EXHIBIT 10-a-13
OFFICE LEASE
674573 ONTARIO LIMITED
(Landlord)
ACE HARDWARE CANADA LIMITED
A corporation incorporated under the laws of Ontario
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
TABLE OF CONTENTS
ARTICLE I Definitions
Section 1.01 "Additional Rent". . . . . . . . . . . . . . . . . . 1
Section 1.02 "Architect". . . . . . . . . . . . . . . . . . . . . 1
Section 1.03 "Building" . . . . . . . . . . . . . . . . . . . . . 1
Section 1.04 "Common Facilities". . . . . . . . . . . . . . . . . 2
Section 1.05 "Fixturing Period" . . . . . . . . . . . . . . . . . 2
Section 1.06 "Land Surveyor". . . . . . . . . . . . . . . . . . . 2
Section 1.07 "Landlord" . . . . . . . . . . . . . . . . . . . . . 2
Section 1.08 "Landlord's Work". . . . . . . . . . . . . . . . . . 3
Section 1.09 "Leasable Premises". . . . . . . . . . . . . . . . . 3
Section 1.10 "Manager". . . . . . . . . . . . . . . . . . . . . . 3
Section 1.11 "Minimum Rent" . . . . . . . . . . . . . . . . . . . 3
Section 1.12 "Mortgagee". . . . . . . . . . . . . . . . . . . . . 3
Section 1.13 "Normal Business Hours". . . . . . . . . . . . . . . 3
Section 1.14 "Person" . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.15 "Premises" . . . . . . . . . . . . . . . . . . . . . 4
Section 1.16 "Proportionate Share". . . . . . . . . . . . . . . . 4
Section 1.17 "Rent" . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.18 "Rentable Area of the Premises". . . . . . . . . . . 4
Section 1.19 "Rentable Area of the Building". . . . . . . . . . . 4
Section 1.20 "Rental Year". . . . . . . . . . . . . . . . . . . . 5
Section 1.21 "Rules and Regulations". . . . . . . . . . . . . . . 5
Section 1.22 "Tenant" . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.23 "Tenant's Work". . . . . . . . . . . . . . . . . . . 5
Section 1.24 "Term" . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.25 "Usable Floor Area". . . . . . . . . . . . . . . . . 5
Section 1.26 "Hazardous Substances" . . . . . . . . . . . . . . . 6
ARTICLE II Intent and Interpretation
Section 2.01 - Net Lease. . . . . . . . . . . . . . . . . . . . . . 6
Section 2.02 - Obligations as Covenants . . . . . . . . . . . . . . 6
Section 2.03 - Headings . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.04 - Extended Meanings. . . . . . . . . . . . . . . . . . 6
Section 2.05 - Partial Invalidity . . . . . . . . . . . . . . . . . 7
Section 2.06 - Entire Agreement . . . . . . . . . . . . . . . . . . 7
Section 2.07 - Governing Law. . . . . . . . . . . . . . . . . . . . 7
Section 2.08 - Time of the Essence. . . . . . . . . . . . . . . . . 8
ARTICLE III Grant and Term
Section 3.01 - Premises . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.02 - Use of Common Facilities . . . . . . . . . . . . . . 8
Section 3.03 - Commencement and
Ending Date of the Term. . . . . . . . . . . . . . . 8
Section 3.04 - Notice and Certificates. . . . . . . . . . . . . . . 9
Section 3.05 - Early Occupancy. . . . . . . . . . . . . . . . . . . 9
Section 3.06 - Delayed Possession . . . . . . . . . . . . . . . . . 9
Section 3.07 - Acceptance of Premises . . . . . . . . . . . . . . . 9
Section 3.08 - Landlord's and Tenant's Work . . . . . . . . . . . . 10
Section 3.09 - Relocation . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV Rent
Section 4.01 - Covenant to Pay. . . . . . . . . . . . . . . . . . . 10
Section 4.02 - Minimum Rent . . . . . . . . . . . . . . . . . . . . 10
Section 4.03 - Rent Past Due. . . . . . . . . . . . . . . . . . . . 11
ARTICLE V Taxes
Section 5.01 - Taxes - Definition . . . . . . . . . . . . . . . . . 11
Section 5.02 - Taxes Payable by the Landlord. . . . . . . . . . . . 12
Section 5.03 - Taxes Payable by the Tenant. . . . . . . . . . . . 12
Section 5.04 - Business Taxes and Other Taxes of Tenant . . . . . . 13
Section 5.05 - Tenant's Indemnification With Respect to
Taxes under Sections 5.01, 5.03 and 5.04 . . . . . . 14
Section 5.06 - Landlord's Taxes . . . . . . . . . . . . . . . . . . 14
Section 5.07 - Per Diem Adjustment. . . . . . . . . . . . . . . . . 14
ARTICLE VI Building and Common Facilities - Control and Payment
Section 6.01 - Control of the Building by the Landlord. . . . . . . 14
Section 6.02 - Tenant to Bear Share of Expense. . . . . . . . . . . 16
Section 6.03 - Payment of Tenant's Share. . . . . . . . . . . . . . 19
Section 6.04 - Landlord's Services. . . . . . . . . . . . . . . . . 19
Section 6.05 - Building Identification. . . . . . . . . . . . . . . 21
ARTICLE VII Utilities and Heating, Ventilating and Air Conditioning
Section 7.01 - Charges for Utilities. . . . . . . . . . . . . . . . 21
Section 7.02 - Lighting . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII Use of the Premises
Section 8.01 - Use of the Premises. . . . . . . . . . . . . . . . . 22
Section 8.02 - Conduct of Business. . . . . . . . . . . . . . . . . 23
Section 8.03 - Observance of Law. . . . . . . . . . . . . . . . . . 24
ARTICLE IX Insurance and Indemnity
Section 9.01 - Tenant's Insurance . . . . . . . . . . . . . . . . . 25
Section 9.02 - Increase in Insurance Premiums . . . . . . . . . . . 27
Section 9.03 - Cancellation of Insurance. . . . . . . . . . . . . . 27
Section 9.04 - Loss or Damage . . . . . . . . . . . . . . . . . . . 27
Section 9.05 - Landlord's Insurance . . . . . . . . . . . . . . . . 28
Section 9.06 - Indemnification of Landlord. . . . . . . . . . . . . 28
Section 9.07 - Limitations of Liability . . . . . . . . . . . . . . 29
ARTICLE X Maintenance, Repairs and Alterations
Section 10.01 - Maintenance and Repairs by Tenant . . . . . . . . . 29
Section 10.02 - Landlord's Approval of Tenant's Repairs . . . . . . 29
Section 10.03 - Maintenance by Landlord . . . . . . . . . . . . . . 31
Section 10.04 - Repair on Notice. . . . . . . . . . . . . . . . . . 32
Section 10.05 - Surrender of the Premises . . . . . . . . . . . . . 32
Section 10.06 - Repair Where Tenant at Fault. . . . . . . . . . . . 32
Section 10.07 - Tenant Not to Overload Facilities . . . . . . . . . 32
Section 10.08 - Tenant Not to Overload Floors . . . . . . . . . . . 33
Section 10.09 - Removal and Restoration by Tenant . . . . . . . . . 33
Section 10.10 - Notice by Tenant. . . . . . . . . . . . . . . . . . 34
Section 10.11 - Liens . . . . . . . . . . . . . . . . . . . . . . . 34
Section 10.12 - Signs and Advertising . . . . . . . . . . . . . . . 34
Section 10.13 - Directory Board . . . . . . . . . . . . . . . . . . 35
ARTICLE XI Damage and Destruction and Expropriation
Section 11.01 - Destruction of the Premises . . . . . . . . . . . . 35
Section 11.02 - Destruction of the Building . . . . . . . . . . . . 36
Section 11.03 - Expropriation . . . . . . . . . . . . . . . . . . . 37
Section 11.04 - Architect's Certificate . . . . . . . . . . . . . . 38
ARTICLE XII Assignment, Subletting and Change of Control
Section 12.01 - Consent Required. . . . . . . . . . . . . . . . . . 38
Section 12.02 - Conditions of Consent . . . . . . . . . . . . . . . 39
Section 12.03 - No Advertising of Premises. . . . . . . . . . . . . 41
Section 12.04 - Assignment by the Landlord. . . . . . . . . . . . . 41
ARTICLE XIII Access and Alterations
Section 13.01 - Right of Entry. . . . . . . . . . . . . . . . . . . 41
Section 13.02 - Security. . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XIV Status Statement, Attornment and Subordination
Section 14.01 - Status Statement. . . . . . . . . . . . . . . . . . 42
Section 14.02 - Subordination and Attornment. . . . . . . . . . . . 43
Section 14.03 - Execution of Documents. . . . . . . . . . . . . . . 43
Section 14.04 - Financial Information . . . . . . . . . . . . . . . 44
ARTICLE XV Default and Landlord's Remedies
Section 15.01 - Right to Re-Enter . . . . . . . . . . . . . . . . . 44
Section 15.02 - Right to Relet. . . . . . . . . . . . . . . . . . . 46
Section 15.03 - Expenses. . . . . . . . . . . . . . . . . . . . . . 47
Section 15.04 - Removal of Chattels . . . . . . . . . . . . . . . . 47
Section 15.05 - Waiver of Exemption from Distress . . . . . . . . . 47
Section 15.06 - Landlord May Cure Tenant's Default or
Perform Tenant's Covenants . . . . . . . . . . . . 47
Section 15.07 - Lien on Personal Property . . . . . . . . . . . . . 48
Section 15.08 - Charges Collectible as Rent . . . . . . . . . . . . 48
Section 15.09 - Remedies Generally. . . . . . . . . . . . . . . . . 48
ARTICLE XVI Miscellaneous
Section 16.01 - Rules and Regulations . . . . . . . . . . . . . . . 49
Section 16.02 - Overholding - No Tacit Renewal. . . . . . . . . . . 49
Section 16.03 - Successors. . . . . . . . . . . . . . . . . . . . . 50
Section 16.04 - Tenant Partnership. . . . . . . . . . . . . . . . . 50
Section 16.05 - Waiver. . . . . . . . . . . . . . . . . . . . . . . 50
Section 16.06 - Accord and Satisfaction . . . . . . . . . . . . . . 50
Section 16.07 - Brokerage Commissions . . . . . . . . . . . . . . . 51
Section 16.08 - No Partnership or Agency. . . . . . . . . . . . . . 51
Section 16.09 - Force Majeure . . . . . . . . . . . . . . . . . . . 51
Section 16.10 - Notices . . . . . . . . . . . . . . . . . . . . . . 52
Section 16.11 - No Option . . . . . . . . . . . . . . . . . . . . . 52
Section 16.12 - Registration. . . . . . . . . . . . . . . . . . . . 52
Section 16.13 - Compliance with The Planning Act. . . . . . . . . . 52
Section 16.14 - Metric Conversion . . . . . . . . . . . . . . . . . 53
Section 16.15 - Limited Recourse and Severability . . . . . . . . . 53
Section 16.16 - Quiet Enjoyment . . . . . . . . . . . . . . . . . . 53
Section 16.17 - Tenant's Covenant to Hazardous
Substances . . . . . . . . . . . . . . . . . . . . 53
Section 16.18 - Execution of Lease By Landlord. . . . . . . . . . . 54
EXECUTION
SCHEDULE "A" - Legal Description of Lands
SCHEDULE "B" - Floor Plan
SCHEDULE "C" - Landlord's and Tenant's Work
SCHEDULE "D" - Rules and Regulations
SCHEDULE "E" - Supplementary Lease Provisions
SCHEDULE "F" - Hazardous Substances
THIS LEASE is dated the 27th day of November, 1995.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
BETWEEN:
674573 ONTARIO LIMITED
(hereinafter called the "Landlord"),
PARTY OF THE FIRST PART
- and -
ACE HARDWARE CANADA LIMITED
A corporation incorporated under the laws of Ontario
(hereinafter called the "Tenant")
PARTY OF THE SECOND PART
ARTICLE I
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 meaning hereinafter set forth.
Section 1.01
"Additional Rent" means any and all sums of money or charges
required to be paid by the Tenant under this Lease (except Minimum
Rent) whether or not designated as "Additional Rent" or whether or
not payable to the Landlord or to any other person.
Section 1.02
"Architect" means the architect from time to time named by the
Landlord.
Section 1.03
"Building" means all those lands and premises located at 80 Micro
Court, in the City of Markham, in the Province of Ontario, which
lands are more particularly described in Schedule "A" attached
hereto, as such lands may be altered, expanded or reduced from time
to time and the buildings, improvements, equipment and facilities
erected thereon or situate from time to time therein.
Section 1.04
"Common Facilities" means those areas, facilities, utilities,
improvements, equipment and installations which, from time to time:
(i) are not designated or intended by the Landlord to be leased to
tenants of the Building; (ii) are designated by the Landlord to
serve or benefit the Building, whether or not located within,
adjacent to, or near the Building; (iii) are designated by the
Landlord as part of the Common Facilities; (iv) are provided or
designated (and which may be changed from time to time) by the
Landlord for the use or benefit of the tenants, their employees,
customers and other invitees in common with others entitled to the
use or benefit thereof in the manner and for the purposes permitted
by this Lease. Without limiting the generality of the foregoing,
Common Facilities includes the roof and roof membrane, exterior
wall assemblies including weather walls, exterior and interior
structural elements and bearing walls in the buildings and
improvements comprising the Building, and the foundations and
footings of the Building, all parking areas, and parking garages
(if any); all entrances and exits thereto and all structural
elements thereof; employee parking areas; access roads; truck
courts; driveways; truckways; delivery passages; manual,
mechanical, electrical or automatically operated doors; package
pick-up stations; loading docks and related areas; pedestrian
sidewalks; landscaped and planted areas; foyers, atria and lobbies;
public seating and service areas; corridors; bus kiosks, if any,
roadways and stops; equipment, furniture, furnishings and fixtures;
first aid stations; stairways, escalators, ramps, moving sidewalks
and elevators and other transportation equipment and systems;
tenant common and public washrooms; electrical, telephone, meter,
valve, mechanical, mail, storage, service and janitor rooms and
galleries; music, fire prevention, security and communication
systems; pylon and other general signs; columns; pipes; electrical,
plumbing, drainage, heating, ventilating, air conditioning,
mechanical, and all other installations, equipment or services
located in the Building or related thereto as well as the
structures housing the same.
Section 1.05
"Fixturing Period" DELETED IN IT'S ENTIRETY.
Section 1.06
"Land Surveyor" means the accredited land surveyor from time to time
named by the Landlord.
Section 1.07
"Landlord" means the Party of the First Part, and is
deemed to include the word "Lessor", and in any section of this
Lease that contains exculpatory language in favour of the Landlord,
"Landlord" also includes the directors, officers, servants,
employees and agents of the Landlord.
Section 1.08
"Landlord's Work" means the work to be performed by the
Landlord as described in the provisions of Schedule "C" hereto.
Section 1.09
"Leasable Premises" means those premises (including the
Premises) in the Building which are leased to tenants or which are
designated or intended by the Landlord from time to time to be
leased or used and occupied by tenants, but shall not include any
Common Facilities and shall also not include storage space in the
Building leased to tenants or which is designated or intended by
the Landlord from time to time to be leased or occupied by tenants
for storage space in the Building.
Section 1.10
"Manager" means the Person retained by the Landlord from
time to time to manage the Building.
Section 1.11
"Minimum Rent" means the annual rent payable by the
Tenant pursuant to Section 4.02 hereof.
Section 1.12
"Mortgagee" means any mortgagee or hypothecary creditor
(including any trustee for bondholders) of the Building or any part
thereof, and any chargee or other secured creditor that holds the
Building or any part of it as security but a Mortgagee is not a
creditor, chargee or security holder of a tenant of Leasable
Premises.
Section 1.13
"Normal Business Hours" means the hours from 7:00 a.m. to
7:00 p.m. on Mondays to Fridays, unless any such day is a statutory
holiday.
Section 1.14
"Person" if the context allows, includes any person,
firm, partnership or corporation, or any group of persons, firms,
partnerships or corporations or any combination thereof.
Section 1.15
"Premises" means the premises described in Section 3.01
hereof leased to the Tenant.
Section 1.16
"Proportionate Share" means a fraction which has as its
numerator the Rentable Area of the Premises, and as its
denominator, the Rentable Area of the Building.
Section 1.17
"Rent" means all Minimum Rent and Additional Rent payable
pursuant to this Lease.
Section 1.18
"Rentable Area of the Premises" means (i) where a tenant
has leased or occupied an entire floor in the Building, all floor
area measured from the inside face of the outer building glass
surfaces and from the inside face of outer building masonry walls
including the elevator lobby, service corridors, electrical rooms,
telephone rooms, janitors' closets, men's and women's washrooms,
mechanical rooms and vending areas, but shall exclude the lobby on
the ground floor of the Building in the case of a ground floor
tenant leasing or occupying such entire floor and shall exclude the
elements of the Building that penetrate through the floor to areas
below, such as stairs, elevator shafts, flues, stacks, pipe shafts
and vertical ducts and their enclosing wall, provided that no
deduction from Rentable Area shall be made for columns or
projections necessary to the Building nor for any service areas
which are for the specific use of a particular tenant, such as
special stairs and/or elevators, or, (ii) where a floor is leased
or occupied by more than one (1) tenant, the Usable Floor Area of
the Premises multiplied by a fraction, the numerator of which shall
be the Rentable Area for that floor on which the Premises are
located, (excluding for ground floor tenants the lobby on the
ground floor of the Building) determined as if the Tenant had
leased the entire floor for its lease purposes and the denominator
of which shall be the aggregate Usable Floor Area of the same
floor. The definitions in this paragraph are in accordance with
the standard method for measuring floor area in office buildings as
sanctioned by the Building Owners and Managers Association
International (BOMA) as ANSI Z65.1 - 1980 (Reaffirmed 1989)
Section 1.19
"Rentable Area of the Building" means the aggregate of
the individual Rentable Areas (measured in accordance with the
method set out in Section 1.18) of all Leasable Premises within the
Building.
Section 1.20
"Rental Year" means a period of time, the first Rental
Year commencing on the first day of the Term hereof, and ending on
the last day of the month of December immediately following. Each
Rental Year thereafter shall consist of consecutive periods of
twelve (12) calendar months, but the last Rental Year of the Term
shall terminate on the expiration or earlier termination of this
Lease.
If, however, the Landlord considers it necessary or
convenient for the Landlord's purposes, the Landlord may at any
time and from time to time, by written notice to the Tenant,
specify a date from which each subsequent Rental Year is to
commence, and in such event, the then current Rental Year shall
terminate on the day immediately preceding the commencement of such
new Rental Year, and the appropriate adjustments shall be made
between the parties.
