by the Landlord or to the Landlord, which will contain such
acknowledgements and information as is customarily called for in status
statements and estoppel certificates delivered in conjunction with office
tenancies together with any additional acknowledgements and information as the
proposed purchaser, assignee, lessor or mortgagee requires.
Section 12.02 - Subordination and Attornment
(a) This Lease and the Tenant's rights hereunder are and will, at all times, be
subordinate to encumbrances or any renewals or extensions thereof from time to
time during the Term or any renewal or renewals thereof in existence against the
Lands or the Building or both the Lands and the Building (or part thereof). Upon
request, the Tenant shall subordinate this Lease and all of its rights hereunder
in such form as the Landlord requires to any and all mortgages, trust deeds and
the charge or lien resulting therefrom and to any instrument of any financing,
refinancing or collateral financing and to all advances made or hereafter to be
made upon the security thereof and, if requested, the Tenant shall attorn to the
holder thereof or to the registered owner or owners of the Building.
(b) The Tenant shall, if possession is taken under or if any proceedings are
brought for the foreclosure of or in the event of the exercise of the power of
sale, under any mortgage, charge, Lease or sale and leaseback transaction, deed
of trust or the lien resulting therefrom or any other method of financing,
refinancing or collateral financing made by the Landlord or otherwise in
existence against the Leased Premises or the Building, attorn to the Mortgagee,
chargee, lessee, trustee, other encumbrancer or the purchaser upon any such
foreclosure or sale and recognize such Mortgagee, chargee, lessee, trustee,
other encumbrancer or purchaser as the Landlord under this Lease.
Section 12.03 - Attorney
The Tenant will, upon request of the Landlord or the owner or owners of the
Building, execute (under corporate seal, if the Tenant is a corporation which
executes documents under corporate seal) and deliver promptly any statements,
instruments and certificates required to carry out the intent of Section 12.01
or 12.02 as may be required by the Landlord or the owner or owners of the
Building. If, ten (10) days or longer after the date of a request by the
Landlord or the owner or owners of the Building to execute any such instruments
or certificates, the Tenant has not executed and delivered the same, the Tenant
hereby irrevocably appoints the Landlord or the owner or owners of the Building
as the Tenant's attorney with full power and authority to execute and deliver in
the name of the Tenant any of the instruments or certificates or the Landlord or
the owner or owners of the Building may, at its or their option, terminate this
Lease without incurring any liability on account thereof and the Term hereby
granted is expressly limited accordingly.
Section 12.04 - Financial Information
The Tenant shall, upon request, provide the Landlord with such information as to
the Tenant's or the Indemnifier's, if any, financial standing and corporate
organization as the Landlord or the Mortgagee requires. The failure of the
Tenant to comply with the Landlord's request herein shall constitute a default
under this Lease and the Landlord shall be entitled to exercise all of its
rights and remedies provided for in this Lease.
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ARTICLE XIII - DEFAULT
-------
Section 13.01 - Right to Re-enter
If and whenever:
(a) the Tenant fails to pay any Basic Rent or Additional Rent on the day or
dates appointed for payment thereof; or
(b) the Tenant fails to observe or perform any other of the terms, covenants or
conditions of this Lease to be observed or performed by the Tenant (other
than the terms, covenants or conditions set out below in subparagraph (c)
for which no notice shall be required), provided the Landlord first gives
the Tenant ten (10) days or such shorter period of time as is otherwise
provided in this Lease, written notice of the Tenant's failure and the
Tenant within the 10 day period fails to commence diligently and thereafter
to proceed diligently to cure its failure; or
(c) the Tenant or any Indemnifier, if any, becomes bankrupt or insolvent or
takes the benefit of any Act now or hereafter in force for bankrupt or
insolvent debtors or files any proposal or makes any assignment for the
benefit of creditors or any arrangement or compromise; a receiver or a
receiver-manager is appointed for all or a portion of the Tenant's or the
Indemnifier's, if any, property; any steps are taken or any action or
proceedings are instituted by the Tenant or by any other party to dissolve,
wind-up or liquidate the Tenant or its assets or the Indemnifier, if any,
or the assets of the Indemnifier, if any; the Tenant makes a sale in bulk
of its assets on the Leased Premises other than a bulk sale to a permitted
Transferee; the Tenant abandons the Leased Premises or sells or disposes of
the trade fixtures, goods or chattels of the Tenant or removes them from
the Leased Premises so that there would not in the event of such sale or
disposal be sufficient trade fixtures, goods or chattels of the Tenant on
the Leased Premises subject to distress to satisfy all Rent due or accruing
hereunder for a period of at least 3 months; the Leased Premises become and
remain vacant for a period of 5 consecutive days; the Tenant effects or
permits a Transfer without the Landlord's consent where required; this
Lease or any of the Tenant's assets are taken under any writ of execution;
or re-entry is permitted under any other terms of this Lease,
then the Landlord, in addition to any other rights or remedies available to it,
has the immediate right of re-entry upon the Leased Premises without further
notice and it may repossess the Leased Premises and enjoy them as of its former
estate and may expel all Persons and remove all property from the Leased
Premises and such property may be removed and sold or disposed of by the
Landlord as it deems advisable or may be stored in a public warehouse or
elsewhere at the cost and for the account of the Tenant, all without service of
notice or resort to legal process and without the Landlord being considered
guilty of trespass or becoming liable for any loss or damage which may be
occasioned to the Tenant or others.
Section 13.02 - Right to Relet
(a) If the Landlord elects to re-enter the Leased Premises or if it takes
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, it may either terminate this Lease or it may without terminating this
Lease make any alterations and repairs as are necessary in order to relet the
Leased Premises. Upon each reletting, all rent received by the Landlord will be
applied, first, to the payment of any indebtedness other than Basic Rent or
Additional Rent due hereunder from the Tenant to the Landlord; second, to the
payment of any costs and expenses of reletting, including brokerage fees and
solicitor's fees (on the basis of a solicitor and his own client) and the costs
of alterations and repairs; third, to the payment of Basic Rent and Additional
Rent due and unpaid hereunder; and the residue, if any, will be held by the
Landlord and applied in payment of future Rent as it becomes payable hereunder.
If the rent received from a reletting during any month is less than that payable
by the Tenant under the terms of this Lease, then the Tenant will pay the
deficiency in advance on the first day of each month. No re-entry or taking
possession of the Leased Premises by the Landlord, or anyone authorized by it,
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. Notwithstanding any
reletting without termination, the Landlord may at any time thereafter terminate
this Lease for the previous breach.
(b) If the Landlord terminates this Lease, in addition to other remedies
available, it may recover from the Tenant all damages the Landlord incurs by
reason of the Tenant's breach, including the cost of recovering the Leased
Premises, all solicitor's fees (on the basis of a solicitor and his own client)
and including the worth at the time of the termination of the excess, if any, of
the amount of Basic Rent and Additional Rent required to be paid pursuant to
this Lease for the remainder of the Term over the Basic Rent and Additional
Rent, if applicable, payable to the Landlord on the reletting of the Leased
Premises for the remainder of the Term, all of which amounts will be immediately
due and payable by the Tenant to the Landlord. In any of the events referred to
in Section 13.01, in addition to all other rights, the full amount of the
current month's instalment of Basic Rent and Additional Rent payments for the
current month and any other payments required to be made monthly hereunder,
together with the next 3 months' instalments of Basic Rent and Additional Rent
for the next 3 months, all of which will be deemed to be accruing due on a
day-to-day basis, will immediately become due and payable as accelerated rent
and the Landlord may immediately distrain for the same, together with any
arrears then unpaid.
Section 13.03 - Expenses
If legal action is brought for recovery of possession of the Leased Premises,
for the recovery of Basic Rent and Additional Rent or any other amount due under
this Lease or because of the breach of any other of the Tenant's obligations,
the Tenant
-17-
will pay to the Landlord all expenses incurred therefor, including a
solicitor's fee (on a solicitor and his own client basis) unless a court
otherwise awards.
