EXHIBIT 10.6
SECOND LEASE AMENDING AGREEMENT
THIS AGREEMENT made as of the 13th day of November, 1998
BETWEEN:
POLARIS REALTY (CANADA) LIMITED, a corporation duly formed pursuant
to the laws of the Province of Ontario
(hereinafter called the "Landlord")
OF THE FIRST PART
- AND -
FINANCIAL MODELS COMPANY INC., a corporation duly formed under the
laws of the Province of Ontario
(hereinafter called the "Tenant")
OF THE SECOND PART
WHEREAS by a lease made as of the 6th day of January, 1998 (the "Lease")
the Landlord did demise and lease unto the Tenant certain Premises as therein
defined;
AND WHEREAS the Landlord and the Tenant did agree to amend the Lease by an
Amendment to Lease dated the 24th day of June, 1998 (the Lease and Amendment to
Lease together hereinafter referred to as the "Lease")
AND WHEREAS the Landlord and the Tenant have agreed to further amend the
Lease and have agreed to execute this Agreement to give effect thereto;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants contained herein and the sum of Two Dollars ($2.00) now paid by
each party to the other (the receipt and sufficiency of which is hereby
acknowledged), the parties do hereby agree each with the other as follows:
1. The above recitals are true in substance and in fact.
2. Effective from and after November 13, 1998, the Lease shall be and is
hereby amended as follows:
(i) Section 4.02 of the Lease entitled "Reduction of Minimum
Annual Rent" is hereby deleted in its entirety.
(ii) Section 1.01 (g) of the Lease entitled "Commencement Date" is
hereby deleted and replaced with the following:
"Section 1.01 (g) Commencement Date: means March 1, 1999."
(iii) Insert the following:
"Article Twenty: Special Provisions Section 20.01 Net Rent
Free Period: The Tenant shall not be obligated to pay Minimum
Annual Rent for the fifth floor of the Building (comprising
21,744 square feet) for the entire months of March and April
1999, only. However, the Tenant shall be responsible for
Additional Rent and any additional charges relating to its
Tenancy during this Net Rent Free Period."
3. The Landlord and the Tenant hereby acknowledge, confirm and agree that in
all other respects the terms of the Lease are to remain in full force and
effect, unchanged and unmodified except in accordance with this Agreement.
Landlord [ILLEGIBLE]
Tenant [ILLEGIBLE]
2
4. Except as specifically stated in this Agreement, any
expression used in this Agreement has the same meaning as the
corresponding expression in the Lease.
5. This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective permitted
successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first written above.
POLARIS REALTY (CANADA) LIMITED
PER: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO
PER: /s/ ▇▇▇▇ ▇. Van Den Elzen
----------------------------------
Name: ▇▇▇▇ ▇. Van Den Elzen
Title: Vice President, Central Region
FINANCIAL MODELS COMPANY INC.
PER: /s/ Stamos ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: STAMOS ▇. ▇▇▇▇▇▇▇▇▇
Title: PRESIDENT & CEO
I/WE HAVE THE AUTHORITY TO BIND THE CORPORATION.
Landlord [ILLEGIBLE]
Tenant [ ]
[SEAL]
THIS AMENDMENT OF LEASE MADE IN DUPLICATE as of the 24th day of JUNE, 1998
BETWEEN:
POLARIS REALTY (CANADA) LIMITED, a corporation duly formed
pursuant to the laws of the Province of Ontario
(hereinafter called the "Landlord")
OF THE FIRST PART [SEAL]
- and -
FINANCIAL MODELS COMPANY INC., a corporation duly formed
under the laws of the Province of Ontario
(hereinafter called the "Tenant")
OF THE SECOND PART
WHEREAS by Indenture of Lease made in duplicate as of the 6th day of January,
1998, (the "Lease"), the Landlord did demise and lease unto the Tenant certain
Premises as therein defined;
AND WHEREAS the Landlord and Tenant have agreed to amend certain of the terms
and provisions of the Lease all as more particularly herein set forth:
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of these presents
and the mutual covenants and agreements herein contained and other good and
valuable consideration (the receipt and adequacy whereof being hereby by each
acknowledged), the parties hereto hereby agree each with the other as follows:
1. Capitalized terms used and not defined herein shall, unless the context
otherwise requires, have the meanings ascribed to such terms in the Lease.
2. Subsection 1.01(e) of the Lease shall be deleted and replaced by the
following:
"(e) "Building" - means the office building, having an agreed gross
construction area of 102,575 sq. ft., to be constructed on the Lands in
accordance with the Plans and Specifications."
3. The following Subsections of Section 1.01 are to be deleted from the Lease
"(i)", "(m)", "(n)", "(ab)", "(ac)" and "(an)".
4. Subsection 1.01(t) shall be deleted and replaced by the following:
"(t) Leased Premises: means the Lands, the Building and other improvements
to be constructed on the Lands in accordance with the Plans and
Specifications"
5. Subsection 1.01(x) entitled Operating Costs shall be amended by deleting
the following sentence at the end thereof:
"The Landlord shall be entitled to adjust Operating Costs to reflect full
occupancy of the Building."
Section 2.02 entitled "Area of Leased Premises" is hereby deleted
6. Section 4.01 entitled "Minimum Annual Rent" shall be deleted and replaced
by the following:
2
"4.01 Minimum Annual Rent
Lease Year Minimum Annual Rental Monthly Instalment
---------- ----------------------------- ------------------
1 - 5 $1,333,475 (being $13.00 per $111,122.91
inclusive square foot)
6 - 10 $1,615,556.25 (being $15.75 $134,629.68
inclusive per square foot)
11 - 15 $1,861,736.25 (being $18.15 $155,144.68
inclusive per square foot)
and month
181 of the
Initial
Term, if
applicable
Minimum Annual Rent as calculated above is based on the gross construction
area of the Building being 102,575 square feet.
7. Section 4.02 entitled "Reduction of Minimum Annual Rent" of the Lease
shall be amended to read as follows:
"4.02 Reduction of Minimum Annual Rent
"The Tenant may, by notice to the Landlord given not less than 90 days
prior to the Commencement Date, elect not to occupy the fifth floor of the
Building for the first year of the Term and if it so elects, the Tenant
shall pay no Minimum Annual Rent but shall pay Additional Rent in respect
of the area of the fifth floor of the Building, being 21,744 square feet.
In the event that the Tenant occupies any portion of the said fifth floor
at the Commencement Date then the Tenant shall pay full Minimum Annual
Rent for the whole of the fifth floor during the first year of the Term.
In the event that the Tenant occupies any portion of the fifth floor
during the first year of the Initial Term the Tenant shall, from and after
the date of such occupation, pay full Minimum Annual Rent for the full
area of the fifth floor of the Building. Whether or not the Tenant
occupies all or any portion of the fifth floor of the Building, the Tenant
shall pay full annual rent thereon, commencing on the first anniversary of
the Commencement Date.
8. Subsection 4.03(c) is hereby deleted and replaced by the following:
"Operating Costs in accordance with Section 6.15 hereof; plus"
9. Section 4.06 entitled "Deposit" is to be amended by deleting the first
sentence thereof and replacing it by the following:
"4.06 "Deposit:
Contemporaneously with its execution hereof, the Tenant shall deliver to
the Landlord a certified cheque in the amount of $86,836.76 (which amount
does not include G.S.T.) being the difference between deposits previously
made and Minimum Annual Rent and Additional Rent payable in the amounts of
$164,498.17 and $188,054.17 for the first two months, respectively of the
Term."
10. Section 6.04 entitled "Signage" shall be amended by deleting the last
sentence thereof.
11. Section 6.05 entitled "Parking:" shall be deleted and replaced by the
following:
"6.05 Parking:
3
Landlord shall construct as part of Landlord's Work and make available to
the Tenant, at no cost to the Tenant, a parking area containing not less
than 400 parking stalls. Parking of motor vehicles shall be subject to
rules and regulations established by the Landlord from time to time."
12. The second paragraph of Section 6.06 is hereby amended by replacing the
words "Leased Premises" in line 2 and in the last line of the paragraph by
the word "Building".
13. Section 6.11 is hereby amended by replacing the words "Gross Leasable
Area" on lines 25 and 26 by the words "gross construction area".
14. Section 6.12 of the Lease is hereby deleted.
15. Section 6.15 of the Lease is hereby deleted.
16. Subsection 8.01(a) of the Lease shall be amended by deleting the word
"Building" in line one and replacing it by the word "Leased Premises".
17. Subsection 8.03(a)(i) shall be amended by deleting the words "as its
interest may appear" in the second last line thereof.
18. Amend Subsection 8.03(a)(ii) by deleting the first line and replacing it
by the following:
"all risks property insurance covering leasehold improvements, trade
fixtures, furnishings, ..."
19. Section 8.08 is hereby amended by replacing the words "Gross Leasable
Area" in line 4 by the words "gross construction area".
20. Section 9.02 of the Lease entitled "Tenant's Proportionate Share of
Landlord's Taxes:" is hereby amended to read as follows:
"9.02 Payment of Landlord's Taxes:
The Tenant covenants to pay to the Landlord, as Additional Rent,
Landlord's Taxes in each calendar year. Payment shall be made in
accordance with the provisions of Section 4.03 and 4.04 hereof."
21. Sections 9.04 and 9.05 of the Lease are hereby deleted.
22. Subsection 14.01(j) is hereby amended by replacing the words "Gross
Leasable Area" in line 8 by the words "gross construction area".
23. Article Twenty of the Lease entitled "Special Provisions" is hereby
deleted.
24. Throughout the Lease the word "Project" shall be replaced by the words
"Leased Premises".
25. The Lease, as herein amended and modified, shall continue in full force
and effect between Landlord and Tenant.
26. The sketch attached as Schedule "A-2" to the Lease is hereby replaced by
the sketch attached as Schedule "A-2" hereto.
27. This Lease Amending Agreement shall enure to the benefit and be binding
upon the parties hereto and their respective successors and assigns and
shall be governed in all respects by the laws of the Province of Ontario.
IN WITNESS WHEREOF the parties have hereunto by the hands of their proper
officers authorized in that behalf executed these presents and affixed their
corporate seal as of the date
4
first above mentioned.
POLARIS REALTY (CANADA) LIMITED
Per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Position: President & C.E.O.
/s/ ▇▇▇▇ ▇. Van Den Elzen
--------------------------------
Name: ▇▇▇▇ ▇. Van Den Elzen
Position: Vice President, Central Region
FINANCIAL MODELS COMPANY INC.
Per: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Position: Secretary
POLARIS REALTY (CANADA) LIMITED
LANDLORD
- AND-
FINANCIAL MODELS COMPANY INC.
TENANT
LEASE
TABLE OF CONTENTS
ARTICLE ONE - DEFINITIONS AND INTERPRETATION ....................................... 1
Section 1.01 Definitions ..................................................... 1
Section 1.02 Schedules ....................................................... 6
Section 1.03 Interpretation .................................................. 7
Section 1.04 Number and Gender ............................................... 7
Section 1.05 Table of Contents, Headings, Divisions and Recitals ............. 7
Section 1.06 Statutes ........................................................ 8
Section 1.07 Obligations as Covenants ........................................ 8
Section 1.08 Relationship - Landlord and Tenant .............................. 8
Section 1.09 Partial Invalidity .............................................. 8
Section 1.10 Entire Agreement ................................................ 8
Section 1.11 Successors and Assigns .......................................... 8
Section 1.12 Governing Law ................................................... 8
ARTICLE TWO - DEMISE ............................................................... 8
Section 2.01 Demise .......................................................... 8
Section 2.02 Area of ......................................................... 9
ARTICLE THREE - TERM ............................................................... 9
Section 3.01 Term ............................................................ 9
Section 3.02 Renewal Options ................................................. 9
ARTICLE FOUR - RENT ................................................................ 10
Section 4.01 Minimum Annual Rent ............................................. 10
Section 4.02 Reduction of Minimum Annual Rent ................................ 11
Section 4.03 Additional Rent ................................................. 11
Section 4.04 Payment of Additional Rent ...................................... 11
Section 4.05 Accrual of Rent ................................................. 12
Section 4.06 Deposit ......................................................... 12
Section 4.07 Set-Off ......................................................... 12
Section 4.08 Net Net Net Lease ............................................... 13
Section 4.09 Accord and Satisfaction ......................................... 13
Section 4.10 Security for Payment of Rent .................................... 13
ARTICLE FIVE - COVENANTS AND REPRESENTATIONS ....................................... 14
Section 5.01 Landlord's General Covenants .................................... 14
Section 5.02 Tenant's General Covenants ...................................... 14
ARTICLE SIX - USE AND OCCUPANCY OF LEASED PREMISES ................................ 14
Section 6.01 Use of Leased Premises .......................................... 14
Section 6.02 Observance of Law ............................................... 14
Section 6.03 Waste or Nuisance ............................................... 15
Section 6.04 Signage ......................................................... 15
Section 6.05 Parking ......................................................... 15
Section 6.06 Maintenance and Repairs by the Tenant ........................... 15
Section 6.07 Repairs by the Landlord ......................................... 16
Section 6.08 Landlord's Approval of Tenant's Repairs ......................... 16
Section 6.09 Repair on Notice and Surrender of Leased Premises ............... 17
Section 6.10 Maintenance by the Landlord ..................................... 17
Section 6.11 Heating, Ventilating and Air-Conditioning ....................... 17
Section 6.12 Common Areas .................................................... 18
Section 6.13 Caretaking ...................................................... 19
Section 6.14 Electricity, Replacement of Lamps and Utilities ................. 19
Section 6.15 Proportionate Share of Operating Costs .......................... 20
Section 6.16 Control of the Project by the Landlord .......................... 21
Section 6.17 Tenant not to Overload Utility and Service Facilities ........... 21
Section 6.18 Rules and Regulations ........................................... 21
Section 6.19 Loading and Unloading ........................................... 22
Section 6.20 Window Covers ................................................... 22
Section 6.21 No Defacing ................................................................. 22
Section 6.22 Additional Services ......................................................... 22
ARTICLE SEVEN - SUBORDINATION, ATTORNMENT
AND STATUS STATEMENT BY TENANT ................................................................. 22
Section 7.01 Subordination and Attornment by Tenant to Mortgagee ......................... 22
Section 7.02 Status Statement of Tenant .................................................. 23
Section 7.03 Status Statement of Landlord ................................................ 24
ARTICLE EIGHT - INSURANCE, EXPROPRIATION AND INDEMNITY ......................................... 24
Section 8.01 Landlord's Insurance ........................................................ 24
Section 8.02 Tenant's Effect on Insurance ................................................ 25
Section 8.03 Tenant's Insurance .......................................................... 26
Section 8.04 Landlord's Right to Place Tenant's Insurance ................................ 27
Section 8.05 Notice of Accident, Defects, Etc............................................. 27
Section 8.06 Damage to Leased Premises ................................................... 27
Section 8.07 Proceeds of Insurance ....................................................... 28
Section 8.08 Landlord Need Not Restore ................................................... 28
Section 8.09 Expropriation or Condemnation ............................................... 28
Section 8.10 Indemnification of the Landlord ............................................. 29
Section 8.11 Indemnification of the Tenant ............................................... 29
Section 8.12 Loss and Damage ............................................................. 29
ARTICLE NINE - TAXES ........................................................................... 30
Section 9.01 Payment of Tenant's Taxes ................................................... 30
Section 9.02 Tenant's Proportionate Share of Landlord's Taxes ............................ 30
Section 9.03 Payment of Landlord's Taxes - Appeals ....................................... 30
Section 9.04 Allocation of Taxes ......................................................... 30
Section 9.05 Separate Assessment for the Leased Premises ................................. 30
Section 9.06 Adjustment of Taxes ......................................................... 31
Section 9.07 Receipts .................................................................... 31
Section 9.08 Separate School Taxes ....................................................... 31
Section 9.09 Business Taxes and Other Taxes Payable by the Tenant ........................ 31
Section 9.10 No Appeal by Tenant ......................................................... 31
ARTICLE TEN - FORCE MAJEURE .................................................................... 32
Section 10.01 Force Majeure ...................................................... 32
ARTICLE ELEVEN - ACCESS ........................................................................ 32
Section 11.01 Exhibit ............................................................ 32
ARTICLE TWELVE - OVERHOLDING ................................................................... 32
Section 12.01 Tenancy after Expiration ........................................... 32
ARTICLE THIRTEEN - ASSIGNMENT AND SUBLETTING ................................................... 33
Section 13.01 Consent Required ................................................... 33
Section 13.02 Conditions of Consent .............................................. 33
Section 13.03 Information to be Provided ......................................... 33
Section 13.04 Restricted Transaction ............................................. 33
Section 13.05 Financial Information .............................................. 34
Section 13.06 Transactions with an Affiliate ..................................... 34
Section 13.07 Assignment by Landlord ............................................. 34
ARTICLE FOURTEEN - CONSTRUCTION ................................................................ 35
Section 14.01 Agreements Concerning Construction ................................. 35
ARTICLE FIFTEEN - FIXTURES AND IMPROVEMENTS .................................................... 38
Section 15.01 Removal and Restoration of Improvements ............................ 38
Section 15.02 Not to Overload Floors or Ceilings ................................. 38
Section 15.03 Tenant shall Discharge all Liens ................................... 39
ARTICLE SIXTEEN - ENVIRONMENTAL PROVISIONS .......................................... 39
Section 16.01 Environmental Provisions ................................ 39
ARTICLE SEVENTEEN - DEFAULT ........................................................ 41
Section 17.01 Remedies on Default ..................................... 41
Section 17.02 Landlord's Right to Perform ............................. 42
Section 17.03 Distress ................................................ 42
Section 17.04 Interest and Costs ...................................... 42
Section 17.05 Allocation of Payments .................................. 42
Section 17.06 Survival of Obligations ................................. 42
Section 17.07 Non-waiver .............................................. 43
Section 17.08 Alternative Remedies .................................... 43
ARTICLE EIGHTEEN - ARBITRATION ..................................................... 43
Section 18.01 Arbitration ............................................. 43
ARTICLE NINETEEN - GENERAL PROVISIONS .............................................. 44
Section 19.01 Notices ................................................. 44
Section 19.02 Planning Act ............................................ 45
Section 19.03 Registration ............................................ 45
Section 19.04 Counterparts ............................................ 45
ARTICLE TWENTY - SPECIAL PROVISIONS ................................................ 45
Section 20.01 Right of First Refusal .................................. 45
THIS INDENTURE made in duplicate as of the 6th day of January, 1998.
IN PURSUANCE OF THE SHORT FORM OF LEASES ACT
BETWEEN:
POLARIS REALTY (CANADA) LIMITED, a corporation duly formed
pursuant to the laws of the Province of Ontario,
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
FINANCIAL MODELS COMPANY INC., a corporation duly formed under
the laws of the Province of Ontario
(hereinafter called the "Tenant")
OF THE SECOND PART
WITNESSES THAT:
WHEREAS the Landlord has agreed to lease to the Tenant, and the
Tenant has agreed to lease from the Landlord, the Leased Premises (as
hereinafter defined) on and subject to the terms and conditions herein set
forth.