Section 1.21
"Rules and Regulations" means the rules and regulations
contained in Schedule "D" of this Lease and such amendments and
additions thereto which may be adopted and promulgated by the
Landlord from time to time, acting reasonably.
Section 1.22
"Tenant" means the Party of the Second Part and is deemed
to include the word "lessee" and any Person mentioned as Tenant in
this Lease, whether one or more.
Section 1.23
"Tenant's Work" means the work to be completed by the
Tenant described in the provisions of Schedule "C" hereto.
Section 1.24
"Term" means the period of time described in Section 3.03
hereof.
Section 1.25
"Usable Floor Area" means (i) where a tenant has leased
or occupied an entire floor in the Building, the Rentable Area of
the Premises, or, (ii) where a floor is leased or occupied by more
than one (1) tenant, all floor area from the inside face of the
outer building glass surfaces and from the inside face of the outer
building masonry walls to the tenant's side of corridors and/or
other permanent partitions and to the centre of partitions that
separate the Premises from adjoining tenants' premises (whether
occupied or not) but excluding elements of the Building that
penetrate through the floor to areas below, such as stairs,
elevator shafts, flues, pipe shafts, and vertical ducts and their
enclosing walls. No deduction from Usable Floor Area
shall be made for columns or projections necessary for the Building
nor for any service areas which are for the specific use of a
particular tenant, such as special stairs and/or elevators. The
definitions in this paragraph are in accordance with the standard
method of measuring floor area in office buildings as sanctioned by
the Building Owners and Managers Association International (BOMA)
as ANSI Z65.1 - 1980 (Reaffirmed 1989).
Section 1.26
"Hazardous Substances" - Schedule "F" attached forms part
of this Lease.
ARTICLE II Intent and Interpretation
Section 2.01 - Net Lease
The Tenant acknowledges and agrees that it is intended
that this Lease is a completely carefree net lease to the Landlord,
except as expressly herein set out, that during the Term the
Landlord is not responsible for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the
Premises, or the use and occupancy thereof, or the contents thereof
or the business carried on therein, and the Tenant shall pay all
charges, impositions, costs and expenses of every nature and kind,
extraordinary as well as ordinary and foreseen as well as
unforeseen, relating to the Premises, the use and occupancy
thereof, the contents thereof, and the business carried on therein,
except as expressly herein set out.
Section 2.02 - Obligations as Covenants
Each obligation or agreement of the Landlord or the
Tenant expressed in this Lease, even though not expressed as a
covenant, is considered to be a covenant for all purposes.
Section 2.03 - Headings
The headings introducing Sections and Articles in this
Lease are inserted for convenience of reference only and in no way
define, limit, construe or describe the scope or intent of such
Sections or Articles.
Section 2.04 - Extended Meanings
The words "hereof", "herein", "hereunder" and similar
expressions used in any Section or subsection of this Lease relate
to the whole of this Lease and not to that Section or subsection
only, unless otherwise expressly provided. The use of the neuter
singular pronoun to refer to any party is deemed a proper reference
even though the party is an individual, a partnership, a corporation
or a group of two or more individuals, partnerships or corporations.
The necessary grammatical changes required to make the provisions of
this Lease apply in the plural sense where there is more than one
Landlord or Tenant or other party and to either corporations,
associations, partnerships, or individuals, males or females, shall
in all instances be assumed as though in each case fully expressed.
Section 2.05 - Partial Invalidity
If for any reason whatsoever any term, covenant or
condition of this Lease, or the application thereof to any person
or circumstance, is to any extent held or rendered invalid,
unenforceable or illegal, then such term, covenant or condition:
(a) is deemed to be independent of the remainder of this
Lease and to be severable and divisible therefrom and its
invalidity, unenforceability or illegality does not
affect, impair or invalidate the remainder of this Lease
or any part thereof; and
(b) continues to be applicable to and enforceable to the
fullest extent permitted by law against any Person and
circumstances other than those as to which it has been
held or rendered invalid, unenforceable or illegal.
Neither party is obliged to enforce any term, covenant or
condition of this Lease against any Person, if, or to the extent by
so doing, such party is caused to be in breach of any laws, rules,
regulations or enactments from time to time in force.
Section 2.06 - Entire Agreement
This Lease and the Schedules and Riders, if any, attached
hereto form a part hereof together with the Rules and Regulations
adopted and promulgated by the Landlord pursuant to Section 16.01
hereof, sets forth all the covenants, promises, agreements,
conditions and understandings between the Landlord and the Tenant
concerning the Premises and there are no covenants, promises,
agreements, conditions or understandings, either oral or written,
between them other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding unless in writing and
signed by the parties to be bound thereby.
Section 2.07 - Governing Law
This Lease shall be construed in accordance with and
governed by the laws of the Province of Ontario.
Section 2.08 - Time of the Essence
Time is of the essence of this Lease and of every part
hereof.
ARTICLE III Grant and Term
Section 3.01 - Premises
In consideration of the rents, covenants and agreements
herein contained on the part of the Tenant to be paid, observed and
performed, the Landlord leases to the Tenant, and the Tenant leases
from the Landlord, the Premises, now or hereafter to be erected as
part of the Building, which Premises consist of part of the Third
(3rd) floor of the Building, being composed of approximately
Thirteen Thousand, Eight Hundred and Forty-Six (13,846) square feet
of Usable Floor Area and approximately Fifteen Thousand, Three
Hundred and Seventy-Two (15,372) square feet of Rentable Area, as
shown outlined in red on the plan attached as Schedule "B". The
space enclosed by the boundaries of the Premises extends to the
limits of the Usable Area of the Premises determined in accordance
with Section 1.25, but it is acknowledged and agreed that the
Common Facilities which are within the space enclosed by the
boundaries of the Premises do not form part of the Premises.
Section 3.02 - Use of Common Facilities
The use and occupation by the Tenant of the Premises
includes the non-exclusive and non-transferable right or licence to
use the Common Facilities in common with others entitled thereto
for the purposes for which they are intended and during such hours
as the Building may be open for business as determined by the
Landlord from time to time, subject in each case to this Lease and
to the Rules and Regulations.
Section 3.03 - Commencement and Ending Date of the Term
The Tenant shall have and hold the Premises for and
during the Term which shall be, unless sooner terminated pursuant
to the other provisions hereof, the period of Ten (10) years, from
and including the 1st day of March, 1996 (the "Commencement Date")
up to and including the 28th day of February, 2006.
(a) expiring Ten (10) years after the last day of the
calendar month in which the Commencement Date occurs, if
the Term commences other than on the first day of a
calendar month, or, (2) the last day of the calendar
month immediately preceding the calendar month in which
the Term commences, if the Term commences on the first
day of a calendar month.
Section 3.04 - Notice and Certificates
Where reasonably possible prior to the Commencement Date
or within a reasonable period thereafter:
(a) the Landlord shall determine the actual Commencement Date
of the Term and shall send a notice to the Tenant
advising the Tenant of the actual Commencement Date and
such notice shall form a part of this Lease; and
(b) the Landlord shall, unless previously certified, provide
a certificate as to the Rentable Area of the Premises
which certificate unless disputed by the Tenant within 30
days, shall be binding on the Tenant, and shall form part
of the Lease. In the event of any dispute the Landlord's
Architect shall provide a certificate of the Rentable
Area of the Premises which certificate shall be binding
on the Landlord and the Tenant.
Section 3.05 - Early Occupancy
If the Tenant begins to conduct business in all or any
portion of the Premises before the Commencement Date, the Tenant
shall pay to the Landlord on the Commencement Date a rental in
respect thereof for the period from the date the Tenant begins to
conduct business in all or any part of the Premises to the
Commencement Date, which rental shall be that proportion of Rent
for one calendar year which the number of days in such period is
365. Except where clearly inappropriate, the provisions of this
Lease shall be applicable during such period. The Tenant shall
not, however, conduct business from the Premises before the
Commencement Date without the Landlord's prior written approval.
Section 3.06 - Delayed Possession
If for any reason the Landlord's Work has not been
completed by N/A or the Fixturing Period has not xpired on
or before the commencement date, then this Lease shall not
be void or voidable nor shall the Landlord be liable to the
Tenant for any loss or damages resulting from any delay, but unless
the same is caused by or attributable to delay in completion of the
Landlord's Work caused by or attributable to the Tenant, its
employees, servants, agents or independent contractors, Rent shall
▇▇▇▇▇ until the date of expiry of the Fixturing Period, unless the
Tenant elects to take possession of a portion of the Premises, if
possession of such portion is available from the Landlord, and the
Landlord consents thereto, whereupon Rent shall be payable in
respect of such portion from the date such possession is so taken.
In the event of a dispute between the Landlord and the Tenant as to
whether there was a delay in completion of the Landlord's Work
caused by or attributable to the Tenant, its employees, servants,
agents, or independent contractors, the certificate of the
Architect as to the foregoing shall be conclusive and binding and
Rent in full shall accrue and become payable from and including the
Commencement Date.
Section 3.07 - Acceptance of Premises
The Tenant acknowledges and agrees that taking possession
of all or any portion of the Premises by the Tenant shall be
conclusive evidence as against the Tenant that the Premises
including the Landlord's Work or such portion thereof are in good
and satisfactory condition on the date of taking possession and
that all undertakings, if any, of the Landlord to alter, remodel or
improve the Premises or the Building and all representations, if
any, by the Landlord respecting the condition of the Premises or
the Building have been fully satisfied and performed by the
Landlord.
Section 3.08 - Landlord's and Tenant's Work
The Landlord agrees to undertake and install the
Landlord's Work and the Tenant agrees to undertake and install the
Tenant's Work and to complete such work during the Fixturing
Period. The Tenant shall be permitted access to the Premises
during the Fixturing Period for the purpose of undertaking and
installing the Tenants Work, and shall not be responsible for
payment of all amounts payable by it under this Lease during such
Fixturing Period, except electricity costs.
Section 3.09 - Relocation
At any time after the initial term the Landlord may
substitute for the Premises other premises in the Building (the
"New Premises"), in which event the New Premises shall be deemed to
be the Premises for all purposes under this Lease, provided that
the New Premises shall be similar to the Premises in area, location
and configuration. If the Tenant is then occupying the Premises,
the Landlord shall pay the actual and reasonable expenses of
physically moving the Tenant and its property and equipment to the
New Premises. The Landlord shall give the Tenant not less than
sixty (60) days prior written notice of such substitution and the
Landlord, at its expense, shall improve the New Premises with
improvements substantially similar to those in the Premises at the
time of such substitution if the Premises are then improved.
ARTICLE IV Rent Section 4.01 - Covenant to Pay
The Tenant shall pay Rent as herein provided which
obligation shall survive the expiration or earlier termination of
this Lease.
Section 4.02 - Minimum Rent
(a) The Tenant shall pay from and after the Commencement Date
to the Landlord at the office of the Landlord, or at such other
place designated by the Landlord, in lawful money of Canada,
without any prior demand therefor and without any deduction,
abatement, set off or compensation whatsoever, as annual Minimum
Rent, the sum of: please see Schedule "E". The Minimum Rent is
based upon an annual rate of: Please see Schedule "E"; and when
the Rentable Area of the Premises is certified as set out in
Section 3.04, the Minimum Rent shall, if necessary, be adjusted
accordingly as of the Commencement Date and from time to time
thereafter to conform with changes in the Rentable Area of the
Premises. If the Tenant has paid in excess of the amounts due on
account of Minimum Rent as a result of such adjustment, the excess
shall be credited by the Landlord against Rent, then or in the
future owing by the Tenant under this Lease. If the amount the
Tenant has paid is less than the amounts due as a result of the
adjustment, the Tenant shall pay such additional amounts due within
thirty (30) days after demand therefor.
If the Commencement Date is on a day other than the first
day of the calendar month, then the Tenant shall pay, upon the
Commencement Date, a portion of the Minimum Rent prorated on a per
diem basis from the Commencement Date to the end of the month in
which the Commencement Date occurs, based upon a period of three
hundred and sixty-five (365) days.
(b) At the Landlord's option, upon notice to the Tenant, the
Tenant shall, at the Tenant's cost, and without prejudice to any
other right or remedy of the Landlord present to the Landlord
thirty (30) days prior to the commencement of each Rental Year
throughout the Term, a series of monthly postdated cheques for each
such year of the Term in respect of the aggregate of the monthly
payments of annual Minimum Rent and any payments of Additional Rent
estimated by the Landlord in advance, and any other payments
required by this Lease to be paid by the Tenant monthly in advance.
(c) The Landlord acknowledges receipt of the Tenant's deposit
in the amount of Thirty Nine Thousand, Sixty-Four Dollars and Ten
Cents ($39,064.10) which deposit is to be held "In Trust" for the
Tenant and said deposit is to be designated for application against
the first months rent in the amount of Twelve Thousand, One Hundred
and Sixty-Nine Dollars and Fifty Cents ($12,169.50) plus G.S.T. of
Eight Hundred and Fifty-One Dollars and Eighty-Seven Cents
($851.87) and the balance to be applied towards the last two months
of the term.
Section 4.03 - Rent Past Due
If the Tenant fails to pay, when the same is due and
payable, any Rent or any other amount payable by the Tenant under
this Lease, such unpaid amounts shall bear interest (payable as
Additional Rent) from the due date thereof to the date of payment
at a rate per annum which is equal to six (6) percentage points in
excess of the prime commercial lending rate (the "Prime Rate") per
annum charged by any Canadian bank designated by the Landlord from
time to time on loans made in Canadian funds to its most favoured
commercial borrowers, calculated and compounded monthly, with any
adjustment in such rate to be effective on the first day of the
month next following such change in the Prime Rate.
ARTICLE V Taxes
Section 5.01 - Taxes - Definition
"Taxes" means all real property taxes, rates, duties and
assessments (including local improvement taxes), impost charges or
levies (collectively referred to as "real property taxes"), whether
general or special, that are levied, rated, charged or assessed
against the Building or any part thereof from time to time
(including, without limitation, the Common Facilities) by any
lawful taxing authority, whether federal, provincial, municipal,
school or otherwise, and any taxes or other amounts which are
imposed in lieu of, or in addition to, any such real property
taxes whether of the foregoing character or not or whether in
existence at the Commencement Date or not, and any such real
property taxes levied or assessed against the Landlord on account
of its ownership of or interest in the Building.
Section 5.02 - Taxes Payable by the Landlord
The Landlord shall pay all Taxes which are levied, rated,
charged or assessed against the Building or any part thereof
subject to Sections 5.03, 5.04 and, 6.02 hereof. However, the
Landlord may defer payment of any such Taxes, or defer compliance
with any statute, law, by-law, regulation or ordinance in
connection with levying of any such Taxes, in each case to the
fullest extent permitted by law, so long as it diligently
prosecutes any contest or appeal of any such Taxes and so long as
the same does not result in forfeiture by the Tenant of its
interest in this Lease or any disturbance of its right to quiet
possession hereunder.
Section 5.03 - Taxes Payable by the Tenant
(a) The Tenant shall pay, as Additional Rent, in each and
every year during the Term and within the times provided for by the
taxing authorities, to the Landlord or to the taxing authorities as
the Landlord may direct, and discharge, all Taxes that may be
levied, rated, charged or assessed against the Premises and against
all leasehold improvements situate at the Premises, or any part or
parts thereof from time to time by any taxing authority whether
federal, provincial, municipal, school or otherwise. The Tenant
agrees to provide the Landlord upon receipt by the Tenant with a
copy of any separate tax bills, and separate notices of assessments
for and in respect of the Premises and all leasehold improvements
situate at the Premises. In addition, the Tenant shall pay to the
Landlord, on demand, as Additional Rent, in each Rental Year, the
Tenant's Proportionate Share of the Taxes assessed against the
lands described in Schedule "A" and the Common Facilities.
(b) In the event that there shall not be a separate
assessment for Taxes made against the Premises, the Landlord may,
at its option, with each tax ▇▇▇▇ it receives, make an allocation
of Taxes on a reasonable and equitable basis between the lands
described in Schedule "A", the Common Facilities, the Leasable
Premises, other premises available for leasing to tenants which do
not constitute part of the Leasable Premises, and as between such
other premises, the Leasable Premises and the Premises, and as
between the assessment relating to the leasehold improvements made
to the Premises and those made to other Leasable Premises and such
other premises, and the Landlord shall be entitled to charge an
administration fee of fifteen per cent (15%) of the amount of such
Taxes so allocated to the Tenant. The Tenant shall pay its share
of Taxes so allocated against the Premises by the Landlord together
with the share of such administration charge within ten (10) days
after demand therefor by the Landlord and the Tenant in addition
shall pay to the Landlord, as Additional Rent, in each Rental Year,
the Tenant's Proportionate Share of the Taxes so allocated against
the said lands and the Common Facilities.
(c) In the event that there shall not be a separate
assessment for Taxes made against the Premises the Landlord at its
option, may include all Taxes for the lands described in Schedule
"A", the Building, the Common Facilities, the Leasable Premises and
all other premises available for leasing in the Building which do
not constitute part of the Leasable Premises, in the costs and
expenses referred to in Section 6.02(a) and (b), and the Tenant
shall pay its Proportionate Share thereof in the manner and at the
time set forth in Section 6.03 hereof.
Section 5.04 - Business Taxes and Other Taxes of Tenant
(a) In addition to the Taxes payable by the Tenant pursuant
to Section 5.03, the Tenant shall pay as Additional Rent to the
lawful taxing authorities, or to the Landlord, as it may direct,
and shall discharge in each Rental Year when the same become due
and payable (i) all taxes, rates, duties, assessments and other
charges that are levied, rated, charged or assessed against or in
respect of all improvements, fixtures, personal property, equipment
and facilities on or in the Premises or any part thereof; and, (ii)
every tax and license fee which is levied, rated, charged or
assessed against or in respect of any and every business carried on
in the Premises or in respect of the use or occupancy thereof or
any other part of the Building by the Tenant and every subtenant or
licensee of the Tenant, all of the foregoing described in
subsections (i) and (ii) aforesaid being collectively referred to
as "Business Taxes" and whether in any case, any such taxes, rates,
duties, assessments or license fees are rated, charged or assessed
by any federal, provincial, municipal, school or other body during
the Term. If there are no separate bills provided for Business
Taxes, the Tenant shall pay its Proportionate Share of all Business
Taxes with respect to the entire Building; and, (iii) all taxes
that are levied, charged, assessed or imposed wholly or partially
with respect to the Rent whether imposed upon the Tenant or the
Landlord, whether the same exist as of the date hereof, as of the
Commencement Date, or at any time thereafter; and (iv) its
Proportionate Share of all capital taxes payable by the Landlord in
respect of the Building, calculated as if the Building were its
only asset.