Section 13.04 - Waiver of Exemption from Distress
The Tenant agrees that notwithstanding anything contained in any present or
future statute or rule of law to the contrary, none of the goods and chattels of
the Tenant which are on or have been on or at any future time, during the Term
or any renewal thereof, will be on the Leased Premises shall be exempt from levy
by distress for Basic Rent or Additional Rent in arrears by the Tenant and that
if any claim is made for such exemption by the Tenant or if a distress is made
by the Landlord, this covenant and agreement may be pleaded as an estoppel
against the Tenant in any action brought to test the right to the levying upon
any such goods as are named as exempted in any such legislation, the Tenant
waiving, as it hereby does, all and every benefit that could or might have
accrued to the Tenant under and by virtue of any such legislation but for this
covenant.
Section 13.05 - Landlord's Rights
If the Tenant fails to pay when due any Rent which is payable to third parties,
the Landlord, without any notice to the Tenant, may, but will not be obligated
to, pay all or any part of the same. If the Tenant is in default in the
performance of any of its other covenants or obligations under this Lease
including, without limitation,
(a) the Tenant's insurance obligations under Article VII, and
(b) the Tenant's maintenance and repair obligations under Article VIII,
the Landlord may, but will not be obligated to, after giving such notice as it
considers sufficient (or without notice in the case of an emergency) perform or
cause to be performed any of the unperformed covenants or obligations and, if
necessary, the Landlord will be entitled to enter into the Leased Premises
without further notice. All expenses incurred and expenditures made by the
Landlord plus a sum equal to fifteen percent (15%) representing the Landlord's
overhead and supervision will be paid by the Tenant as Additional Rent within
five (5) days after demand. If the Tenant is in default in the payment of any
amounts or charges comprising Additional Rent, then the amounts will, if not
paid when due, be paid to the Landlord within five (5) days after demand. The
Landlord may, at its option, apply or allocate any sums received from or due to
the Tenant against any amounts due and payable under this Lease in any manner
which the Landlord deems advisable.
Section 13.06 - Rent Past Due
If the Tenant fails to pay any Basic Rent or Additional Rent when due, the
unpaid amounts bear interest from the due date to the date of payment at an
annual rate of five (5) percentage points above the minimum lending rate to
prime commercial borrowers current at that time charged by the Landlord's
chartered bank in Toronto, calculated and compounded monthly.
Section 13.07 - Security Deposit
(a) The Tenant has deposited with the Landlord NIL (the "Security Deposit"),
receipt of which is acknowledged by the Landlord. The Security Deposit will be
held by the Landlord throughout the Term and any renewal or renewals thereof,
without liability for interest, as security for the faithful and complete
performance by the Tenant of all of its covenants and obligations under this
Lease.
(b) If the Basic Rent or Additional Rent are at any time overdue and unpaid or
if the Tenant fails to keep and perform any terms, covenants and conditions of
this Lease, then the Landlord, at its option may, in addition to any other
rights it has, appropriate and apply the entire security deposit, or as much of
it as is necessary to compensate the Landlord for loss or damage sustained or
suffered by the Landlord due to the Tenant's breach. If the entire Security
Deposit, or any portion of it, is appropriated and applied by the Landlord for
the payment of overdue Rent, then the Tenant will, upon demand, forthwith remit
to the Landlord a sufficient amount in cash to restore the Security Deposit to
the original sum deposited and the Tenant's failure to do so within five (5)
days after receipt of such demand constitutes a breach of this Lease. If the
Tenant complies with all of the terms, covenants and conditions and promptly
pays all of the Rent, the Security Deposit will be returned in full to the
Tenant without interest within sixty (60) days after the end of the Term or any
renewal or renewals thereof.
(c) The Landlord may deliver the Security Deposit to any purchaser of the
Landlord's interest in the Leased Premises or the Building and the Landlord
shall thereafter be relieved of all further liability with respect to the
Security Deposit.
Section 13.08 - Remedies Generally
Mention in this Lease of any particular remedy of the Landlord does not preclude
the Landlord from any other remedy, whether available at law or in equity or by
statute or expressly provided for in this Lease. No remedy will be exclusive or
dependent upon any other remedy and the Landlord's remedies are cumulative and
not alternative. Whenever the Tenant seeks a remedy in order to enforce the
observance or performance of one of the terms, covenants and conditions
contained in this Lease on the part of the Landlord to be observed or performed,
the Tenant's only remedy shall be for such damages as the Tenant shall be able
to prove in a court of competent jurisdiction that it has suffered as a result
of a breach (if established) by the Landlord in the observance and performance
of any of the terms, covenants and conditions contained in this Lease on the
part of the Landlord to be observed or performed.
-18-
ARTICLE XIV - MISCELLANEOUS
-------------
Section 14.01 - Rules and Regulations
The Rules and Regulations adopted and promulgated by the Landlord from time to
time including, without limitation, those set out in Schedule "E", are made a
part of this Lease as if they were embodied herein and the Tenant will comply
with and observe them as though they were covenants. The Landlord reserves the
right from time to time to amend or supplement the Rules and Regulations
applicable to the Leased Premises, the Building or the Common Areas and
Facilities as, in the Landlord's judgment, acting reasonably and in such manner
as would a prudent landlord of a similar building, are from time to time needed
for the safety, care, cleanliness and efficient operation of the Building and
the Lands. Notice of the Rules and Regulations and amendments and supplements,
if any, will be given to the Tenant and the Tenant will thereupon comply with
and observe them provided that they do not contradict any terms, covenants and
conditions of this Lease. The Landlord is not under any obligation to enforce
the Rules and Regulations against other tenants and is not responsible if other
tenants fail to observe them.
Section 14.02 - Intent and Interpretation
The Tenant acknowledges that it is intended that this Lease is a completely net
Lease to the Landlord, except as expressly herein set out, that the Landlord is
not responsible during the Term or any renewal or renewals thereof for any
costs, charges, expenses and outlays of any nature whatsoever arising from or
relating to the Leased Premises or the use and occupancy thereof and the Tenant
will pay all charges, impositions, costs and expenses of every nature and kind
relating to the Leased Premises except as expressly herein set out.
Section 14.03 - Overholding
If the Tenant remains in possession of the Leased Premises after the end of the
Term or any renewal or renewals thereof without having signed a new lease or an
extension of Term agreement, there is no tacit renewal of this Lease or the
Term, notwithstanding any statutory provisions or legal presumptions to the
contrary and the Tenant will be deemed to be occupying the Leased Premises as a
tenant from month-to-month at a monthly Basic Rent equal to one hundred and ten
percent (110%) of the monthly amount of Basic Rent payable during the last month
of the Term and otherwise, upon the same terms, covenants and conditions as are
set forth in this Lease (including the payment of Additional Rent) so far as
these are applicable to a monthly tenancy.
Section 14.04 - Successors
All rights and liabilities under this Lease extend to and bind the successors
and assigns of the Landlord and the heirs, executors, administrators and
permitted successors and assigns of the Tenant, as the case may be. No rights,
however, will enure to the benefit of any Transferee of the Tenant unless the
Transfer has been consented to or is otherwise permitted herein or by law. If
there is more than one Tenant, they are all bound jointly and severally.
Section 14.05 - Tenant Partnership
If the Tenant is a partnership ("the Tenant Partnership") each person who is
presently a member of the Tenant Partnership and each person who subsequently
becomes a member of any successor Tenant Partnership will be and continue to be
liable jointly and severally for the full and complete performance of and will
be and continue to be subject to the terms, covenants and conditions of this
Lease, whether or not the person ceases to be a member of the Tenant Partnership
or successor Tenant Partnership.
Section 14.06 - Waiver
The waiver by either party of any breach of the other is not deemed to be a
waiver of any subsequent breach of the same or of any other term, covenant or
condition. The subsequent acceptance of Basic Rent or Additional Rent by the
Landlord is not deemed to be a waiver of any preceding breach by the Tenant
regardless of the Landlord's knowledge of the preceding breach at the time of
acceptance of the Basic Rent. No term, covenant or condition of this Lease shall
be deemed to have been waived by the other party unless the waiver is in
writing.