ARTICLE ONE
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions: The parties hereto agree that when used in this Lease
or in any Schedule attached to this Lease, the following words or expressions
have the meanings hereinafter set forth:
(a) Additional Rent: means any and all money, charges, or other amounts
which the Tenant is obligated to pay under this Lease, other than
Minimum Annual Rent, whether or not any of such amounts is
designated as "Additional Rent" or not and whether payable to the
Landlord or to third parties.
(b) Affiliate: in respect of either the Landlord or the Tenant means a
corporation which is a subsidiary of the party, which has the party
as a subsidiary or which is a subsidiary of a corporation of which
the party is a subsidiary. For the purpose of this definition, the
corporation shall be deemed to be a subsidiary of another
corporation if, but only if, any one or more of such corporation and
its subsidiaries collectively own or control more than 50% of the
outstanding voting shares in the capital of such first mentioned
corporation.
(c) Architect: means an independent, fully accredited architect or firm
of architects entitled to practise in the Province of Ontario as
appointed from time to time by the Landlord.
(d) Authority: means the Corporation of the City of Mississauga, the
Regional Municipality of Peel, the Province of Ontario, Canada, or
any municipal, regional, provincial or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇.
agency, regulating authority or other authority whatsoever,
including the National Fire Protection Association, or other body
having or purporting to have jurisdiction over the Leased Premises
or the use thereof.
(e) Building: means the office building, currently estimated to have an
area of 100,208 sq. ft. more or less, to be constructed on the Lands
in accordance with the Plans and Specifications.
(f) Business Day: means any day that is not a Saturday, Sunday or
statutory holiday in the Province of Ontario.
(g) Commencement Date: means the first day of the month next following
the Date of Substantial Completion.
(h) Common Areas: means that portion of the Lands together with those
building improvements or facilities intended and designated, from
time to time, by the Landlord for the common use and enjoyment of
all the tenants and occupants of the Building, including the Tenant,
and their respective agents, invitees, servants, employees,
customers and other persons having business with them or any of them
including, without limitation, exterior parking areas, landscaped
areas, roadways, walkways, entrances, and exits to the Lands and the
Building, the entrances and exits to the sidewalks adjacent to the
Building, the stairways, common corridors, elevators, elevator
lobbies, washrooms, mechanical, electric, telephone and service
rooms and closets therein but shall exclude leasable premises.
(i) Conversion Factor: means 1.145.
(j) Date of Substantial Completion: means the date when the Building and
all tenant improvements to be constructed by the Landlord have been
Substantially Completed ready for tenant occupancy as evidenced by
the Landlord or the Architect delivering to the Tenant a certificate
of the Architect certifying same or as determined by arbitration.
(k) Environmental Laws: has the meaning ascribed to such term in section
16.01(a) hereof.
(l) Force Majeure: has the meaning ascribed to such term in section
10.01 hereof.
(m) Gross Leasable Area of the Building: means the number obtained by
adding to the Gross Leasable Area of the Leased Premises, the Gross
Leasable Area of other rentable premises in the Building.
(n) Gross Leasable Area of the Leased Premises: means the product
obtained by multiplying the Usable Area of the Leased Premises by
the Conversion Factor.
(o) Hazardous Substance: has the meaning ascribed to such term in
section 16.01(a) hereof.
(p) Initial Term: means the period of fifteen (15) years commencing on
the Commencement Date.
(q) Lands: means the lands in the City of Mississauga described in
Schedule "A-1" and outlined on the sketch annexed as Schedule "A-2"
hereto.
(r) Landlord's Taxes: The aggregate of all Taxes other than Tenant's
Taxes charged against the Project or any part thereof or upon the
3.
Landlord in respect thereof plus all costs and expenses (including
legal and other professional fees and interest and penalties or
deferred payments) incurred, in good faith, by the Landlord, in
contesting, resisting or appealing any of the foregoing, and
including any amounts imposed, assessed, levied or charged in
substitution for or in lieu of any such Taxes, but excluding such
taxes as capital gains taxes, corporate, income, profit or excess
profit taxes payable by the Landlord to the extent such taxes are
not levied in lieu of any of the foregoing against the Project or
any part thereof or upon the Landlord in respect thereof and shall
also include any and all taxes which may in the future be levied in
lieu of Taxes. The Landlord shall be entitled to adjust the
Landlord's Taxes to an amount that would have been paid had the
Building been fully assessed in the year to which the Taxes are
attributable as a fully occupied development.
(s) Landlord's Work: has the meaning ascribed to such term in section
14.01 hereof.
(t) Leased Premises: means all Usable Area on the ground floor, the
second floor, the third floor and the fourth floor of the Building.
(t) Lease Year: means each period during the tenancy hereby created
which commences on the Commencement Date or an anniversary thereof
and ends either on the day preceding the succeeding anniversary of
the Commencement Date or on the last day of the tenancy hereby
created, whichever occurs first.
(u) Minimum Annual Rent: has the meaning ascribed to such term in
Section 4.01 hereof.
(v) Mortgage: means and includes any mortgage or charge or debenture
secured on real property, deed of trust and mortgage securing bonds,
indenture supplemental thereto, and any other security instrument
affecting the Leased Premises or any part thereof or interest
therein, granted by the Landlord to any third party and includes any
renewal, modification, consolidation, replacement or extension of
the foregoing.
(w) Mortgagee: means the mortgagee, trustee or security holder, as the
case may be, of a Mortgage.
(x) Operating Costs: means, in any fiscal period designated by the
Landlord, all costs, expenses, fees, rentals and outlays of every
kind paid or incurred, calculated in accordance with sound
accounting practices, by the Landlord or on the Landlord's behalf
without duplication in respect of the maintenance and cleaning,
repair and operation of the Project and the curbs and sidewalks
adjoining the same, including without limiting the generality of the
foregoing:
(i) salaries, wages, payroll taxes, workmen's compensation,
medical, surgical, union and general welfare benefits
(including, without limitation, group life insurance), pension
payments, uniforms and related expenses of employees of the
Landlord engaged in the repair, operation, management,
maintenance, cleaning and caretaking of the Project, but
excluding salaries or other benefits of head office
administration staff; the cost of all charges for gas, steam,
electricity, heat, ventilation, air-conditioning, water and
other utilities furnished to the Project, together with any
Taxes on such utilities; the cost of painting and
redecorating; the cost of all charges for rental, casualty,
liability, boiler, machinery and fidelity insurance with
regard to the Project and the repair, maintenance, cleaning,
caretaking and/or operation thereof, less the proceeds of any
insurance received by the Landlord
4.
in respect thereof; the cost of rentals of all supplies
(including, without limitation, cleaning and caretaking
supplies), tools, materials and equipment, and sales and other
taxes thereon; the fair rental value (having regard to the
rentals prevailing from time to time for similar space) of
space used by the Landlord, acting reasonably, in connection
with the maintenance, repairs, operation, administration or
management of the Project; the cost of all charges for window
and other cleaning, caretaking and janitorial and security
services in respect of the Project, charges of independent
contractors including fees or commissions paid on account of
reductions in Operating Costs attributable to machinery,
equipment or systems installed to reduce or limit Operating
Costs provided that such fees or commissions shall not exceed
the amount by which Operating Costs are so reduced; repairs
and replacements made by the Landlord at its expense, less the
proceeds of any insurance received by Landlord in respect
thereof; the reasonable legal, accounting and other
professional fees incurred in connection with the operation,
maintenance and management of the Project; a management fee of
(4%) percent of gross amounts received or receivable by the
Landlord in respect of the Project for all items, including
all such items as are included In this Lease as Rent; any
special or other assessment or levy imposed upon the Project,
including commercial concentration tax; capital taxes, if any,
payable by the Landlord in respect of or resulting from the
Landlord's ownership or other interest in the Project or any
part or any tax in lieu of such taxes, which capital taxes
shall be calculated and determined as if the Landlord had no
ownership or interest in any other real or personal property
other than the Project and ail furnishings, equipment and
improvements therein, all of which shall be determined by the
Landlord's Accountant whose determination shall be final and
binding; snow removal, garbage and waste collection and
disposal; policing, security, supervision and traffic control;
and all other charges properly allocable to the repair,
operation and maintenance of the Project; and
(ii) the cost of any capital improvements to the Project or any
part or parts thereof and/or of any machinery or equipment
installed in the Project incurred to reduce or limit Operating
Costs, or required by any change in the laws, rules,
regulations or orders of any governmental or
quasi-governmental authority having jurisdiction, which costs
shall be amortized over the useful life of the improvement,
machinery and/or equipment (as reasonably estimated by
Landlord's Accountant) and interest on the undepreciated
portion of the original cost of such capital improvements,
machinery and equipment at two (2%) percent in excess of the
Prime Rate.
Excluding, however:
(I) interest on and amortization of debts and capital
retirement of debt;
(II) tenant improvements and leasing commissions;
(III) any credit received by the Landlord on account of work
done under warranty;
(IV) costs for which the Landlord is reimbursed for its
insurers;
5.
(V) the costs of any additional services provided to any
tenants and recovered from such tenants;
(VI) cost of repairs for which the Landlord is responsible
under Section 6.07 hereof; and
(VII) the costs of repairing or replacing any inherent
structural defects in the floors, foundations, exterior
walls and interior load bearing walls of the Building.
(VIII) taxes and costs similar to those costs referred to in
Section 6.14 hereof charged to tenants.
The Landlord shall be entitled to adjust Operating Costs to reflect
full occupancy of the Building.
(y) Person: means, if the context allows, any individual, body
corporate, partnership, joint venturer, association, syndicate,
trust, or unincorporated organization or any trustee, executor,
administrator or other legal representative or any combination
thereof.
(z) Plans and Specifications: means those plans and specifications which
may from time to time be initialled or approved in writing by both
Landlord and Tenant, initialled by each of them and annexed to this
Lease.
(aa) Prime Rate: means the rate of interest quoted from time to time by
the Canadian Imperial Bank of Commerce (or such other chartered bank
as may be designated by the Landlord) as its "prime lending rate".
(ab) Project: means collectively the Lands, the Building and other
improvements constructed from time to time on the Lands.
(ac) Proportionate Share: means a fraction, having as its numerator, the
Gross Leasable Area of the Leased Premises and, as its denominator,
the total Gross Leasable Area of the Building.
(ad) Re-entry Date: means the first date following a default of the
Tenant when the Landlord, being so entitled pursuant to the
provisions hereof, has either terminated this Lease or as agent of
the Tenant has re-entered and taken possession of all or part of the
Leased Premises.
(ae) Refusal Date: means has the meaning ascribed to such term in Section
20.01 hereof,
(af) Rent: means Minimum Annual Rent payable during the Term, Additional
Rent, and all other amounts payable by the Tenant to the Landlord or
to third parties hereunder which are designated as being collectible
as rent.
(ag) Renewal Terms: means the two (2) additional consecutive five year
terms provided for in Sections 3.02 hereof.
(ah) Restoration: has the meaning ascribed to such term in section 8.07
hereof.
(ai) Site Plan: means the site plan annexed hereto as Schedule "A-2", as
same may be amended from time to time by written amendment approved
in writing by both Landlord and Tenant.
6.
(aj) Substantial Completion or Substantially Complete: shall mean when
the construction of the Building has been substantially performed,
as such term is defined in the Construction Lien Act, R.S.O. 1990,
C. 30, as amended, and required approvals have been obtained from
all Authorities to permit occupancy by the Tenant of the Leased
Premises.
(ak) Taxes: means all taxes, rates, duties, levies, fees, charges, sewer
levies, local improvement rates, and assessments whatsoever,
including capital tax imposed, assessed, levied or charged by any
school, municipal, regional, provincial, federal, parliamentary or
other governmental body, corporation, authority, agency or
commission (including, without limitation, school boards and utility
commissions) and including all costs and expenses (including legal
and other professional fees and interest and penalties on deferred
payments) incurred by the Landlord in good faith in contesting,
resisting or appealing any of the foregoing, and including any
amounts imposed, assessed, levied or charged in substitution for or
in lieu of any such taxes, rates, duties, levies, fees, charges or
assessments, but excluding such taxes as capital gains taxes,
corporate, income, profit or excess profit taxes to the extent such
taxes are not levied in lieu of any of the foregoing against the
Project or any part thereof or the Landlord in respect thereof and
shall also include any and all taxes, rates, duties, levies, fees,
etc. which may in the future be levied in lieu of Taxes as
hereinbefore defined. If any business transfer tax, value added tax,
multi-stage tax, sales tax, goods and services tax or any like tax
is imposed on the Landlord by any governmental authority on any Rent
or portion thereof payable by the Tenant under this Lease or upon
the value of the Project same shall be included in Taxes for the
purposes of this Lease.
(al) Tenant's Taxes: means the aggregate of:
(i) all Taxes (whether imposed upon the Landlord or the Tenant)
attributable to the personal property, trade fixtures,
business, income, occupancy and/or turnover of the Tenant or
any other occupant of the Leased Premises, and to any
leasehold improvements or fixtures installed by or on behalf
of the Tenant within the Leased Premises; and
(ii) the amount by which Taxes (whether imposed upon the Landlord
or the Tenant) are increased above the Taxes which would have
otherwise been payable, which increase is as a result of the
use or occupation of the Leased Premises by the Tenant or any
other occupant of the Leased Premises being taxed or assessed
in support of separate schools.
(am) Term: means the period of 15 years commencing on Commencement Date
and includes the Initial Term and, as applicable, one or more
Renewal Terms.
(an) Usable Area: means the aggregate of the actual occupiable area of
each floor of the Leased Premises, calculated by measuring from the
inside faces of the Building glass surfaces to the inside faces of
the opposite Building glass surfaces excluding stairs and elevator
shafts (other than special stairs and/or elevators for the special
use of the Tenant) electrical rooms, telephone rooms, janitors's
closets, and mechanical rooms located on such floor. No deduction
shall be made for columns and projections necessary to the Building.
Section 1.02 Schedules: The following are the Schedules which are attached to
and form part of this Lease.
7.
Schedule A-1 Legal Description
Schedule A-2 Site Plan
Schedule B Plans and Specifications
Schedule C Lease Form for Registration
Schedule D Rules and Regulations
Schedule E Form of Letter of Credit
Section 1.03 Interpretation:
(a) Unless the context otherwise requires, the word "Landlord" wherever
it is used herein shall be construed to include and shall mean the
Landlord, its successors and/or assigns, and the word "Tenant" shall
be construed to include and shall mean the Tenant, and the
successors and/or assigns of the Tenant permitted in accordance
herewith and when there are two or more Persons bound by a covenant
herein, their obligations hereunder shall be joint and several; the
word "Landlord" or the word "Tenant" and the personal pronoun "it"
relating thereto and used therewith shall be read and construed as
"Landlord's", "Tenant's", and "his", "her", "its", or "their"
respectively, as the number and gender of the party or parties
referred to each require and the number of the verb agreeing
therewith shall be construed so as to agree with the said word or
pronoun so substituted.
(b) The expressions "herein", "hereof", "hereby", "hereunder", "hereto",
"hereinafter" and similar expressions refer to this Lease and not to
any particular section, paragraph or other portion hereof, unless
there is something in the subject matter or context inconsistent
therewith.
(c) The word "include" or the word "including", when preceding or
following any general statement, term or matter, is not to be
construed to limit such general statement, term or matter to the
specific items or matters set forth immediately following such word
or to similar items or matters, whether or not non-limiting language
(such as "without limitation" or "but not limited to" or words of
similar import) is used with reference thereto, but rather is to be
construed to refer to all other items or matters that could
reasonably fall within the scope of such general statement, term or
matter.
(d) Except as otherwise provided herein, all calculations required or
permitted under this Lease shall be made in accordance with sound
accounting practice.
Section 1.04 Number and Gender: All words denoting number and gender will be
construed so as to denote the number and gender required by the context.
Section 1.05 Table of Contents, Headings, Divisions and Recitals:
(a) The table of contents, article and section headings, and article and
section numbers are inserted for convenient reference only. They do
not define, limit or describe the scope or intent of the various
articles and sections of the Lease nor do they modify the express
provisions of the Lease, and they are not to be considered when
interpreting this Lease.
(b) All references in this Lease to schedules, articles, sections and
other subdivisions refer to those in this Lease unless otherwise
indicated. Where referring in one section to a subdivision of
another section, the reference, for the sake of brevity, begins with
a designation of the other section followed consecutively by
designations of subdivisions to and including the subdivision to
which reference is being made. For example, where referring to
clause (c) of paragraph (1) of Section 5.02, the reference would be
"section 5.02(1) (c)".
8.
(c) The recitals to this Lease are not intended to modify the express
provisions of this Lease and are not to be considered when
interpreting this Lease.
Section 1.06 Statutes: Any reference to a statute will include and be deemed to
be a reference to the statute and the regulations pursuant thereto, with all
amendments made thereto and in force from time to time, and to any statute or
regulation that may be passed which has the effect of supplementing or
superseding the statute so referred to or the regulations made pursuant thereto.
Section 1.07 Obligations as Covenants: Each obligation or agreement of the
Landlord or the Tenant as set forth herein is to be construed as a separate and
independent covenant, even though it has not been expressed as a covenant.
Section 1.08 Relationship - Landlord and Tenant: Nothing contained herein shall
be deemed to create any relationship between the Landlord and Tenant other than
that of landlord and tenant.
Section 1.09 Partial Invalidity: If any provision of this Lease or its
application to a Person or circumstance is invalid, illegal or unenforceable, it
shall be considered separate and severable from this Lease and the remaining
provisions of this Lease shall not be affected thereby, shall remain in force
and be binding upon the parties hereto and may be enforced to the fullest extent
permitted at law as though the said invalid, illegal or unenforceable provision
or provisions had never been included.
Section 1.10 Entire Agreement: This Lease sets forth all the covenants,
promises, agreements, conditions and understandings between the Landlord and the
Tenant concerning the Leased Premises and supersedes all prior agreements
understandings and negotiations. There are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them other than as
set forth in this Lease. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease will be binding upon the
Landlord or the Tenant unless reduced to writing and signed by them.
Section 1.11 Successors and Assigns: This Lease and everything herein contained
shall enure to the benefit of an be binding upon the respective successors,
permitted assigns and other legal representatives, as the case may be, of each
of the parties hereto, and every reference herein to any party hereto shall
include the heirs, executors, administrators, successors, assigns and other
legal representatives of such party, as appropriate and necessary provided,
however that this Lease shall not enure to the benefit of any of such parties
unless and only to the extent expressly permitted pursuant to the provisions
hereof.
Section 1.12 Governing Law: This Lease shall be deemed to have been made in and
shall be construed in accordance with the laws of the Province of Ontario and
the laws of Canada applicable therein. Subject to the provisions hereof
concerning arbitration, all matters and disputes, whether sounding in contract
or in tort relating to the validity, construction, interpretation, breach or
enforcement of this Lease shall be determined before the courts of the Province
of Ontario and the Landlord and the Tenant each hereby attorns to the
non-exclusive jurisdiction of the courts of the Province of Ontario in all such
matters and disputes.