(b) The Tenant shall upon request of the Landlord promptly
deliver to the Landlord for inspection, receipts for payment of all
taxes payable by the Tenant pursuant to this Section 5.04, notices
of any assessments of any taxes referred to in this Section 5.04
received by the Tenant and such other information in connection
with any such taxes as the Landlord reasonably determines from time
to time.
(c) The Tenant hereby expressly agrees that it is not
permitted to contest or appeal any taxes referred to in Sections
5.01, 5.03 and 5.04, save and except with respect to its own
Business Taxes. The Tenant agrees to deliver to the Landlord, at
least ten (10) days prior to the last date permitted for filing of
an appeal, notice of any appeal or contestation that the Tenant
intends to institute with respect to its own Business Taxes and to
consult with and obtain the prior written approval of the Landlord
to any such appeal or contestation. If the Tenant obtains approval,
the Tenant shall, upon demand, deliver to the Landlord such
security for the payment of such Business Taxes as the Landlord
deems advisable and the Tenant shall diligently prosecute any such
appeal or contestation to a speedy resolution and shall keep the
Landlord informed of its progress in that regard from time to time.
Section 5.05 - Tenant's Indemnification With Respect to
Taxes under Sections 5.01, 5.03 and 5.04
The Tenant shall promptly indemnify and hold harmless the
Landlord from and against payment for any and all losses, claims,
actions, suits, proceedings, causes of action, demands, damages,
judgments, executions, liabilities, responsibilities, costs,
charges and expenses (collectively referred to in this Lease as
"Claims") occasioned by or arising from any and all taxes payable
by the Tenant hereunder including those which may in future be
levied in lieu of or in addition to such taxes referred to in
Sections 5.01, 5.03 and 5.04 or which may be assessed against any
Rent payable pursuant to this Lease whether in lieu of such taxes
or otherwise, whether against the Landlord or the Tenant including,
without limitation, any increase whensoever occurring in such taxes
arising directly or indirectly out of an appeal or contestation by
the Tenant of its own Business Taxes relating to the Premises or
the Building or any part thereof. The Tenant shall deliver to the
Landlord on demand such security for any such Taxes as the Landlord
deems advisable.
Section 5.06 - Landlord's Taxes
Notwithstanding what is otherwise herein provided for in
this Article V, but subject to the provisions of Section 5.04(a)(iii)
and (iv) hereof, the Tenant shall not be responsible for the payment
of such taxes as corporate income, profits, or excess profits taxes
assessed upon the income of the Landlord.
Section 5.07 - Per Diem Adjustment
If any Rental Year during the Term of this Lease is less
than twelve (12) calendar months, the taxes that the Tenant is
required to pay pursuant to Article V hereof shall be subject to a
per diem adjustment on the basis of a period of 365 days.
ARTICLE VI
Building and Common Facilities - Control and Payment
Section 6.01 - Control of the Building by the Landlord
The Landlord or its Manager shall operate and maintain
the Building in such manner as the Landlord determines from time to
time, and in a first-class and reputable manner as would a prudent
landlord of a similar multiple tenancy commercial office building
having regard to size, age and location.
The Building is at all times subject to the exclusive
control and management of the Landlord. Without limiting the
generality of the foregoing, the Landlord has the right, in its
control, management and operation of the Building and by the
establishment of Rules and Regulations and general policies with
respect to the operation of the Building or any part thereof at all
times during the period of time that the Tenant's Work contemplated
in Schedule "C" hereto is being undertaken and throughout the Term,
to:
(a) (i) obstruct or close off all or any part of the
Building for the purpose of maintenance, repair or
construction;
(ii) close all or any portion of the Building to such
extent as may, in the opinion of the Landlord's
counsel, be legally sufficient to prevent a
dedication thereof or the accrual of any rights to
any Person or the public therein;
(iii)grant, modify and terminate easements and other
agreements pertaining to the use and maintenance of
all or any part of the Building;
(iv) employ all personnel including supervisory
personnel and managers necessary for the operation,
maintenance and control of the Building; the Tenant
acknowledges that the Building may be managed by
the Landlord or by the Manager or such other Person
as the Landlord designates in writing from time to
time;
(v) from time to time permit the Tenant to have
exclusive use of parts of the parking areas forming
part of the Common Facilities and permit other
tenants to have the exclusive use of parts of the
parking areas;
(vi) from time to time, prohibit the Tenant and its
employees from parking anywhere in the Building; if
the Landlord designates tenant parking areas in the
Building or elsewhere, the Tenant and its employees
shall park their vehicles only in such parking
areas; the Tenant shall furnish the Landlord, upon
request, with the current licence numbers of all
vehicles owned or used by the Tenant and its
employees and such other information concerning
vehicles and parking thereof as the Landlord may
require and the Tenant shall, thereafter, notify
the Landlord of any changes within five (5) days
after such changes occur; if the Tenant or its
employees park their vehicles in any such
prohibited parking areas, the Landlord, in addition
to all rights and remedies hereunder, shall have
the right to charge the Tenant a per diem fee per
vehicle parked in any area other than a designated
area; such fee is payable as Additional Rent on
demand; subject to the provisions of Section 16.17
hereof, the Landlord reserves the right to impose
reasonable charges upon the Tenant and any person
(including the general public) for the use of
parking facilities;
(b) from time to time, change the area, level, location,
arrangement or use of the Building or any part thereof,
make alterations, additions, subtractions, or
re-arrangements to the Building or any part thereof, and
construct additional buildings, structures, improvements
or facilities in, adjoining or near to, the Building or
to construct other buildings, structures or improvements
in the Building and build additional stories on the
Building;
(c) impose such requirements with respect to access to the
Building and security measures as the Landlord deems
necessary, and the Tenant and its employees and invitees
shall abide by all such requirements and measures,
including any card-access or other security system
installed in the Building; and
(d) do and perform such other acts in and to the Building as,
in the use of good business judgment, the Landlord
determines to be advisable for the more efficient and
proper operation of the Building.
Notwithstanding anything contained in this Lease, it is
understood and agreed that if as a result of the exercise by the
Landlord of its rights set out in this Section 6.01, the Common
Facilities are diminished or altered in any manner whatsoever, the
Landlord is not subject to any liability, nor is the Tenant
entitled to any compensation or diminution or abatement of Rent,
nor is any alteration or diminution of the Common Facilities deemed
constructive or actual eviction, or a breach of any covenant for
quiet enjoyment contained in this Lease.
Section 6.02 - Tenant to Bear Share of Expense
(a) In each Rental Year, the Tenant shall pay to the
Landlord, as Additional Rent, its Proportionate Share or other
share determined by the Landlord as provided for herein, as the
case may be, of the total costs and expenses incurred, accrued,
paid, payable or attributable, whether by the Landlord or others on
behalf of the Landlord: (1) for the operation, service,
maintenance, repair, rebuilding, replacement, insurance, policing,
supervision, management, and administration of the Building, and,
(2) for the Landlord to discharge its obligations or actions under
this Lease or under other leases of premises in the Building. If
the Building is less than 100% completed or occupied for any time,
such costs and expenses shall be adjusted to mean the amount
obtained by adding to such costs and expenses during such time
additional costs as would have been incurred if the Building had
been 100% completed and occupied as determined by the Landlord
acting reasonably.
(b) The costs and expenses as set out in Section 6.02(a)
include, without limitation and without duplication, the aggregate
of:
(i) insurance on the Building and any improvements,
equipment and other property located thereon; the
Landlord's insurance may, without limitation,
include loss of insurable gross profits
attributable to the perils insured against by the
Landlord or commonly insured against by landlords,
including loss of rent and other amounts receivable
from tenants in the Building, and third party
liability coverage including the exposure of
personal injury, bodily injury, property damage
occurrence, including all contractual obligations
coverage and including actions of the employees,
contractors, subcontractors and agents working on
behalf of the Landlord;
(ii) landscaping, cleaning (including window cleaning),
painting, snow and ice removal, repaving parking
areas (including without limitation, line painting
and curb installation), garbage and waste
collection and disposal, and all costs referred to
in Section 6.04;
(iii) lighting, utilities (including, without limitation,
electricity, water, gas, steam and other fuel and
hook-up, connection or service charges for
utilities, and charges for the use of the sewage
disposal system), loudspeakers, telephones and any
telephone answering service facilities and systems,
used in or serving the Building, and the cost of
electricity for any signs designated by the
Landlord as part of the Common Facilities;
(iv) policing, security, security systems, supervision
and traffic control;
(v) in the event that the Landlord has not contracted
for the management services of the Manager or any
Person for the operation, supervision, management
and administration of the Building, remuneration
(including, without limitation, contributions and
premiums towards fringe benefits, unemployment and
Worker's Compensation insurance, pension plan
contributions and similar premiums and
contributions) of Persons to the extent engaged in
the operation, maintenance, administration,
management and supervision of the Building;
(vi) the cost of the rental of any equipment and signs,
and the cost of building supplies used by the
Landlord in the maintenance of the Building;
(vii) auditing, accounting, bookkeeping, legal and other
professional and consulting fees and disbursements;
(viii) the cost of all repairs (including, without
limitation, major repairs) and replacements to and
maintenance and operation of the Building and the
Common Facilities and the systems, facilities and
equipment serving the Building (including, without
limitation, all escalators, elevators, moving
sidewalks and other transportation equipment and
systems and all heating, ventilating and air
conditioning and climate control systems serving
the Building) except for the cost of repairing or
replacing any inherent structural defects or
weaknesses;
(ix) depreciation or amortization (1) of the cost,
including repair and replacement, of all
maintenance, cleaning and operating equipment and
master utility meters from the Commencement Date,
and, (2) of the costs incurred after the
Commencement Date for repairing or replacing all
other fixtures, equipment and facilities serving or
comprising the Building unless they are, pursuant
to Section 6.02(b)(viii), charged fully in the
Rental Year in which they are incurred in
accordance with sound accounting principles;
(x) all costs incurred in acquiring, installing,
maintaining, revising, repairing and replacing
energy conservation equipment and systems and life
safety systems for the Building and for effecting
any improvements to the Building made to comply
with air pollution or environmental control
standards;
(xi) heating, ventilating and air conditioning costs of
the Building;
(xii) subject to the provisions of Article VII hereof,
the cost of water, fuel, power, telephone and other
utilities used or consumed in or with respect to
the Building;
(xiii) reserves established by the Landlord for capital
expenditures based on $.20 per square foot, per
annum, of the Rentable Area of the Building;
(xiv) subject to the provisions of Article V hereof, the
Business Taxes of the Landlord and Taxes, and all
costs incurred by the Landlord in contesting or
appealing such taxes or related assessments
(including, without limitation, legal, appraisal
and other professional fees and administration and
overhead costs) on all or any part of the Building;
(xv) in the event that the Landlord has not contracted
for the management services of a Person for the
operation, supervision, management and
administration of the Building, an administration
fee of fifteen per cent (15%) of such total annual
costs set out in Section 6.02(b)(i) to Section
6.02(b)(xiv) inclusive (or such greater amount as
shall be standard from time to time in the property
management industry, as determined by the Landlord,
acting reasonably);
(xvi) in the event that the Landlord has hired the
services of a Manager or any Person for the
operation, supervision, management and
administration of the Building, all amounts which
the Landlord must pay to such Manager or any Person
in connection therewith, including without
limitation, management fees and disbursements
incurred by such Manager or any Person in carrying
out its obligations to the Landlord.
From the total of the above costs set out in Section 6.02(b)(i) to
Section 6.02(b)(xvi) inclusive, there shall be deducted net
proceeds received by the Landlord from insurance policies taken out
by the Landlord to the extent that such proceeds relate to the
costs and expenses incurred in the maintenance and operation of the
Common Facilities. Provided that in computing such costs and
expenses described in Section 6.02(a) and (b), if the Landlord from
time to time determines that the use of any water, fuel, power,
telephone or other utilities used or consumed in or with respect to
the Premises, or in the event that any service to or in respect of
the Premises is disproportionate to the use of other tenants or
occupants in the Building, the Landlord may adjust the Tenant's
share of the cost thereof from a date reasonably determined by the
Landlord to take into account such disproportionate use.
Section 6.03 - Payment of Tenant's Share
(a) Subject to the provisions of Articles V and VII hereof,
the amounts payable by the Tenant pursuant to Articles V, VI and
VII hereof may be estimated by the Landlord for such period as the
Landlord determines from time to time, and the Tenant agrees to
pay to the Landlord the Tenant's Proportionate Share, or other
share thereof determined by the Landlord as provided for herein, as
the case may be, as so estimated, of such amounts in monthly
instalments in advance during such period as Additional Rent on the
same dates as payments of the Minimum Rent. Notwithstanding the
foregoing, as soon as bills for all or any portion of the said
amounts so estimated are received, the Landlord may ▇▇▇▇ the Tenant
for the Tenant's Proportionate Share thereof or other share thereof
determined by the Landlord as provided for herein, as the case may
be, and the Tenant shall pay the Landlord such amounts so billed
(less all amounts previously paid by the Tenant on the basis of the
Landlord's estimate as aforesaid) as Additional Rent on demand.
Provided that in the event that the Landlord does not provide a new
estimate, notwithstanding that the period for which such previous
estimate has been given to the Tenant has expired, the Tenant shall
continue to pay its Proportionate Share, or other share thereof
determined by the Landlord as provided for herein, as the case may
be, based on the most recent estimate provided by the Landlord,
until such time as a new estimate is rendered by the Landlord
therefor.
(b) Within a reasonable period of time after the end of the
period for which such estimated payments have been made, the
Landlord shall deliver to the Tenant a statement issued by the
Landlord, which statement will set forth the amounts and costs
referred to in Articles V, VI and VII together with a statement of
the Tenant's Proportionate Share thereof, or other share thereof
determined by the Landlord as provided for herein, as the case may
be. In either case, if necessary, an adjustment shall be made
between the parties in the following manner. If the Tenant has
paid in excess of the amounts due, the excess shall be credited by
the Landlord against Rent, then or in the future owing by the
Tenant under this Lease. If the amount the Tenant has paid is less
than the amounts due, the Tenant agrees to pay such additional
amounts due with the next monthly payment of Minimum Rent. If any
Rental Year during the Term is greater or less than any such period
determined by the Landlord as aforesaid, the Tenant's Proportionate
Share or other share thereof determined by the Landlord as provided
for herein, as the case may be, shall be subject to a per diem, pro
rata adjustment. Failure of the Landlord to provide any statement
under this Section 6.03 shall not prejudice the Landlord's right to
provide such statement thereafter or with respect to any other
period. The providing of any such statement shall also not affect
the Landlord's right to subsequently provide an amended or
corrected statement. The Tenant shall have the right at it's sole
expense to inspect those records of the Landlord maintained by the
Landlord at its principal place of business as may be necessary to
verify the Landlord's calculation of Additional Rent payable by the
Tenant; such right of inspection to be exercised within thirty (30)
days of the Tenant's receipt of the Landlord's statement indicated
above.
Section 6.04 - Landlord's Services
(1) The Landlord covenants with the Tenant as follows:
(a) To provide climate control to the Premises during Normal
Business Hours to maintain a temperature adequate for
occupancy, except during the making of repairs,
alterations or improvements. The Tenant acknowledges
that the Landlord has installed in the Building a system
for the purpose of climate control, which system is
designed to heat and cool during normal occupancy of the
Premises as general offices on an open floor basis and
based on the window shading being fully closed in those
offices having exterior windows exposed to the sun,
without having regard to the Tenant's specific use
thereof or the installation of any heat generating
equipment in the Premises by the Tenant or by anyone on
behalf of the Tenant. The Tenant further acknowledges
that the climate control system may require balancing and
adjustment during the first year after installation to
achieve a level of efficient operation. Any use of the
Premises not in accordance with the design standards or
any arrangement of partitioning which interferes with the
normal operation of such system may require changes or
alterations in the system or duct through which the same
operates. Any changes or alterations so occasioned, if
such changes can be accommodated by the Landlord's
equipment, shall be made by the Tenant at its cost and
expense but only with the written consent of the Landlord
first had and obtained, and in accordance with drawings
and specifications and by a contractor first approved in
writing by the Landlord. If installations of partitions,
equipment or fixtures by the Tenant necessitates the
rebalancing of the portion of the climate control
equipment installed in the Premises, the same will be
performed by the Landlord at the Tenant's expense payable
by the Tenant upon demand as Additional Rent.
(b) Subject to the supervision of the Landlord, to furnish,
during Normal Business Hours, and during such extended
hours as the Landlord may determine, for use by the
Tenant and its employees and invitees in common with
other persons entitled thereto, passenger elevator
service to the Premises, and to furnish upon written
request for the use of the Tenant in common with others
entitled thereto at reasonable intervals and at such
hours as the Landlord may select, freight elevator
service to the Premises for the carriage of furniture,
equipment, deliveries and supplies.
(c) To provide for the use of the Tenant and its employees
and invitees in common with others entitled thereto,
washrooms on each floor of the Building upon which any
part of the Premises is located.
(d) To provide janitor and cleaning services when reasonably
necessary from time to time to the Premises and to the
Building to be rendered substantially in accordance with
the standards of a similar modern office building.
(e) To furnish appropriate facilities for bringing telephone
services to a point in the Premises, to provide to a
point or points in the Premises hot and cold water for
use in the washrooms (if any) in the Premises and to
provide washrooms with hot and cold water available for
the Tenant's use in common with others entitled thereto
when washrooms are not located within the Premises.
(2) The Landlord shall have no liability or responsibility
for failure to supply any of the foregoing services or facilities
when prevented from doing so due to repairs, alterations or
improvements, or by labour disruptions or strikes or causes beyond
the reasonable control of the Landlord.
Section 6.05 - Building Identification
Deleted.
ARTICLE VII Utilities and Heating, Ventilating and Air Conditioning
Section 7.01 - Charges for Utilities
(a) The Tenant shall be solely responsible for and shall
promptly pay to the Landlord, or as it otherwise directs, in the
manner hereinafter provided as a charge with respect to the
Premises (the "Charge") the aggregate, without duplication, of:
(i) the total cost of water, fuel, power, telephone and other
utilities (the "Utilities") used or consumed in or with
respect to the Premises at rates not in excess of public
utility rates for the same services if such utilities are
provided by public utilities; and
(ii) all costs reasonably incurred by the Landlord in
determining or allocating the Charge or determining the
Utilities including, without limitation, professional,
engineering and consulting fees and an administration fee
of fifteen per cent (15%) of the total cost hereinbefore
set out in this Section 7.01(a).