All Basic Rent and Additional Rent to be paid by the Tenant to the Landlord will
be paid without any deduction, abatement, set-off or compensation whatsoever
(except for the Basic Rent to the extent it may be abated pursuant to Section
9.01) and the Tenant hereby waives the benefit of any statutory or other rights
in respect of abatement, set-off or compensation in its favour at the time
hereof or at any future time.
Section 14.07 - Accord and Satisfaction
No payment by the Tenant or receipt by the Landlord of a lesser amount than the
monthly payment of Basic Rent or Additional Rent stipulated is deemed to be
other than on account of the earliest stipulated Basic Rent or Additional Rent
nor is any endorsement or statement on any cheque or any letter accompanying any
cheque or payment as Rent deemed an acknowledgement of full payment or accord
and satisfaction and the Landlord may accept and cash any cheque or payment
-19-
without prejudice to the Landlord's right to recover the balance of the Rent due
or to pursue any other remedy provided in this Lease or at law.
Section 14.08 - Unavoidable Delay
Notwithstanding anything in this Lease, if either party is bona fide delayed or
hindered in or prevented from the performance of any term, covenant or act
required hereunder by reason of strikes, labour troubles, inability to procure
materials or services, power failure, restrictive governmental laws or
regulations, riots, insurrection, sabotage, rebellion, war, act of God or other
reason whether of a like nature or not which is not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease,
then the performance of that term, covenant or act is excused for the period of
the delay and the party delayed will be entitled to perform that term, covenant
or act within the appropriate time period after the expiration of the period of
the delay. However, the provisions of this Section do not operate to excuse the
Tenant from the prompt payment of Rent.
Section 14.09 - Notices
Any notice, demand, request or other instrument which may be or is required to
be given under this Lease will be delivered in person or sent by registered mail
postage prepaid and will be addressed, if to the Landlord, at the address noted
herein for the Landlord, or to such other person or at such other address as the
Landlord designates by written notice and, if to the Tenant or the Indemnifier,
if any, at the Leased Premises or, at the Landlord's option, to the Tenant's
head office, if any is noted herein. Any notice, demand, request or con-sent is
conclusively deemed to have been given or made on the day upon which it is
delivered or, if mailed, then seventy-two (72) hours following the date of
mailing, as the case may be. Either party may give written notice of any change
of its address and thereafter the new address is deemed to be the address of
that party for the giving of notices. If the postal service is interrupted or is
substantially delayed, any notice, demand, request or other instrument will be
delivered in person.
Section 14.10 - Registration
Neither the Tenant nor anyone on the Tenant's behalf or claiming under the
Tenant will register or record this Lease or any notice of it against any part
of the Lands or the Building.
Section 14.11 - Directory Board
The Tenant will be entitled, at its expense, to have its name shown on the
directory board of the Building. The Landlord will design the style of such
identification and the directory board will be located in an area designated by
the Landlord in the main lobby of the Building.
Section 14.12 - Survival of Covenants
The Tenant's obligation to observe and perform its covenants and agreements
under this Lease, including any obligations on its behalf to make readjustments
on account of Additional Rent, will survive the expiration of the Term or
earlier termination of this Lease.
Section 14.13 - The Planning Act
It is an expressed condition of the within Lease and the Landlord and the Tenant
so agree and declare that the subdivision control provisions of the Planning
Act, R.S.O. 1990, c.P.13 and amendments thereto be complied with, if applicable
in law. Until any necessary consent to the Lease is obtained, the Term
(including any extensions thereof) and the Tenant's rights and entitlement
granted by this Lease are deemed to extend for a period only of twenty one (21)
years less one (1) day from the Commencement Date. The Tenant shall apply
diligently to prosecute such application for such consent forthwith upon the
execution of the Lease by both the Landlord and the Tenant and the Tenant shall
be responsible for all costs, expenses, taxes and levies imposed, charged or
levied as a result of such application and in order to obtain such consent. The
Tenant shall keep the Landlord informed, from time to time, of its progress in
obtaining such consent and the Landlord shall co-operate with the Tenant in
regard to such application. Notwithstanding the foregoing, the Landlord reserves
the right at any time to apply for such consent in lieu of the Tenant (at the
Tenant's expense) and the Tenant's application is hereby expressly made subject
to any application which the Landlord intends to make.
Section 14.14 - Demolition
If, at any time during the Term of this Lease or any renewal or renewals, the
Landlord shall desire to demolish the Building, the Tenant acknowledges and
agrees that the Landlord shall be entitled at its option to either relocate, at
the expense of the Landlord, the Tenant to other premises within the Building,
having approximately the same Net Rentable Area as the Leased Premises, for the
remainder of the Term at the same rental rate and otherwise on the same terms
and conditions as are contained in this Lease or, alternatively, to terminate
this Lease, including any option to renew this Lease, by written notice to the
Tenant, without obligation or liability to the Tenant. Such notice of
termination shall be given by the Landlord to the Tenant at least six (6) months
prior to the effective date of the termination of this Lease and upon the
effective date, the Tenant shall deliver up vacant possession of the Leased
Premises in accordance with the provisions of this Lease and will execute all
documents and other assurances as are reasonably required to give effect to the
provisions of this Section.
-20-
Section 14.15 - Quiet Enjoyment
If the Tenant pays the Basic Rent and Additional Rent and observes and performs
all its terms, covenants and conditions, the Tenant will peaceably and quietly
hold and enjoy the Leased Premises for the Term hereby demised without hindrance
or interruption by the Landlord, or any other person lawfully claiming by,
through or under the Landlord, unless otherwise permitted under the terms of
this Lease. The Tenant acknowledges that the exercise by the Landlord of any of
the rights conferred on the Landlord under this Lease will not be deemed to be a
constructive or actual eviction of the Tenant and will not be considered to be a
breach of the Landlord's covenant for quiet enjoyment.
Section 14.16 - Obligations As Covenants
Each obligation or agreement of the Landlord or the Tenant expressed in this
Lease, even though not expressed as a covenant, is considered to be a covenant
for all purposes.
Section 14.17 - Captions And Section Numbers
The captions, Section numbers and headings, Article numbers and headings and the
Table of Contents appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such Sections or Articles of this Lease nor in any way affect this
Lease.
Section 14.18 - Extended Meanings
The words "hereof", "herein", "hereunder" and similar expressions used in any
Section or subsection or other portion of this Lease relate to the whole of this
Lease and not to that Section or subsection or portion only, unless otherwise
expressly provided. The use of the neuter singular pronoun to refer to the
Landlord or the Tenant or the Indemnifier is deemed a proper reference even
though the Landlord or the Tenant or the Indemnifier is an individual,
partnership, corporation or a group of two or more individuals, partnerships or
corporations. The necessary grammatical changes required to make the provisions
of this Lease apply in the plural sense where there is more than one Landlord or
Tenant or Indemnifier and to either corporations, associations, partnerships or
individuals, males or females, shall, in all instances, be assumed as though in
each case fully expressed.
Section 14.19 - Partial Invalidity
If, for any reason whatsoever, any term, covenant or condition of this Lease or
the application thereof to any Person or circumstance, is to any extent held or
rendered invalid, unenforceable or illegal, then that term, covenant or
condition:
(a) is deemed to be independent of the remainder of this Lease and to be
severable and divisible therefrom, and its invalidity, unenforceability
or illegality does not affect, impair or invalidate the remainder of the
Lease or any part thereof; and
(b) continues to be applicable to and enforceable to the fullest extent
permitted by law against any Person and circumstances other than those
as to which it has been held or rendered invalid, unenforceable or
illegal.
No party is obliged to enforce any term, covenant or condition of this Lease
against any Person, if or to the extent that by so doing, such party is caused
to be in breach of any laws, rules, regulations or enactments from time to time
in force and nothing in this Lease entitles the Landlord to stipulate the price
or price range at which any article or service is to be supplied, offered or
advertised by the Tenant.