ARTICLE TWO
DEMISE
Section 2.01 Demise: NOW, THEREFORE, in consideration of the rents, covenants
and agreements hereinafter reserved and contained on the part of the Tenant to
be paid, observed and performed, the Landlord by these presents demises and
leases unto the Tenant the Leased Premises.
9.
Section 2.02 Area of Leased Premises: The Gross Leasable Area of the Leased
Premises shall be calculated and certified by the Architect or an independent
qualified surveyor selected by the Landlord. Within sixty (60) days following
the Date of Substantial Completion of the Building, the Landlord shall provide
to the Tenant a certificate of the Architect or a duly qualified surveyor as to
the Gross Leasable Area of the Leased Premises and the Gross Leasable Area of
the Building. Following issuance of the certificate, Minimum Annual Rent payable
by the Tenant pursuant to this Lease shall be adjusted accordingly and the
Landlord or Tenant, as applicable, shall forthwith pay to the other any
adjustment in Minimum Annual Rent previously paid as a consequence of such
calculation and shall adjust the amount of the deposit made under Section 4.06
as a consequence of such calculation. Any dispute concerning the certification
of the Gross Leasable Area of the Leased Premises shall be determined by
arbitration provided that until a determination is made by arbitration the
Tenant shall pay to the Landlord Minimum Annual Rent calculated on the basis of
the Architect's or surveyor's certification subject to retroactive adjustment
following arbitration.
ARTICLE THREE
TERM AND TERMINATION
Section 3.01 Term: TO HAVE AND TO HOLD the Leased Premises for and during the
Initial Term. The Tenant has no entitlement to renew or extend the Initial Term
except as may be expressly provided for herein.
Section 3.02 Renewal Options: Provided:
(a) the Tenant is not then in default and has not been repeatedly in
default under this Lease;
(b) the Tenant has not made any assignment for the benefit of creditors
and has not become bankrupt or insolvent or taken the benefit of any
Act now or hereafter in force for bankrupt or insolvent debtors;
(c) a receiving order has not been made against the Tenant;
(d) no receiver or other similarly appointed person has taken possession
or effective control or the assets of business of the Tenant or a
substantial portion thereof pursuant to any security or similar
agreement or by any other similar means whatsoever;
(e) the Tenant has not assigned this lease or sublet or permitted a
change in occupancy of the Leased Premises, save as permitted
herein;
(f) the Tenant or a permitted assignee or sub-lessee has continuously
operated in the Leased Premises the Permitted Business specified in
the Basic Provisions hereof;
then the Tenant shall have the option of extending the Term for two (2)
additional consecutive Renewal Terms of five (5) years each, exercisable
separately as to each Renewal Term by written notice given to the Landlord
(which notice, in order to be valid, must be sent by registered mail, postage
prepaid no later than six (6) months prior to the expiration of the Initial Term
or prior to the expiration of the first Renewal Term as the case may be), upon
the same terms and conditions as contained in this Lease, save and except the
Tenant shall not be entitled to any rent free period, fixturing period or tenant
allowance or any further option to extend the Term beyond the second Renewal
Term and save and except the amount of annual Minimum Annual Rent to be paid
during each of the Renewal Terms, which Minimum Annual Rent shall be established
by agreement of the Landlord and the Tenant both having regard to the then
current fair market rates of Minimum Annual Rent for premises in buildings of
similar quality, age, condition and location. Failing
10.
such agreement on or before the date which is 90 days after the giving of the
applicable renewal notice, such Minimum Annual Rent shall be established in the
manner hereinafter set forth' provided that in no event shall such Minimum
Annual Rent be less than the annual Minimum Annual Rent payable for the
immediately preceding lease Year. The Landlord and Tenant shall proceed in good
faith for a period not less than seven days to select a single arbitrator to
determine Minimum Annual Rent, which arbitrator shall be independent of the
Landlord and Tenant without bias and experienced in the determination of fair
market value rents for commercial properties in the Province of Ontario. If the
parties cannot agree on the selection of the single arbitrator within such seven
day period, either of them may apply under relevant Ontario legislation for the
appointment of a single arbitrator. The single arbitrator is to proceed promptly
to determine the matter and his decision is to be final and binding upon the
Landlord and Tenant and not subject to appeal. The cost of the arbitrator shall,
unless otherwise determined by the arbitrator, be shared equally by Landlord and
Tenant. If upon the commencement of an Renewal Term the amount of annual Minimum
Annual Rent for such Renewal Term has not been determined as herein provided,
then until such determination has been made, the Tenant shall continue to pay
the monthly Minimum Annual Rent which it paid immediately prior to the
commencement of such Renewal Term, and upon determination of the amount of
Minimum Annual Rent for an Renewal Term as herein provided, the Tenant shall
promptly pay to the Landlord any increased amount that would have been payable
had the Minimum Annual Rent been determined as of the first day of such Renewal
Term. In the event that the Tenant fails to provide a notice of extension within
the time above required, the Landlord, prior to reletting the Leased Premises or
taking possession of shall advise the Tenant in writing of its intention to so
do. The Tenant shall have 7 days next following receipt of such notice to notify
the Landlord in writing of its exercise of the option as above required in which
event the Term shall be extended in the manner above provided. The Landlord
shall be under no obligation to notify the Tenant and the Tenant shall have no
right to renew if there has been a breach of any of provisions (a) to (f) above
inclusive.
ARTICLE FOUR
RENT
Section 4.01 Minimum Annual Rent: YIELDING AND PAYING THEREFOR, yearly and every
year during the Initial Term, unto the Landlord, without any deduction, set-off,
or abatement whatsoever, except as herein expressly provided in section 4.07,
the following Minimum Annual Rental, payable in lawful money of Canada, in equal
consecutive monthly instalments each in advance on the first day of each and
every month during the Initial Term:
Lease Year Minimum Annual Rental Monthly Instalment
--------------- ------------------------- ------------------
1 - 5 inclusive $1,027,078 (being $13.00 $ 85,589.83
per rentable square foot)
6 - 10 inclusive $1,244,344,59 (being $ 103,695.37
$15.75 per rentable
square foot)
11 - 15 inclusive $1,433,958.90 (being $ 119,496.57
$18.15 per rentable
square foot)
Minimum Annual Rent as calculated above is based upon the Gross Leasable Area of
the Leased Premises being 79,006 square feet and is to be adjusted, as
applicable, following actual measurement as provided in Section 2.02 hereof.
Landlord and Tenant acknowledge that the actual Gross Leasable Area of the
Leased Premises may differ from the above as a result of alteration of Building
size which may be undertaken by the Landlord as a result of changes required by
an Authority or in the Landlord's discretion; provided, however, that if such
changes are solely the result of the Landlord's discretion such difference shall
be no greater than 5% of the current Gross Leasable Area of 79,006 square feet."
11.
Section 4.02 Reduction of Minimum Annual Rent: The Tenant may, by notice to the
Landlord given not less than 90 days prior to the Commencement Date, elect not
to occupy the fourth floor of the Building for the first year of the Term and if
it so elects, the Tenant shall pay no Minimum Annual Rent but shall pay
Additional Rent in respect of the Gross Leasable Area of the fourth floor of the
Leased Premises, being approximately 22,129 sq. ft. In the event that the Tenant
occupies any portion of the said fourth floor at the Commencement Date then the
Tenant shall pay full Minimum Annual Rent for the whole of the fourth floor
during the first year of the Term. In the event that the Tenant occupies any
portion of the fourth floor during the first year of the Initial Term the Tenant
shall, from and after the date of such occupation, pay full Minimum Annual Rent
for the full gross leasable area of the fourth floor of the Leased Premises.
Whether or not the Tenant occupies all or any portion of the fourth floor of the
Leased Premises, the Tenant shall pay full annual rent thereon, commencing on
the first anniversary of the Commencement Date.
Section 4.03 Additional Rent: AND FURTHER YIELDING AND PAYING unto the Landlord,
yearly and every year during the Term, as Additional Rent:
(a) the amount of any Taxes payable by the Tenant to the Landlord
pursuant to Article Nine hereof; plus
(b) the amount of any payments required to be made to the Landlord on
account of the cost of utilities supplied to the Leased Premises
together with the cost of lamp and bulb replacements, all being
determined in accordance with the provisions of Section 6.14 hereof;
plus
(c) the Tenant's Proportionate Share of Operating Costs in accordance
with Section 6.15 hereof; plus
(d) the cost of any additional maintenance, cleaning and caretaking
services provided to the Leased Premises.
Section 4.04 Payment of Additional Rent: The Additional Rent specified in
Section 4.03 hereof shall be paid and adjusted with reference to a fiscal period
of 12 calendar months, which shall be a calendar year unless the Landlord shall
from time to time have selected a fiscal period which is not a calendar year by
notice to the Tenant. The Landlord shall advise the Tenant in writing of its
estimate of the Additional Rent to be payable by the Tenant during the fiscal
period (or broken portion of the fiscal period, as the case may be, if
applicable at the commencement or end of the Term or because of a change in
fiscal period) which commenced upon the Commencement Date of the Initial Term,
and on or before the commencement of each succeeding fiscal period which
commences during the Term, the Landlord shall advise the Tenant in writing of
its estimate of the Additional Rent to be incurred in such fiscal period or
broken portion thereof. Such estimate shall in every case be a reasonable
estimate and based wherever possible upon previous operating expenses. The
Additional Rent payable by the Tenant, except as herein otherwise provided,
shall be paid in equal monthly instalments in advance on the first day of each
and every month during the Term based on the Landlord's estimate as aforesaid.
If required by the Landlord, Taxes for any 12 months fiscal period shall be paid
by nine equal instalments on the first day of each of the first nine months of
such fiscal period. Within 120 days after the end of each such fiscal period or
broken portion thereof (or with respect to any component of Additional Rent
which cannot be computed within such 120 day period, within 30 days after the
Landlord shall have received the information necessary to compute such component
of Additional Rent), the Landlord shall submit to the Tenant a statement of the
actual Additional Rent payable in respect of such fiscal period or broken
portion thereof, which statement shall be verified by the Landlord's Accountant,
and a calculation of the amounts by which the Additional Rent payable by the
Tenant exceeds or falls short, as the case may be, of the aggregate instalments
paid by the Tenant on account of Additional Rent for such fiscal period.
12.
Within 30 days after the receipt of such statement either the Tenant
shall pay to the Landlord any amount by which the amount found payable by the
Tenant with respect to such fiscal period or broken portion thereof exceeds the
aggregate of the monthly payments made by it on account thereof during such
fiscal period or broken portion thereof or the Landlord shall pay to the Tenant
any amount by which the amount found payable as aforesaid is less than the
aggregate of such monthly payments. In the event of any dispute by the Tenant of
the amount of Additional Rent payable an opinion of the Landlord's Accountant
shall be conclusive and binding as to the amount thereof for any period to which
such opinion relates unless the Tenant can demonstrate that the opinion of the
Landlord's Accountant is manifestly in error. At the request of the Tenant, the
Landlord will make available to the Tenant or its authorized representatives for
inspection at its premises such invoices or other document material to
Additional Rent as are in its possession or control (including realty tax
bills), provided that the Tenant shall make such request within 90 days of
receipt of the statement of actual Additional Rent and shall pay to the Landlord
on demand, as Additional Rent, all reasonable expenses incurred by the Landlord
in so doing.
Section 4.05 Accrual of Rent: Rent shall be considered as accruing from day to
day hereunder, and where it becomes necessary for any reason to calculate such
Rent for an irregular period of less than one year or less than one calendar
month, an appropriate apportionment and adjustment shall be made, including an
apportionment and adjustment of Additional Rent for the Lease Years in which the
tenancy created hereby commences and expires. Where the calculation of
Additional Rent cannot be made until after the termination of this Lease, the
obligation of the Tenant to pay such Additional Rent shall survive the
termination hereof, and such amount shall be payable by the Tenant within thirty
(30) days of written demand therefor by the Landlord. Notwithstanding the
foregoing, except for Taxes, for which an adjustment may be requested by either
Landlord or Tenant at any time following expiration or other termination of this
Lease, the right of either Landlord or Tenant to request a payment from the
other in respect of Additional Rent or any adjustment thereto, shall expire one
(1) year after the expiration or other termination of this Lease.
Section 4.06 Deposit: Contemporaneously with its execution hereof, the Tenant
shall deliver to the Landlord a certified cheque in the amount of $265,715.58
(which amount does not include G.S.T.) being Minimum Annual Rent and Additional
Rent estimated to be payable in the amounts of $120,871.25 and $144,844.33 for
the first two months, respectively of the Term. The Landlord shall annually
within fifteen (15) days of each anniversary date of the date hereof pay
interest to the Tenant on the amount of the second month's rent deposit equal to
the best available one year guaranteed investment certificate rate of interest
offered by Canadian Imperial Bank of Commerce on the first business day of the
year for which interest is being paid. In lieu of payment, interest may be
credited to the Tenant's account so as to reduce the next monthly rental
payable. The amount equal to the second month's deposit shall be credited to
Minimum Annual Rent and Additional Rent payable in respect of the sixtieth
(60th) month of the Initial Term. Any excess amount shall be applied to rental
payable for the next following month. In the event that following a default of
the Tenant, the Landlord is entitled to exercise its remedies hereunder, whether
prior to or after the Commencement Date, the Landlord, in addition to its other
rights and remedies, may retain all interest earned on the deposit on account of
any then existing indebtedness or obligation of the Tenant to it.
Section 4.07 Set-Off: The Tenant hereby expressly waives the benefit of any
present or future Act of the Province of Ontario permitting the Tenant to claim
a set-off against Rent for any cause whatsoever other than:
(a) the entitlement of the Tenant to a rent reduction set out in Section
4.02 hereof; and
(b) the rent reduction provided for in Section 14.01(k) hereof.
13.
Section 4.08 Net Net Net Lease: It is the intention of the parties that, except
as herein specified, this Lease be completely net and carefree to the Landlord
and that the Rent payable hereunder be net to the Landlord, and that all
expenses and costs relating to the Leased Premises, including any reasonable
legal fees incurred by the Landlord to deal with any default of the Tenant,
shall be borne by the Tenant, save only to the extent of any expenses expressly
stated herein to be the responsibility of the Landlord.
Section 4.09 Accord and Satisfaction: No payment by the Tenant or receipt by the
Landlord of a lesser amount than monthly Rent herein stipulated will be deemed
to be other than on account of the earliest stipulated Rent, nor will an
endorsement or statement on a cheque or in a letter accompanying a cheque or
payment as Rent be or be deemed to be an accord and satisfaction, and the
Landlord may accept a cheque or payment without prejudice to the Landlord's
right to recover the balance of the Rent or pursue any other remedy in this
Lease.
Section 4.10 Security for Payment of Rent:
(a) As security for its obligation to pay Rent and to perform its other
agreements and obligations as set forth herein, the Tenant shall
provide to the Landlord within ten days of receipt of notice from
Landlord that it has obtained a permit for construction of the
foundation of the Building, an irrevocable letter of credit in the
form annexed hereto as Schedule "E" or such other form as may be
acceptable to the Landlord acting reasonably, issued by Canadian
Imperial Bank of Commerce or one of the other six largest Canadian
chartered banks which letter of credit shall be in the principal
amount of $2,000,000.00 and shall expire on the then estimated
Commencement Date. The letter of credit may have an expiry date
prior to the Commencement Date provided, however, that the issuer of
the letter of credit shall be obligated to either extend the letter
of credit or to pay the amount the principal amount remaining
outstanding as at the expiry date to the Landlord. The letter of
credit or principal amount of $2,000,000.00 shall be returned or
paid as applicable to the issuer of the letter of credit on the
first date occurring on or after the Commencement Date when the
Tenant delivers to the Landlord the letter of credit required under
either (b) or (c) below.
(b) If on or before the Commencement Date the Tenant delivers to the
Landlord its audited financial statements for its fiscal year ended
February 28, 1998 which statements were issued without qualification
and indicate that the Tenant's "earnings before income taxes" exceed
Cdn$5,000,000.00 and its Revenues for such fiscal period exceed
Cdn$40,000,000.00 the Tenant shall be entitled on or after the
Commencement Date to replace the letter of credit set out above by
an irrevocable letter of credit in the amount of $1,000,000.00, in
the form annexed hereto, renewable annually and to expire on the
last day of the third year of the Initial Term hereof.
(c) In the event that the audited consolidated financial statements for
the Tenant for its fiscal year ended February 28, 1998 do not
indicate revenues and earnings before income taxes in at least the
amounts set forth in (b) above, the Tenant shall provide to the
Landlord a replacement irrevocable letter of credit in the amount of
$2,000,000.00 and otherwise on the terms and conditions set out in
(b) above. If the Tenant fails to achieve the required revenues and
earnings before income taxes for its fiscal year ended February 28,
1998 but achieves such revenues and earnings for a subsequent fiscal
year as indicated by its audited consolidated financial statements
provided to Landlord, it shall be entitled at any time after the
first anniversary of the Commencement Date to replace any letter
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of credit then outstanding by an identical letter of credit in the
reduced amount of $1,000,000.00.
(d) Any letter of credit as aforesaid shall provide that upon each
default of Tenant, not cured within the period set out in section
17.01 hereof, the Landlord may require that the issuing bank honour
a demand for payment of the amount then in default.
(e) Any letter of credit permitted herein may be issued for a period
shorter than the period provided for herein so long as the letter of
credit provides that if it is not extended for a further period
prior to its maturity that the issuing bank will pay the full amount
then undrawn under the letter of credit to the Landlord or
transferee on maturity.
(f) Notwithstanding any of the foregoing, the Landlord and Tenant may,
by mutual written agreement, establish other terms for letter of
credit security or otherwise agree to the cancellation and return of
any then outstanding letter of credit.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS
Section 5.01 Landlord's General Covenants: The Landlord covenants with the
Tenant:
(a) for quiet enjoyment; and
(b) to observe and perform all the covenants and obligations of the
Landlord herein.
Section 5.02 Tenant's General Covenants: The Tenant covenants with the Landlord:
(a) to pay Rent; and
(b) to observe and perform all the covenants and obligations of the
Tenant herein.
ARTICLE SIX
USE AND OCCUPANCY OF LEASED PREMISES
Section 6.01 Use of Leased Premises: The Tenant shall not use the Leased
Premises for any purpose other than for general office purposes and any
ancillary use provided such use befits a first class office building. The Tenant
will not use or permit, or suffer the use of, the Leased Premises or any part
thereof for any other business or purpose without the prior written consent of
the Landlord, which consent shall not be unreasonably withheld or delayed.