(b) The Landlord may determine in a reasonable and equitable
manner the Charge applicable to the Premises by allocating the
Utilities for the Building amongst the several components and areas
of the Building, including the Common Facilities, the Leasable
Premises, and other premises available for leasing which do not
constitute part of the Leasable Premises.
(c) Provided that notwithstanding the foregoing, the Landlord
at its option may include the cost of all Utilities for the
Building, including for Common Facilities, the Premises and all
Leasable Premises and other premises available for leasing which do
not constitute a part of the Leasable Premises which are not
separately metered in the costs and expenses referred to in Section
6.02(a) and subject to what is otherwise herein provided, the
Tenant shall pay its Proportionate Share thereof in the manner and
at the times as set forth in Section 6.03 hereof.
(d) The Tenant agrees as follows:
(i) If the Landlord elects, for the more efficient and
proper operation of the Building, or is required by
municipal by-law or the suppliers of the Utilities
to purchase the Utilities or any of them for the
Building, the Tenant shall purchase such Utilities
and pay for such Utilities as Additional Rent
forthwith on demand to the Landlord at rates not in
excess of the rates charged by such suppliers for
such Utilities, if applicable;
(ii) If requested by the Landlord, the Tenant shall
promptly install a separate check meter indicating
demand and consumption of Utilities in the Premises
at the Tenant's expense and in a location
designated by the Landlord;
(iii) If the Landlord elects, the Landlord shall be
entitled to install, at the Tenant's expense, a separate
check meter indicating demand and consumption of Utilities
in the Premises, in a location designated by the Landlord.
(e) If the suppliers of the Utilities require that the Tenant enter
into contracts or arrangements with such suppliers in connection with such
Utilities, the Tenant shall be responsible to enter into such contracts or
other arrangements and to pay whatever deposits or other amounts that are
payable under such contracts or other arrangements.
(f) In no event is the Landlord liable for, nor has the Landlord
any obligation with respect to, an interruption or cessation of, or a
failure in the supply of any such Utilities, services or systems in,
to or serving the Building or the Premises, whether or not supplied by
the Landlord or others, and whether the interruption or cessation is
caused by the Landlord's fault or not.
Section 7.02 - Lighting
The Landlord shall have the exclusive right to attend to
any replacement of electric light bulbs, tubes and ballasts in the
Premises throughout the Term. The Landlord may adopt a system of
relamping and reballasting periodically on a group basis in
accordance with good commercial practice. The Tenant shall pay to
the Landlord as Additional Rent on the first day of each and every
month during the Term a monthly charge per bulb, tube and ballast
on account of the cost of such replacement together with 15% of the
total cost thereof. If the cost of such replacement shall increase
or decrease during the Term, the Landlord shall adjust the
Additional Rent payable for such replacement hereunder on an
equitable basis and the Tenant agrees to pay such Additional Rent
as adjusted. The decision of the Landlord, acting reasonably, with
respect to any such adjustment, and Additional Rent based thereon
shall be final and binding on the parties hereto. If the Landlord
does not adopt a system of relamping and reballasting as aforesaid,
then replacement of electric light bulbs, tubes and ballasts in the
Premises shall be undertaken by the Landlord at such time as they
actually burn out and after notice from the Tenant that replacement
is required. In such event, the cost of such replacement and
installation shall be paid by the Tenant to the Landlord as
Additional Rent.
ARTICLE VIII Use of the Premises
Section 8.01 - Use of the Premises
The Tenant shall use the Premises solely for the purposes
of general offices and the Tenant will not use or permit, or suffer
the use of the Premises or any part thereof for any other business
or purpose.
Section 8.02 - Conduct of Business
The Tenant shall occupy the Premises from and after the
Commencement Date and thereafter throughout the Term shall conduct
continuously and actively the business set out in Section 8.01
hereof in the whole of the Premises. In the occupancy of the
Premises and the conduct of the Tenant's business pursuant to this
Lease, the Tenant shall:
(a) own, install in the Premises and keep in good order and
condition, free from liens or rights of third parties,
only fixtures and equipment of first class quality;
(b) abide by all Rules and Regulations and general policies
formulated by the Landlord from time to time relating to
the shipping and receiving of goods, merchandise,
materials and supplies;
(c) not commit or suffer or permit to be committed any waste
upon, or damage to, the Premises, or any nuisance or
other act or thing which in the Landlord's opinion
disturbs the quiet enjoyment of any other tenant or
occupant of premises in the Building; and not perform any
acts or carry on any practices which may damage the
Building or any part thereof;
(d) not do, nor suffer or permit to be done, any act in or
about the Building which, in the Landlord's opinion,
hinders or interrupts the flow of traffic to, in and from
the Building and not do, nor suffer or permit anything to
be done which, in the Landlord's opinion, in any way
obstructs the free movement of Persons doing business in
the Building;
(e) not solicit business, nor shall it suffer or permit its
employees or agents to solicit business in any part of
the Building other than the Premises, nor
display any merchandise elsewhere within the Building
outside of the Premises at any time without in each case
the prior written consent of the Landlord;
(f) not install or allow on the Premises any transmitting
device, nor erect any aerial on the roof of any building
forming part of the Building or on any exterior walls of
the Premises or in any of the Common Facilities;
(g) not use any travelling or flashing lights, or any signs,
television or other audio-visual or mechanical devices in
a manner so that they can be seen outside of the
Premises, and not use any loudspeakers, television,
phonographs, radio or other audio-visual or mechanical
devices in a manner so that they can be heard outside of
the Premises, without in each case the prior written
consent of the Landlord. If the Tenant uses any such
equipment without receiving the prior written consent of
the Landlord, the Landlord shall be entitled to remove
such equipment without notice at any time and such
removal shall be done and all damage as a result thereof
shall be made good, in each case, at the cost of the
Tenant, payable as Additional Rent forthwith on demand;
(h) not use, or permit to be used, any part of the Premises
for any activity or business which (in the reasonable
opinion of the Landlord) is dangerous, noxious or
offensive, or which might result in any increase of
insurance, premiums or cancellation of any insurance
maintained by the Landlord in respect of the Building;
(i) (i) cooperate with the Landlord in the conservation of
all forms of energy in the Building, including, without
limitation, in the Premises; (ii) comply with all laws,
by-laws, regulations and orders relating to the
conservation of energy affecting the Building or any part
thereof; and, (iii) promptly comply, at the Tenant's
expense, with all reasonable requests and demands of the
Landlord made with a view to such energy conservation.
Any and all costs and expenses paid or incurred by the
Landlord in installing energy conservation equipment and
systems, so far as the same apply to or are reasonably
apportioned to the Building by the Landlord, shall be
included in Section 6.02(b)(x). The Landlord shall not
be liable or responsible to the Tenant in any way for any
Claims whether direct or consequential, paid, suffered or
incurred by the Tenant due to any reduction in the
services provided by the Landlord to the Tenant or to the
Building or any part thereof as a result of the
Landlord's compliance with such laws, by-laws,
regulations or orders; and
(j) not use or permit to be used, any part of the Premises
for the preparation, cooking or consumption of food or
hot beverages, except as specifically permitted by the
Landlord in writing, in its sole discretion, and shall
not permit or allow any odours, vapours, steam, water,
vibrations, noises or other undesirable effects to
emanate from the Premises or any equipment or
installation therein which, in the Landlord's opinion,
are objectionable or cause any interference with the
safety, comfort or convenience of the Building by the
Landlord or any occupants thereof or their customers or
invitees. If required by the Landlord, the Tenant shall
install, at its expense, an exhaust system to properly
ventilate any kitchen or other source of odours, vapours
or steam. If the Tenant is in default of any of the
foregoing, the Landlord shall have the right to verbally
inform the Tenant's manager in the Premises thereof,
whereupon the Tenant shall forthwith (i) take such steps
as are necessary to cure any such default, and, (ii)
cease selling the offending item or items, as the case
may be.
Any business, conduct or practice promulgated, carried on
or maintained by the Tenant, whether through advertising or selling
procedures or otherwise, which in the opinion of the Landlord,
acting reasonably, may harm or tend to harm the business or
reputation of the Landlord or reflect unfavourably on the Building,
the Landlord or other tenants in the Building, or which may tend to
confuse, mislead, deceive or be fraudulent to the public, shall be
immediately discontinued by the Tenant at the request of the
Landlord.
Section 8.03 - Observance of Law
The Tenant shall, at its sole cost and expense and
subject to Sections 10.01 and 10.02 hereof, promptly:
(a) observe and comply with all provisions of law including,
without limitation, all requirements of all governmental
authorities, including federal, provincial and municipal
legislative enactments, by-laws and fire and other
regulations now or hereafter in force which pertain to or
affect the Premises, the Tenant's use of the Premises or
the conduct of any business in the Premises, or the
making of any repairs, replacements, alterations,
additions, changes, substitutions or improvements of or
to the Premises; and
(b) carry out all modifications, alterations or changes of or
to the Premises and the Tenant's conduct of business in
or use of the Premises which are required by any such
authorities as are set out above.
ARTICLE IX Insurance and Indemnity
Section 9.01 - Tenant's Insurance
(a) The Tenant shall throughout the period that the Tenant is
given possession of the Premises and during the entire
Term, at its sole cost and expense, take out and keep in
full force and effect, the following insurance:
(i) all-risk insurance (including but not limited to
sprinkler leakage, flood, earthquake and collapse
coverage) in an amount equal to the full
replacement cost thereof upon property of every
description and kind owned by the Tenant or for
which the Tenant is liable, or installed by or on
behalf of the Tenant and which is located within
the Building including, without limitation,
Leasehold Improvements, tenant's fixtures, the
Tenant's stock-in-trade, furniture, equipment and
all other personal property provided that if there
is a dispute as to the amount which comprises full
replacement cost, the decision of the Landlord
shall be conclusive;
(ii) business interruption insurance in such amount as
will reimburse the Tenant for direct or indirect
loss of earnings attributable to all perils insured
against in subclause (i) and other perils commonly
insured against by prudent tenants or attributable
to prevention of access to the Premises or the
Building as a result of such perils;
(iii) comprehensive general liability insurance, including
property damage and bodily injury and personal
injury liability, tenant's legal liability,
contractual liability (including contractual
liability with respect to this Lease) and owners'
and contractors' protective insurance coverage with
respect to the Premises and the Tenant's use of the
Common Facilities, coverage to include the
activities and operations conducted by the Tenant
and any other person for whom the Tenant is in law
responsible. Such policies shall be written on a
comprehensive basis with inclusive limits of not
less than Two Million Dollars ($2,000,000) for
bodily injury to any one or more persons or
property damage, and such higher limits as the
Landlord, acting reasonably, requires from time to
time, and shall contain a severability of interests
clause and a cross-liability clause;
(iv) broad form comprehensive boiler and machinery
insurance on a blanket repair and replacement basis
with limits for each accident in an amount not less
than the full replacement cost of all Leasehold
Improvements and of all boilers, pressure vessels,
air-conditioning equipment and miscellaneous
electrical apparatus owned or operated by the
Tenant or by others (other than the Landlord) on
behalf of the Tenant in or serving the Premises;
(v) motor vehicle insurance having third party
liability limits not less than Two Million Dollars
($2,000,000) covering all vehicles owned or
operated by the Tenant which are at any time used
in connection with the Tenant's business at the
Premises or which are at any time brought upon the
Lands;
(vi) any other form of insurance which the Landlord,
acting reasonably, requires from time to time in
form, in amounts and for risks against which a
prudent tenant would insure.
(b) All policies shall:
(i) be taken out with insurers acceptable to the
Landlord;
(ii) be in a form satisfactory from time to time to the
Landlord which form may include a reasonable
deductible, the amount of which will be subject to
the Landlord's approval, which approval may not be
unreasonably withheld;
(iii)be non-contributing with and shall apply only as
primary and not as excess to any other insurance
available to the Landlord;
(iv) exclude the exercise of any claim of the insurer or
insurers, whether by subrogation or otherwise,
against the Landlord and against those for whom the
Landlord is in law responsible;
(v) contain an undertaking by the insurers to notify
the Landlord in writing not less than thirty (30)
days prior to any cancellation thereof; and
(vi) name the Landlord as an insured party.
(c) Certificates of insurance or if required by the Landlord
certified copies of each such insurance policy will be
delivered to the Landlord as soon as practicable after
the placing of the required insurance and in any event
within ten (10) days of the effective date of coverage.
Provided that no review or approval of any such insurance
certificate by the Landlord shall derogate From or
diminish the Landlord's rights or the Tenant's
obligations contained in this Article.
(d) If the Tenant fails to take out or keep in force any
insurance referred to in this Section, or should any such
insurance not be approved by the Landlord and should the
Tenant not commence diligently to rectify (and thereafter
proceed diligently to rectify) the situation within
twenty-four (24) hours after written notice by the
Landlord to the Tenant (stating, if the Landlord does not
approve of such insurance, the reasons therefor), the
Landlord has the right without assuming any obligation in
connection therewith to effect such insurance at the sole
cost of the Tenant and all outlays by the Landlord shall
be paid by the Tenant to the Landlord on demand as
Additional Rent without prejudice to any other rights and
remedies of the Landlord under this Lease.
(e) The Tenant agrees that in the event of damage or
destruction to the Leasehold Improvements in the Premises
covered by insurance pursuant to subclause (a)(i), the
Tenant shall use the proceeds of such insurance for the
purpose of repairing or restoring such Leasehold
Improvements. In the event of damage to or destruction
of the Building entitling the Landlord to terminate the
Lease pursuant to Section 11.01(b) or 11.02, then if the
Premises have also been damaged or destroyed and the
Lease is terminated, the Tenant shall forthwith pay to
the Landlord all of its insurance proceeds relating to
the Leasehold Improvements in the Premises and if the
Premises have not been damaged or destroyed, the Tenant
shall upon demand deliver to the Landlord in accordance
with the provisions of this Lease the Leasehold
Improvements and the Premises.
Section 9.02 - Increase in Insurance Premiums
The Tenant shall not keep, use, sell or offer to sell in
or upon the Premises any article which may be prohibited by any
fire insurance policy in force from time to time covering the
Premises, the Building or the Lands. If:
(a) the occupation of the Premises; (b) the conduct of business
in the Premises; or (c) any act or omission of the Tenant on the
Lands or any part thereof; causes or results in any increase in
premiums for the insurance carried from time to time by the Landlord
with respect to the Building or the Lands, the Tenant shall pay any
such increase in premiums as Additional Rent forthwith upon demand
by the Landlord. In determining whether increased premiums are
caused by or result from the use or occupancy of the Premises, a
schedule issued by the organization computing the insurance rate
on the Building or the Lands showing the various components of such
rate shall be conclusive evidence of the several items and charges
which make up such rate. The Tenant shall comply promptly with
all requirements of any insurer now or hereafter in effect pertaining
to or affecting the Premises, the Building or the Lands.
Section 9.03 - Cancellation of Insurance
If any insurance policy upon the Building or the Lands or
any part thereof shall be cancelled or shall be threatened by the
insurer to be cancelled or the coverage thereunder reduced in any
way by the insurer by reason of the use or occupation of the
Premises or any part thereof by the Tenant or by any assigns or
sub-tenant of the Tenant, or by anyone permitted by the Tenant to
be upon the Premises, the Tenant shall remedy the condition giving
rise to cancellation, threatened cancellation or reduction of
coverage within twenty-four (24) hours after Notice thereof by the
Landlord.
Section 9.04 - Loss or Damage
The Landlord shall not be liable for any death or injury
arising from or out of any occurrence in, upon, at or relating to
the Building or the Lands, or damage to property of the Tenant or
of others located on the Premises or elsewhere in the Building or
on the Lands, nor shall it be responsible for any loss of or damage
to any property of the Tenant or others from any cause whatsoever,
except for any such death, injury, loss or damage which results
from the negligence of the Landlord, its agents, servants or
employees or other persons for whom it may in law be responsible
provided that in no event shall the Landlord be responsible for any
loss, injury or damage contemplated by Section 9.07(b), or for any
indirect or consequential damages sustained by the Tenant or
others. Without limiting the generality of the foregoing, the
Landlord shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, dampness, falling plaster,
falling ceiling tile, falling ceiling fixtures or from steam, gas,
electricity, water, rain, flood, snow or leaks from any rentable
premises or from the pipes, sprinklers, appliances, plumbing works,
roof, windows or subsurface of any floor or ceiling of the Building
or from the street or any other place or by any other cause
whatsoever. The Landlord shall not be liable for any such damage
caused by other tenants or persons in the Building or on the Lands
or by occupants of adjacent property thereto, or the public, or
caused by construction or by any private, public or quasi-public
work. All property of the Tenant kept or stored on the Premises
shall be so 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.
Section 9.05 - Landlord's Insurance
The Landlord shall at all times throughout the Term
carry:
(a) insurance on the Building and any machinery, boilers and
equipment contained therein or servicing the Building and
owned by the Landlord and constituting Common Facilities
(specifically excluding any property with respect to
which the Tenant and other tenants are obliged to insure
pursuant to Section 9.01 or similar sections of their
respective leases) against damage by fire and extended
perils or all-risks coverage;
(b) public liability and property damage insurance with
respect to the Landlord's operations and interest in the
Lands and the Building;
(c) loss of rental income insurance, or loss of insurable
gross profits commonly insured against by prudent
landlords, including loss of all rentals receivable from
tenants in the Building in accordance with the provisions
of their leases, including basic and additional rentals;
and
(d) such other form or forms of insurance as the Landlord or
the Mortgagee reasonably considers advisable.
Such insurance shall be in such reasonable amounts and with such
reasonable deductibles as would be carried by a prudent owner of a
reasonably similar building, having regard to size, age, use and
location. Notwithstanding the Landlord's covenant contained in
this Section, and notwithstanding any contribution by the Tenant to
the cost of insurance premiums provided herein, the Tenant
acknowledges and agrees that no insurable interest is conferred
upon the Tenant under any policies of insurance carried by the
Landlord, and the Tenant has no right to receive any proceeds of
any such insurance policies carried by the Landlord.
Section 9.06 - Indemnification of Landlord
Except as provided in Section 9.07(a) but notwithstanding
any other provision of this Lease, the Tenant shall indemnify the
Landlord and save it harmless from and against any loss (including
loss of Minimum Rent and Additional Rent), claims, actions,
damages, liability and expenses in connection with loss of life,
personal injury, damage to property or any other loss or injury
whatsoever arising out of this Lease, or any occurrence in, upon or
at the Premises, or the occupancy or use by the Tenant of the
Premises or any part thereof, occasioned wholly or in part by any
act or omission of the Tenant or by anyone permitted to be on the
Premises by the Tenant. If the Landlord shall, without fault on
its part, be made a party of any litigation commenced by or against
the Tenant, then the Tenant shall protect, indemnify and hold the
Landlord harmless and shall pay all costs, expenses and reasonable
legal fees incurred or paid by the Landlord in connection with such
litigation. The Tenant shall also pay all costs, expenses and
legal fees that may be incurred or paid by the Landlord in
reasonably enforcing the terms, covenants and conditions in this
Lease unless a court of law having jurisdiction shall decide
otherwise.