Section 14.20 - Entire Agreement
This Lease and the Schedules and Riders, if any, attached hereto together with
the Rules and Regulations at any time and from time to time adopted and
promulgated by the Landlord pursuant to Section 14.01 hereof form a part hereof
and set forth all the covenants, promises, agreements, conditions and
understandings between the Landlord and the Tenant concerning the Leased
Premises and the Building and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them or relied
upon by the Tenant or the Indemnifier to induce it to enter into this Lease,
other than are herein set forth. Except as herein otherwise provided, no
alteration, amendment, change or addition to this Lease shall be binding upon
the Landlord or the Tenant unless in writing and signed by the Tenant and an
authorized representative of the Landlord.
Section 14.21 - Governing Law
This Lease shall be construed in accordance with and governed by the laws of the
Province of Ontario.
-21-
Section 14.22 - Time Of The Essence
Time is of the essence of this Lease and of every part of it.
IN WITNESS WHEREOF Landlord and Tenant have signed and sealed this Lease
as of the date first above written this day of January, 2000.
XXXXX PLACE LIMITED PARTNERSHIP, by its
general partner, LASEEL DOWNS DEVELOPMENTS INC.
(the Landlord)
Per: /s/
_____________________________________
Authorized Signing Officer
I have the authority to bind the Corporation.
IRONSIDE TECHNOLOGIES INC. (the Tenant)
Per: /s/ Xxxx Xxxxxx
_____________________________________
Authorized Signing Officer
I have the authority to bind the Corporation.
ADDRESS OF LANDLORD: HEAD OFFICE OF TENANT
0000 Xxxxxxx Xxxxxx 340 Xxxxxxx Street, Suite 000
Xxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
SCHEDULE "A"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
LEGAL DESCRIPTION OF LANDS
--------------------------
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the Town of Markham, in the Regional Municipality of York and
being composed of Parcel 11-2, Section 65M-2316, being Block 11 on Plan
65M-2316, in the Land Registry Office for the Land Titles Division of York
Region (No. 65), save and except that part of Block 11 on Plan 65M-2316
designated as Part 1 on Plan 65R-8903,
Subject to an easement, described in instrument 104185 in favour of The
Corporation of The Town of Markham, its successors and assigns, over that Part
of Block 11 on Plan 65M-2316 designated as Part 2 on Plan 65R-8903,
Subject to a right in favour of 502627 Ontario Limited and Xxxxxxxxx Investments
Limited to enter upon the lands for a period of ten (10) years from the 8th day
of August, 1986 for the purposes as set out in LT-313227.
SCHEDULE "B"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
FLOOR PLAN
-----------
SCHEDULE "C"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
CONSTRUCTION OF THE LEASED PREMISES
-----------------------------------
Fixturing Period:
----------------
[Intentionally Deleted]
Landlord's Work and Tenant's Work
---------------------------------
Section 1. Landlord's Work
---------- ---------------
It is expressly understood that the Tenant is accepting the Leased Premises in
an "as is" condition. It is further understood and agreed that the Landlord has
no responsibility to make any renovations, alterations, or improvements in or to
the Leased Premises. All further renovations, alterations or improvements in or
to the Leased Premises are the sole responsibility of the Tenant and shall be
undertaken and completed at the Tenant's expense and in accordance with the
Lease. Notwithstanding the foregoing, the Landlord shall complete the following
work one week prior to the Commencement Date:
(a) supply and install building standard horizontal venetian blinds where
currently missing;
(b) supply and install new or refurbished ceiling tile in office area and
building standard lighting in proper working order;
(c) sprinkler's to landlord's layout;
(d) one or two single full-height solid core wood doors as required for access
and egress to the Leased Premises;
(e) Tenant's name on directory in the
lobby of the Leased Premises;
(f) carpet cleaned;
(g) clear existing debris from Leased Premises.
Section 2. Tenant's Work
---------- -------------
1. "Tenant's Work" shall mean all alterations, renovations, improvements and
decorations of or to the Leased Premises which are required in order to complete
the Leased Premises so that the Leased Premises is able to be opened for
business fully fixtured and stocked and shall include, without limitation, the
following:
(a) Finish entire interior of the Leased Premises suitable for Tenant's
intended use, herein set forth, in accordance with all the municipal, fire
and health regulations in a good and workmanlike manner and to the
Landlord's satisfaction;
(b) Fire extinguishers and any other fire prevention and fire fighting
equipment required by the local fire department and any other authority
having jurisdiction;
(c) Any additional electrical service;
(d) All roof openings to be done by Landlord at Tenant's expense; and
(e) All Tenant signage at Tenant's expense with Landlord's prior written
approval.
All permits necessary for the installation of the Tenant's leasehold
improvements and approval of plans must be obtained by the Tenant from the
applicable authorities prior to the commencement of installations by the Tenant,
at its expense.
The Tenant and its contractors are responsible to remove garbage and debris from
the Leased Premises and the Building daily and place same into garbage
containers for that purpose as provided. All tenants will be assessed their
proportionate share of the cost of providing empty garbage containers on the job
site during the construction of their respective premises. Any of the Tenant's
garbage or debris removed by the Landlord's forces will be charged to the
Tenant's account.
In the performance of the Tenant's work, the Tenant shall:
(i) comply with all applicable laws, Development codes, permits and approvals
for such work as well as the requirements of the Landlord's insurers. If the
Tenant is in default in its compliance with any applicable laws, by-laws,
Development codes, permits or approvals from any governmental or other authority
having jurisdiction or the requirements of the Landlord's insurers, and the
Tenant does not correct any such default within the time period required by any
such authority or insurer, the Landlord may (but shall not be obligated to) cure
such default and all charges and costs incurred by the Landlord, plus a
supervision fee of fifteen per cent (15%) of the costs or charges incurred by
the Landlord, shall be paid by the Tenant as Additional Rent forthwith on
demand;
(ii) comply with and cause its contractors or subcontractors, tradesman and
suppliers to comply with all the provisions of the plans and specifications
approved by the Landlord, this Schedule, the rules and regulations of the
Building with respect to construction practices and conditions, such as safety,
security and hours of work, etc., and such other rules and regulations as may be
laid down from time to time by the Landlord;
-2-
(iii) retain on the Leased Premises at all times when the Tenant's Work is being
performed one set of the Tenant's plans with the Landlord's approval endorsed
thereon; and
(iv) permit the Landlord, without prejudice to the Landlord's other remedies,
at the Tenant's expense, to remove any Tenant's Work undertaken without the
Landlord's prior written approval and to restore the Leased Premises to their
prior condition and the Tenant shall pay the Landlord as Additional Rent
forthwith on demand the cost of removal together with a supervision fee of
fifteen per cent (15%) of such costs.
2. The following additional requirements shall apply in respect of the
performance of the Tenant's Work:
(i) during the performance of the Tenant's Work, the Tenant shall remove all
garbage and debris from the Leased Premises daily and place same in designated
garbage containers provided by the Landlord. If the Landlord is required to
remove any of the Tenant's garbage or debris from within or adjacent to the
Leased Premises to the designated drop off location for such garbage, the cost
of removing same shall be at the Tenant's expense and paid for by the Tenant to
the Landlord as Additional Rent forthwith on demand;
(ii) any damage to the Leased Premises or the Building caused during the
completion of the Tenant's Work by the Tenant or those for whom it is in law
responsible (including the Tenant's contractors and such contractor's agents)
shall be repaired forthwith by the Tenant. If the Tenant fails to expeditiously
carry out such repairs, then the Landlord may (but shall not be obligated to)
carry out same and all charges and costs incurred by the Landlord plus a
supervision fee of fifteen per cent (15%) shall be payable by the Tenant as
Additional Rent forthwith on demand;
(iii) the Landlord shall at all times be entitled to continue its construction
activities in the Leased Premises and in the Building providing Tenant's work
environment is not unreasonably disrupted;
(iv) throughout the period during which the Tenant's Work is being performed,
the Tenant shall be subject to all of the other terms and conditions of this
Lease insofar as they are applicable including, without limitation, the
provisions relating to the liability of the Tenant for its acts and omissions
and the acts and omissions of its servants, agents, employees, contractors,
invitees, concessionaires and licensees and the indemnification of the Landlord.