Section 6.02 Observance of Law: The Tenant shall, at its sole cost and expense,
promptly:
(a) observe and comply with all provisions of law including, without
limiting the generality of the foregoing, all requirements of all
Authorities, including federal, provincial and municipal legislative
enactments, by-laws and other regulations now or hereafter in force
which pertain to or affect the Leased Premises, the Tenant's use of
the Leased Premises or the conduct of any business in the Leased
Premises, or the making of any repairs, replacements, alterations,
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additions, changes, substitutions or improvements of or to the
Leased Premises; and
(b) observe and comply with all police, fire and sanitary regulations
imposed by any Authority, or made by fire insurance underwriters.
Notwithstanding the foregoing, the Tenant shall not be obligated to observe and
comply with all provisions of law as aforesaid to the extent such required
compliance results from a deficiency in the Landlord's Work and in such event
the Landlord and not the Tenant shall promptly observe and comply with all
provisions of law.
Section 6.03 Waste or Nuisance: The Tenant will not commit or suffer to be
committed waste upon the Leased Premises nor do or omit to do or permit to be
done or omit to be done anything upon or in respect of the Leased Premises which
would be or result in a nuisance.
Section 6.04 Signage: The Tenant shall be entitled, at its sole cost and
expense, subject to obtaining the approval from all applicable Authorities and
upon obtaining the Landlord's consent which shall not be unreasonably withheld
or delayed, to erect signage at two exterior locations within the Project which
may be on the roof or on one side only of the exterior of the Building or on
landscaped areas of the Lands. Signage may contain the Tenant's name and/or
logo. Signage shall comply with all rules and regulations of applicable
Authorities and shall conform to Landlord's building standards. Any signage
permitted by this section shall be promptly removed by the Tenant at its sole
expense on the termination or other expiration of this Lease and the Tenant
shall promptly make good any and all damage caused by such removal. The Tenant
acknowledges that all, but not part, of its right to exterior signage as
provided herein may be assigned to any assignee of the whole of the Leased
Premises but may not be assigned or transferred in whole or in part by it to any
subtenant without the prior written consent of the Landlord which consent the
Landlord may arbitrarily withhold. Other tenants of the Building shall be
permitted to such signage on the exterior of the Building so long as the
Tenant's signage has a pre-eminent position.
Section 6.05 Parking: Landlord shall construct as part of Landlord's Work and
make available to the Tenant, at no additional cost to the Tenant, its
proportional share of a parking area of not less than 4.5 parking stalls for
each 1,000 square feet of Gross Leasable Area in the Building. Parking stalls
shall be designated solely for the use of the Building's tenant(s) but shall not
otherwise be reserved. The Landlord may from time to time designate stalls to be
reserved provided that wherever possible the Landlord shall designate Tenant
spaces as contiguous spaces. Parking of motor vehicles shall be subject to rules
and regulations established by the Landlord from time to time."
Section 6.06 Maintenance and Repairs by the Tenant: Except for those repairs to
be carried out by the Landlord as set out in Section 6.07 hereof, the Tenant
shall, at all times, at its sole cost and expense, keep and maintain the Leased
Premises, all improvements thereto and all exterior signage installed by the
Tenant in similar good order, and condition and repair as would a reasonable and
prudent owner, excluding only reasonable wear and tear not inconsistent with the
Tenant's obligation to maintain the Leased Premises in the aforesaid condition.
The Tenant shall make all needed repairs and replacements with due diligence and
dispatch. The Tenant shall at all times carry out a maintenance and repair
program for the Leased Premises as would a prudent owner wishing to maintain the
Leased Premises for its long term benefit
In the event that the Tenant intends to abandon or vacate more than fifty per
cent (50%) of the Leased Premises, it shall give notice of its intention
forthwith but in any event not less than sixty (60) days prior to its
abandonment or vacation of the Leased Premises and shall appoint the Landlord as
of the date of abandonment or vacation, as its manager, to carry out its
maintenance and repair responsibilities upon the terms above set forth. All
costs in connection with the foregoing, together
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with an administration fee of fifteen (15%) per cent of costs expended shall be
promptly paid by the Landlord to Tenant as Additional Rent. The Tenant shall be
entitled to terminate the Landlord's appointment upon its reoccupation of not
less than fifty (50%) per cent of the area of the Leased Premises.
Section 6.07 Repairs by the Landlord: The Landlord shall be responsible for
carrying out the following repairs:
(a) any repairs or replacements at any time during the Initial Term
arising from a construction, material or performance deficiency in
the Landlord's Work as certified by the Architect or as determined
by arbitration, provided the Tenant has delivered to the Landlord
notice of such deficiency within twelve (12) months of the Date of
Substantial Completion;
(b) any repairs or replacements for which the Landlord has received a
warranty in respect of same from any contractor, subcontractor or
supplier of materials, details of which shall be available to the
Tenant in the "as-built" documents maintained by the Landlord; and
(c) any repairs or replacements to the roof, supporting walls, outside
masonry, foundations, and structural parts of the Building required
within one (1) year of the Date when the Building was Substantially
Completed, other than those resulting from the wrongful or negligent
act or omission of the Tenant or any Person for whom the Tenant is
in law responsible, provided the Tenant has delivered to the
Landlord notice of such deficiency within twelve (12) months of the
Date of Substantial Completion.
The cost of Landlord's repairs carried pursuant to the provisions of subsections
(a), (b) or (c) above shall be at the Landlord's expense and not recoverable
from the Tenant.
Either Landlord or Tenant may refer to arbitration any dispute which may arise
pursuant to the provisions of this section. Notwithstanding the foregoing the
Landlord shall have no responsibility for repair of satellite dishes, signs,
supplementary heating, ventilating, air conditioning ("HVAC") systems or any
fixtures installed by the Tenant or facilities relating thereto or in respect of
any alterations or improvements made by the Tenant.
Section 6.08 Landlord's Approval of Tenant's Repairs: The Tenant shall not make
any repairs, alterations, replacements or improvements to any part of the Leased
Premises, without first obtaining the Landlord's written approval, which
approval shall not be unreasonably withheld or delayed. The Tenant shall submit
to the Landlord: (a) details of the proposed work including drawings and
specifications prepared by qualified architects or engineers and conforming to
good engineering practice; (b) such indemnification against liens, costs,
damages and expenses as the Landlord reasonably requires; and (c) evidence
satisfactory to the Landlord that the Tenant has obtained, at its expense, all
necessary consents, permits, licences and inspections from all governmental and
regulatory Authorities having jurisdiction. Notwithstanding the foregoing, the
Tenant shall be entitled, without obtaining the prior written approval of the
Landlord, to make repairs, alterations, replacements or improvements to the
existing Improvements provided that: (a) the total cost thereof does not exceed
$25,000.00 exclusive of applicable taxes; and (b) such do not affect the
structure or HVAC systems of the Building. All such repairs, replacements,
alterations or improvements by the Tenant to the Leased Premises approved of by
the Landlord, or which may be made by the Tenant without the approval of the
Landlord as provided above, shall be performed: (i) at the sole cost of the
Tenant; (ii) by competent workmen; (iii) in a good and workmanlike manner; (iv)
in accordance with the drawings and specifications approved by the Landlord if
prior written approval of the Landlord was required as provided above; and (v)
at the risk of the Tenant, who shall take out such insurance as the Landlord
shall reasonably require with respect to such work. With
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respect to alterations such as recarpeting and repainting no plans,
specifications or additional insurance will be required by the Landlord. Any
such repair, replacement, alteration or improvement made by the Tenant without
the prior written consent of the Landlord where such consent was required or
which is not made substantially in accordance with the drawings and
specifications (if required) approved by the Landlord shall, if requested by the
Landlord, be promptly removed by the Tenant at the Tenant's expense and the
Leased Premises restored to their previous condition. Failing such removal
aforesaid by the Tenant, the Landlord shall be entitled to remove the same
forthwith without notice and at the Tenant's sole cost and expense. Whether or
not the Landlord's consent to any repair, replacement, alteration or improvement
proposed to be made by the Tenant shall be granted, the Tenant shall pay to the
Landlord forthwith upon request therefor all of the Landlord's reasonable costs
(including, without limitation, fees of architects and engineers) incurred in
reviewing, consulting in respect of, approving and inspecting any such repair,
replacement, alteration or improvement. For any repair, alteration, replacement
or improvement which affects the structure or HVAC systems of the Building the
Tenant shall provide to the Landlord "as built" plans within a reasonable time
following completion of its work.
Section 6.09 Repair on Notice and Surrender of Leased Premises: The Tenant will
effect (or as permitted in section 6.07 hereof may request the Landlord to
effect) all repairs in accordance with its obligations set out in Section 6.06
upon notice from the Landlord, which may enter the Leased Premises at all
reasonable times during the Tenant's normal business hours and with a
representative of the Tenant upon reasonable prior notice and view the state of
repair, but failure to give notice will not relieve the Tenant from its
obligation to repair; and at the expiration of the Term, the Tenant will
surrender the Leased Premises without any obligation to restore same provided
(i) the Tenant has maintained the Leased Premises in accordance with its
obligations as herein contained; and (ii) excluding any repair required as a
consequence of wear and tear other than as a result of Tenant's use of the
property for its intended purpose and in accordance with the terms of this
Agreement. On the expiration of the Term, the Tenant will surrender all keys for
the Leased Premises to the Landlord at the place then fixed for the payment of
Rent and will inform the Landlord of all combinations on locks, safes and
vaults, if any, in the Leased Premises. The Tenant will repair any damage to the
Leased Premises, other than inconsequential damage, caused by its installation
and removal of any trade fixtures, equipment and apparatus which are removed
from the Leased Premises as provided in Section 15.01 and will execute whatever
documents as may be reasonably required by the Landlord for the purpose of
releasing any form of lease which may have been registered by or on behalf of
the Tenant against title to the Project. The Tenant's obligation to observe or
perform this covenant will survive the expiration or other termination of this
Lease.
Section 6.10 Maintenance by the Landlord: If the Tenant refuses or neglects to
either (i) present to the Landlord evidence of binding arrangements with third
parties for the timely completion of repairs or (ii) refuses or neglects to
effect proper repairs as required hereunder or as committed to be done under (i)
above to the reasonable satisfaction of the Landlord, within 20 days of receipt
of written notice to the Tenant, or, in the case of an emergency forthwith after
such notice as may be practicable in the circumstances, the Landlord may make
the repairs without liability to the Tenant for any loss or damage that may
occur to the Tenant's merchandise, fixtures, or other property or to the
Tenant's business by reason thereof, and upon completion thereof, the Tenant
will pay the Landlord's costs for making the repairs plus fifteen percent (15%)
for overhead on demand as Additional Rent. The Tenant agrees that the making of
any repairs by the Landlord pursuant to this Section 6.10 is not a re-entry or a
breach of any covenant for quiet enjoyment contained in this Lease.
Section 6.11 Heating, Ventilating and Air-Conditioning: The Landlord covenants
that it will operate, or cause to be operated, as reasonably necessary during
normal business hours and at other times as required by the Tenant, the heating,
ventilating or air-conditioning equipment and systems servicing the Leased
Premises; in case such equipment or systems are damaged or destroyed, or, in the
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opinion of the Landlord, require repairs, inspection, overhauling or
replacement, the Landlord shall carry out such work with all reasonable speed
and the Landlord shall have the right, without any liability and without thereby
constituting an interference with the Tenant's rights under this Lease or a
breach by the Landlord of this Lease, and without thereby entitling the Tenant
to any rights in respect thereof, to discontinue, suspend or modify any heating,
ventilating and air-conditioning equipment and systems at such time or times and
from time to time as the Landlord shall deem desirable to effect such repairs,
inspection, overhauling or replacement. It is understood and agreed that the
Landlord shall take all reasonable steps in the discharge of its obligation
pursuant to this Section 6.11 to avoid disruption of Tenant's business
operations or to derogate from the Tenant's rights of quiet enjoyment. The
Tenant and the Landlord shall discuss, during construction of the Building, and
agree upon the interior office layout to address the reasonable requirements of
the Tenant and of the Landlord's heating, ventilating and air-conditioning
engineers. The Landlord shall not be responsible for the failure of the heating,
ventilating or air-conditioning equipment and systems to perform their function
if such failure shall result from any arrangement of partitioning in the Leased
Premises or changes or alterations thereto, or failure on the part of the Tenant
to shade windows which are exposed to the sun, or from any use of electrical
power by the Tenant in excess of 5 ▇▇▇▇▇ per square foot of Gross Leasable Area;
and provided further that the Landlord shall not be liable for and the Tenant
shall indemnify the Landlord and save the Landlord harmless from and against any
and all direct, indirect or consequential damages or damages for personal
discomfort or illness of the Tenant or its clerks, servants, employees,
invitees, clients, customers or other persons by reason of the operation or
non-operation of the said equipment and/or systems, nor shall Rent ▇▇▇▇▇ during
any such non-operation. The Tenant's interior office layout shall be modified by
the Tenant, if necessary, in accordance with the reasonable requirements of the
heating, ventilating and air-conditioning engineers of the Landlord, in order to
secure maximum efficiency of the heating, ventilating and air-conditioning
systems serving the Leased Premises. The Tenant covenants to keep all heating,
ventilating and air-conditioning vents within the Leased Premises free and clear
of all obstructions and objects. The Tenant acknowledges that the heating,
ventilating and air-conditioning system may take a reasonable period of time
from the commencement of the Initial Term to properly balance. It is understood
and agreed that all heating, air-conditioning and ventilating systems shall be
initially balanced by the Landlord prior to the Commencement Date and shall be
checked and rebalanced, if necessary, by the Landlord at its expense 45 days
after the first occupancy of the Building by the Tenant.
Section 6.12 Common Areas:
(a) Subject to the rules and regulations hereinafter mentioned, the
Landlord covenants to allow the Tenant, in common with other tenants
of the Building, and its or their agents, clerks, servants,
employees and all other persons seeking communication with it or
them, the free use of the Common Areas designated, from time to
time, by the Landlord. The Landlord covenants to operate, maintain,
clean, light, heat, ventilate and air-condition the Common Areas as
may be reasonably necessary having regard to the age, nature,
location and character of the Building. It is agreed that the Tenant
and all other persons hereby permitted to use such Common Areas
shall do so at their sole risk and under no circumstances shall the
Landlord be liable for any damage or injury resulting to any persons
or property while using such Common Areas, or occasioned to any
person by the use of the elevators or any of their appurtenances. In
case the elevators of the Building shall be injured or destroyed or
be in the course of replacement or rebuilding, the Landlord shall
commence the repair thereof as soon as may be conveniently done and
shall repair or replace the same and put the same in working order.
There shall be no liability on the Landlord for any claim in respect
of any failure by the Landlord to provide elevator service during
any power failure or other cause beyond the reasonable
19.
control of the Landlord or by reason of the carrying out of any
repairs, maintenance or replacement of elevators, nor shall there
be, consequent upon the foregoing, any abatement or reduction in the
Rent reserved hereby. Notwithstanding the foregoing, the Landlord
shall be responsible for any loss or damage suffered by the Tenant
by reason of the gross negligence or wilful misconduct of the
Landlord, its agents, servants, employees or others for whom it is
in law responsible.
(b) All Common Areas shall at all times be subject to the exclusive
control and management of the Landlord. The Landlord shall be
entitled to construct, alter, maintain, operate and police the same;
to change the area, location and arrangement thereof; to employ all
personnel and to make all rules and regulations pertaining to and
necessary for the proper operation and maintenance thereof; and to
do and perform such other acts therein and with respect thereto as
in the case of good business judgment the Landlord shall determine
to be advisable with a view to the improvement thereof and of the
convenience and use thereof.
Section 6.13 Caretaking:
(a) The Landlord covenants to provide cleaning and caretaking services
and in its sole discretion to provide such additional cleaning and
caretaking services as may be requested by the Tenant from time to
time, but the Landlord shall not be responsible for any omission or
act of omission on the part of the person or persons employed or
retained to perform such work, or for any loss thereby sustained by
the Tenant, the Tenant's servants, agents, invitees or others unless
such omission or act of omission constituted the gross negligence or
wilful misconduct of the Landlord, its agents, servants, employees
or others for whom it is in law responsible. The Tenant acknowledges
that the Landlord will be relieved from the foregoing obligation in
respect to any part of the Leased Premises to which access is not
granted to the person or persons employed or retained to perform
such work.
(b) The Tenant covenants to pay to the Landlord as Additional Rent the
cost of providing the additional caretaking and cleaning services
mentioned in Subsection (a) hereof. In the event that such costs
form an integral part of caretaking and cleaning services provided
for portions of the Project in addition to the Leased Premises, the
Landlord, acting reasonably, shall make an allocation of that
portion of such costs which is reasonably attributable to the Leased
Premises. In the event of any dispute by the Tenant of the amount of
such costs, an opinion of the Landlord's Accountant shall be
conclusive as to the amount thereof for any period to which such
opinion relates.
(c) The Tenant covenants to leave the Leased Premises in a reasonably
tidy condition at the end of each day for the purpose of permitting
the performance of the Landlord's caretaking and cleaning services
hereinbefore referred to.
Section 6.14 Electricity, Replacement of Lamps and Utilities: The Landlord
shall, subject to interruptions beyond its control, permit the Tenant to have
access to and to use the utility services (including electricity and water)
serving the Building, provided that the Tenant does not overload the capacity of
any of the said utilities and provided that the Tenant pays all costs and
expenses resulting therefrom including the costs of every utility consumed in or
by the Leased Premises. Without limiting the generality of the foregoing:
20.
(a) The Tenant shall pay to the Landlord the cost of all electricity
supplied to the Leased Premises. In the event of any dispute between
the Landlord and the Tenant as to the amount of such cost, an
opinion of the Landlord's Engineer shall be conclusive. The Tenant
shall advise the Landlord within 5 days after written request
therefor, of the nature and quantity of all lights, equipment and
machines using electricity in the Leased Premises, and shall permit
the Landlord or its authorized agents to make periodic inspection of
all facilities using electricity.
(b) The Landlord shall, at the Tenant's expense, replace from time to
time, either by way of group relamping or otherwise, electrical
light bulbs, tubes and ballasts serving the Leased Premises and the
Tenant shall pay to the Landlord forthwith upon demand, as
Additional Rent, the actual cost thereof, including the cost of
labour and parts, plus an administrative charge equal to 15% of such
cost. Notwithstanding the foregoing, the Tenant may, by notice to
the Landlord, elect to replace the electric light bulbs, tubes and
ballasts itself at its sole cost, provided that the replacements are
to the standard designated from time to time by the Landlord, and
that all the electric light bulbs, tubes and ballasts are replaced
by the Tenant within the last 6 months of the Term. If the Tenant so
elects, the Tenant shall, upon the request of the Landlord, submit
evidence satisfactory to the Landlord of its compliance with the
foregoing.
(c) The Tenant shall pay the cost of all water supplied to the Leased
Premises, whether for domestic or commercial purposes, such cost to
be determined in such manner as shall be designated by the
Landlord's Engineer, acting reasonably. In the event of any dispute
between the Landlord and the Tenant as to whether a method
designated by the Landlord for measuring such cost fairly represents
the cost of water supplied to the Leased Premises, an opinion of the
Landlord's Engineer approving such method shall be conclusive.