Section 9.07 - Limitations of Liability
Notwithstanding anything else in this Lease:
(a) The Tenant shall not be liable to the Landlord in respect
of any loss, injury or damage insured by the Landlord
under Sections 9.05 (a) and (c) to the extent of any
recovery by the Landlord under such insurance; and
(b) The Landlord shall not be liable to the Tenant in respect
of any loss, injury or damage to property insured or
required to be insured by the Tenant under Sections
9.01(a)(i), (ii) and (iv).
ARTICLE X Maintenance, Repairs and Alterations
Section 10.01 - Maintenance and Repairs by Tenant
Subject to Section 10.03 and Article XI hereof, the
Tenant, shall, at all times during the Term, at its cost, keep and
maintain in good order, first-class condition and repair (which
shall include, without limitation, periodic painting and
decorating) as personally determined by the Landlord, and shall,
subject to Sections 10.02 and 10.03, make all needed repairs and
replacements with due diligence and dispatch to (i) the whole of
the Premises; (ii) all partitions, doors, and fixtures located in
or upon the Premises; and (iii) all equipment in, appurtenances of
and improvements to the Premises (including, without limitation,
electrical, lighting, wiring, plumbing fixtures and equipment and
the heating, ventilating and air-conditioning equipment within, or
installed by or on behalf of the Tenant within the Premises or the
Building, and all telephone outlets and conduits and special
mechanical and electrical equipment within or serving the
Premises).
Section 10.02 - Landlord's Approval of Tenant's Repairs
The Tenant shall not make any repairs, alterations,
replacement, decorations or improvements to any part of the
Premises without first obtaining the Landlord's written approval.
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 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. All such repairs, replacements, alterations,
decorations or improvements by the Tenant to the Premises approved
by the Landlord shall be performed: (i) at the sole cost of the
Tenant; (ii) by competent workmen, who are compatible with others
employed by the Landlord and its contractors; (iii) in a good and
workmanlike manner; (iv) in accordance with the drawings and
specifications approved by the Landlord; and (v) subject to the
reasonable regulations, controls and inspection of the Landlord.
The Tenant shall pay the fees of any architectural, engineering or
other consultant hired by the Landlord in connection with the
foregoing plus a sum equal to fifteen per cent (15%) of the total
cost thereof representing the Landlord's overhead. Any such
repair, replacement, alteration, decoration or improvement made by
the Tenant without the prior written consent of the Landlord or
which is not made in accordance with the drawings and
specifications approved by the Landlord shall, if requested by the
Landlord, be promptly removed by the Tenant at the Tenant's expense
and the Premises restored to their previous condition, failing
which the Landlord may, at its option, without notice to the Tenant
and without liability on the Landlord's part, remove same at the
Tenant's expense which shall be paid by the Tenant to the Landlord
together with fifteen (15%) percent of the cost thereof, as
Additional Rent forthwith on demand.
Notwithstanding anything contained in this Lease
including, without limitation, Section 10.01, if any maintenance,
repairs, alterations, decorations, additions or improvements to the
Premises or to any improvements installed by or on behalf of the
Tenant for the benefit of the Premises which are approved by the
Landlord (1) affect the structure of the Premises or any part of
the Building other than the Premises, or (2) are installed outside
of the Premises, or (3) are installed within the Premises but are
part of the Common Facilities, or affect any part of the Common
Facilities, such work shall, if required by the Landlord, be
performed only by the Landlord at the Tenant's sole cost and
expense. Upon completion thereof, the Tenant shall pay to the
Landlord, as Additional Rent upon demand, both the Landlord's costs
relating to any such repairs, alterations, decorations, additions
or improvements including the fees of any architectural,
engineering or other consultants plus a sum equal to fifteen
percent (15%) of the total cost thereof representing the Landlord's
overhead. No repairs, alterations, additions, decorations or
improvements to the Premises by or on behalf of the Tenant shall be
permitted which may weaken or endanger the structure or adversely
affect the condition or operation of the Premises or the Building
or diminish the value thereof, or restrict or reduce the Landlord's
coverage for zoning purposes. The Tenant agrees that it will at
the commencement of the Term and periodically throughout the Term,
including, without limitation, whenever any alterations are made to
the Premises, balance the air movement in the Premises at the
Tenant's expense and for this purpose use the air-balancer
designated by the Landlord.
Section 10.03 - Maintenance by Landlord
Subject to Article XI hereof, the Landlord shall, at all
times throughout the Term, maintain and repair, or cause to be
maintained and repaired, as would a prudent owner of a reasonably
similar building, the structure of the Building including, without
limitation, the foundations, exterior wall assemblies including
weather walls, subfloor, roof, bearing walls, and structural
columns and beams of the Building. The cost of such maintenance
and repairs (except for the cost of repairing and replacing any
inherent structural defects or weaknesses) shall be included in
Section 6.02(b)(viii) or shall be depreciated or amortized pursuant
to Section 6.02(b)(ix) hereof, unless the Landlord is required, due
to the business carried on by the Tenant, to perform such
maintenance or make such repairs by reason of the application of
laws or ordinances or the direction, rules or regulations of any
duly constituted regulatory body, or by reason of any act, omission
to act, neglect or default of the Tenant, or those for whom the
Tenant is in law responsible, in which event the Tenant shall be
liable and responsible for the total cost of any such maintenance
and repairs plus a sum equal to fifteen percent (15%) of the total
cost of such repairs representing the Landlord's overhead, which
shall immediately become due and payable to the Landlord as
Additional Rent upon demand. Notwithstanding the Landlord's
obligations contained in this Section 10.03, the Tenant shall be
liable and responsible for the cost of any maintenance and repairs
required to be made by the Landlord and which result from any of
the circumstances referred to in the immediately preceding sentence
plus a sum equal to fifteen per cent (15%) of the total cost of the
foregoing representing the Landlord's overhead.
If the Tenant refuses or neglects to carry out any
maintenance, repairs and replacements properly as required pursuant
to Section 10.01 hereof, and to the reasonable satisfaction of the
Landlord, the Landlord may, but shall not be obliged to, perform
such maintenance, repairs and replacements without being liable for
any loss or damage that may result to the Tenant's merchandise,
fixtures or other property or to the Tenant's business by reason
thereof, and upon completion thereof, the Tenant shall pay to the
Landlord the Landlord's costs relating to any such maintenance,
repairs and replacements plus a sum equal to fifteen percent (15%)
thereof representing the Landlord's overhead, as Additional Rent
upon demand.
If any elevator servicing the Building or any of the
boilers, engines, pipes, climate control equipment or other
apparatus or any of them used for the purpose of climate control or
operating any elevator, or if the water pipes, drainage pipes,
electrical, lighting or other equipment servicing the Building are
damaged or destroyed or get out of repair, the Landlord shall have
a reasonable time in which to make such repairs or replacements as
may be reasonably required for the resumption of services to the
Premises which the Landlord has by this Lease expressly agreed to
provide and the Tenant is not entitled to any compensation or
damages therefor, but if any such equipment, facilities or systems
servicing the Building or elevators become impaired, damaged or
destroyed in the circumstances referred to in Section 10.06, the
Tenant shall be responsible for the cost of repairing, restoring or
making good such damage in accordance with the provisions of
Section 10.06.
Section 10.04 - Repair on Notice
In addition to the obligations of the Tenant contained in
Section 11.01 hereof, the Tenant shall effect all work referred to
therein according to notice from the Landlord but failure to give
notice shall not relieve the Tenant from its obligations under
either Sections 10.01 or 11.01 hereof.
Section 10.05 - Surrender of the Premises
At the expiration or earlier termination of this Lease,
the Tenant shall at its expense (i) peaceably surrender and yield
up vacant possession of the Premises to the Landlord in a clean,
broom swept and tidy state, and in as good condition and repair as
the Tenant is required to maintain the Premises throughout the
Term, and (ii) surrender all keys for the Premises to the Landlord
at the place then fixed for the payment of Minimum Rent and shall
inform the Landlord of all combinations of locks, safes and vaults,
if any, in the Premises; (iii) remove all trade fixtures and such
alterations, decorations, additions, erections, fixtures,
improvements or appurtenances in, on, to, for or which service the
Premises as the Landlord shall at its option upon notice to the
Tenant require to be removed and the Tenant shall forthwith repair,
at its sole cost and expense, all damage to the Premises caused by
their installation or removal; and (iv) if the Tenant has filed or
registered against title of the Building lands or any part thereof,
a caveat, notice, caution or other document or instrument giving
notice of this Lease, it shall promptly cause the same to be
discharged. The Tenant's obligation to observe and perform the
provisions of this Section 10.05 shall survive the expiration or
earlier termination of this Lease.
Section 10.06 - Repair Where Tenant at Fault
Notwithstanding any other terms, covenants and conditions
contained in this Lease, if the Building or any part thereof
requires repair or becomes damaged or destroyed through the
negligence, carelessness or misuse of the Tenant or due to the
requirements of governmental authorities relating to the Tenant's
conduct of business or through the Tenant in any way damaging the
Building, the cost of the resulting repairs, replacements or
alterations plus a sum equal to fifteen percent (15%) of the cost
thereof representing the Landlord's overhead shall be paid by the
Tenant to the Landlord as Additional Rent forthwith upon
presentation of an account of such expenses incurred by the
Landlord.
Section 10.07 - Tenant Not to Overload Facilities
The Tenant shall not install any equipment which will
exceed or overload the capacity of any utility, electrical or
mechanical facilities in the Premises and the Tenant will not bring
into the Premises or install any utility, electrical or mechanical
facility or service which the Landlord does not approve. The
Tenant agrees that if any equipment installed by the Tenant
requires additional utility, electrical or mechanical facilities,
the Landlord may, in its sole discretion, if they are available,
elect to install them at the Tenant's expense plus a sum equal to
fifteen percent (15%) of such costs representing the Landlord's
overhead, payable by the Tenant to the Landlord as Additional Rent,
on demand, and in accordance with plans and specifications prepared
by the Tenant at the Tenant's expense to be approved in advance in
writing by the Landlord.
Section 10.08 - Tenant Not to Overload Floors
The Tenant shall not bring upon the Premises or any part
thereof, any machinery, equipment, article or thing that by reason
of its weight, size or use, might in the opinion of the Landlord
damage the Premises and shall not at any time overload the floors
of the Premises. If any damage is caused to the Premises by any
machinery, equipment, object or thing or by overloading, or by any
act, neglect, or misuse on the part of the Tenant, or any of its
servants, agents, or employees, or any Person having business with
the Tenant, the Tenant will forthwith repair such damage, or at the
option of the Landlord, pay the Landlord the cost of repairing such
damage plus a sum equal to fifteen percent (15%) of such costs
representing the Landlord's overhead, as Additional Rent upon
demand.
Section 10.09 - Removal and Restoration by Tenant
(a) All alterations, decorations, additions, erections,
fixtures, improvements and appurtenances made by the Tenant, or
made by the Landlord on the Tenant's behalf (other than the
Tenant's trade fixtures), in, on, to, for or which serve the
Premises, shall immediately become the property of the Landlord
upon affixation or installation, without compensation therefor to
the Tenant. Such alterations, decorations, additions, erections,
fixtures, improvements and appurtenances shall not be removed from
the Premises either during or at the expiration or earlier of this
Lease except that:
(i) The Tenant may during the Term in the usual or normal
course of its business and with the prior written consent
of the Landlord remove its trade fixtures, provided such
trade fixtures have become excess for the Tenant's
purposes or the Tenant is substituting new and similar
trade fixtures therefor, and provided that in each case
(1) the Tenant is not in default under this Lease; and
(2) such removal is done at the Tenant's sole cost and
expense; and
(ii) The Tenant shall, at the expiration or earlier
termination of this Lease, at its own cost, remove all
its trade fixtures and such alterations, decorations,
additions, erections, fixtures, improvements and
appurtenances in, on, to, for or which serve the Premises
as the Landlord at its option, upon notice to the Tenant
requires to be removed.
(b) If the Tenant does not remove its trade fixtures at the
expiration or earlier termination of the Term, the trade fixtures
shall, at the option of the Landlord, thereupon become the property
of the Landlord, without compensation therefor to the Tenant, and
may be removed from the Premises and sold or disposed of by the
Landlord in such manner as it deems advisable.
(c) The Tenant shall, in the case of every such installation
or removal either during or at the expiration of the Term, promptly
make good any damage caused to the Premises or the Building.
(d) For greater certainty, the Tenant's trade fixtures shall
not include (i) heating, ventilating and air-conditioning systems,
facilities and equipment in or serving the Premises; (ii) floor
covering affixed to the floor of the Premises; (iii) light fixtures
or window coverings; (iv) doors; (v) internal stairways, escalators
or elevators; and (vi) anything that would not normally be
considered a trade fixture; all of which are deemed to be leasehold
improvements.
Section 10.10 - Notice by Tenant
The Tenant shall, when it becomes aware of same, notify
the Landlord of any damage to, or deficiency or defect in any part
of the Building, including the Premises, any equipment or utility
systems, or any installations located therein, notwithstanding the
fact that the Landlord may have no obligations with respect to
same.
Section 10.11 - Liens
The Tenant shall at all times promptly pay all its
contractors, material men, suppliers and workmen and all charges
incurred by or on behalf of the Tenant for any work, materials or
services which may be done, supplied or performed at any time in
respect of the Premises and the Tenant shall do any and all things
necessary so as to ensure that no lien is registered against the
Building or any part thereof, against the Landlord's interest in
the Building, or against the Tenant's interest in the Premises, or
any fixtures, equipment or leasehold improvements therein, and if
any such lien is made, filed or registered, the Tenant shall
discharge it or cause it to be discharged forthwith at the Tenant's
expense.
If the Tenant fails to discharge or cause any such lien
to be discharged as aforesaid, then, in addition to any other right
or remedy of the Landlord, the Landlord may, but it shall not be
obligated to, discharge the same by paying the amount claimed to be
due into Court or directly to any such lien claimant and the amount
so paid by the Landlord and all costs and expenses including
without limitation solicitor's fees (on a solicitor and his client
basis) incurred as a result of the registration of the lien,
including the discharge of the lien, shall be immediately due and
payabel by the Tenant to the Landlord on demand as Additional Rent.
Section 10.12 - Signs and Advertising
Tenant shall not paint, affix, display or cause to be
painted, affixed or displayed, any sign, picture, advertisement,
notice, lettering or decoration of any kind anywhere outside the
Premises (whether on the outside or inside of the Building) or
within the Premises so as to be visible from the outside of the
Premises, without the prior written approval of the Landlord. The
Landlord will prescribe a uniform pattern of identification signs
for tenants to be placed on the outside of the doors leading into
the Premises. Any such sign shall remain the property of the
Tenant and shall be maintained at the Tenant's cost and expense.
At the expiration of the Term or earlier termination of the Lease,
the Tenant shall remove any such sign, picture, advertisement,
notice, lettering or decoration from the Premises at the Tenant's
expense and shall promptly repair all damage caused by any such
removal. The Tenant's obligation to observe and perform this
covenant shall survive the expiration of the Term or earlier
termination of the Lease.
Section 10.13 - Directory Board
The Tenant shall be entitled at its expense to have its
name shown upon the directory board of the Building and the
Landlord shall design the style of such identification and the
directory board shall be located in an area designated by the
Landlord in the main lobby of the Building.
ARTICLE XI Damage and Destruction and Expropriation
Section 11.01 - Destruction of the Premises
(a) If the Premises are at any time destroyed or damaged
(including, without limitation, smoke and water damage) as a result
of fire, the elements, accident or other casualty required to be
insured against by the Landlord pursuant to Section 9.05 hereof or
otherwise insured against by the Landlord and not caused by the
Tenant, and if as a result of such occurrence:
(i) the Premises are rendered untenantable only in part, this
Lease shall continue in full force and effect and the
Landlord shall, subject to Section 11.02 hereof, commence
diligently to reconstruct, rebuild or repair the Premises
to the extent only of the Landlord's Work and exclusive
of the Tenant's Work and only Minimum Rent (but not
Additional Rent) shall ▇▇▇▇▇ proportionately to the
portion of the Premises rendered untenantable from the
date of the destruction or damage and until the Premises
have been restored and rendered tenantable by the
Landlord to the extent of the Landlord's Work;
(ii) the Premises are rendered wholly untenantable, the
Landlord shall, subject to Section 11.02, hereof,
commence diligently to reconstruct, rebuild or repair the
Premises to the extent of the Landlord's Work and only
Minimum Rent (but not Additional Rent) shall ▇▇▇▇▇
entirely from the date of the destruction or damage and
until the Premises have been restored and rendered
tenantable in whole or in part by the Landlord to the
extent of the Landlord's Work;
(iii) the Premises are not rendered untenantable in whole or in
part, this Lease shall continue in full force and effect,
the Rent and other amounts payable by the Tenant shall
not terminate, be reduced or ▇▇▇▇▇ and the Landlord
shall, subject to Section 11.02 hereof, commence
diligently to reconstruct, rebuild or repair the Premises
to the extent of the Landlord's Work.
(b) Upon the Tenant being notified in writing by the Landlord
that the Landlord's Work has been completed to such an extent that
the Tenant's Work can be commenced, the Tenant shall forthwith
complete all the Tenant.s Work and all work required to fully
restore the Premises for business fully fixtured, stocked and
staffed (in any case, without the benefit of any capital allowance
inducement to lease, or other payments made at the time of or in
conjunction with, the original construction of the Premises by the
Landlord to the Tenant in connection with the Tenant's Work). The
Tenant shall diligently complete the Tenant's Work and, if the
Premises have been closed for business, reopen for business within
ninety-five (95) days after notice from the Landlord that the
Landlord's Work has been completed to such an extent that the
Tenant's Work can be commenced.
(c) Nothing in this Section 11.01 requires the Landlord to
(i) repair or replace any improvements, equipment, furniture,
chattels or trade fixtures in the Premises which do not belong to
the Landlord, or, (ii) repair, reconstruct or rebuild the Building
or any part thereof, or the Premises or any part thereof, using the
plans and specifications and working drawings used in the original
construction of the Building or any part thereof or in the Premises
or any part thereof, provided that such plans and specifications
and working drawings so used by the Landlord in repairing,
reconstructing or rebuilding call for a quality equal to or better
than that called for in the plans and specifications and working
drawings used in the original construction.