3. The Tenant shall, upon completion of the Tenant's Work and when requested
by the Landlord:
(i) provide the Landlord with a statutory declaration:
(a) stating that the Tenant's Work has been performed in accordance with all
of the provisions of the plans and specifications approved by the Landlord and
this Schedule and that all deficiencies (if any) which the Landlord has brought
to the Tenant's attention have been corrected;
(b) stating that there are no construction liens or other liens or
encumbrances registered or capable of being registered or otherwise outstanding
against the Leased Premises or the Building in respect of work, services or
materials relating to the Tenant's Work and that all accounts for work, services
or materials have been paid in full with respect to all of the Tenant's Work;
(ii) provide to the Landlord a clearance certificate issued under the Workers
Compensation Act in respect of each contractor and subcontractor listed on the
aforesaid statutory declaration;
(iii) obtain and provide to the Landlord a copy of every occupancy and other
permit which may be required by any governmental or other regulatory authority
having jurisdiction, to permit the Tenant to open for business.
Section 3 Procedures
--------- ----------
1. At the earliest date possible but, in any event, prior to entering any
portion of the Building or the Leased Premises for the commencement of the
Tenant's Work, the Tenant shall complete each of the following obligations to
the Landlord's satisfaction:
(a) The Tenant shall obtain the Landlord's written approval of the Tenant's
plans. In this regard, the Landlord shall notify the Tenant either of its
approval thereof or of all the specific changes required by it and the Tenant
shall promptly prepare and submit to the Landlord or to the Architect within
fifteen (15) days next following complete drawings and specifications so
amended.
(b) provide the Landlord with certificates of insurance on the Landlord's
standard form duly executed by the Tenant's insurers evidencing that the
insurance required to be placed by the Tenant pursuant to this Lease has been
obtained;
(c) provide evidence satisfactory to the Landlord that the Tenant has obtained
at its expense all necessary consents, permits and licenses from all appropriate
governmental and regulatory authorities in order to complete Tenant's Work.
Should the Tenant fail to obtain any such required consent, permit or license,
the Landlord may, but shall not be obliged to,
-3-
obtain the same on behalf of the Tenant and the cost or expense incurred by the
Landlord shall be payable by the Tenant as Additional Rent forthwith on demand.
2. The opinion in writing of the Architect shall be binding on both the
Landlord and the Tenant respecting all matters of dispute regarding the
Landlord's Work and the Tenant's Work, including the state of completion and
whether or not the work is completed in a good and workmanlike manner and in
accordance with this Lease.
3. The Landlord or public utility companies, subject to the Landlord's
approval, shall have the right prior to and throughout the Term to install
utility lines, drainage and other pipes, conduits, wires or ductwork where
necessary through the ceiling space, column space or other parts of the Leased
Premises and to maintain, repair or replace same. The Tenant shall prior to and
throughout the Term provide the Landlord with free and uninterrupted access for
such purpose as and when required. The Landlord or the Architect or any other
person or persons authorized by the Landlord shall at all times have access to
inspect the Tenant's Work whenever it is in preparation or progress.
4. The Tenant shall ensure that no construction liens or other liens or
encumbrances are registered against or shall otherwise affect the Building or
the Leased Premises or any part thereof or the Landlord's or the Tenant's
interest in the Leased Premises in respect of equipment rented or materials
supplied or work done or to be done by the Tenant or on behalf of the Tenant or
related to the Tenant's Work. If the Tenant fails to promptly discharge or cause
any such lien to be discharged, then, in addition to any other rights or
remedies of the Landlord, the Landlord may (but shall not be obligated to)
discharge the lien by paying the amount claimed into court or directly to the
lien claimant and the amount so paid and all costs and expenses (including legal
costs and expenses) plus interest at the rate of two (2) percentage points in
excess of the prime rate of interest charged by the Landlord's chartered bank to
its most creditworthy customers, calculated daily and compounded monthly, shall
be immediately due and payable by the Tenant to the Landlord as Additional Rent
forthwith on demand.
5. The Tenant releases the Landlord, its servants and agents from every claim
arising from injury or damage which the Tenant may suffer in or about the Leased
Premises or the Building and will indemnify and hold the Landlord harmless from
every loss, cost and expense related to the Tenant's construction, use or
occupation of the Leased Premises or its use or occupation of the Building.
6. Failure by the Tenant to pay any amounts due under the provisions of this
Schedule in the manner provided herein shall entitle the Landlord to terminate
this Lease, to retain the Security Deposit paid by the Tenant, if applicable,
and to retain for its own use without payment therefor any Tenant's Work which
has been commenced or completed within the Leased Premises, without prejudice to
the Landlord's rights to claim and prove any additional damages from the Tenant
SCHEDULE "D"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
METHOD OF FLOOR MEASUREMENT
---------------------------
The following sets out the various methods of measuring areas in the
Building:
(1) In this Lease, when the words "Gross Floor Area" refer to the Building, the
words "Gross Floor Area" shall mean the total area of the office portion of
the Building, which area shall be computed on the following basis:
The Gross Floor Area of the Building will be computed by measuring the
area expressed in square feet (or, at the Landlord's option, in square
metres) as certified by the Architect or Landlord's Ontario Land
Surveyor of all office floors of the Building from and to the exterior
line of all of the walls, doors and windows comprising the exterior
Building face and includes, without limitation, all interior rentable
commercial/retail/office premises, washrooms, janitorial closets,
elevator lobbies, stairways, elevator shafts, flues, stacks, pipe
shafts and vertical ducts with their enclosing wall. No deductions
will be made for recessed entranceways or for columns and projections
necessary to the Building.
(2) In this Lease, the words "Area of the Internal Common Areas and Facilities"
shall mean the difference between the Gross Floor Area of the office
portion of the Building and the Net Rentable Area of all leasable office
premises contained within the Building.
(3) In this Lease, when the words "Gross Floor Area" refer to the Leased
Premises, the words "Gross Floor Area" shall mean the aggregate of area, in
square feet (or, at the Landlord's option, in square metres) as certified
by the Architect or Landlord's Ontario Land Surveyor, of the following
locations:
(A) the Net Rentable Area of the Leased Premises; and
(B) the Area of Internal Common Areas and Facilities the Building
multiplied by a fraction, the numerator of which is the Net
Rentable Area of the Leased Premises and the denominator of which
is the Net Rentable Area of all rentable office premises.
(4) In this Lease, when the words "Net Rentable Area" refer to the Leased
Premises or any other rentable office premises in the Building, the words
"Net Rentable Area" shall mean the area, in square feet (or, at the
Landlord's option, in square metres) as certified by the Architect or
Landlord's Ontario Land Surveyor, of the Leased Premises measured from (a)
the exterior face of all exterior walls, doors and windows of the Leased
Premises or the other rentable office premises in the Building; (b) the
exterior face of all interior walls, doors and windows separating the
Leased Premises or the other rentable office premises in the Building from
Common Areas and Facilities, if any; and (c) the centre line of all
interior walls separating the Leased Premises or the other rentable office
premises in the Building from adjoining leasable premises. The Net Rentable
Area of the Leased Premises and the Net Rentable Area of the Building
includes all interior space whether or not occupied by projections,
structures or columns, structural or non-structural.
(5) In this Lease, when the words "Net Rentable Area" refer to the Building,
the words "Net Rentable Area" shall mean the aggregate Net Rentable Area of
all individual leasable office premises, including the Leased Premises,
within the Building.
If there is any reconfiguration or reconstruction of the Common Areas and
Facilities in the office portion of the Building after the Commencement Date,
then the Landlord, acting reasonably, is entitled to adjust the Gross Floor Area
and the Net Rentable Area or either of them.
SCHEDULE "E"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
RULES AND REGULATIONS
---------------------
1. The Landlord may prohibit any persons from entering the Building except
during Normal Business Hours unless such person has a key to the Leased Premises
to which such person seeks entry or a pass in a form to be approved by the
Landlord. Any person who is permitted to enter the Building at any time other
than during Normal Business Hours shall register in the manner prescribed by the
Landlord. The Landlord shall be under no responsibility for failure to enforce
this rule.