(d) The Tenant covenants to pay for the capital costs and the costs of
installation and maintenance, of any and all meters which may be
installed by the Landlord for the purpose of determining and
measuring any utility (including electricity and water) consumed in
the Leased Premises.
(e) If no separate meter or meters or other method of measurement exists
for measuring the cost of any utilities (including electricity and
water) with respect to the Leased Premises and the Landlord and the
Tenant are unable to agree on the appropriate distribution of the
costs or an appropriate method of measuring such costs an opinion of
the Landlord's Engineer approving such costs or the measuring
thereof shall be conclusive. Notwithstanding the foregoing the
Landlord shall apportion and measure such utility costs on a
reasonable and equitable basis and taking into account any special
equipment or extraordinary consumption by other tenants of the
Building.
(f) Notwithstanding anything hereinbefore contained in this Section 6.14
(a) to (e), in the event the Tenant disputes, in good faith, the
opinion of the Landlord's engineer, and the parties cannot resolve
such dispute within five (5) business days, the provisions of
Article 18 shall apply and the dispute shall be resolved by
arbitration."
Section 6.15 Proportionate Share of Operating Costs: The Tenant covenants to pay
to the Landlord, as Additional Rent, its Proportionate Share of Operating Costs
and Taxes.
21.
Section 6.16 Control of the Project by the Landlord: The Landlord has at all
times the exclusive right to control, manage and operate the Project. Without
limiting the generality of the foregoing, the Landlord may, at any time and from
time to time:
(a) close all or part of the Project to the extent necessary, in the
opinion of the Landlord's legal counsel, to prevent the public or
any person from obtaining rights on all or part of the Project other
than the rights that would ordinarily accrue to tenants in respect
of their leased premises under a lease such as this;
(b) grant, modify and terminate easements and make agreements pertaining
to the use and maintenance of all or part of the Project;
(c) temporarily obstruct or close off all or part of the Project for the
purpose of maintenance, repair, replacement or construction;
(d) designate where, when and how goods, supplies, equipment and
fixtures may be loaded and unloaded;
(e) improve, alter, add to and subtract from the Project, rearrange or
relocate the various components, facilities and improvements
constituting the Project and construct additional buildings,
improvements and facilities on the Lands; and
(f) do and perform such other acts in and to the Project or its
component parts as the Landlord, in exercising sound business
judgement, determines to be advisable for the proper and more
efficient operation of the Project.
Despite anything contained in this Lease to the contrary, the Landlord shall not
be liable if as a result of the exercise of its rights set out in this Section
6.16 the facilities or systems in, or improvements to, the Project are
diminished or altered, nor is the Tenant entitled to any compensation or damages
for loss of services or repayment or abatement of rent, nor may any diminution
or alteration of the facilities or systems in, or improvements to, the Project
be considered a re-entry or a breach of the Landlord's covenant for quiet
enjoyment contained in this Lease or implied by law.
Section 6.17 Tenant not to Overload Utility and Service Facilities: The Tenant
will not install equipment that will exceed or overload the capacity of any
utility facilities serving the Leased Premises and agrees that if equipment
installed by the Tenant requires additional utility facility, it will be
installed at the Tenant's expense in accordance with plans and specifications
approved by the Landlord prior to installation.
Section 6.18 Rules and Regulations: The Tenant covenants to comply with the
rules and regulations annexed hereto as Schedule "D", and to cause such rules
and regulations to be observed and performed by everyone for whom the Tenant is
in law responsible. The Landlord shall have the right from time to time and at
any time during the Term to make any and all reasonable amendments, deletions
and additions to such rules and regulations, including rules and regulations
relating to the use of the Common Areas. Such rules and regulations, together
with all reasonable amendments, deletions and additions made thereto by the
Landlord and of which notice shall have been given to the Tenant, shall be read
as part of this Lease and shall be observed, performed and complied with
throughout the Term in the same manner as all of the other conditions,
provisions, agreements and obligations herein contained and set forth. Such
rules and regulations are not necessarily of uniform application, but may be
waived in whole or in part with respect of other tenants without affecting their
enforceability with respect to the Tenant, and may be waived in whole or in part
with respect to the Tenant without waiving their future application to the
Tenant, and the imposition of such rules and
22.
regulations shall not create or imply any obligation on the Landlord to enforce
them or create any liability upon the Landlord for their non-enforcement.
Section 6.19 Loading and Unloading: The Tenant covenants that all loading and
unloading of merchandise, supplies, materials, garbage, refuse and other
chattels shall be made only through or by means of such doorways or corridors or
such other routes as the Landlord shall designate initially on the construction
plans and thereafter as may be amended in writing from time to time. Garbage or
refuse shall be placed in containers of a type approved by the Landlord in
writing and shall be removed only at such time or times as the Landlord shall
from time to time require.
Section 6.20 Window Covers: The Tenant will comply with the Landlord's scheme of
uniform window covers for the windows of the Building and not use any drapes or
curtains except such as have lining on the side thereof facing the interior
surface of the exterior windows of a colour, shade and material approved by the
Landlord. Window covers will be initially supplied and installed by the Landlord
at its sole cost and expense.
Section 6.21 No Defacing: The Tenant shall not drill, drill into, or in any way
deface the walls, ceilings, partitions, floors, wood, stone or ironwork within
the Leased Premises without the prior written consent of the Landlord, such
consent not to be unreasonably withheld. Boring, cutting or stringing of wires
or pipes shall not be done except with the prior written consent of the
Landlord, and as it may direct. In the event of any violation of the provisions
hereof, the Landlord may, in addition to any other remedies it may have
hereunder, repair any damage and the Tenant shall pay the cost thereof plus an
administrative charge equal to 15% of such cost, to the Landlord, forthwith as
Additional Rent.
Section 6.22 Additional Services: The cost of any additional services provided
to the Tenant shall be paid to the Landlord upon the Tenant receiving invoices
for such additional services. Additional services means any service and/or
supervision requested by the Tenant and supplied by the Landlord and not
otherwise provided for as a regular service under this Lease. By way of example,
additional services may include steam cleaning of carpets, moving furniture and
making repairs or alterations to the Tenant's leasehold improvements. The amount
charged to the Tenant for an additional service shall include all direct costs
incurred by or on behalf of the Landlord in rendering the additional service,
plus an amount equal to 15% of the aforementioned costs to cover the Landlord's
overhead. Nothing herein shall obligate Tenant to obtain such services from
Landlord, and Tenant may perform such services directly or through Tenant's
agents.
ARTICLE SEVEN
SUBORDINATION, ATTORNMENT AND STATUS STATEMENT BY TENANT
Section 7.01 Subordination and Attornment by Tenant to Mortgagee:
(a) Subject to Subsection 7.01(c), if requested in writing by the
Landlord or a Mortgagee at any time, this Lease shall be subordinate
to every Mortgage, present or future; in confirmation of the
foregoing, if requested in writing by the Landlord or the Mortgagee,
the Tenant shall execute and deliver a document confirming (by
postponement or otherwise) that this Lease is subordinate to the
Mortgage in question.
(b) If the Mortgagee becomes a Mortgagee in possession or takes action
to realize on the security of the Mortgage, the Tenant shall, at the
request of the Mortgagee or its successor in title, attorn to the
Mortgagee or such successor as tenant upon the terms of this Lease
and continue in occupation of the Leased Premises unless and until
23.
this Lease is terminated by passage of time or by action taken
because of a default of the Tenant or the occurrence of an event
pursuant to which this Lease may be terminated.
(c) The subordination of this Lease and the obligation of the Tenant to
execute and deliver a subordination of the Lease is conditional upon
the Landlord obtaining from each Mortgagee with respect to whose
Mortgage this Lease is to be subordinated an agreement in writing
that despite any attornment, postponement or subordination as
provided in this Section 7.01, if the Mortgagee becomes a mortgagee
in possession or takes action to realize on the security of the
Mortgage, and provided and for so long as the Tenant pays the Rent
and performs each and every of the material covenants, conditions
and agreements herein reserved and contained and on the part of the
Tenant to be paid and performed and is not then in default in
respect of any of the same, the Tenant may remain in occupation of
the Leased Premises for the balance of the Term, subject to the
terms, covenants and conditions of this Lease.
Section 7.02 Status Statement of Tenant: The Tenant agrees that at any time and
from time to time at reasonable intervals, within fifteen (15) days after
written request by the Landlord, the Tenant will execute, acknowledge and
deliver to the Landlord or such assignee or Mortgagee as may be designated by
the Landlord, a certificate stating:
(a) the date of this Lease and the date of commencement and expiration
of the Term;
(b) that this Lease has been validly executed and delivered by the
Tenant pursuant to due corporate action properly taken by the
Tenant;
(c) that this Lease is unmodified and in force and effect in accordance
with its terms (or if there have been modifications, that this Lease
is in force and effect as modified, and identifying the modification
agreements, or if this Lease is not in force and effect the
certificate shall so state) and that there is no other agreement in
force between the Tenant and the Landlord relating to the Leased
Premises;
(d) the date to which Rent has been paid under this Lease;
(e) whether or not there is any existing default by either party under
this Lease with respect to which the Tenant has notice and/or a
notice of default has been served, and if there is any such default
specifying the nature and extent thereof;
(f) whether or not there are any deductions, abatements, set-offs,
defenses or counter-claims against enforcement of the obligations to
be performed by the Tenant under this Lease;
(g) that there is no litigation or governmental proceedings commenced,
pending or threatened against the Tenant with respect to the Leased
Premises of which the Tenant has notice (or if there is litigation
or governmental proceedings commenced, pending or threatened,
particulars of said litigation or proceedings);
(h) whether the Tenant has received a notice of any assignment by the
Landlord of this Lease or the Rent payable by the Tenant hereunder;
(i) whether Tenant has exercised any renewal or right of first refusal
as provided for herein; and
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(j) the audited financial statements of the Tenant for the last fiscal
year and such other financial information as the Tenant may be
required to provide in accordance with the Regulations of the
Ontario Securities Act or similar regulatory legislation.
Section 7.03 Status Statement of Landlord: The Landlord agrees that, at any time
and from time to time at reasonable intervals, within fifteen (15) days after
written request by the Tenant, the Landlord will execute, acknowledge and
deliver to the Tenant or any third party as may be designated by the Tenant a
certificate containing, as applicable to the Landlord, the status information
set out in subsection (a) to (i) inclusive in Section 7.02 hereof.
ARTICLE EIGHT
INSURANCE, EXPROPRIATION AND INDEMNITY
Section 8.01 Landlord's Insurance: The Landlord shall, throughout the Term, take
out and keep in full force and effect the following insurance:
(a) Insurance upon the Building and other items comprising the
Landlord's Work including the machinery, boilers and equipment
contained therein, in each instance, in an amount of not less than
one hundred percent (100%) of the full insurable replacement cost
thereof, with deductibles not exceeding three percent (3%) of full
insurable replacement cost of the property insured, and with
coverage against such perils as are from time to time covered under
an "all-risks" insurance policy (including flood and earthquake)
with by-law and breadth of coverage or fire liberalization
endorsements to minimize exclusions under such policy;
(b) Broad form boiler and machinery insurance on a blanket and
replacement basis with limits for each accident in an amount not
less than the full replacement cost of the Building and other items
comprising the Landlord's Work comprising the Leased Premises and of
all boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus owned by the Landlord with
deductibles not exceeding three percent (3%) of full insurable
replacement cost of the property insured;
(c) Rental income coverage for a period of at least one calendar year or
such longer period as may be reasonably required by Mortgagee;
(d) General liability insurance; and
(e) Any other form of insurance as the Tenant or the Landlord or any
Mortgagee reasonably requires from time to time, in form, in amount
and for insurance risks against which a prudent owner would insure.
The Tenant, except as herein expressly provided, shall not have any insurable or
other interest in any of the Landlord's insurance, and, in any event, the Tenant
shall not have any interest in or any right to recover any proceeds under any of
the Landlord's insurance policies.
Any of the foregoing insurance as maintained from time to time by the Landlord
may form part of policies of insurance which insure risks other than those
arising with respect to the Building in which event the premiums in respect
thereof shall be reasonably allocated to the Building and other premises. The
foregoing insurance shall be maintained in the name of and held for the Landlord
and any Mortgagee as their respective interests may from time to time appear.
All such policies shall contain a waiver of any subrogation rights which the
Landlord's insurers may have against the Tenant and against any Person for whose
conduct the Tenant is in law responsible, whether loss or damage is caused by
the act,
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omission or negligence of the Tenant or other Person for whose conduct the
Tenant is in law responsible. All of the Landlord's insurance policies shall
contain an undertaking by the insurer that no change which reduces or restricts
coverage will be made and the policy will not be cancelled or terminated except
after not less than thirty (30) days written notice by registered mail to the
Landlord, the Tenant and the Mortgagee. The Landlord shall provide to the Tenant
from time to time as required either certificates of insurance or certified
copies of the Landlord's insurance as required herein.
Section 8.02 Tenant's Effect on Insurance:
(a) The Tenant shall not do and shall not cause, suffer or permit to be
done or omitted to be done by any of its servants, agents,
contractors or persons for whom the Tenant is in law responsible
anywhere on the Leased Premises or by any Person in, on or about the
Leased Premises and shall not permit there to be on the Leased
Premises anything which might: (i) result in the actual or
threatened cancellation of or adverse change in any policy of
insurance of the Landlord or others on or related to the Leased
Premises or any part or contents thereof; or (ii) be prohibited by
any policy of insurance of the Landlord or any others in force from
time to time in respect of the Leased Premises or any part or
contents thereof.
(b) If the cost of any insurance policy of the Landlord or any others on
or related to the Leased Premises or any part or contents thereof
shall be increased as a result of (i) the use or occupancy of the
Leased Premises or any part thereof by the Tenant or any other
Person on the Leased Premises or (ii) anything kept or permitted to
be kept by the Tenant or by any Person anywhere on the Leased
Premises or by the Tenant or any of its employees, customers,
contractors, suppliers or persons for whom the Tenant is in law
responsible on any part of the Leased Premises, the Tenant shall pay
the full amount of such increase in cost to the Landlord forthwith
upon demand. In determining the Tenant's responsibility for any
increased cost of insurance as aforesaid, a statement issued by the
organization, company or insurer establishing the insurance premiums
or rates for the relevant policy shall be conclusive evidence of the
various components of such premiums or rates and the factors giving
rise to any increase therein.
(c) In the event of an actual or threatened cancellation of or adverse
change in any policy of insurance of the Landlord or any others on
or related to the Leased Premises or any part or contents thereof by
reason of: (i) the use or occupancy of the Leased Premises by the
Tenant or any other Person permitted by the Tenant on the Leased
Premises; or (ii) anything placed on or permitted by the Tenant or
any Person on the Leased Premises or by the Tenant or any of its
employees, customers, contractors, suppliers or Persons for whom the
Tenant is in law responsible on any part of the Leased Premises; or
(iii) any act or omission of the Tenant or any Person in the Leased
Premises or by the Tenant or any of its employer, customers,
contractors, suppliers or Persons for whom the Tenant is in law
responsible on any part of the Leased Premises and if the Tenant
fails to remedy the situation, condition, use, occupancy or other
factor giving rise to such actual or threatened cancellation or
change within twenty-four (24) hours after notice thereof by the
Landlord, the Landlord may remedy the situation, condition, use,
occupancy or other factor giving rise to such actual or threatened
cancellation or change, if It is capable of remedy by the Landlord
alone prior to cancellation, all at the cost of the Tenant to be
paid to the Landlord forthwith upon demand; for any or all of such
purposes as set forth in this subsection 8.02(c) the Landlord shall
have the right to enter upon the Leased Premises without further
notice. If the Landlord
26.
does not remedy such situation, condition, use, occupancy or other
factor prior to cancellation of such policy of insurance, the
Landlord at its option may at any time thereafter by written notice
to the Tenant terminate this Lease.
Section 8.03 Tenant's Insurance:
(a) The Tenant, at its sole cost and expense, shall obtain and maintain
in full force and effect at all times throughout the Term and such
other times, if any, as the Tenant occupies or is in possession of
the Leased Premises or any portion thereof:
(i) commercial general liability insurance in form not more
restrictive than IBC 2100 including, but not limited to
property damage, public liability, personal injury liability,
broad blanket contractual liability, non-owned automobile
(including contractual) liability, employers' liability,
intentional acts to protect persons or property, products and
completed operations, and owners' and contractors' protective
insurance coverage, all on an occurrence basis, with respect
to any use, occupancy, activity or thing on the Leased
Premises and with respect to the use and occupancy of any part
of the Leased Premises by the Tenant or any of its servants,
agents, contractors or any other Person on the Leased Premises
other than the Landlord or those for whom the Landlord is in
law responsible, with coverage for any one occurrence or claim
of not less than Five Million Dollars ($5,000,000) or such
other amount as the Landlord or any Mortgagee may reasonably
require upon not less than one (1) month's notice at any time,
and with provisions for cross-liability and severability of
interests. Such insurance shall include the Landlord as an
additional insured as its interest may appear and shall not
exclude water damage;
(ii) all risks property insurance covering trade fixtures,
furnishings, equipment, stock-in-trade, supplementary heating,
ventilating and air conditioning systems and exterior signage
for not less than the full replacement cost thereof;
(iii) comprehensive boiler and machinery insurance on all objects
located on the Leased Premises or which are the property or
the responsibility of the Tenant with a replacement cost
endorsement, a by-law endorsement and with limits for each
accident in an amount not less than the full replacement cost
of all leasehold improvements (not to duplicate Landlord's
insurance), stock-in-trade, storefront and store facing
materials and all signs in, on or about the Leased Premises;
and
(iv) standard owners' form of automobile insurance with inclusive
liability limits of not less than Two Million Dollars
($2,000,000) and otherwise on such terms as reasonably
required by the Landlord from time to time, covering all
licensed vehicles owned by or operated by or on behalf of the
Tenant.
(b) Each of the Tenant's insurance policies referred to above shall
contain a waiver by the insurer of any rights of subrogation, or
indemnity, or any other claim over, to which such insurer might
otherwise be entitled against the Landlord or any agents,
beneficiaries, shareholders, officers, directors or employees of the
Landlord or any other person for whom the Landlord is in law
responsible whether loss or damage is caused by the act, omission or
negligence of the Landlord or any Person for whom the Landlord is in
law responsible.
27.
All of the Tenant's insurance policies shall be taken out with
insurers licensed to carry on business in the Province of Ontario
and having a net equity of not less than $25,000,000.00. Each of
such policies shall contain:
(i) an undertaking under the policy that the policy will not be
cancelled or terminated, except after not less than thirty
(30) days' written notice by registered mail to the Landlord
and the Tenant and the Mortgagee of the intended cancellation
or termination; and
(ii) a provision stating that the Tenant's insurance policy shall
be primary insurance and shall not call into contribution and
shall not be excess to any other insurance available to the
Landlord.