Section 11.02 - Destruction of the Building
(a) If thirty-five per cent (35%) or more of the Rentable
Area of the Building is at any time destroyed or damaged
(including, without limitation, smoke and water damage) as a result
of fire, the elements, accident or other casualty, whether or not
the Premises are affected by such occurrence, and if, in the
opinion of the Landlord, reasonably arrived at, the Rentable Area
of the Building so damaged or destroyed cannot be rebuilt or be
made fit for the purposes of the respective tenants of such space
within one hundred and eighty (180) days of the happening of the
damage and destruction, then and so often as any of such events
occur, the Landlord may, at its option, to be exercised by written
notice to the Tenant within forty-five (45) days following any such
occurrence, elect to terminate this Lease.
(b) In the event that as a result of any damage or
destruction to the Building or to the Premises or any part or parts
thereof, the Landlord, acting reasonably, is of the opinion that it
is not economically feasible to repair, reconstruct or rebuild the
Building and that it is advisable to demolish or substantially
renovate the Building, then the Landlord may, at its option, to be
exercised by written notice to the Tenant within forty-five (45)
days following any such occurrence, elect to terminate this Lease.
(c) In the case of such election being made by the Landlord
pursuant to either Sections 11.02 (a) or 11.02 (b) hereof, the Term
and the tenancy hereby created shall expire on the thirtieth (30th)
day after such notice is given, without indemnity or penalty
payable or any other recourse by one party to or against the other
and the Tenant shall, within such thirty (30) day period, vacate
the Premises and surrender them to the Landlord with the Landlord
having the right to re-enter and repossess the Premises discharged
of this Lease and to expel all Persons and remove all property
therefrom. All Rent shall be due and payable without reduction or
abatement subsequent to the destruction or damage and until the
date of termination, unless the Premises shall have been destroyed
or damaged as well, in which event Section 11.01 shall apply.
(d) If all or any part of the Building is at any time
destroyed or damaged as set out in Sections 11.02(a) and/or
11.02(b) hereof, and the Landlord does not elect to terminate this
Lease in accordance with the rights hereinbefore granted, the
Landlord shall, following such destruction or damage, commence
diligently to reconstruct, rebuild or repair, the Premises to the
extent that the Landlord is obligated to repair the Premises as set
forth in the provisions of Section 11.01 hereof, and if necessary,
that part of the Building immediately adjacent to the Premises, but
only to the extent of the Landlord's responsibilities pursuant to
the terms of the various leases for the premises in the Building
and exclusive of any tenant's responsibilities set out therein. If
the Landlord elects to repair, reconstruct or rebuild the Building
or any part thereof, the Landlord may use plans and specifications
and working drawings other than those used in the original
construction of the Building or any part thereof provided that such
plans and specifications and working drawings so used by the
Landlord call for a quality equal to or better than that called for
in the plans and specifications and working drawings used in the
original construction.
(e) Notwithstanding any of the provisions hereinbefore set
out in this Lease: (1) in the event of damage or destruction
occurring to the Building, the Premises, or any part or parts
thereof by reason of any cause in respect of which there are no
proceeds of insurance available to the Landlord or proceeds of
insurance are available but insufficient to pay the Landlord for
the costs of rebuilding or making fit the Building or the Premises
or effecting the Landlord's Work because any Mortgagee or other
Person entitled thereto will not consent to the payment to the
Landlord of the proceeds of any insurance policy for such purpose,
or, (2) if any such damage or destruction is caused by the Tenant,
the Landlord may terminate this Lease on thirty (30) days' written
notice to the Tenant and all Rent shall be adjusted as of, and the
Tenant shall vacate and surrender the Premises on, such termination
date.
Section 11.03 - Expropriation
Both the Landlord and the Tenant agree to cooperate with
each other in respect of any expropriation of all or any part of
the Premises or any other part of the Building, so that each may
receive the maximum award in the case of any expropriation to which
they are respectively entitled at law. If and to the extent that
any portion of the Building other than the Premises is
expropriated, then the full proceeds accruing therefrom or awarded
as a result thereof, shall belong solely to the Landlord and the
Tenant will abandon or assign to the Landlord any rights which the
Tenant may have or acquire by operation of law to such proceeds or
award and will promptly execute such documents as in the opinion of
the Landlord are or may be necessary to give effect to this
intention.
If at any time during the Term, (a) more than twenty per
cent (20%) of the Rentable Area of the Building, or, (b) more than
twenty per cent (20%) of the area of the Common Facilities
(excluding the area of the parking facilities), or, (c) more than
ten per cent (10%) of the area of those Common Facilities which are
exterior or adjacent to the buildings forming part of the Building,
is acquired or expropriated by any lawful expropriating authority,
or if reasonable access to the Building is materially and adversely
affected by any such acquisition or expropriation, then in any of
such events, at the option of the Landlord, this Lease shall cease
and terminate as of the date of the interest acquired or
expropriated vesting in such expropriating authority and the Tenant
shall have no claim against the Landlord for the value of any
unexpired Term or for damages or for any reason whatsoever. If the
Landlord does not so elect to cancel this Lease by notice as
aforesaid, this Lease shall continue in full force and effect
without any reduction or abatement of Rent, provided that if any
part of the Premises is expropriated and as a result thereof the
area of the Premises is physically reduced, then from and after the
date of such physical reduction, the Rentable Area of the Premises
shall be adjusted to take into account any such reduction in area,
and the Minimum Rent payable by the Tenant pursuant to Section 4.02
shall be adjusted on the basis of the rental rate set out therein.
Section 11.04 - Architect's Certificate
The certificate of the Architect shall bind the parties
as to (a) the percentage of the Rentable Area of the Building
damaged or destroyed; (b) whether or not the Premises are rendered
untenantable and the extent of such untenantability; (c) the date
upon which the Landlord's Work is completed or substantially
completed and the date when the Premises are rendered tenantable;
(d) the state of completion of any work of either the Landlord or
the Tenant under this Lease; (e) whether reasonable access to the
Building is materially and adversely affected by any such
acquisition or expropriation; and (f) the percentage of the
Rentable Area of the Building which is acquired or expropriated
pursuant to this Lease.
ARTICLE XII Assignment, Subletting and Change of Control
Section 12.01 - Consent Required
(a) In this Article "Transfer" means (i) an assignment, a
sublease, a mortgage, charge or debenture (floating or otherwise)
or other encumbrance of this Lease or the Premises or any part of
them, (ii) a parting with or sharing of possession of all or part
of the Premises, and, (iii) a transfer or issue by sale,
assignment, bequest, inheritance, operation of law or other
disposition, or by subscription of all or part of the corporate
shares of the Tenant which results in a change in the effective
voting control of the Tenant. "Transferor" means the Person or
Persons who is or will be making a Transfer and "Transferee" means
the Person or Persons to whom a Transfer is or is to be made (it
being understood that for a Transfer described in Section
12.01(a)(iii) above the Transferor is the Person that has effective
voting control before the Transfer and the Transferee is the Person
that has effective voting control after the Transfer).
(b) The Tenant will not affect or permit a Transfer without
in each instance obtaining the prior written consent of the
Landlord, which consent will not be unreasonably withheld, except
that despite any provisions of this Lease or any statutory
provision to the contrary the Tenant hereby acknowledges that it
shall not be unreasonable for the Landlord to withhold its consent
to a Transfer if:
(i) the Tenant is then in default under any of the terms,
covenants and conditions herein on its part to be
observed and performed;
(ii) covenants, restrictions, or commitments given by the
Landlord to other tenants in the Building or to
Mortgagees or other parties regardless of when given,
prevent or inhibit the Landlord from giving its consent
to the Transfer or any Mortgagee does not consent
thereto;
(iii) the Transfer is a mortgage, charge, debenture (floating
or otherwise) of, or in respect of, this Lease or the
Premises or any part of them; and/or
(iv) the Landlord does not receive sufficient information,
material, books or records from the Tenant or the
Transferee to enable the Landlord, in the Landlord's
opinion, acting reasonably, to make a determination as to
whether or not it should give its consent.
(c) Section 12.01(b) does not apply to a Transfer described
in Section 12.01(a)(iii) which occurs when the Tenant is a
corporation whose shares are traded and listed on a stock exchange
in Canada or the United States.
(d) The Landlord shall have the right, upon notice to the
Tenant, if the Tenant requests its consent to a Transfer of the
whole of the Premises or this Lease, to terminate this Lease, or if
the request is to Transfer a part of the Premises only, to
terminate this Lease with respect to such part only, in each case
as of the termination date specified in such notice. In such event
the Tenant shall surrender the whole or part, as the case may be,
of the Premises in accordance with such notice and Rent and
Additional Rent shall be apportioned and paid to the date of
surrender and, if part only is surrendered, Rent and Additional
Rent shall thereafter ▇▇▇▇▇ proportionally. If the Landlord shall
not exercise the foregoing right of termination, then the
Landlord's consent to the Tenant's request for consent to the
Transfer shall be governed by Sections 12.01(b) and 12.02.
Section 12.02 - Conditions of Consent
The following terms and conditions apply in respect of
any Transfer (but this shall not imply consent by the Landlord to
any Transfer without the Tenant first complying with the provisions
of Section 12.01(b) hereof);
(a) the consent by the Landlord to any Transfer and the
deemed consent pursuant to Section 12.01(c) and/or (d)
hereof is not a waiver of the requirement for consent to
any subsequent Transfer;
(b) no acceptance by the Landlord of Rent or other payments
by a Transferee is, (i) a waiver of the requirement for
the Landlord to consent to the Transfer, (ii) the
acceptance of the Transferee as the Tenant, (subject
however to the provisions of Section 12.01(c) hereof),
or, (iii) a release of the Tenant from its obligations
under this Lease;
(c) the Landlord may apply amounts collected from the
Transferee to any unpaid Rent;
(d) the Transferor, unless the Transferee is a sub-tenant of
the Tenant, will retain no rights under this Lease in
respect of obligations to be performed by the Landlord or
in respect of the use or occupation of the Premises after
the Transfer and will execute an Indemnity Agreement on
the Landlord's standard form in respect of obligations to
be performed after the Transfer by the Transferee;
(e) the Transferor will cause the Transferee to promptly
execute an agreement (prepared by the Landlord at the
Tenant's expense) directly with the Landlord, (i)
agreeing to be bound by all of the terms of this Lease
(including, without limitation, the provisions of Section
8.01 relating to the use of the Premises) as if the
Transferee had originally executed this Lease as the
Tenant, and, (ii) amending the Lease to incorporate any
conditions imposed by the Landlord in its consent or
required by this Section 12.02; but the Transferor will
not be released from its obligations under this Lease and
shall be (and shall cause any Indemnitor to be) a party
to such agreement, and the liability of the Transferor
and Transferee shall be joint and several;
(f) if as a result of any such Transfer, the Tenant is
entitled, directly or indirectly, to receive in respect
of any such Transfer, a bonus or premium payable for any
such Transfer which relates to the Tenant's interest in
the Lease or to the Premises (excluding any consideration
for the Tenant's trade fixtures) or a Rent (whether
Minimum Rent or Additional Rent) greater than that
required to be paid to the Landlord pursuant to the
provisions of this Lease, the Tenant shall pay to the
Landlord, as Additional Rent the entire amount of any
such bonus, premium or increased Rent, as aforesaid,
forthwith upon receipt thereof by the Tenant from any
such Transferee from time to time. In this respect, the
Tenant shall make available to the Landlord upon request
any and all books and records of the Tenant so as to
enable the Landlord to verify the receipt of the amount
thereof, of any bonus, premium or greater Rent, as
aforesaid, which the Tenant has received from any such
Transferee from time to time, as aforesaid;
(g) any documents relating to a Transfer or relating to the
Landlord's consent will be prepared by the Landlord or
its solicitors and all of the legal costs of the Landlord
with respect thereto together with a reasonable
administration charge for the Landlord shall be paid by
the Tenant to the Landlord on demand, as Additional Rent;
(h) notwithstanding the effective date of any permitted
Transfer as between the Tenant and any Transferee, all
Rent for the month in which such effective date occurs
shall be paid in advance by the Tenant so that the
Landlord will not be required to accept partial payments
of Rent for such month from either the Tenant or any
Transferee; and
(i) in no event shall any Transfer to which the Landlord may
have consented release or relieve the Tenant from its
obligations fully to perform all the terms, covenants and
conditions of this Lease on its part to be performed and
in any event the Tenant shall be liable for the
Landlord's reasonable costs incurred in connection with
the Tenant's request for consent.
Section 12.03 - No Advertising of Premises
The Tenant shall not advertise the whole or any part of
the Premises or this Lease for the purpose of a Transfer and shall
not print, publish, post, display or broadcast any notice or
advertisement to that effect and shall not permit any broker or
other Person to do any of the foregoing, unless the complete text
and format of any such notice, advertisement or offer is first
approved in writing by the Landlord. Without in any way
restricting or limiting the Landlord's right to refuse any text or
format on other grounds, any text or format proposed by the Tenant
shall not contain any reference to the rental rate of the Premises.
Section 12.04 - Assignment by the Landlord
In the event of the sale, lease or disposition by the
Landlord of the Building or any part thereof, or the assignment by
the Landlord of this Lease or any interest of the Landlord
hereunder other than by way of security, the Landlord shall,
thereupon and without further agreement, be freed and relieved of
all liability with respect to such covenants and obligations.
Provided that any funds in the hands of the Landlord at the time of
such sale, lease, disposition or assignment shall be turned over to
the Person in respect of which the Landlord is entering into the
sale, lease, disposition or assignment.
ARTICLE XIII Access and Alterations
Section 13.01 - Right of Entry
(a) The Landlord and its agents have the right to enter the
Premises at all reasonable times to examine the same and to make
such repairs, alterations, changes, adjustments, improvements or
additions to the Premises or the Building or any part thereof or
any adjacent property as the Landlord considers necessary or
desirable without this constituting a re-entry or a breach of any
covenant for quiet enjoyment contained in this Lease or implied by
law. The Rent required to be paid pursuant to this Lease shall not
▇▇▇▇▇ or be reduced while any such repairs, alterations, changes,
adjustments, improvements or additions are being made due to loss
or interruption of business of the Tenant, inconvenience or
otherwise, and the Landlord shall not be liable to the Tenant for
any injury or death caused to any Person or for any loss or damage
to the property of the Tenant or of others located on the Premises
as a result of such entry.
(b) The Landlord and its agents have the right to enter the
Premises at all reasonable times to show them to prospective
purchasers, lessees, insurers or mortgagees and during the twelve
(12) months prior to the expiration of the Term, the Landlord may
place upon the Premises the usual "For Rent" or "For Sale" notices
which the Tenant shall permit to remain thereon without molestation
or complaint.
(c) If the Tenant is not personally present to open and
permit an entry into the Premises at any time when for any reason
an entry therein is necessary or permissible, the Landlord or its
agents may forcibly enter the same without rendering the Landlord
or such agents liable therefor, and without in any manner affecting
the obligations and covenants of this Lease. The Tenant agrees
that no entry into the Premises or anything done in, to or for the
Premises by the Landlord pursuant to a right granted by this Lease
shall constitute a breach of any covenant for quiet enjoyment, or
(except where expressed by the Landlord in writing) shall
constitute a re-entry or forfeiture, or an actual or constructive
eviction and the Landlord shall not be liable to the Tenant for any
injury or death to any person or for any loss or damage to any
property of the Tenant or of others as a result of any such entry
or thing.
Section 13.02 - Security
The Tenant shall be issued security system access cards
to permit access to the Building at times other than Normal
Business Hours, at a ratio of one card for every 600 square feet of
Usable Floor Area of the Premises. Additional cards, if supplied,
and replacement cards will be provided upon payment to the Landlord
of its standard charge as determined by the Landlord from time to
time.
ARTICLE XIV Status Statement, Attornment and Subordination
Section 14.01 - Status Statement
Within ten (10) days after written request therefor by
the Landlord, or if upon any sale, assignment, lease or mortgage of
the Premises or the land thereunder or the Building by the
Landlord, a status statement is required from the Tenant, the
Tenant shall deliver, in a form supplied by the Landlord, a status
statement or a certificate to any proposed mortgagee or purchaser,
or to the Landlord, stating (if such is the case):
(a) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this
Lease is in full force and effect as modified and
identifying the modification agreements) or if this Lease
is not in full force and effect, the certificate shall so
state;
(b) the Commencement Date;
(c) the date to which Rent has been paid under this Lease;
(d) whether or not there is any existing default by the
Tenant in the payment of any Rent or other sum of money
under this Lease, and whether or not there is any other
existing or alleged default by either party under this
Lease with respect to which a notice of default has been
served and if there is any such default, specifying the
nature and extent thereof;
(e) whether there are any set-offs, defences or counter
claims against enforcement or the obligations to be
performed by the Tenant under this Lease; and
(f) with reasonable particularity, details respecting the
Tenant's and any Indemnitor's financial standing and
corporate organization;
or as otherwise required by the form supplied or directed to be
used by the Landlord.
Section 14.02 - Subordination and Attornment
(a) This Lease and all of the rights of the Tenant hereunder
are, and shall at all times be, subject and subordinate to any and
all mortgages, trust deeds and the charge or lien resulting from,
or any instruments of, any financing, refinancing or collateral
financing and any renewals or extensions thereof from time to time
in existence against the Building or any part thereof. Upon
request, the Tenant shall subordinate this Lease and all of its
rights hereunder in such form as the Landlord requires to any and
all mortgages, trust deeds or the charge or lien resulting from,
any instrument of, any financing, refinancing or collateral
financing and to all advances made or hereafter to be made upon the
security thereof.
(b) The Tenant shall, if possession is taken under, or any
proceedings are brought for the foreclosure of, or in the event of
the exercise of the power of sale under any mortgage, charge, lease
or sale and leaseback transaction, deed of trust, or the lien
resulting from any other method of financing, refinancing or
collateral financing made by the Landlord or otherwise in existence
against the Building, or any part thereof, attorn to the Mortgagee,
chargee, lessee, trustee, other encumbrancer or the purchaser upon
any such foreclosure or sale and recognize such Mortgagee, chargee,
lessee, trustee, other encumbrancer or the purchaser as the
Landlord under this Lease.
(c) The obligation of the Tenant to subordinate this Lease
and to attorn to the Mortgagee as provided for in Section 14.02(a)
and (b) is conditional upon the Mortgagee providing a written
acknowledgement in favour of the Tenant, that so long as the Tenant
is not in default under the covenants, obligations and agreements
on the part of the Tenant herein to be performed, the Tenant may
continue in possession of the Premises, without disturbance by the
Mortgagee.