2. Any areas of the Building not set aside for leasing from time to time by
the Landlord shall be used only for their intended purposes. The Tenant shall
not use any entrance or exits, passageway, corridor, lobby, sidewalk, ramp,
stairway, escalator or elevator except for ingress to and egress from the Leased
Premises. The Tenant shall not obstruct such areas in any way and shall not
deposit any footwear, waste, garbage or refuse therein. The Landlord may remove
at the expense of the Tenant any such obstruction without notice or obligation
to the Tenant. The Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
3. All plumbing fixtures shall be used only for their intended purposes and no
sweeping, rubbish, rags, ashes or other substances shall be thrown therein. The
Tenant shall not permit any toilet or drain to be obstructed. Taps shall be
turned off when not in use.
4. The Leased Premises shall not be used for any residential purpose including
sleeping accommodation and cooking, the storage of any personal effects or
articles not required for the use of the Leased Premises in accordance with the
Lease or the storage of any inflammable, explosive or dangerous materials.
5. No birds or animals shall be kept on the Leased Premises or brought into
the Building. No musical instruments or sound producing equipment or amplifier
which may be heard outside the Leased Premises shall be played or operated on
the Leased Premises.
6. No drapes or window coverings shall be installed on any exterior windows of
the Leased Premises without the prior written consent of the Landlord. Any
drapes or window coverings so approved shall not interfere with the climate
control central system of the Building and shall present a uniform exterior
appearance for the Building.
7. The Tenant shall not obstruct or interfere with access to janitorial and
electrical closets or heating, ventilating or air-conditioning ducts or
equipment in the Leased Premises. In the event of any such obstruction or
interference the Tenant shall be responsible for the cost of providing access to
the same.
8. The Tenant shall leave the Leased Premises in a reasonably tidy condition
at the end of each business day.
9. The Tenant shall not xxxx, drill into, bore or cut or in any way damage or
deface the walls, ceilings or floors of the Leased Premises. No wires, pipes or
conduits shall be installed in the Leased Premises without the prior written
approval of the Landlord. No broadloom or carpeting shall be affixed to the
Leased Premises by means of a non-soluble adhesive or similar product. The
Tenant shall at its own expense install and maintain pads to protect any carpet
in the Leased Premises under all furniture so that the furniture does not crush
the carpet.
10. No safe, heavy equipment, bulky materials or office furniture or equipment
shall be brought into or removed from the Building except during such hours and
by such means as the Landlord may approve. The Landlord may prohibit the
installation in the Leased Premises of any safe or equipment which exceeds the
load-bearing capacity of the floor of the Leased Premises.
11. No machine dispensing food, beverage or merchandise for sale shall be
installed in the Leased Premises without the prior written approval of the
Landlord which may be arbitrarily withheld. No food, beverage or merchandise
shall be delivered to the Leased Premises except during such hours and by
persons authorized by the Landlord.
12. The Tenant shall not hinder or prevent window cleaners from cleaning the
windows of the Leased Premises during Normal Business Hours.
13. The directory board for the Building, the style thereof and the lettering
thereon and the manner and order in which the names are displayed thereon shall
be within the sole discretion of the Landlord.
14. The Tenant shall not use the name of the Building for any purpose except as
the business address of the Leased Premises.
15. The use of car parking spaces (if any) shall be in accordance with
reasonable rules and regulations of the Landlord.
-2-
16. No cleaning, maintaining, replacement or servicing of the whole or any part
of the Leased Premises including electric lighting fixtures shall be done or
performed by any person or persons other than persons employed by the Landlord.
Only Building standard fluorescent tubes shall be used in the Leased Premises.
17. No additional locks shall be placed upon, nor shall changes be made to the
existing locks in any doors of the Leased Premises without the prior written
consent of the Landlord, provided that all locks shall conform to the master
keying system for the Building established by the Landlord. Additional keys to
the door locks shall be obtained from the Landlord at the cost of the Tenant.
18. The Tenant shall be entitled to use, in common with the other tenants of
the Building, the mail chute and mail box (if any) in the Building provided that
such use shall be entirely at the Tenant's own risk and that the Landlord shall
not be liable or responsible for any loss or damage resulting from or in
consequence of the Tenant's use of such mail chute or mail box.
19. All loading and unloading of goods shall be done only at such times, in the
areas and through the entrances designated for such purposes from time to time
by the Landlord. Any movers or moving company moving furniture or equipment in
or out of the Leased Premises shall be approved of by the Landlord and shall
make prior arrangements with the Landlord as to the times of such moving of
furniture or equipment. The Tenant shall ensure and guarantee the prompt payment
to the Landlord for the cost of repairing any damage in the Building caused by
such movement of furniture or equipment.
SCHEDULE "F"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
DEFINITIONS
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In this Lease and in the Schedules:
1. "Additional Rent" means all sums of money or charges required to be paid by
the Tenant under this Lease, except Basic Rent, whether or not designated
"Additional Rent" and whether or not payable to the Landlord or any other
person and all such sums are payable in lawful money of Canada without
deduction, abatement, set-off or compensation whatsoever. Additional Rent
may be estimated by the Landlord from time to time and such estimated
amount is payable in monthly instalments in advance with annual adjustments
and all Additional Rent is deemed to be accruing due on a day-to-day basis.
2. "Advance Rent" shall mean the Rent paid or payable pursuant to the
provisions of paragraph 2.03 hereof;
3. "Architect", "Surveyor" or "Engineer" means the architect, Ontario Land
Surveyor or Professional Engineer, respectively, from time to time named by
the Landlord. The decision of the Architect, Surveyor, or Engineer,
whenever required by this Lease or requested by the Landlord and any
related certificate will be final and binding.
4. "Basic Rent" means the annual rent payable by the Tenant pursuant to and in
the manner set out in Section 2.02 of this Lease.
5. "Building" means the building constructed on the Lands, bearing municipal
address 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, being generally known as the
"Xxxxx Place".
6. "Business Taxes" means those taxes, rates, duties, assessments or license
fees, as referred to and determined in Section 3.03 hereof.
7. "Commencement Date" means the first day of the Term, as referred to and
determined in Section 1.04 hereof.
8. "Common Areas and Facilities" means (a) those areas, facilities, utilities,
improvements, equipment and installations in the Building which, from time
to time, are not designated or intended by the Landlord to be leased to
tenants of the Building, and (b) those areas, facilities, improvements,
equipment and installations which serve or are for the benefit of the
Building, whether or not located within, adjacent to, or near the Building
and which are designated from time to time by the Landlord as part of the
Common Areas and Facilities. Common Areas and Facilities includes, without
limitation, all areas, facilities, utilities, improvements, equipment and
installations which are provided or designate (and which may be changed
from time to time) by the Landlord for the use or benefit of the tenants,
their employees, customers and other invitees in common with others
entitled to the use or benefit thereof in the manner and for the purposes
permitted by this Lease.
Without limiting the generality of the foregoing and if and to the extent
provided for the Building, Common Areas and Facilities includes the roof,
exterior wall assemblies including weather walls, exterior and interior
structural elements and bearing walls in the buildings and improvements
comprising the Building; parking areas, all entrances and exits thereto and
all other structural elements thereof; employee parking areas; access
roads; truck courts; driveways; truckways; delivery passages; package pick-
up stations; loading docks and related areas; pedestrian sidewalks;
landscaped and planted areas; all open and enclosed malls, courts and
arcades: public seating and service areas; corridors; bus kiosks, if any,
roadways and stops; equipment, furniture, furnishings and fixtures; first
aid stations; stairways, transportation equipment and systems; tenant
common and public washrooms; electrical, telephone, meter, valve,
mechanical, mail, storage, service and janitor rooms and galleries;
elevators; escalators; stairwells; music, fire prevention, security and
communication systems; general signs; columns; pipes; electrical, plumbing,
drainage, mechanical, heating, ventilating and air-conditioning equipment
and all other installations, equipment or services located therein or
related thereto and serving the Building.