(c) The Tenant shall ensure that the Landlord shall at all times be in
possession of either certificates of insurance in the form
designated or approved by the Landlord or certified copies of the
Tenant's insurance policies which are current and in force in good
standing including such certificates or other evidence satisfactory
to the Landlord as to the Tenant's insurance in effect and its
renewal or continuation in force.
(d) The Tenant hereby releases the Landlord and its servants, agents,
beneficiaries, shareholders, officers, directors, employees, and
those for whom the Landlord is in law responsible from all losses,
damages and claims of any kind in respect of which the Tenant is
required to maintain insurance or is otherwise insured.
Section 8.04 Landlord's Right to Place Tenant's Insurance: If the Tenant at any
time fails to take out, renew and keep in force, or pay any premiums for, any
insurance as required to be obtained and maintained pursuant hereto, or if the
Tenant fails from time to time to deliver to the Landlord satisfactory proof of
the good standing of any such insurance or the payment of premiums therefor or
if the evidence submitted in respect thereof to the Landlord is unacceptable to
the Landlord, then, in any such event, the Landlord shall give notice thereof to
the Tenant setting out with particularity the failure complained of and if the
Tenant does not cure the failure within thirty (30) days of the giving of such
notice, the Landlord, without prejudice to any of its other rights and remedies
pursuant to this Lease, shall have the right but not the obligation to effect
such insurance on behalf of the Tenant and the cost thereof and all other
reasonable expenses incurred by the Landlord in respect thereof shall be paid by
the Tenant to the Landlord forthwith upon demand.
Section 8.05 Notice of Accident, Defects, Etc.: The Tenant shall give to the
Landlord prompt Notice of any accident to, or defect in, the plumbing, water
pipes, heating, ventilating and/or air-conditioning apparatus, electrical
equipment, conduits or wires or other wires or of any damage or injury to the
Leased Premises or any part thereof howsoever caused; provided that nothing
herein shall be construed so as to require repairs to be made by the Landlord
except as expressly provided in this Lease.
Section 8.06 Damage to Leased Premises: Subject to the provisions of Sections
8.07 and 8.08, if the Leased Premises are damaged or destroyed, in whole or in
part, by any cause and as a result thereof are rendered unusable in whole or in
part for the purpose of the Tenant's use and occupancy thereof for a period
exceeding seven (7) days, then Rent payable hereunder shall ▇▇▇▇▇,only to the
extent that the Tenant's use and occupancy of the Leased Premises is thereby
diminished, which determination shall be made by the Landlord's Architect acting
reasonably, until the day following the date on which Notice is given by the
Landlord to the Tenant that it has carried out all repairs required to be
carried out by it to the Leased Premises pursuant to its obligations under this
Lease. The respective obligations of the Landlord and the Tenant with respect to
the repair and
28.
restoration of the Leased Premises following any damage, shall be performed in
accordance with the applicable obligations to repair contained in this Lease and
shall be performed with all reasonable speed. Despite anything to the contrary
herein, if (i) the Landlord's repairs have been completed within 15 days after
the date of the damage or destruction, there will be no abatement of Rent or
other payments for which the Tenant is liable hereunder; and (ii) to the extent
that the damage or destruction was caused by the fault or negligence of the
Tenant or of a person for whom the Tenant is legally responsible, there will be
no abatement of Rent or other amounts for which the Tenant is liable hereunder
and the Tenant will reimburse the Landlord, as Additional Rent, for the full
cost of carrying out such repair and restoration.
Section 8.07 Proceeds of Insurance: Subject to the provisions of Section 8.08
hereof, if during the Term the Building or any part thereof shall be damaged or
destroyed by any hazard against which insurance is in effect pursuant to the
provisions of this Lease, then all property insurance money paid on account of
such damage or destruction, less the actual costs, fees and expenses, if any,
incurred in connection with the adjustment of the loss, shall be applied to the
payment of the cost of the restoration, repair, replacement, rebuilding or
alteration to and of the Building, including the cost of temporary repairs or
for the protection of property pending the completion of permanent restoration,
repairs, replacements, rebuilding or alterations are hereinafter collectively
referred to as the ("Restoration"), and, if required by any Mortgagee, the
Landlord's insurance proceeds shall be paid to a trust company acting as an
insurance trustee on terms acceptable to the Landlord, and any such Mortgagee,
to be paid out from time to time as such Restoration progresses. The Tenant
shall pay to the Landlord, its proportionate share of the amount of any
deductible amounts as Additional Rent.
If the Landlord has maintained the insurance coverage required to be maintained
by it under this Lease and the cost of Restoration exceeds proceeds of insurance
that are available to the Landlord by not less than $2,000,000, excluding
deductibles, the Landlord shall not be obligated to carry out the Restoration.
If the Landlord elects not to carry out the Restoration it shall give notice
thereof to the Tenant and upon the giving of such notice this Lease shall
terminate as of the date notice is given and the Landlord shall be entitled to
retain all of the Landlord's insurance proceeds for its own account.
Section 8.08 Landlord Need Not Restore: Notwithstanding any other provision of
this Lease, if the Building should be damaged or destroyed during the last two
years of the Term or at any time during a Renewal Term to such an extent that
more than fifty (50%) percent of the Gross Leasable Area is unfit for occupancy
and in the written opinion of the Architect given to both Landlord and Tenant,
the damage cannot be repaired within the one hundred and twenty (120) days next
following commencement of Restoration, assuming Restoration proceeds
continuously thereafter during normal business hours, the Landlord may within
twenty (20) days of receipt of such written opinion give notice to the Tenant
that it wishes to terminate this Lease and upon the giving of such notice, this
Lease shall terminate and the Landlord shall be entitled to retain all
Landlord's insurance proceeds for its own account.
Section 8.09 Expropriation or Condemnation: If at any time during the Term the
whole or a portion of the Leased Premises is expropriated or taken by right or
exercise by any competent Authority of powers of expropriation or condemnation,
the parties hereto shall each be entitled to separately advance their claims for
compensation for the loss of their respective interest in the Leased Premises
and shall be entitled to receive and obtain such compensation as may be awarded
to each respectively. If an award of compensation made to the Landlord
specifically includes an award for the Tenant, the Landlord will account
therefor to the Tenant and if an award of compensation made to the Tenant
specifically includes an award for the Landlord, the Tenant will account
therefor to the Landlord.
Upon termination of the Lease by expropriation or other operation of law,
the Tenant shall forthwith pay to the Landlord the Rent, and all other sums
29.
which may be due to the Landlord up to the date of such termination. The Tenant
shall have no claim upon the Landlord for the value of its property expropriated
or taken or for the unexpired Term of the Lease, or for any other damage, cost,
loss or expense whatsoever. The Landlord and Tenant agree to co-operate one with
the other in respect of any expropriation or condemnation of all or any part of
the Leased Premises so that each may receive the maximum award to which it is
entitled in law.
Section 8.10 Indemnification of the Landlord: Subject to section 8.01, the
Tenant will indemnify the Landlord and save it harmless from and against any and
all loss (including loss of all Minimum Annual Rent and Additional Rent payable
by the Tenant pursuant to this Lease), claims, actions, damages, liability and
expense, including lawyer's and other professional fees, in connection with loss
of life, personal injury, damage to property, and/or any other loss or injury
whatsoever arising from or out of this Lease, or any occurrence in, upon or at
the Leased Premises, or the occupancy or use by the Tenant of the Leased
Premises or any part thereof, occasioned wholly or in part by any act or
omission of the Tenant, its officers, agents, contractors, employees,
sublessees, licensees, concessionaires or by anyone permitted by the Tenant to
be on the Leased Premises or by any other Person for whom the Tenant is in law
responsible unless the loss was caused by the gross negligence or wilful
misconduct of the Landlord, its agents, servants, employees or others for whom
it is in law responsible. If the Landlord shall, without fault on its part, be
made a party to any litigation commenced by or against the Tenant, then the
Tenant shall protect, indemnify and hold the Landlord harmless and shall pay all
reasonable costs, expenses and legal fees (on a solicitor and his own client
basis) incurred or paid by the Landlord in connection with such litigation. The
Tenant will also pay all reasonable costs, expenses and legal fees (on a
solicitor and his client basis) incurred by the Landlord in enforcing the
covenants and agreements in this Lease.
Section 8.11 Indemnification of the Tenant: If the Tenant shall, without fault
on its part, be made a party to any litigation commenced by or against the
Landlord, then the Landlord shall protect, indemnify and hold the Tenant
harmless and shall pay all reasonable costs, expenses and legal fees (on a
solicitor and his own client basis) incurred or paid by the Tenant in connection
with such litigation. The Landlord will also pay all reasonable costs, expenses
and legal fees (on a solicitor and his client basis) incurred by the Tenant in
enforcing the covenants and agreements in this Lease.
Section 8.12 Loss and Damage: The Landlord shall not be liable:
(a) for death or injury to the Tenant or any Person on the Leased
Premises; or
(b) for any loss or damage to property of the Tenant or of others which
is located on the Leased Premises; or
(c) for any loss or damage suffered by the Tenant or of others occupying
the Leased Premises or any part thereof caused by reason of
interruption of the business or businesses carried on in the Leased
Premises,
resulting from any cause whatsoever, save and except where such death, injury,
loss or damage results from the negligence of the Landlord, its agents,
servants, employees or others for whom it may, in law, be responsible. Without
limiting the generality of the foregoing, the Landlord shall not be liable for
death or injury or damage to persons or property resulting from fire, explosion,
earthquake, flood, falling plaster, steam, gas, electricity, water, rain, snow,
dampness or leaks from any part of the Leased Premises or from the streets and
other properties adjacent thereto. Further without limiting the generality of
the foregoing, the Landlord shall not be liable for any such damage caused by
the occupants of property adjacent to the Leased Premises or the public or
caused by operations in the construction of any private, public or quasi-public
work. Except as aforesaid, all property of the
30.
Tenant kept or stored on the Leased Premises shall be kept or stored at the risk
of the Tenant only and the Tenant shall indemnify the Landlord and save it
harmless from any claims arising out of any damage to the same including,
without limitation, any subrogation claims by the Tenant's insurers.
ARTICLE NINE
TAXES
Section 9.01 Payment of Tenant's Taxes: The Tenant covenants to pay all Tenant's
Taxes, as and when the same become due and payable. Where any Tenant's Taxes are
payable by the Landlord to the relevant taxing authorities, the Tenant covenants
to pay the amount thereof to the Landlord, as Additional Rent, within five (5)
days after demand.
Section 9.02 Tenant's Proportionate Share of Landlord's Taxes: The Tenant
covenants to pay to the Landlord, as Additional Rent, its Proportionate Share of
the Landlord's Taxes in each calendar year. Payment shall be made in accordance
with the provisions of Sections 4.03 and 4.04 hereof.
Section 9.03 Payment of Landlord's Taxes - Appeals: The Landlord covenants to
pay all Landlord's Taxes, subject, nevertheless, to the payments on account of
Landlord's Taxes required to be made by the Tenant pursuant to this Lease. The
Landlord may appeal any official assessment of or the amount of any Taxes or
other taxes based on such assessment and relating to the Project. In connection
with any such appeal, the Landlord may defer payment of any Taxes or other
taxes, as the case may be, payable by it under the provisions of this Section
9.03 to the extent permitted by law, and the Tenant shall co-operate with the
Landlord and provide the Landlord with all relevant information reasonably
required by the Landlord in connection with any such appeal.
Section 9.04 Allocation of Taxes: In the event that the Landlord is unable to
obtain from the taxing authorities any separate allocation of Landlord's Taxes,
Tenant's Taxes or assessment of Landlord's Taxes attributable to the Building,
the Common Areas and the Lands, such allocation shall be made by the Landlord,
acting reasonably. In the event of any dispute as to the amount of such
allocation, an allocation made by an independent professional tax consultant
appointed by the Landlord. If, in the event the Tenant disputes, in good faith,
the allocation of Landlord's independent professional tax consultant, and the
parties cannot resolve such dispute within five (5) months' business days, the
provisions of Article 18 shall apply and the dispute shall be resolved by
arbitration.
Section 9.05 Separate Assessment for the Leased Premises: If there are separate
real property tax bills for all or part of the Leased Premises, the Tenant will:
(a) pay, as Additional Rent, directly to the taxing authorities (or to
the Landlord if the Landlord so directs) and discharge during the
Term and within the times stipulated by the taxing authorities, all
Landlord's Taxes that are imposed, levied, rated, charged or
assessed on, in respect of, or against all or part of the Leased
Premises based on one or more separate real property tax bills for
all or part of the Leased Premises rendered by a lawful taxing
authority;
(b) except to the extent that the Landlord otherwise directs, deliver to
the landlord, within ten (10) days after the Tenant receives it, a
copy of each separate tax ▇▇▇▇ and assessment notice for all or part
of the Leased Premises; and
(c) except to the extent that the Landlord otherwise, directs, promptly
deliver to the Landlord receipts evidencing the payment of portion
of
31.
the required Landlord's Taxes and furnish such other relevant
information as the Landlord reasonably requires.
To the extent that there are no separate real property tax bills for the Leased
Premises or that there are separate real property tax bills for only part of the
Leased Premises, there are assessments from the assessing authorities (whether
for realty tax or business tax purposes) allocating a separate realty assessment
or separate realty assessments to all or part of the Leased Premises in respect
of which there is no separate real property tax ▇▇▇▇, the Landlord will allocate
to the Leased Premises based on the separate realty assessment or assessments,
and the Tenant will pay to the Landlord, as Additional Rent, the portion of
Landlord's Taxes so allocated by the Landlord.
Section 9.06 Adjustment of Taxes: If in any fiscal period, during any portion of
which the Tenant is obligated to pay Minimum Annual Rent, the commercial rate of
the relevant taxing authority has not been applied to the Project or any part
thereof, as fully completed and fully occupied, then Taxes shall be adjusted and
determined by the Landlord by including such additional amount therein as would
have formed part of Taxes if the commercial mill rate had been applied to the
amount which would have been the assessment of the Building as fully completed,
fully assessed and fully occupied by tenants with no special exemptions.
Section 9.07 Receipts: Whenever required by the Landlord, the Tenant will
forthwith deliver to it receipts for payment of all the Tenant's Taxes and
furnish such other information in connection therewith as the Landlord may
reasonably require.
Section 9.08 Separate School Taxes: If the Tenant elects to be assessed as a
separate school supporter, the Tenant will pay to the Landlord, the excess, if
any, of the separate school taxes over public school taxes resulting from such
election.
Section 9.09 Business Taxes and Other Taxes Payable by the Tenant: In each
calendar year during the Term, the Tenant will pay and discharge or cause to be
paid or discharged when they become due and payable, all taxes, rates, duties
and assessments, license fees and other charges that may be levied, rated,
charged or assessed in respect of any and every business carried on thereon or
therein or in respect of the use or occupancy thereof by the Tenant and by any
and every sublessee, licensee, concessionaire and all other persons conducting
business upon or from the Leased Premises (other than such taxes as corporate,
income, profits or excess profits taxes assessed upon the income of the
Landlord) whether the taxes, rates, duties, assessments and licence fees are
charged by a municipal, parliamentary, school or other body during the Term, and
will indemnify and keep indemnified, the Landlord from and against payment for
all loss, costs, charges and expenses occasioned by, or arising from any and all
such taxes, rates, duties, assessments, licence fees, and any and all taxes
which may in future be levied in lieu of such taxes, and any such loss, costs,
charges and expenses suffered by the Landlord may be collected by the Landlord
as Rent with all rights of distress and otherwise as reserved to the Landlord in
respect of Rent in arrears. The Tenant further covenants and agrees that upon
request of the Landlord, the Tenant will promptly deliver to the Landlord for
inspection, receipts (all of which shall be held by the Landlord in strict
confidence) for payment of all taxes, rates, duties, assessments, and other
charges in respect of the foregoing which were due and payable up to thirty (30)
days prior to the request, and in any event will furnish to the Landlord if
requested by the Landlord, evidence of payment satisfactory to the Landlord
before the twenty-first (21st) day of January in each year covering payments for
the preceding calendar year.
Section 9.10 No Appeal by Tenant: The Tenant will not appeal any government
assessment or determination of the value of the Leased Premises, or a portion
thereof whether or not the assessment or determination affects the amount in
respect of Landlord's Taxes to be paid by the Tenant. The Tenant instead will
rely on the Landlord to conduct any appeal in the interest of all
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occupants of the Building and the Landlord will not do so unless the appeal, in
the opinion of the Landlord, would be reasonably likely to attain a favourable
result. The Landlord will not be responsible to the Tenant for any action or
failure to act under this section unless the decision to act or not to act was
not made in good faith. The cost of all appeals by the Landlord will be included
in Landlord's Taxes. If, in the event Landlord does not appeal, Tenant may do so
at Tenant's cost.
ARTICLE TEN
FORCE MAJEURE
Section 10.01 Force Majeure: The Landlord and the Tenant agree whenever and to
the extent that either party shall be unable to fulfil or shall be delayed or
restricted in the fulfilment of any obligation hereunder (other than the payment
of any monies, including without limitation the Tenant's obligation to pay Rent)
in respect of the doing of any work or the making of any repairs or otherwise by
reason of being unable to obtain the materials, goods, equipment, service,
utility or labour required to enable it to fulfil such obligation, and in each
case assuming no suitable substitute acceptable to Landlord and Tenant is
available, or by reason of any statute, law or order-in-council or any
regulation or order passed or made pursuant thereto or by reason of the order or
a direction of any governmental department or office or other Authority or by
reason of its inability to procure any license or permit required thereby, or by
reason of any strike, lock-out, slow-down or other combined action of workers,
or shortage of material or unusual delay by common carriers or by unusually
severe weather conditions, or by the bankruptcy or insolvency or financial
condition of the general contractor or any other cause beyond the reasonable
control of the party (except financial condition or lack of funds of Landlord or
Tenant, as applicable), as the case may be, not caused by the default or act of
or omission by such party and not avoidable by the exercise of reasonable effort
or foresight by it, then so long as such impediment continues, such party shall
be relieved from the fulfilment of such obligation and the other party shall not
be entitled to compensation for any damage, inconvenience, nuisance or
discomfort occasioned thereby. The time period for either Landlord or Tenant to
complete any of its obligations as herein contained shall automatically be
extended by the time that such impediment continues.
ARTICLE ELEVEN
ACCESS
Section 11.01 Exhibit: The Tenant will permit the Landlord or the agents of the
Landlord to exhibit the Leased Premises at all reasonable hours during the Term
to prospective Mortgagees or purchasers, and during the last twelve months of
the Term to prospective tenants. The Landlord will be entitled from time to time
to post and maintain a "For Lease" or "For Sale" sign on the exterior of the
Building comprising part of the Leased Premises at any time during the last
twelve months of the Term. Any "For Sale" or "For Lease" placed by the Landlord
on the exterior of the Building will not be placed in a location which would
obstruct or otherwise adversely affect Tenant's signage.