Section 14.03 - Execution of Documents
The Tenant shall, upon request of the Landlord or the
Mortgagee or any other Person having an interest in the Building,
or any part thereof, execute and deliver promptly such instruments,
acknowledgements, statements or certificates to carry out the
intent of Sections 14.01 and 14.02 or any other provision of this
Lease subject however to the provisions of Section 14.02(c) in the
case of any instruments of subordination or attornment required
under the provisions of Sections 14.01 and 14.02 hereof. If ten
(10) days after the date of a request by the Landlord to execute
any such instruments, statements, acknowledgements or certificates
the Tenant has not executed and delivered the same to the Landlord
or to whomsoever the Landlord directs, the Tenant hereby
irrevocably appoints the Landlord as the Tenant's attorney with
full power and authority to execute and deliver in the name of the
Tenant any such instruments, statements, acknowledgements or
certificates.
Section 14.04 - Financial Information
The Tenant shall, upon request, provide the Landlord with
such information as to the Tenant's or the Indemnitor's financial
standing and corporate organization as the Landlord or the
Mortgagee requires. Failure of the Tenant to comply with the
Landlord's request herein shall constitute a default under the
terms of this Lease and the Landlord shall be entitled to exercise
all of its rights and remedies provided for in this Lease.
ARTICLE XV Default and Landlord's Remedies
Section 15.01 - Right to Re-Enter
Notwithstanding anything contained in any present or
future laws to the contrary, if and whenever:
(a) the Tenant fails to pay any Rent or other sums due
hereunder on the day or dates appointed for the payment
thereof, (provided the Landlord first gives two (2) days'
written notice to the Tenant of any such failure); or
(b) the Tenant fails to observe or perform any other of the
terms, covenants or conditions of this Lease to be
observed or performed by the Tenant (other than the
terms, covenants or conditions set out below in
subparagraphs (c) to (l), inclusive, for which no notice
shall be required) provided the Landlord first gives the
Tenant ten (10) days, or such shorter period of time as
is otherwise provided herein, written notice of any such
failure to perform and the Tenant within such period of
ten (10) days fails to commence diligently and thereafter
to proceed diligently and continuously to cure any such
failure to perform; or
(c) the Tenant or any Indemnitor of this Lease or any Person
occupying the Premises or any part thereof or any
licensee, concessionaire or franchisee operating business
in the Premises becomes bankrupt or insolvent or takes
benefit of any act now or hereafter in force for bankrupt
or insolvent debtors or files any proposal or makes any
assignment for the benefit of creditors or any
arrangement or compromise; or
(d) a receiver of a receiver and manager is appointed for all
or a portion of the Tenant's property or any such
Indemnitor's, occupant's, licensee's, concessionaire's or
franchisee's property; or
(e) any steps are taken or any action or proceedings are
instituted by the Tenant or by any other party including,
without limitation, any court or governmental body of
competent jurisdiction for the dissolution, winding-up or
liquidation of the Tenant or its assets; or
(f) the Tenant makes or attempts to make a sale in bulk of
any of its assets, wherever situated (other than a bulk
sale made to a Transferee permitted under this Lease); or
(g) the Tenant sells or disposes of the goods, trade
fixtures, equipment or chattels of the Tenant or removes
or commences, attempts or threatens to remove them from
the Premises so that in the Landlord's opinion there
would not in the event of such sale, disposal or removal
be sufficient goods of the Tenant on the Premises subject
to distress to satisfy all Rent due or accruing hereunder
for a period of at least twelve (12) months; or
(h) the Tenant abandons or attempts to abandon the Premises
or any part thereof, or the Landlord has reasonable cause
to believe that the Tenant intends to abandon or attempt
to abandon the Premises or any part thereof; or
(i) the Premises or any part thereof become and remain vacant
or unoccupied for a period of five (5) consecutive days
or more without the prior written consent of the
Landlord, or are used by any Persons other than such as
are entitled to use them; or
(j) the Tenant effects or attempts to effect a Transfer that
is not permitted by this Lease; or
(k) this Lease or any of the Tenant's assets on the Premises
are taken under any writ of execution, chattel mortgage,
charge, debenture or other security instrument; or
(l) re-entry is permitted under any other terms of this
Lease,
then and in every such case the Landlord, in addition to any other
rights or remedies it has pursuant to this Lease or at law, has the
immediate right of re-entry upon the Premises and it may repossess
the Premises and enjoy them as of its former estate, and the Tenant
hereby consents that the Landlord may expel all Persons and remove
all property from the Premises and such property may be removed and
sold or disposed of by the Landlord by public auction or otherwise,
and either in bulk or by individual item, all as the Landlord in
its sole discretion may decide (and the Tenant acknowledges and
agrees that the proceeds of such sale or disposition shall be
applied by the Landlord in the same manner as set out in the second
sentence of Section 15.02 hereof, insofar as applicable) or may be
stored in a public warehouse or elsewhere at the cost and for the
account of the Tenant, all without service of notice or resort to
legal process and without the Landlord being considered guilty of
trespass or becoming liable for any loss or damage which may be
occasioned thereby or for any claim for damages. The Tenant hereby
irrevocably waives (i) the benefit of any present or future laws
which in any way may limit or diminish the Landlord's right to
terminate this Lease or re-enter into possession of the Premises in
pursuance of its rights or remedies as set forth in this Lease,
and, (ii) any and all rights of redemption granted by or under any
present or future laws in the event of the Tenant being evicted or
dispossessed for any cause, or in the event of the Landlord
obtaining possession of the Premises by reason of the violation by
the Tenant of any of the terms or conditions of this Lease or
otherwise.
Section 15.02 - Right to Relet
If the Landlord elects to re-enter the Premises as herein
provided, or if it takes possession pursuant to legal proceedings
or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time without
terminating this Lease, as agent for the Tenant or otherwise, make
such alterations and repairs as are necessary in order to relet the
Premises or any part thereof for such term or terms (which may be
for a term extending beyond the Term) and at such Rent and upon
such other terms, covenants and conditions as Landlord in its sole
discretion considers advisable. Upon each such reletting all Rent
received by the Landlord from such reletting shall be applied,
first to the payment of any indebtedness other than Rent due
hereunder from the Tenant to the Landlord; second, to the payment
of any costs and expenses of such reletting including brokerage
fees and solicitor's fees and of costs of such alterations and
repairs; third, to the payment of Rent due and unpaid hereunder;
and the residue, if any, shall be held by the Landlord and applied
in payment of future Rent as the same becomes due and payable
hereunder. If such Rent received from such reletting during any
month is less than that to be paid during that month by the Tenant
hereunder, the Tenant shall pay any such deficiency, which shall be
calculated and paid monthly in advance on or before the first day
of each and every month. No such re-entry or taking possession of
the Premises by the Landlord shall be construed as an election on
its part to terminate this Lease unless a written notice of such
intention is given to the Tenant. Notwithstanding any such
reletting without termination the Landlord may at any time
thereafter elect to terminate this Lease for such previous breach.
If the Landlord at any time terminates this Lease for any breach,
in addition to any other remedies it may have, it may recover from
the Tenant all damages it incurs by reason of such breach,
including, without limitation, the cost of recovering the Premises,
solicitor's fees (on a solicitor and his client basis) and
including the worth at the time of such termination of the excess,
if any, of the amount of Rent and charges equivalent to Rent
required to be paid pursuant to this Lease for the remainder of the
Term (which Term shall be deemed for the purposes of this Section
15.02 only to continue on until its expiration as set forth in
Section 3.03) over the then reasonable rental value of the Premises
for the remainder of the Term, all of which amounts shall be
immediately due and payable by the Tenant to the Landlord. In any
of the events referred to in Section 15.01 hereof, in addition to
any and all other rights, including the rights referred to in this
Section and in Section 15.01 hereof, the full amount of the current
month's instalment of Minimum Rent and Additional Rent including,
without limitation, the aggregate of the monthly contributions
towards Taxes, insurance premiums, the Tenant's Proportionate Share
of costs of maintaining and operating the Building as set out in
Section 6.02, and any other payments required to be made monthly
hereunder, together with the next three (3) months' instalments of
Minimum Rent and the aggregate of such payments for the next three
(3) months, all of which shall be deemed to be accruing due on a
day-to-day basis, shall immediately become due and payable as
accelerated Rent, and the Landlord may immediately distrain for the
same, together with any Rent arrears then unpaid.
Section 15.03 - Expenses
If legal action is brought for recovery of possession of
the Premises, for the recovery of Rent or any other amount due
under this Lease, or because of the breach of any other terms,
covenants or conditions herein contained on the part of the Tenant
to be kept or performed, and a breach is established, the Tenant
shall pay to the Landlord as Additional Rent, upon demand, all
costs and expenses incurred therefor, including, without
limitation, any professional, consultant and legal fees (on a
solicitor and his client basis), unless a Court shall otherwise
award.
Section 15.04 - Removal of Chattels
The Tenant agrees that all goods, chattels and fixtures
when moved into the Premises shall not, except in the normal course
of business, be removed from the Premises until all Rent due or to
become due during the Term, and all other amounts payable by the
Tenant, are fully paid. In case of removal by the Tenant of the
goods and chattels of the Tenant from the Premises, the Landlord
may follow same for thirty (30) days in the same manner as is
provided for in The Landlord and Tenant Act (Ontario) or any like
legislation in any other province in Canada.
Section 15.05 - Waiver of Exemption from Distress
The Tenant hereby waives and renounces the benefit of any
present or future laws purporting to limit or qualify the
Landlord's right to distrain.
Notwithstanding any term or condition of this Lease or
anything contained in any present or future laws, none of the goods
and chattels of the Tenant at any time during the continuance of
the Term shall be exempt from levy by distress for Rent or other
sums provided in this Lease to be paid by the Tenant as Rent in
arrears, and upon any claim being made by the Landlord, this
provision may be pleaded as an estoppel against the Tenant in any
action brought to test the rights to the levying upon any such
goods as are named as exempted in such legislation, the Tenant
hereby waiving all and every benefit that it could or might have
with regard thereto.
Section 15.06 - Landlord May Cure Tenant's Default or Perform
Tenant's Covenants
If the Tenant fails to pay, when due, any Rent or other
charge required to be paid pursuant to this Lease, the Landlord,
after giving five (5) days' notice in writing to the Tenant, may,
but shall not be obligated to, pay all or any part of the same. If
the Tenant is in default in the performance of any of its covenants
or obligations hereunder (other than the payment of Rent or other
charge required to be paid pursuant to this Lease) the Landlord may
from time to time after giving such notice as it considers
sufficient (or without notice in the case of an emergency) having
regard to the circumstances applicable, perform or cause to be
performed any of such covenants or obligations, or any part
thereof, and for such purpose may do such things as may be
required, including, without limitation, entering upon the Premises
and doing such things as may be required upon or in respect of the
Premises or any part thereof as the Landlord reasonably considers
requisite or necessary. All expenses incurred and expenditures
made pursuant to this Section 15.06 plus a sum equal to fifteen per
cent (15%) thereof representing the Landlord's overhead shall be
paid by the Tenant as Additional Rent forthwith upon demand. The
Landlord shall have no liability to the Tenant for any loss or
damages resulting from any such action or entry by the Landlord
upon the Premises.
Section 15.07 - Lien on Personal Property
As security for the due payment by the Tenant of the Rent
reserved hereunder whether now due, accruing due or to fall due at
any time during the Term, and the performance by the Tenant of all
covenants, agreements, provisoes and conditions of the Tenant to be
performed hereunder, the Tenant hereby grants to the Landlord a
first lien and charge on all of the personal property of the Tenant
on, in or about the Premises. Such lien and charge shall
constitute a security agreement within the meaning of the Personal
Property Security Act (Ontario) or any like legislation in any
other province in Canada and on default of the Tenant hereunder the
Landlord shall have, in addition to any other rights and remedies
it may be entitled to under this Lease or otherwise, all the rights
and remedies of a secured party under the Personal Property
Security Act. For greater clarity, the rights of the Landlord
hereunder shall be in addition to and not in substitution for any
other rights and remedies of the Landlord. The Tenant shall not
create or permit any lien, mortgage, charge, conditional sales
agreement or other encumbrance in respect of its leasehold
improvements, trade fixtures or other personal property on, in or
about the Premises without the prior written consent of the
Landlord, which may be arbitrarily withheld. Nothing contained
herein shall prevent the Tenant from disposing of its inventory in
the ordinary course of business and for the purpose of carrying on
same. The provision of this Section 15.07 shall survive the
expiration or earlier termination of this Lease.
Section 15.08 - Charges Collectible as Rent
If the Tenant is in default in the payment of any
amounts, monies or charges required to be paid by the Tenant
pursuant to this Lease, they shall, if not paid when due, or when
otherwise provided hereunder, be collectible as Rent in arrears
together with the next monthly instalment of Minimum Rent
thereafter falling due hereunder, but nothing herein contained is
deemed to suspend or delay the payment by the Tenant of any amount,
money or charge at the time same becomes due and payable hereunder,
or limit any other remedy of the Landlord. The Tenant agrees that
the Landlord may, at its option, apply or allocate any sums
received from or due to the Tenant against any amounts due and
payable hereunder in such manner as the Landlord sees fit.
Section 15.09 - Remedies Generally
Mention in this Lease of any particular remedy of the
Landlord in respect of the default by the Tenant does not preclude
the Landlord from any other remedy in respect thereof, whether
available at law or in equity or by statute or expressly provided
for in this Lease. No remedy shall be exclusive or dependent upon
any other remedy, but the Landlord may from time to time exercise
any one or more of such remedies independently or in combination,
such remedies being cumulative and not alternative. Whenever the
Tenant seeks a remedy in order to enforce the observance or
performance of one of the terms, covenants and conditions contained
in this Lease on the part of the Landlord to be observed or
performed, the Tenant's only remedy shall be for such damages as
the Tenant shall be able to prove in a court of competent
jurisdiction that it has suffered as a result of a breach (if
established) by the Landlord in the observance and performance of
any of the terms, covenants and conditions contained in this Lease
on the part of the Landlord to be observed or performed, except
that where this Lease provides that the Landlord's consent or
approval is not to be unreasonably withheld, the Tenant's sole
remedy if the Landlord unreasonably withholds consent or approval,
shall be an action for specific performance and the Landlord shall
not be liable for any damages.
ARTICLE XVI Miscellaneous
Section 16.01 - Rules and Regulations
The Rules and Regulations adopted and promulgated by the
Landlord from time to time are hereby made a part of this Lease as
if they were embodied herein. The Rules and Regulations existing
as at the Commencement Date are those set out in Schedule "D"
hereto. The Rules and Regulations may differentiate between
different types of businesses, but the Rules and Regulations will
be adopted and promulgated by the Landlord acting reasonably and in
such manner as would a prudent landlord of a reasonably similar
building. The Tenant's failure to keep and observe the Rules and
Regulations constitutes a default under this Lease in such manner
as if the same were contained herein as covenants. The Landlord
reserves the right from time to time to amend or supplement the
Rules and Regulations applicable to the Premises or the Building.
The Landlord is not responsible to the Tenant in the event of the
non-observance or violation of any of such Rules and Regulations or
of the terms, covenants or conditions of any other lease of
premises in the Building and is under no obligation to enforce any
such Rules and Regulations or terms, covenants or conditions.
Section 16.02 - Overholding - No Tacit Renewal
If the Tenant remains in possession of the Premises after
the end of the Term with the consent of the Landlord but without
having executed and delivered a new lease, there is no tacit or
implied renewal of this Lease and the Term hereby granted,
notwithstanding any statutory provisions or legal presumption to
the contrary, and the Tenant shall be deemed to be occupying the
Premises as a Tenant from month-to-month at a monthly Minimum Rent
payable in advance on the first day of each month equal to two
times the monthly amount of Minimum Rent payable during the last
month of the Term and otherwise, upon the same terms, covenants and
conditions as are set forth in this Lease (including the payment of
all Additional Rent), so far as these are applicable to a monthly
tenancy.
Section 16.03 - Successors
All rights and liabilities herein granted to or imposed
upon the respective parties hereto, extend to and bind the
respective successors and assigns of each party hereto constituting
the Landlord and the heirs, executors, administrators and permitted
successors and assigns of the Tenant, as the case may be. No
rights, however, shall enure to the benefit of any Transferee of
the Tenant unless the Transfer to such Transferee is permitted
under the terms of this Lease. If there is more than one Tenant,
they are all bound jointly and severally by the terms, covenants
and conditions herein.
Section 16.04 - Tenant Partnership
If at any time during the Term (i) there is more than one
Tenant or more than one Person constituting the Tenant hereunder
then they shall each be liable jointly and severally for all of the
Tenant's obligations hereunder and (ii) the Tenant is a
partnership, joint venture or co-tenancy (the "Tenant
Partnership"), each Person who is presently a member of the Tenant
Partnership, and each Person who becomes a member of any successor
Tenant Partnership hereafter, shall be and continue to be liable
jointly and severally for the full and complete performance of, and
shall be and continue to be subject to the terms, covenants and
conditions of this Lease, whether or not such Person ceases to be
a member of such Tenant Partnership or successor Tenant
Partnership.
Section 16.05 - Waiver
The waiver by the Landlord of any breach of any term,
covenant or conditions herein contained is not deemed to be a
waiver of such term, covenant or condition or of any subsequent
breach of the same or of any other term, covenant or condition
herein contained. The subsequent acceptance of Rent hereunder by
the Landlord is not deemed to be a waiver of any preceding breach
by the Tenant of any term, covenant or condition of this Lease,
regardless of the Landlord's knowledge of such preceding breach at
the time of acceptance of such Rent. No term, covenant or condition
of this Lease is deemed to have been waived by the Landlord unless
such waiver is in writing by the Landlord.
All Rent to be paid by the Tenant to the Landlord
hereunder shall be paid without any deduction, abatement, set-off
or compensation whatsoever (except for Minimum Rent to the extent
it may be abated pursuant to Section 11.01), and the Tenant hereby
waives the benefit of any statutory or other rights in respect of
abatement, set-off or compensation in its favour at the time hereof
or at any future time.
Section 16.06 - Accord and Satisfaction
No payment by the Tenant or receipt by the Landlord of a
lesser amount than the monthly payment of Minimum Rent herein
stipulated is deemed to be other than on account of the earliest
stipulated Minimum Rent, nor is any endorsement or statement on any
cheque or any letter accompanying any cheque or payment as Rent
deemed an acknowledgement of full payment or an accord and
satisfaction, and the Landlord may accept and cash such cheque or
payment without prejudice to the Landlord's right to recover the
balance of such Rent or pursue any other remedy provided in this
Lease.