9. "C.P.I." means the Consumer Price Index (All Items for Regional Cities) for
the City of Toronto (or any index published in substitution for the
Consumer Price Index or any other replacement index reasonably designated
by the Landlord if it is no longer published) published by Statistics
Canada (or by any successor thereof or any other governmental agency
including a provincial agency). In the case of any required substitution,
the Landlord shall be entitle to make all necessary conversions for
comparison purposes.
10. "Fixturing Period" has the meaning set forth in Schedule "C" hereto
annexed.
11. "Gross Floor Area" shall have the meaning ascribed to this expression in
Schedule "D" of this Lease.
12. "Indemnifier" means the person who has or the persons who have executed or
agreed to execute the Indemnity Agreement which is attached to this Lease
as Appendix "A", if any.
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13. "Landlord" means the party of the First Part. Wherever the word "Landlord"
is used in this Lease, it is deemed to have the same meaning as "lessor" and
includes the Landlord and its duly authorized representatives.
14. "Lands" means the lands on which the Building is constructed and the lands
adjacent to and serving the Building, as described in Schedule "A", or as
such lands may be altered, extended or reduced from time to time.
15. "Leased Premises" means the premises leased to the Tenant as referred to and
described in Section 1.01.
16. "Mortgagee" means any mortgagee or chargee (including any trustee for a
bondholder) from time to time of the freehold or leasehold title to the
Lands, the Building or any part thereof. Any security document held by a
Mortgagee and any ground or underlying Lease affecting the Lands or the
Building is referred to as an "Mortgage".
17. "Net Rentable Area" shall have the meaning ascribed to this expression in
Schedule "D" of this Lease.
18. "Normal Business Hours" means the hours from 8:00a.m. to 6:00p.m. on Mondays
to Fridays unless any of such days is a holiday.
19. (a) "Operating Costs" means the total amounts incurred, paid, payable or
attributable, whether by the Landlord or by others on behalf of the
Landlord for the maintenance, operation, insurance, repair,
replacement, managing and administration of the Building, calculated
as if the Building were at least ninety percent (90%) occupied and
operational during each Rental Year of the Term.
(b) Operating Costs include, without limitation and without duplication,
the aggregate of:
(i) the total annual costs and expenses of insuring the Building and
the improvements, including the Common Areas and Facilities, and
equipment and other property servicing the Building from time to
time, owned or operated by the Landlord or for which the Landlord
is or the owner or owners of the Building are legally liable or
which the Landlord chooses to obtain, in such manner and form,
with such companies and such coverage (including, without
limitation, insurance covering loss of insurable gross profits)
and in such amounts as the Landlord or the Mortgagee from time to
time determines, including, without limitation, insurance
covering:
(1) any risks of physical loss or damage to all property owned
by the Landlord or the owner or owners of the Building or
for which the Landlord or the owner or owners of the
Building are legally liable relating to the Building;
(2) repair and replacement of boilers, pressure vessels, air-
conditioning equipment and miscellaneous electrical
apparatus on a broad form blanket cover basis;
(3) loss of insurable gross profits attributable to all perils
insured against by the Landlord or commonly insured against
by prudent landlords, including loss of all rent receivable
from tenants in the Building in accordance with the
provisions of their leases, including Basic Rent,
percentage rent (notwithstanding that the Tenant is not
required to pay percentage rent) and Additional Rent in
such amounts as the Landlord or the Mortgagee from time to
time requires;
(4) third party liability coverage including the exposure of
personal injury, bodily injury, property damage occurrence,
including all contractual obligations coverage and
including actions of all authorized employees, contractors,
subcontractors and agents while working on behalf of the
Landlord; and
(5) any other form of insurance which the Landlord or the
Mortgagee reasonably requires from time to time for
insurable risks and in amounts against which a prudent
landlord would insure.
(ii) cleaning, snow removal, garbage and waste collection and
disposal, policing, security, supervision and traffic control;
(iii) the aggregate of the costs and amounts paid for:
(1) all fuel used in heating and all maintenance costs paid by
the Landlord with respect to any heating, ventilating, air-
conditioning system or systems located within the Shopping
Centre;
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(2) all electricity furnished by the Landlord to the Building
other than electricity furnished to and paid for by
tenants by reason of their being separately metered for
electricity or by reason of their extraordinary
consumption of electricity;
(3) all hot and cold water other than that chargeable to
tenants by reason of their being separately metered or by
reason of their extraordinary consumption of water;
(4) heating and, if applicable, ventilating the Building or
the individual premises of the Building or those premises
for which the Landlord or the owner or owners of the
Building are legally liable relating to the Building;
(5) telephone and other utility costs used in the maintenance
and operation of the Building; and
(6) installing energy conservation equipment and safety or
life support systems in any portion of the Building;
(iv) all salaries, wages and other amounts paid or payable for all
personnel including the Building manager, supervisory personnel
and related staff and all other personnel employed to carry out
the maintenance and operation of the Building and the Common
Areas and Facilities, including contributions and premiums
towards fringe benefits, unemployment and Workers' Compensation
insurance, pension plan contributions and similar premiums and
contributions and the total charges of any independent
contractors or managers engaged in the repair, care,
maintenance and cleaning of the Building and the Common Areas
and Facilities;
(v) the cost of the rental of any equipment and signs and the cost
of supplies used by the Landlord in the maintenance and
operation of the Building and the Common Areas and Facilities;
(vi) consultant, audit and other professional fees or charges;
(vii) all repairs (including major repairs) and replacements to and
maintenance and operation of the Building and the Common Areas
and Facilities and the systems, facilities and equipment
serving the Building and the Common Areas and Facilities,
except for the cost of repairing or replacing any inherent
structural defects or weaknesses and except to the extent paid
for out of the contingency reserve referred to in Paragraph
19(b)(viii) of the within Schedule "F";
(viii) an amount which the Landlord estimates from time to time is
required to establish and maintain a contingency reserve fund
to be applied in payment or partial payment of the costs and
expenses of repairs and replacements to paved areas, the roof
and other portions of the Building and the Common Areas and
Facilities and any other major repairs or replacements which
the Landlord determines from time to time are to be paid for
out of the contingency reserve fund. All determinations and
estimates regarding the contingency reserve fund are to be made
by the Landlord in accordance with sound accounting principles;
(ix) all Capital Taxes as defined in paragraph 19(c) of the within
Schedule "F" as they relate to or are attributed by the
Landlord to the Building;
(x) depreciation or amortization of:
(1) the costs and expenses including repair and replacement,
of all maintenance and cleaning equipment and master
utility meters and all other fixtures, equipment and
facilities serving or comprising the Building and the
Common Areas and Facilities (including, without
limitation, the heating, ventilating, air-conditioning
systems serving the Building) which by their nature,
require periodic or substantial repair or replacement,
unless, pursuant to paragraph 19(b)(vii) of the within
Schedule "F", they are charged fully in the Rental Year in
which they are incurred, in accordance with sound
accounting principles,
(2) the costs of improvements properly charged to capital
account which substantially reduce Operating Costs,
amortized over their useful life, as determined by the
Landlord in accordance with sound accounting principles,
and
(3) any other costs and expenses which the Landlord, in
accordance with sound accounting principles, elects to
amortize in lieu of including the costs and expenses fully
in the Rental Year in which they are incurred;
(xi) interest calculated at two percent (2%) per annum above the
average daily prime bank commercial lending rate charged during
such Rental Year by the Landlord's chartered bank upon the
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undepreciated portion of the original cost of all fixtures,
equipment and facilities referred to in paragraph 19(b)(x) of
the within Schedule "F";
(xii) all business taxes and other taxes, if any, from time to time
payable by the Landlord with respect to the Common Areas and
Facilities;
(xiii) a fee of five percent (5%) of Taxes and fifteen percent (15%)
of Operating Costs for the administration and management of the
Building.
From the total of the above costs, there is deducted:
(aa) all net recoveries which reduce Operating Costs received by the
Landlord from tenants as a result of any act, omission, default
or negligence of such tenants or by reason of a breach by such
tenants of provision in their respective leases (other than
recoveries from such tenants under clauses in their respective
leases requiring their contribution to Operating Costs); and
(bb) net proceeds received by the Landlord from insurance policies
taken out by the Landlord to the extent that the proceeds
relate to Operating Costs.