ARTICLE TWELVE
OVERHOLDING
Section 12.01 Tenancy after Expiration: The Tenant has no right to remain in
possession of all or any portion of the Leased Premises following expiration or
termination of this Lease except as herein expressly provided or otherwise with
Landlord's consent. If, at the expiration of the Term or sooner termination
thereof, the Tenant shall remain in possession without any further written
agreement, and in circumstances where a tenancy would thereby be implied
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by implication of law, a tenancy from year to year shall not be created by
implication of law or otherwise, but the Tenant shall be deemed to be a monthly
tenant only at a minimum monthly rental, payable each month in advance, at a
rate equal to one hundred and fifty (150%) percent of the Minimum Annual Rent
payable during the last full month prior to expiration or termination, and
otherwise upon and subject to the same terms and conditions as herein contained
(including the requirement to pay Additional Rent), excepting provisions for
renewal, and nothing, including the acceptance of any Rent by the Landlord,
shall extend to the contrary except a specific agreement in writing between the
Landlord and the Tenant as aforesaid and the Tenant hereby authorizes the
Landlord to apply any monies received from the Tenant in payment of such monthly
Rent.
ARTICLE THIRTEEN
ASSIGNMENT AND SUBLETTING
Section 13.01 Consent Required: The Tenant will not assign this Lease in whole
or in part, nor sublet all or any part of the Leased Premises, nor mortgage or
encumber this Lease or the Leased Premises or any part thereof, nor suffer or
permit the occupation of all or any part thereof by others, without the prior
written consent of the Landlord in each instance, which consent will not be
unreasonably withheld or delayed, provided that the Tenant is not then in
default hereunder. The consent by the Landlord to an assignment or subletting
will not constitute a waiver of the necessity for such consent to a subsequent
assignment or subletting. This restriction against assigning or subletting will
be construed to include a restriction against any assignment or subletting by
operation of law. Notwithstanding any assignment or sublease, the Tenant will
remain fully liable on this Lease and will not be released from performing the
terms, covenants and conditions of this Lease. If the Landlord consents to an
assignment of this Lease or subletting of the Leased Premises, the Landlord or
its solicitors will prepare a consent document, in form and content satisfactory
to the parties, acting reasonably, and all the Landlord's reasonable costs with
respect thereto will be borne by the Tenant. Notwithstanding the foregoing the
Tenant shall not be entitled to assign or sublet this Lease in whole or in part
prior to the Date of Substantial Completion.
Section 13.02 Conditions of Consent: If the Tenant receives consent under
Section 13.01, the consent will be subject to the condition that the proposed
assignee or subtenant shall have agreed with the Landlord to assume and perform
each of the covenants, obligations and agreements of the Tenant in this Lease
and if a subtenant that it will at the request of the Landlord vacate its
premises on the termination of this Lease.
Section 13.03 Information to be Provided: If the Tenant desires to assign this
Lease or to sublet or part with possession of any part of the Leased Premises,
or to transfer this Lease in any other manner, in whole or in part, or any
estate or interest hereunder, then the Tenant will give prior written notice to
the Landlord of its desire and shall provide to the Landlord such information in
respect of the proposed assignee, transferee or subtenant as is then in its
possession or subject to its reasonable control. The Tenant shall use best
efforts, without expenditure of money, to obtain such additional credit,
financial or business information in respect of the proposed assignee,
transferee or subtenant or the principals thereof as the Landlord may reasonably
request.
Section 13.04 Restricted Transaction: Notwithstanding anything to the contrary
contained in this Lease, but subject to the provisions of the last sentence of
this Section 13.04, the Tenant covenants that if it or any one or more of its
shareholders:
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(i) proposes to enter into any corporate transaction (whether by
way of reconstruction, reorganization, consolidation,
amalgamation, merger or otherwise) whereby all or
substantially all of its undertaking, property or assets would
become the property of another Person; or
(ii) proposes to enter into any contract, transaction, arrangement,
or any series of contracts, transactions, or arrangements with
any one or more parties with which it does not deal at arm's
length; or
(iii) proposes to enter into any transaction, document, voting trust
or other arrangement which could or might directly or
indirectly change the identity of the parties that control the
Tenant;
the Tenant shall as soon as possible but in any event prior to completion of the
transaction deliver written notice thereof to the Landlord (except that if the
Tenant or any shareholder of Tenant files notice with any relevant securities
exchange, commission or other similar Authority, the Tenant shall not be
obligated to deliver such notice prior to the date upon which notice is filed by
the Tenant or any other shareholder of the Tenant with such relevant securities
exchange, commission or other similar Authority) and shall obtain Landlord's
written consent, which shall not be unreasonably withheld or delayed prior to
completion of such transaction. If the Landlord, in its discretion, acting
reasonably determines that the ability of the Tenant to pay Rent and otherwise
perform its obligations herein could or might be diminished notice, the Landlord
may require from the Tenant as a condition of completion of the proposed
transaction, additional security by way of additional covenant, letter of credit
or otherwise to support the diminished ability of the Tenant to continue to pay
Rent and perform its obligations throughout the Term of the Lease.
Notwithstanding anything herein contained any transaction made at the time when
the Tenant is a public company shall not constitute a transaction requiring
compliance by the Tenant with this Section 13.04.
Section 13.05 Financial Information: The Tenant shall deliver to the Landlord
within thirty (30) days of issuance thereof its annual audited or unaudited
consolidated financial statements. The Landlord shall maintain such information
in strict confidence and shall not disclose such information to any party
including a proposed lender or purchaser, as the case may be, unless and until
such purchaser or lender agrees in writing in favour of the Tenant to maintain
in strict confidence all such information, except as may be reasonably disclosed
by the Landlord or any such lender or purchaser to comply with laws requiring
disclosure.
Section 13.06 Transactions with an Affiliate: No consent of the Landlord shall
be required on any assignment or a sublease of the Leased Premises by the Tenant
to an Affiliate provided that the Tenant shall be fully liable on this Lease and
shall not be released from performing the terms, covenants and conditions of
this Lease and the assignee or subtenant complies with the provisions of Section
13.02 hereof. Nothing herein shall relieve the Tenant from its continuing
obligations under Sections 13.04 and 13.05 hereof.
Section 13.07 Assignment by Landlord: In the event of the sale, lease or
assignment by the Landlord of its interest in the Leased Premises and to the
extent that the purchaser or assignee thereof is responsible for compliance with
the covenants and obligations of the Landlord hereunder and agrees in writing
with the Tenant that the Tenant may remain in occupation of the Leased Premises
in accordance with and subject to compliance by the Tenant with the terms and
conditions of this Lease, the Landlord without further written agreement will be
freed and relieved of liability of its covenants and obligations herein
contained.
35.
ARTICLE FOURTEEN
CONSTRUCTION
Section 14.01 Agreements Concerning Construction:
(a) The Landlord covenants and agrees that it shall, at its sole cost
and expense, construct and complete the Building in the location
shown on the Site Plan and in accordance with the Plans and
Specifications. In addition, the Landlord at its sole cost and
expense shall construct and complete the parking areas and driveways
and other exterior facilities as shown on and in accordance with or
described on said Site Plan or Plans and Specifications. The
Landlord shall not vary or amend the Site Plan or the Plans and
Specifications in any respect which materially affects the structure
of the Building, size of floor plate, materially reduces Building
functionality or materially affects aesthetics of the interior or
exterior of the Building without having first obtained the prior
written consent of the Tenant. Notwithstanding the foregoing the
Landlord may prior to commencement of construction, by written
notice to the Tenant, elect to add one-storey to the Building and
build a Building of six storeys so long as such construction does
not result in insufficient parking on a breach of any of the other
terms and provisions of this Lease. The Tenant confirms that if it
has not provided its acceptance or rejection of a proposed change or
revision within five (5) days of written notice from the Landlord,
it shall be deemed to have accepted such change or revision. All
agreed amendments to the Plans and Specifications shall be dated and
appended to Schedule "B" hereto. All of the work to be carried out
by the Landlord pursuant to this Section is herein referred to as
"Landlord's Work".
(b) All construction work shall be carried out in a good and workmanlike
manner and with quality materials in accordance with the Site Plan
and Plans and Specifications, and compliance with building permits
and Site Plan approvals therefor and all laws, by-laws, regulations,
directives and notices of all Authorities. Services required for the
Leased Premises as of the Date of Substantial Completion shall be
installed and paid for by the Landlord and the Landlord shall not
arrange for the installation of such services by the regional,
metropolitan or municipal government in such a way that the cost
thereof shall be assessed as a local improvement, impost, levy or
charge to be included in Realty Taxes levied against the Leased
Premises.
(c) The Landlord and Tenant acknowledge that construction of the
Building will be proceeding on a "fast track" basis. Each of
Landlord and Tenant agree to provide full and timely co-operation
with the other in order to ensure that all decisions are made,
approvals obtained and commitments entered into as soon as possible
so as to facilitate Substantial Completion on the earliest possible
date. Subject to the foregoing, the Landlord shall, with diligence,
proceed to obtain all necessary permits and approvals and as soon as
possible following the obtaining thereof shall proceed with the
construction and completion of Landlord's Work.
(d) If the Tenant desires that changes or revisions be made to the Site
Plan or Plans and Specifications whether prior to or during the
course of construction, the Tenant shall deliver to the Landlord a
written request setting out the changes or revisions requested. The
Landlord need not accept any change or revision which in its
opinion, acting reasonably, adversely affects the structure of the
Building, reduces Building functionality or aesthetics of the
interior or exterior of the Building, or reduces the useful life of
the Building, or generally
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degrades the quality of the Building. In respect of any other
changes or revisions, the Landlord shall immediately provide a copy
of such written request to the Architect and to the general
contractor retained by it to carry out Landlord's Work and shall
request from such general contractor its advice as to (i) the
adjustment required to the cost of construction and (ii) the effect
that such proposed change order will have on the estimated Date of
Substantial Completion which information the Landlord shall promptly
provide to the Tenant. The Tenant may either accept the change order
or withdraw its request for same. Pricing for any change or revision
accepted by the Tenant, unless otherwise specified shall include a
10% administration fee to the Landlord. If the Tenant approves the
change order, the Tenant shall pay to the Landlord on or before the
date same becomes payable to the general contractor, the cost
adjustment required by the change order. If the change order results
in a reduction in the cost of Landlord's Work, the difference shall
only be available to the Tenant as a reduction of amounts otherwise
payable by the Tenant to the Landlord pursuant to other change
orders.
(e) On or after the Date of Substantial Completion, the Tenant shall
provide to the Landlord, its employees, contractors and
subcontractors access to the Leased Premises during normal business
hours and subject to such reasonable conditions as the Tenant may
establish to enable the Landlord to fully complete the Landlord's
Work in accordance with the provisions of this Lease provided that
the Landlord shall carry out the balance of its work in a manner so
as not to materially interrupt or interfere with the Tenants
occupation or use of the Leased Premises. Landlord and Tenant shall
co-operate to establish schedules, rules and other terms as
appropriate for the completion of required work.
(f) During the course of construction, the Tenant and its employees and
consultants shall have reasonable access to the Leased Premises to
inspect and examine all work being carried out, provided that such
right of inspection and examination shall not be exercised in a
manner which would interfere with the construction and completion of
Landlord's Work. In the event that the Tenant gives to the Landlord
any notice that the Landlord's Work being carried out is deficient
or is otherwise not in compliance with the Plans and Specifications
or the Site Plan which notice shall contain particulars of the
alleged deficiency or non-compliance, the Landlord shall immediately
provide a copy of such notice to the Architect and shall immediately
attempt to cure such deficiency or non-compliance by enforcing its
remedies as appropriate in accordance with the provisions of the
construction contract with its general contractor or otherwise with
the intention that such alleged deficiency or non-compliance be
rectified in the shortest possible time. The Architect shall
promptly notify the Landlord and Tenant whether or to the extent he
concurs with the provisions of the Tenant's notice. Either Landlord
or Tenant may refer the decision of the Architect to arbitration.
The decision of the Architect or determination by arbitration may
be:
(i) that the work required to be done as set out in Tenant's
notice was required to cure a deficiency or non-compliance in
which event no adjustments need be made; or
(ii) that the work required to be done as set out in Tenant's
notice was not required to cure a deficiency or non-compliance
in which event the work required to be done shall be deemed to
have been done pursuant to a change order with an appropriate
adjustment to cost of construction and the scheduled Date of
Substantial Completion; or
37.
(iii) that a portion of the work required to be done as set out in
Tenant's notice was not required to cure a deficiency or
non-compliance in which event that portion of the work shall
be deemed to have been done pursuant to a change order with an
appropriate adjustment to cost of construction and the
scheduled Date of Substantial Completion.
(g) Landlord and Tenant agree to react immediately to any request made
by the other of them for any variation to the materials or the
construction techniques set out in the Plans and Specifications with
the intent that any required changes will be agreed to in the
shortest possible time.
(h) Within thirty (30) days of the Date of Substantial Completion, the
Landlord shall deliver to the Tenant a certificate issued by the
Architect certifying that the Landlord's Work has been carried out
in accordance with all applicable laws, by-laws and regulations
applicable thereto and in accordance with the Site Plan and Plans
and Specifications. The Landlord agrees to use its best efforts to
complete any incomplete work as noted in the certificate of the
Architect promptly in a good and workmanlike manner.
(i) Landlord and Tenant shall meet not less than monthly to review
progress of construction and any other matters which either Landlord
or Tenant wishes to raise and at each such meeting the Landlord
shall provide to the Tenant its estimate of the Date of Substantial
Completion.
(j) All Tenant's Improvements required by the Tenant shall be carried
out by the Landlord subject to specifications and a budget
acceptable to both Landlord and Tenant. Landlord and Tenant agree to
negotiate in good faith to establish same as soon as possible and
when established same shall be initialled by officers of Landlord
and Tenant and appended to this Lease. The Landlord shall provide to
the Tenant an allowance of twenty-five ($25) dollars per square foot
of Gross Leasable Area leased by the Tenant. The timing for
disbursement of the Tenant Allowance by the Landlord shall be set
out in the budget. The cost of Tenant Improvements in excess of the
Tenant allowance shall be paid by the Tenant as soon as the Tenant's
Allowance has been exhausted all in accordance with the budget.
(k) If the Landlord has not Substantially Completed construction of the
Building, including Tenant improvements and exterior work necessary
for Tenant's occupancy of the Leased Premises by a date which is
fourteen (14) months after the date when all required building
permits for construction of the Building have been obtained and such
failure by the Landlord to complete its construction obligations was
for reasons other than Force Majeure, change orders requested by the
Tenant, or fault of the Tenant, the Tenant shall be entitled to one
(1) month free of Minimum Annual Rent for each month the Date of
Substantial Completion is thereafter delayed. The Minimum Annual
Rent free period shall be pro-rated for a delay of less than one (1)
calendar month. The entitlement to periods free of Minimum Annual
Rent is not to restrict the Tenant from any entitlement it may
otherwise have to claim from the Landlord such direct damages as it
may have incurred as a result of the Landlord's delay.
(l) In the event of any dispute between Landlord and Tenant arising
under any provision of this Article which cannot be resolved by good
faith negotiations, such dispute shall be determined by arbitration
in accordance with the provisions hereof.
38.
ARTICLE FIFTEEN
FIXTURES AND IMPROVEMENTS
Section 15.01 Removal and Restoration of Improvements: All alterations,
decorations, additions and improvements to the Leased Premises made by either
the Landlord or the Tenant (in this section 15.01 called "leasehold
improvements") will, upon installation, become the property of the Landlord. The
Tenant covenants and agrees that it shall not charge or encumber the leasehold
improvements or install any leasehold improvements which are leased by it unless
the lender or lessor shall have first entered into a written agreement with the
Landlord (which shall accrue to the benefit of the Landlord and its Mortgagees
and their respective successors and assigns), in form and having substance
acceptable to the Landlord, acting reasonably, pursuant to which such lender or
lessor acknowledges and agrees that: (a) it shall not register any notice of its
right, title and interest in such leasehold improvements against title to the
Leased Premises or any part thereof; (b) that it shall not at any time
(including, without limitation, at any time following a default by the Tenant in
its obligations to such lender or lessor) assert or make any claim with respect
to any such leasehold improvements or take any action or proceedings whatsoever
to recover possession of such leasehold improvements; and (c) title to such
leasehold improvements shall vest in the Landlord free and clear of any and all
interests or claims of such lender or lessor in such leasehold improvements.
Notwithstanding the foregoing, all signage and all trade fixtures, equipment,
apparatus, and moveable personal property, owned by the Tenant and installed in
the Leased Premises shall remain the property of the Tenant and may be removed
at the expiration of the Term, provided that the Tenant shall not at such time
be in default of any terms or covenants of this Lease and provided that the
Tenant shall, at its expense, make good any damage caused by such removal. If
the Tenant is in default, the Landlord shall have the benefit of any applicable
lien on the Tenant's property located in or on the Leased Premises as may be
permitted under the laws of the Province of Ontario and in the event such lien
is asserted by the Landlord in any manner or by operation of law the Tenant
shall not remove or permit the removal of said property until the lien has been
removed and all defaults have been cured.
For greater certainty, the Tenant's trade fixtures, equipment and apparatus
shall not include any:
(a) heating, ventilating and air conditioning systems, facilities and
equipment in, or serving the Leased Premises;
(b) floor covering affixed to the floor of the Building;
(c) light fixtures; and
(d) plumbing fixtures (including washroom fixtures and accessories),
electrical, mechanical and other building systems and accessories
related thereto.
Notwithstanding the above provisions, any supplementary heating, ventilating and
air conditioning systems, facilities and equipment exclusively serving the
Leased Premises and installed and paid for solely by the Tenant during the Term
may be removed by the Tenant at the expiration or termination of the Term so
long as it is not in default hereunder and provided that the Tenant makes good
any damage caused by such removal. The Landlord may by notice to the Tenant
require the Tenant to remove from the Leased Premises any fixtures, equipment
apparatus, signage or other property which the Tenant is entitled when not in
default to remove at the expiration of the Term.
Section 15.02 Not to Overload Floors or Ceilings: The Tenant covenants that it
will not bring upon the Building any machinery, equipment or thing
39.
that by reason of its weight, size or use in the opinion of the Architect, might
damage the Improvements and will not at any time overload the floors or ceilings
of the Improvements. If overloading occurs and damage ensues, the Tenant will
forthwith repair the damage at its sole cost and expense. Tenant acknowledges
that the building has been planned using a space allocation of 150 sq. ft. per
person.
Section 15.03 Tenant shall Discharge all Liens: The Tenant shall promptly pay
all charges incurred by or on behalf of the Tenant for any work, materials or
services which may be done, supplied or performed in respect of the Leased
Premises and shall forthwith discharge any liens arising therefrom at any time
filed against the Leased Premises or any part thereof. In the event that the
Tenant shall fail to cause any such lien to be discharged within ten (10) days
of being notified of the filing thereof, then, in addition to any other right or
remedy of the Landlord, the Landlord may, but shall not be obligated to,
discharge the same by paying the amount claimed to be due, and the amount so
paid by the Landlord and all costs and expenses, including reasonable
solicitor's fees incurred by the Landlord in procuring the discharge of such
lien and in defending any action brought by any lien claimant, shall be due and
payable by the Tenant to the Landlord forthwith as Additional Rent.