(c) Capital Tax is an imputed amount presently or hereafter imposed from
time to time upon the Landlord or the owner or owners of the Building
and payable by the Landlord or the owner or owners of the Building (or
by any corporation acting on behalf of the Landlord or the owner or
owners of the Building) and which is levied or assessed against the
Landlord or the owner or owners of the Building on account of its or
their ownership of or capital employed in the Building. Capital Tax
will be imputed as if the amount of such tax were that amount due if
the Building were the only real property of the Landlord or the owner
or owners of the Building and Capital Tax includes the amount of any
corporation's capital tax, capital or place of business tax levied by
the provincial government or other applicable taxing authority against
the Landlord with respect to the Building, whether or not known as
Capital Tax or by any other name.
(d) The Tenant acknowledges that if the total of the Net Rentable Area of
all leasable premises in the Building contains a commercial/retail area
in any part thereof in addition to the office area of the Building,
then the Landlord, acting equitably, may from time to time adjust the
Operating Costs pursuant to this paragraph 19 of the within Schedule
"F" in accordance with reasonable and current practices relevant to a
multi-use commercial/office building to include or exclude, as may be
determined by the Landlord, a reasonable proportion of the expenses
incurred by or on behalf of retail, office and other tenants of the
Building who, by agreement with the Landlord or otherwise, have
undertaken cleaning, maintenance work or other outlays usually
performed by the Landlord to the extent that those expenses, if
directly incurred by the Landlord, would have been included in
Operating Costs.
20. "Person" if the context allows, includes any person, firm, partnership or
corporation, or any group of persons, firms, partnerships or corporations or
any combination thereof.
21. "Proportionate Share" means a fraction which has as its numerator the Net
Rentable Area of the Leased Premises and as its denominator, the Net
Rentable Area of the Building, including the Leased Premises.
22. "Rent" means all Basic Rent and Additional Rent. All Rent is payable on its
due date without prior demand and without any deduction, abatement or set-
off. Rent will be considered as annual and accruing from day-to-day and is
to be adjusted on a prorated per diem basis where any Rental Year is less
than three hundred and sixty-five (365) days.
23. "Rental Year" means a period of time, the first Rental Year commencing as of
the Commencement Date and ending on the 31st day of December of the calendar
year immediately following the Commencement Date. Thereafter, each Rental
Year shall consist of consecutive periods of twelve (12) calendar months
ending in each case on December 31st, except in respect of the last Rental
Year which shall terminate on the expiration or earlier termination of this
Lease, as the case may be. Provided, however, if the Landlord considers it
necessary or convenient for the Landlord's purposes, the Landlord may at any
time and from time to time, by written notice to the Tenant, specify an
annual date from which each subsequent Rental Year is to commence, and in
such event, the then current Rental Year shall terminate on the day
immediately preceding the commencement of such new Rental Year.
24. "Rules and Regulations" means the rules and regulations adopted and
promulgated by the Landlord from time to time as contemplated under Section
14.01 and they include the initial Rules and Regulations appearing in
Schedule "E".
25. "Security Deposit" means the sum of money described and referred to in
Section 13.07 hereof.
26. "Taxes" means all real property taxes, rates, duties and assessments
(including local improvement taxes), impost charges or levies, whether
general or special, that are levied, rated, charged or assessed against the
Building or any part thereof (including, without limitation, the Common
Areas and Facilities) from time to time by any lawful taxing
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authority, whether federal, provincial, municipal, school or otherwise, and
any taxes or other amounts which are imposed in lieu of or in addition to
any such real property taxes whether of the foregoing character or not and
whether in existence at the Commencement Date or not and any such real
property taxes levied or assessed against the Landlord or the owner or
owners of the Building on account of its or their interest in the Building
or any part thereof or its or their ownership thereof, as the case may be.
"Taxes" shall also include any taxes, rates, duties and assessments, impost
charges or levies, in the nature of a commercial concentration levy or other
similar levy, assessment or charge which may at the Commencement Date or in
the future be levied, rated, charged or assessed against the Shopping
Centre, the Common Areas and Facilities and the Leased Premises.
27. "Tenant" means the party of the Second Part and is deemed to include the
word "lessee" and to mean each and every person mentioned as the Tenant in
this Lease, whether one or more. If there is more than one Tenant, any
notice required or permitted by this Lease may be given by or to any one of
them and has the same force and effect as if given by or to all of them.
Any reference to "Tenant" includes, where the context allows, the servants,
employees, agents, invitees and licensees of the Tenant and all others over
whom the Tenant may reasonably be expected to exercise control.
28. "Tenant Partnership" means the partnership referred to and described in
Section 14.05 hereof.
29. "Term" means the period of time referred to and described in Section 1.04
hereof.
30. "Transfer" has the meaning ascribed to it in paragraph 10.01 hereof.
31. "Transferee" means the Person who receives a Transfer, as referred to in
Section 10.01 hereof.
32. "Utilities" means the water, fuel, power, telephone and other utility
service used or consumed in or with respect to the Leased Premises.
SCHEDULE "G"
TENANT: IRONSIDE TECHNOLOGIES INC.
SUITE NO.: 200
DATE: February 1, 2000
SPECIAL PROVISIONS
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The following are additional terms and provisions, which form part of this
Lease:
1. Extension of Term
If:
(a) the Tenant pays the Rent as and when due and punctually observes and
performs its covenants, obligations and agreements under and in
accordance with the terms of this Lease;
(b) the Tenant is not in breach or default under the terms of this Lease;
(c) the Tenant has not exercized its rights contained in paragraph two of
this Schedule "G";
(d) the Tenant gives the Landlord not more than 12 months nor less than
six (6) months notice prior to the expiry of the initial Term of its
intention to extend the Term; and
(e) the Tenant is Ironside Technologies Inc. and is itself in occupation
of and conducting business in the whole of the Leased Premises;
then the Tenant will have the right to extend the Term on the expiry of the
initial Term for a further period of five (5) years (the "Extended Term")
on the same terms and conditions as are set out in this Lease, except that:
(a) there will be no further right to extend the Extended Term;
(b) any requirement on the Landlord's part to do any Landlord's Work or
pay to the Tenant any construction allowance, inducement, loan or
other amount in connection with this Lease or improvements installed
in the Leased Premises, set out in this Lease, shall not apply to the
Extended Term;
(c) the Tenant will promptly execute an extension agreement prepared by
the Landlord at the Tenant's expense, giving effect to the Extended
Term; and
(d) the annual Basic Rent shall be mutually agreed on between the Landlord
and the Tenant based on the Market Rental of the Leased Premises,
provided that the Basic Rent shall in no event be less than $10.80 per
square foot per year plus G.S.T., and provided further that if the
parties are unable to agree as to such Basic Rent by no later than one
month prior to the expiry of the initial Term, then this option to
extend shall be null and void.
2. Early Termination
The Tenant shall have the right, at its sole and absolute option, to terminate
the within Lease at the end of the 36th month of the Term (the "Termination
Date") upon first giving to the Landlord (a) at least six (6) months before the
Termination Date, written notice of its intent to so terminate this Lease, and
(b) at least thirty (30) days before the Termination Date, termination payment
which is the aggregate of (i) the Basic Rent payable under this Lease during the
six (6) months after the Termination Date, (ii) the unamortized (based on a
straight line amortization) value (using the interest rate at which the Landlord
then borrows funds or, if the Landlord has no such loans then outstanding, the
interest rate at which the
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Landlord is then capable of borrowing funds) over the last two (2) years of the
Term of the Landlord's cost of leasehold improvements and leasehold improvement
allowances paid by the Landlord with respect to the within tenancy and real
estate commission paid by the Landlord with respect to the within tenancy. In
the event that, within the time periods aforesaid, the Tenant does not deliver
the aforesaid notice exercising its rights in this paragraph contained or the
aforesaid termination payment, the Tenant's rights in this paragraph shall be
null and void and the Tenant shall have no further right to terminate this Lease
prior to the end of the Term.