ARTICLE SIXTEEN
ENVIRONMENTAL PROVISIONS
Section 16.01 Environmental Provisions:
(a) The Tenant covenants and agrees on behalf of itself and its
sublessees and assigns that it shall, at its sole cost and expense
at all times throughout the Term and any, overholding, extension or
renewal thereof, observe and otherwise comply with, and cause its
sublessees to observe and comply with, all federal, provincial or
municipal laws, regulations and requirements relating in any way to
the protection of the environment which affect the Leased Premises,
the use and occupation thereof by the Tenant, its sublessees and/or
the business conducted thereupon by the Tenant or its sublessees
including without limitation the Environmental Protection Act
(Ontario) and the regulations promulgated thereunder (collectively,
the "Environmental Laws"). Without limiting the generality of the
foregoing, the Tenant covenants and agrees that it shall not cause
or permit any hazardous or toxic substance, material or chemical, as
defined or declared to be such pursuant to any Environmental Laws
(hereinafter called a "Hazardous Substance"), to be brought upon,
stored, kept or used in or about the Leased Premises or any part
thereof other than any Hazardous Substance that is used in the
ordinary course of the business carried on at the Leased Premises
and which is stored, kept and used in strict compliance with all
Environmental Laws pertaining thereto. Upon the expiration or
earlier termination of this Lease, the Tenant shall cause each and
every Hazardous Substance which is then located on the Leased
Premises to be removed from the Leased Premises in compliance with
all Environmental Laws.
(b) The Tenant shall forthwith provide the Landlord with written notice
of any order, direction, notice of default or legal action which has
been issued and is outstanding or is threatened pursuant to any
Environmental Laws relating to the Leased Premises, the use and
occupation of the Leased Premises or the business carried on at the
Leased Premises and which the Tenant has received.
(c) The Landlord and its agents, servants, employees and representatives
shall have the right (but not the obligation) to inspect
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(including testing) the Leased Premises during normal business hours
and following reasonable prior written notice to the Tenant for the
purpose of determining whether the Tenant is in compliance with the
above provisions. The Tenant shall pay as Additional Rent any
reasonable costs incurred by the Landlord in making such inspections
of the Leased Premises if by virtue of said inspection the Tenant is
determined to be in material default under this Lease. Such costs
shall be paid forthwith upon demand. In the event that the Landlord
determines, acting reasonably, that the Tenant is in material breach
of the above covenants, then the Landlord shall provide the Tenant
with notice in writing of the breach and the Tenant shall after
receipt of such notice commence to rectify such breach at the
Tenant's sole cost and expense. In the event that the Tenant has not
initiated action to rectify such breach, then the Landlord, at its
option and in its sole discretion, may terminate this Lease without
any further notice or may rectify such breach at the cost of the
Tenant, and the Tenant shall forthwith upon demand reimburse the
Landlord for the cost of rectification together with an
administration and management fee of fifteen (15%) percent thereof
and such amount shall be considered to be Additional Rent under this
Lease and collectible as Additional Rent. Provided further that in
the event the Tenant takes action to rectify such breach, the Tenant
shall complete such rectification within a reasonable period of time
after receipt of notice given above by the Landlord.
(d) If any Authority shall require the clean-up of any Hazardous
Substances held, released, spilled, abandoned or placed upon the
Leased Premises or released into the environment by the Tenant, its
sublessees or by anyone permitted to be on the Leased Premises by
the Tenant or as a result of the use or occupancy of the Leased
Premises by the Tenant or its sublessees, then the Tenant shall, at
its own expense, prepare all necessary studies, plans and proposals
and submit the same for approval, provide all bonds and other
security required by such Authorities and carry out and complete the
work required and provide to the Landlord full information with
respect to proposed plans and the status from time to time of its
clean-up work.
(e) If the Tenant or its sublessees or assigns or anyone else permitted
on the Leased Premises by the Tenant creates or brings to the Leased
Premises any Hazardous Substance or if the conduct of business at
the Leased Premises shall cause there to be any Hazardous Substance
at the Leased Premises then, notwithstanding any provision in this
Lease or rule of law to the contrary, such Hazardous Substance shall
be and remain the sole and exclusive property of the Tenant and
shall not become the property of the Landlord notwithstanding the
degree of affixation to the Leased Premises of the Hazardous
Substance or the goods containing the Hazardous Substance, and
notwithstanding the expiration or earlier termination of this Lease.
(f) The Tenant hereby indemnifies the Landlord and each and every of its
officers, directors, employees, agents and shareholders and agrees
to hold each of them harmless from and against any and all losses,
liabilities, damages, costs, expenses and claims of any and every
kind whatsoever (including, without limitation, (i) the costs of
defending and/or counterclaiming or claiming over against third
parties in respect of any action or matter; and (ii) any cost,
liability or damage arising out of a settlement of any action
entered into by the Landlord with or without the consent of the
Tenant), which at any time or from time to time may be paid,
incurred or asserted against any of them for, with respect to or as
a direct or indirect result of, the presence on or under, or the
escape, seepage, leakage, spillage,
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discharge, emission or release from, the Leased Premises of any
Hazardous Substance, but only to the extent caused by the act,
omission or negligence of the Tenant or anyone for whom it is in law
responsible.
(g) The covenants, agreements and indemnification by the Tenant
contained in this Article 16 shall survive the expiration or earlier
termination of this Lease notwithstanding anything herein contained
to the contrary.
(h) The Landlord acknowledges and agrees that the covenants, agreements
and indemnification by the Tenant contained in this Section 16.01
shall not extend to nor include any Hazardous Substances located at
or upon the Leased Premises as at the Date of Substantial
Completion.
(i) The Landlord hereby indemnifies the Tenant and each and every of its
officers, directors, employees, agents and shareholders and agrees
to hold each of them harmless from and against any and all losses,
liabilities, damages, costs, expenses and claims of any and every
kind whatsoever (including, without limitation, (i) the costs of
defending and/or counterclaiming or claiming over against third
parties in respect of any action or matter; and (ii) any cost,
liability or damage arising out of a settlement of any action
entered into by the Tenant with or without the consent of the
Landlord), which at any time or from time to time may be paid,
incurred or asserted against any of them for, with respect to or as
a direct or indirect result of, the presence on or under the Leased
Premises of any Hazardous Substance prior to the Date of Substantial
Completion unless the presence of the Hazardous Substance resulted
from the act, omission or negligence of the Tenant or anyone for
whom it is in law responsible.
ARTICLE SEVENTEEN
DEFAULT
Section 17.01 Remedies on Default: If:
(a) if the Tenant shall be in default in payment of any Rent, and such
default shall continue for a period of five consecutive days after
the due date for payment thereof; or
(b) the Tenant shall be in default of any of its covenants, obligations
or agreements under this Lease (other than its covenant to pay Rent)
and such default shall continue for a period of thirty (30) days (or
such longer period as may be reasonable in the circumstances to cure
such default) after written notice by the Landlord to the Tenant
specifying with reasonable particularity the nature of such default;
or
(c) any property of the Tenant has been sold under a valid writ of
execution, or the Tenant shall have made a general assignment for
the benefit of creditors or made a proposal, or have had a receiving
order made against it under the Bankruptcy Act, or the Tenant
becoming bankrupt or insolvent shall have made application for
relief under the provisions of any statute now or hereafter in force
concerning bankrupt or insolvent debtors, or any action whatever,
legislative or otherwise, shall have been taken with a view to the
winding up, dissolution or liquidation of the Tenant; or
(d) the Leased Premises shall be used for any other purpose than that
for which the same were let or by any Person or Persons not
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permitted by the terms of this Lease without the Landlord's prior
written consent;
(e) a trustee, receiver, receiver-manager, manager, agent or other like
Person shall be appointed in respect of the assets or business of
the Tenant or any other occupant of the Leased Premises,
then and at the option of the Landlord the Term shall become forfeited and void,
and the then current month's Rent together with the Rent for the 3 months next
ensuing shall immediately become due and payable, and the Landlord may without
notice or any form of legal process whatsoever forthwith re-enter the Leased
Premises or any part thereof in the name of the whole and repossess and enjoy
the same as of its former estate. The Landlord, in addition to any other
remedies which it may have, shall have the right to enter the Leased Premises as
agent of the Tenant, either by force or otherwise, without being liable for any
prosecution therefor, and without being deemed to have terminated this Lease,
and to relet the Leased Premises as the agent of the Tenant and to receive the
rent therefor to be applied on account of the Rent, or the Landlord may, at its
option, re-enter and take possession of the Leased Premises and in addition the
Tenant shall also be liable to the Landlord for any and all damage occasioned by
reason of such abandonment, vacating or improper use of the Leased Premises.
Section 17.02 Landlord's Right to Perform: In addition to all other remedies the
Landlord may have by this Lease or by law, if the Tenant shall make default in
any of its obligations hereunder, the Landlord may, at its option, perform any
such obligation after thirty (30) days' written notice to the Tenant specifying
the default with reasonable particularity, if the Tenant does not either (i)
present to the Landlord evidence of binding arrangements with third parties to
remedy its default or (ii) the Tenant does not cause such third parties to
remedy its default or (iii) does not remedy its default itself within such
period or such longer period as may be reasonable in the circumstances for such
default, and in such event the cost of performing such obligation shall be
payable by the Tenant to the Landlord without set-off on the next-ensuing Rent
payment date as Additional Rent and on default of such payment, the Landlord
shall have the same remedies as on default of payment of Rent.
Section 17.03 Distress: The Tenant hereby waives and renounces the benefit of
any present or future statute taking away or limiting the Landlord's right of
distress, and covenants and agrees that notwithstanding any such statute none of
the goods and chattels of the Tenant on the Leased Premises at any time during
the Term shall be exempt from levy by distress for Rent in arrears.
Section 17.04 Interest and Costs: Tenant shall pay to Landlord interest at a
rate of six (6%) per cent in excess of the prime lending rate of the Canadian
Imperial Bank of Commerce, determined and accruing daily, adjusted from time to
time upon an adjustment in the prime lending rate and compounded monthly not in
advance, upon all Rent required to be paid hereunder from the due date for
payment thereof until the same is fully paid and satisfied. Tenant shall
indemnify Landlord against all costs and charges (including legal fees) lawfully
and reasonably incurred in endorsing payment thereof, and in obtaining
possession of the Leased Premises after default of Tenant or upon expiration or
earlier termination of the Term of this Lease, or in enforcing any covenant,
proviso or agreement of Tenant herein contained.
Section 17.05 Allocation of Payments: Except as otherwise provided herein, the
Landlord may at its option apply sums received from the Tenant against any
amounts due and payable by the Tenant under this Lease in such manner as the
Landlord sees fit.
Section 17.06 Survival of Obligations: If the Tenant has failed to fulfil its
obligations under this Lease with respect to the maintenance, repair and
alteration of the Premises and removal of signage, trade fixtures, equipment and
apparatus from the Premises during or at the end of the Term, such obligations
and
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the full Landlord's rights in respect thereto shall remain in full force and
effect notwithstanding the expiration or sooner termination of the Term.
Section 17.07 Non-waiver: No condoning, excusing or overlooking by the Landlord
or Tenant of any default, breach or non-observance by the other of them at any
time or times in respect of any covenant, proviso or condition herein contained
shall operate as a waiver of rights hereunder of the party not in default in
respect of any continuing or subsequent default, breach or non-observance, or so
as to defeat or affect in any way the rights of the party not in default or in
respect of any continuing or subsequent default or breach, and no waiver shall
be inferred from or implied by anything done or committed by the party not in
default save only by express waiver in writing.
Section 17.08 Alternative Remedies: The Landlord may from time to time resort to
any or all of the rights and remedies available to it in the event of a default
hereunder by the Tenant, either by any provision of this Lease or by statute or
the general law, all of which rights and remedies are intended to be cumulative
and not alternative, and the express provision hereunder as to certain rights
and remedies are not to be interpreted as excluding any other or additional
rights and remedies available to the Landlord by statute or the general law. The
Tenant may from time to time resort to any or all of the rights and remedies
available to it in the event of a default hereunder by the Landlord, either by
any provision of this Lease or by statute or the general law, all of which
rights and remedies are intended to be cumulative and not alternative, and the
express provision hereunder as to certain rights and remedies are not to be
interpreted as excluding any other or additional rights and remedies available
to the Tenant by statute or the general law.
ARTICLE EIGHTEEN
ARBITRATION
Section 18.01 Arbitration: Whenever in this Lease it is provided that any matter
in dispute between the parties may be determined by arbitration and such matter
in dispute cannot be solved by good faith negotiation, the following provisions
shall apply:
(a) Arbitration proceedings shall be commenced by a party giving notice
to the other party of its desire to submit the matters in difference
to arbitration, at which time the party giving notice of arbitration
shall give the name of the arbitrator who is its nominee. Within
seven (7) days of the receipt of such notice, the other party shall
give notice of the name of the arbitrator who is its nominee to the
party desiring such arbitration. If either party fails to appoint an
arbitrator to be its representative and to notify the other party of
such appointment, the party who has appointed the arbitrator may
apply to a Judge of the Court of General Division of the Province of
Ontario to appoint an arbitrator to be the representative of the
other party. The two arbitrators so appointed shall, within seven
(7) days of their appointment appoint a third arbitrator, and if
they fail to agree on such appointment within such period, the third
arbitrator shall be appointed by a Judge of the Court of General
Division of the Province of Ontario upon an application of either
party. Each arbitrator appointed shall have relevant expertise in
respect of the matter in dispute.
(b) The three arbitrators appointed as aforesaid shall forthwith proceed
to arbitrate the dispute between the parties and they shall within
thirty (30) days or so soon thereafter as may be practicable, render
their decision in writing. The decision as rendered shall be binding
upon the parties hereto and shall not be subject to appeal.
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(c) In the event of the death, resignation, incapacity, neglect or
refusal to act of or by any arbitrator appointed under these
provisions and of such neglect or refusal continuing for a period of
seven (7) days after notice thereof has been given by either party,
another arbitrator shall be appointed to replace such arbitrator by
the party whose representative he was, or by the two arbitrators if
he was appointed as the third arbitrator; and failing the making of
such appointment, the vacancy shall be filled by an arbitrator
appointed by Judge of the Court of General Division of the Province
of Ontario upon application by either party.
(d) The cost of the arbitration shall be apportioned between the parties
hereto or against either of them as the arbitrators may decide.
(e) The provisions hereof shall be considered a submission under The
Arbitrations Act (Ontario).
ARTICLE NINETEEN
GENERAL PROVISIONS
Section 19.01 Notices: Any notice, statement or request herein required or
permitted to be given by either party to the other shall be in writing and shall
be deemed to have been sufficiently and effectually given if signed by or on
behalf of the party giving the notice and mailed by registered prepaid post, in
the case of notice to the Landlord, to it or its agents at:
Polaris Realty (Canada) Limited
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇
Suite 5800
Scotia Plaza
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Little
to the Tenant at:
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ with a copy to President
Any such notice given as aforesaid shall be conclusively deemed to have been
given and received, if delivered, on the date of such delivery or, if mailed,
five (5) Business Days after such mailing. Either party may from time to time by
notice to the other change the address to which notices are to be mailed.
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Section 19.02 Planning Act: This Lease is expressly conditional upon compliance
with applicable provisions of Section 50 of the Planning Act (Ontario) and
amendments thereto as applicable.
Section 19.03 Registration: The Tenant will not register this Lease on title to
the Landlord Lands. Upon the request of either party hereto, the parties will
execute a short form of lease which shall be in the form annexed hereto as
Schedule "C" which may be registered against title to the Lands. All costs
related to such registration are to be borne by the party making the
registration.
Section 19.04 Counterparts: This Lease may be signed in counterparts, all of
which shall be read together and constitute one and the same Lease. If this
Lease is signed in counterparts, a copy thereof shall be forwarded by facsimile
transmission to the other party hereto, and the party making the transmission
shall within twenty-four (24) hours thereafter forward by courier to the other
party hereto four original copies of the Lease as executed by it in counterpart.
ARTICLE TWENTY
SPECIAL PROVISIONS
Section 20.01 Right of First Refusal:
(a) In the event that at any time subsequent to the date hereof and
prior to the fifth anniversary of the Commencement Date (which date
is herein called the "Refusal Date") the Landlord receives a bona
fide, arm's length offer to lease other premises in the Building
which it is then prepared to accept, it shall give notice to the
Tenant which shall have attached thereto a copy of the offer to
lease and other documentation which it is prepared to accept and
such other information in respect of the proposed lease and the
proposed tenant as it is then in its possession and the Tenant, so
long as it is not then in default hereunder, shall have the right
exercisable by written notice to the Landlord given within ten days
after receipt of the foregoing notice from the Landlord, to elect to
lease such premises for the same term and upon and subject to the
same terms and conditions as are applicable to this Lease. If the
election by Tenant to lease is made within the 60 days immediately
preceding the Date of Substantial Completion the Landlord shall be
entitled to such period up to 90 days as it requires to complete
tenant improvements. The actual term of the lease shall commence as
soon as Landlord can certify that all tenant improvements required
for occupation of the premises have been completed. If such date
occurs after the Commencement Date of this Lease the term of such
lease shall be reduced by the number of days from and after the
Commencement Date until the first date when such premises are ready
for occupation. The Tenant allowance of $25.00 per sq. ft. shall be
reduced by multiplying such amount by a fraction the numerator of
which shall be the number of days in the initial term of such lease
and the denominator of which shall be the number of days of the
Initial Term hereof.
(b) In the event that at any time or times subsequent to the Refusal
Date the Landlord receives an offer to lease other premises in the
Building which it is prepared to accept, it shall give notice to the
Tenant which shall have attached it to a copy of the offer to lease
and such other information in respect of the proposed lease and the
proposed term as is then in its possession and the Tenant, so long
as it is not then in default hereunder, shall have the right
exercisable by written notice to the Landlord given within ten days
after receipt of the foregoing Landlord's notice, to elect to lease
such premises for the same term
46.
on the same terms and conditions as the Landlord was otherwise
willing to accept.
(c) Following any election by the Tenant to lease premises within the
Building the Landlord and Tenant shall promptly enter Into either a
modification of this Lease, or a separate lease as appropriate, to
reflect the additional space to be leased to the Tenant in the
Building.
(d) Subject to the foregoing, the Landlord may offer to lease any
premises within the Building for such periods and renewal terms as
in its discretion considers appropriate, subject only to the rights
of first refusal provided for above.
IN WITNESS WHEREOF the parties have hereunto by the hands of their
proper officers authorized in that behalf executed these presents and affixed
their corporate seal as of the date first above mentioned.
POLARIS REALTY (CANADA) LIMITED
Per:
/s/ [ILLEGIBLE]
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Name:
Position:
FINANCIAL MODELS COMPANY INC.
Per:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Position: Chairman