No receipt of monies by the Landlord from the Tenant
after the termination of this Lease in any lawful manner shall
reinstate, continue or extend the Term, or affect any notice
previously given to the Tenant, or operate as a waiver of the right
of the Landlord to enforce the payment of Rent then due or
thereafter falling due, or operate as a waiver of the right of the
Landlord, to recover possession of the Premises by proper suit,
action, proceedings or other remedy; it being agreed that, after
the service of notice to terminate this Lease and the expiration of
the time therein specified, and after the commencement of any suit,
action, proceeding or other remedy, or after a final order or
judgment for possession of the Premises, the Landlord may demand,
receive and collect any monies due, or thereafter falling due
without in any manner affecting such notice, suit, action,
proceeding, order or judgment; and any and all such monies so
collected shall be deemed payments on account of the use and
occupation of the Premises or at the election of the Landlord on
account of the Tenant's liability hereunder.
Section 16.07 - Brokerage Commissions
Unless otherwise agreed by the Landlord in writing, any
brokerage commission with respect to this Lease transaction shall
be borne exclusively by the Tenant and the Tenant shall promptly
indemnify and hold the Landlord harmless from any and all claims
with respect thereto.
Section 16.08 - No Partnership or Agency
Nothing in this Lease shall create any relationship
between the parties to this Lease other than that of Landlord and
Tenant and it is acknowledged and agreed that the Landlord does not
in any way or for any purpose become a partner of the Tenant in the
conduct of its business, or otherwise, or a joint venturer or a
member of a joint enterprise with the Tenant, nor is the
relationship of principal and agent created.
Section 16.09 - Force Majeure
Notwithstanding anything to the contrary contained in
this Lease, if the Landlord is bona fide delayed or hindered in or
prevented from the performance of any term, covenant or act
required hereunder by reason of strikes; labour troubles; inability
to procure materials or services; power failure; restrictive
governmental laws or regulations; riots; insurrection; sabotage;
rebellion; war; act of God; or other reason whether of a like
nature or not which is not the fault of the party delayed in
performing work or doing acts required under the terms of the
Lease, (collectively referred to in this Lease as "Force Majeure")
then performance of such term, covenant or act is excused for the
period of the delay and the Landlord shall be entitled to perform
such term, covenant or act within the appropriate time period after
the expiration of the period of such delay.
Section 16.10 - Notices
Any notice, demand, request or other instrument which may
be or is required to be given under this Lease shall be delivered
in person or sent by registered mail postage prepaid and shall be
addressed (a) if to the Landlord c/o MD Realty Corporation, The
Credit Suisse Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: Regional Manager, with a copy to
such other Person or at such other address as the Landlord
designates by written notice, and (b) if to the Tenant, at the
Premises. Any such notice, demand, request or consent is
conclusively deemed to have been given or made on the day upon
which such notice, demand, request or consent is delivered, or, if
mailed, then seventy-two (72) hours following the date of mailing,
as the case may be, and the time period referred to in the notice
commences to run from the time of delivery or seventy-two (72)
hours following the date of mailing. Either party may at any time
give notice in writing to the other of any change of address of the
party giving such notice, and from and after the giving of such
notice, the address therein specified is deemed to be the address
of such party for the giving of notices hereunder. If the postal
service is interrupted or is substantially delayed, any notice,
demand, request or other instrument shall only be delivered in
person.
Section 16.11 - No Option
The submission of this Lease for examination does not
constitute a reservation of or option to lease for the Premises and
this Lease become effective as a Lease only upon execution and
delivery thereof by the Landlord and the Tenant.
Section 16.12 - Registration
The Tenant will not register or permit the registration
of this Lease or any assignment or sublease or other document
evidencing any interest of the Tenant in this Lease or the Premises
except that, at the Tenant's request, subject to the Tenant paying
the Landlord's costs and expenses, the Landlord will enter into a
short form of lease with the Tenant for registration purposes,
describing the parties, the Term, and the other minimum information
required under the applicable legislation but the short form of
lease must be in a form satisfactory to the Landlord, acting
reasonably. Upon the expiration or earlier termination of this
Lease, the Tenant shall, at its expense, forthwith remove and
discharge such short form of lease, if any, from the title of the
Building lands, and in the event of its failure to do so the
Landlord may on behalf of the Tenant and at the Tenant's expense,
as its attorney, proceed to remove and discharge such short form of
lease, and the Tenant hereby expressly appoints the Landlord its
lawful attorney in this regard.
Section 16.13 - Compliance with The Planning Act
It is an express condition of this Lease, that the
provisions of Section 49 of the Planning Act, Statutes of Ontario,
1983 c.l, as amended, be complied with if applicable in law. Until
any necessary consent to this Lease is obtained, notwithstanding
anything else contained herein, the Term (including any extensions
or renewals thereof) shall not extend for a period greater than
twenty-one (21) years less one (1) day from the Commencement Date.
The Tenant shall apply diligently to prosecute such application for
such consent forthwith upon the execution of this Lease by both the
Landlord and the Tenant, and the Tenant shall be responsible for
all costs, expenses, taxes and levies imposed, charged or levied as
a result of such application and in order to obtain such consent.
Notwithstanding the foregoing provisions of this Section 16.13, the
Landlord reserves the right at any time to apply for such consent
in lieu of the Tenant (at the Tenant's expense) and the Tenant's
application is hereby expressly made subject to any application
which the Landlord intends to make.
Section 16.14 - Metric Conversion
If measurements are expressed in metric measure in this
Lease, the following conversion factors apply: 1 metre = 3.2808
feet; 1 square metre = 10.7639 square feet; 1 foot = .3048 metres;
and 1 square foot = .0929 square metres.
Section 16.15 - Limited Recourse and Severability
If at any time during the Term, the Landlord is a
partnership, joint venture or co-tenancy, the Tenant shall look
solely to the assets of such partnership or joint venture or the
co-tenants' interest in the Building, whichever shall be the case,
for the collection or satisfaction of any money or judgment which
the Tenant may recover against the Landlord, and the Tenant shall
not look for the collection or satisfaction of any such money or
judgment to the personal assets of any person who shall at any time
be a partner, joint venturer of the co-tenant in or under such
partnership, joint venture or co-tenancy. The Tenant acknowledges
that University/Elm Holdings Inc. and 744151 Ontario Limited are
co-tenants and that the obligations of each of them under this
Lease are several and proportional to the interests of each of them
in the Building, and are not either joint or joint and several.
Section 16.16 - Quiet Enjoyment
If the Tenant pays the Rent and other sums herein
provided when due, and punctually observes and performs all of the
terms, covenants and conditions on the Tenant's part to be observed
and performed hereunder, the Tenant shall peaceably and quietly
hold and enjoy the Premises for the Term hereby demised without
hindrance or interruption by the Landlord or any other Person
lawfully claiming by, through or under the Landlord subject,
nevertheless, to the terms, covenants and conditions of this Lease.
Section 16.17 - Tenant's Covenant as to Hazardous Substances
Schedule "F" attached forms part of this Lease.
Section 16.18 - Execution of Lease By Landlord
The Tenant acknowledges that MD Realty Corporation has
executed this Lease as agent for and on behalf of, in the name of
and with the authority of the Landlord, and that the covenants and
agreements of the Landlord are obligations of the Landlord only and
are not obligations personal to or enforeceable against MD Realty
Corporation in its own right, save and except that MD Realty
Corporation covenants for itself that it is the duly authorized
agent of the Landlord with complete power to execute this Lease as
agent for and on behalf of, in the name of and with the authority
of the Landlord. The Tenant acknowledges that the obligations
arising under this Lease, or any other document entered into with
respect to this Lease, are not, and shall not be construed to be,
personally binding upon, nor shall resort be had to, nor recourse
or satisfaction sought from the private property of, any of the
trustees, unit holders, officers, employees or agents of MD Realty
Fund. The Tenant represents and warrants that neither the Tenant
nor any director or officer of the Tenant is in any way associated
or affiliated with the Canadian Medical Association, MD Management
Limited, MD Realty Fund, MD Realty Corporation or any of their
affiliates other than by direct membership as a physician in any
one or more of the Canadian Medical Association, its divisions and
affiliate societies
IN WITNESS WHEREOF, the Landlord and the Tenant have
executed this Lease.
SIGNED, SEALED AND DELIVERED )
in the presence of ) 674573 ONTARIO LIMITED
) by its authorized agent
) MD REALTY CORPORATION
)
) Per: c.s.
)
) Per: c.s.
)
)
)
) ACE HARDWARE CANADA LIMITED
)
) Per: c.s.
)
) Per: c.s.
SCHEDULE "A"
LEGAL DESCRIPTION OF LANDS
Part of ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ of York, designated as Parts 2 and 3 on Plan 65R-7173,
and
Parts of Lot 4 and 5, Concession 5, and Part of ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇-▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ of York, designated as Parts 2
and 3 on Plan 65R-12393.
SCHEDULE "B" - FLOOR PLAN
SCHEDULE "C"
LANDLORD'S WORK and TENANT'S WORK
OFFICE PREMISES
LANDLORD'S WORK
NONE. The Premises are taken on an as is basis.
TENANT'S WORK
The Tenant is taking the premises on an as is basis.
SCHEDULE "D"
RULES AND REGULATIONS
1. The Landlord shall permit the Tenant and the Tenant's
employees and all Persons lawfully requiring communication with
them to have the use, during Normal Business Hours in common with
others entitled thereto, of the main entrance and the stairways,
corridors, elevators or other mechanical means of access leading to
the Premises. At times other than during Normal Business Hours the
Tenant and the employees of the Tenant shall have access to the
Building and to the Premises only in accordance with the Rules and
Regulations and shall be required to satisfactorily identify
themselves and to register in any book which may at the Landlord's
option be kept by the Landlord for such purpose. If identification
is not satisfactory, the Landlord is entitled to prevent the Tenant
or the Tenant's employees or other Persons lawfully requiring
communication with the Tenant from having access to the Building.
In addition, the Landlord is not required to open the door to the
Premises for the purpose of permitting entry therein to any Person
not having a key to the Premises.
2. The Tenant shall permit window cleaners to clean the
windows of the Premises during Normal Business Hours.
3. The sidewalks, entrances, passages, escalators, elevators
and staircases shall not be obstructed or used by the Tenant, its
agents, servants, contractors, invitees or employees for any
purpose other than ingress to and egress from the Premises and the
Building. The Landlord reserves entire control of all parts of the
Building employed for the common benefit of the tenants and without
restricting the generality of the foregoing, the sidewalks,
entrances, corridors and passages not within the Premises,
washrooms, lavatories, air conditioning closets, fan rooms,
janitors' closets, electrical closets and other closets, stairs,
escalators, elevator shafts, flues, stacks, pipe shafts and ducts
and shall have the right to place such signs and appliances
therein, as it deems advisable, provided that ingress and egress
from the Premises is not unduly impaired thereby.
4. The Tenant, its agents, servants, contractors, invitees
or employees, shall not bring in or take out, position, construct,
install or move any safe, business machinery or other heavy
machinery or equipment or anything liable to injure or destroy any
part of the Building, including the Premises, without first
obtaining the consent in writing of the Landlord. In giving such
consent, the Landlord shall have the right in its sole discretion,
to prescribe the weight permitted and the position thereof, the use
and design of planks, skids or platforms, and to distribute the
weight thereof. All damage done to the Building, including the
Premises, by moving or using any such heavy equipment or other
office equipment or furniture shall be repaired at the expense of
the Tenant. The moving of all heavy equipment or other office
equipment or furniture shall occur only by prior arrangement with
the Landlord. Safes and other heavy office equipment and machinery
shall be moved through the halls and corridors only upon steel
bearing plates. No freight or bulky matter of any description will
be received into the Building, including the Premises, or carried
in the elevators except during hours approved by the Landlord.
5. The Tenant shall not place or cause to be placed any
additional locks upon any doors of the Premises without the
approval of the Landlord and subject to any conditions imposed by
the Landlord. Two keys shall be supplied to the Landlord for each
entrance door to the Premises and all locks shall be standard to
permit access to the Landlord's master key. If additional keys are
requested, they must be paid for by the Tenant. No one, other than
the Landlord's staff, will have keys to the outside entrance doors
of the Building.
6. The water closets and other water apparatus shall not be
used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, ashes or other
substances shall be thrown therein. Any damage resulting from
misuse shall be borne by the Tenant by whom or by whose agents,
servants or employees the same is caused. The Tenant shall not,
(1) let the water run unless it is in actual use, (2) deface or
▇▇▇▇ any part of the Building, including the Premises, (3) drive
nails, spikes, hooks or screws into the walls or woodwork of the
Building, including the Premises, or, (4) bore, drill or cut into
the walls or woodwork of the Building, including the Premises, in
any manner or for any reason.
7. No one shall use the Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or
articles other than those required for business purposes.
8. The Tenant shall not permit any cooking or any heating of
any foods or liquids in the Premises without the written consent of
the Landlord, but this shall not prevent the Tenant from having an
electric coffee maker or electric kettle on the Premises.
9. Canvassing, soliciting and peddling in or about the
Building are prohibited.
10. It shall be the duty of the Tenant to assist and
cooperate with the Landlord in preventing injury to the Premises.
11. No inflammable oils or other inflammable, dangerous or
explosive materials save those approved in writing by the
Landlord's insurers shall be kept or permitted to be kept in the
Premises.
12. No bicycles or other vehicles shall be brought within the
Building without the consent of the Landlord.
13. No animals or birds shall be brought into the Building
without the consent of the Landlord.
14. The Tenant shall not install or permit the installation
or use of any machine dispensing goods for sale in the premises or
the Building or permit the delivery of any food or beverage to the
Premises without the written approval of the Landlord or in
contravention of any Rules and Regulations fixed or to be fixed by
the Landlord. Only Persons authorized by the Landlord shall be
permitted to deliver or to use the stairs, elevators or escalators
in the Building for the purpose of delivering food or beverages to
the Premises.
15. If the Tenant desires telegraphic or telephonic
connections, the Landlord will direct the electricians as to where
and how the wires are to be introduced. No gas pipe or electric
wire will be permitted which has not been ordered or authorized by
the Landlord. No outside radio or television aerials shall be
allowed on any part of the Premises without authorization in
writing by the Landlord.
16. The Tenant shall not cover or obstruct any of the
skylights and windows that reflect or admit light into any part of
the Building except for the proper use of approved blinds and
drapes.
17. Any hand trucks, carryalls or similar appliances used in
the Building with the consent of the Landlord shall be equipped
with rubber tires, slide guards and such other safeguards as the
Landlord requires.
18. The Tenant shall not place or maintain any supplies,
merchandise or other articles in any vestibule or entry of the
Premises, on the footwalks adjacent thereto or elsewhere on the
exterior of the Premises or elsewhere in the Building.
19. The Tenant shall not do or permit anything to be done in
the Premises, or bring or keep anything therein which will in any
way increase the risk of fire or the rate of fire insurance on the
Building or on property kept therein, or obstruct or interfere with
the rights of other tenants or in any way injure or annoy them or
the Landlord, or violate or act at variance with the laws relating
to fires or with the regulations of the Fire Department, or with
any insurance upon the Building or any part thereof, or violate or
act in conflict with any of the rules and ordinances of the Board
of Health or with any statute or municipal by-law.
SCHEDULE "E"
SUPPLEMENTARY LEASE PROVISIONS
Section 4.02 - Minimum Rent
Years 1 - 4 annual minimum rent is REDACTED,
Dollars payable in equal consecutive monthly instalments of
REDACTED Dollars each in advance on the first day of each
calendar month of each Rental Year. The Minimum Rent is based
upon an annual rate of REDACTED per square foot of the
Rentable Area.
Years 5 - 7 annual minimumn (sic) rent is REDACTED Dollars
payable in equal consecutive monthly instalments of REDACTED
Dollars each in advance on the first day of each calendar month of
each Rental Year. The Minimum Rent is based upon an annual rate of
REDACTED per square foot of the Rentable Area.
Years 8 - 10 annual minimum rent is REDACTED Dollars
payable in equal consecutive monthly instalments of REDACTED Dollars
each in advance on the first day of each calendar month of each Rental
Year. The Minimum Rent is based upon an annual rate of REDACTED per
square foot of the Rentable Area.
SCHEDULE "F"
HAZARDOUS SUBSTANCES
Section 1 - Definitions
1. "Environmental Audit" means an inspection or inspections
of the Leased Premises or other affected locations at the Building
or the Lands by an independent contractor acceptable to the
Landlord together with such other tests, surveys and inquiries as
such contractor deems advisable in the circumstances into the use,
transport, storage, disposal, handling, sale or manufacture of any
Hazardous Substance in, on or about the Leased Premises, the
Building or the Lands by the Tenant, those for whom the Tenant is
in law responsible or any other person using or occupying the
Leased Premises, or into the condition or status of the Leased
Premises in relation to possible contamination by any Hazardous
Substance, and any Environmental Audit by such contractor shall
include the said contractor's written report delivered to the
Landlord summarizing the nature and results of all inspections,
tests, surveys and inquiries conducted by the contractor, and the
said contractor's recommendations for any remedial or precautionary
actions to be taken in relation to the presence of Hazardous
Substance on the Leased Premises, the Building or the Lands.
2. "Environmental Claim" means all claims, losses, costs,
expenses, fines, penalties, payments and/or damages (including,
without limitation, all solicitors' fees on a solicitor and client
basis) relating to, arising out of, resulting from or in any way
connected with the presence of any Hazardous Substance at the
Leased Premises, the Building or the Lands, including, without
limitation, all costs and expenses of any remediation or
restoration of the Leased Premises, the Building, the Lands and/or
any property adjoining or in the vicinity of the Lands required or
mandated by the Environmental Law.
3. "Environmental Law" means any law, bylaw, order,
ordinance, ruling, regulation, certificate, approval, policy,
guideline, consent or directive of any applicable federal,
provincial or municipal government, governmental department, agency
or regulatory authority or any Court of competent jurisdiction,
relating to environmental matters and/or regulating the import,
storage, distribution, labelling, sale, use, handling, transport or
disposal of any Hazardous Substance which may be in force from time
to time.
4. "Hazardous Substance" means:
(a) any substance which is hazardous to persons or property
and includes, without limiting the generality of the
foregoing, the following:
(i) radioactive materials; (ii) explosives; (iii) any
substance that, if added to any water, would degrade or
alter or form part of a process of degradation or alteration
of the quality of that water to the extent that it is
detrimental to its use by man or by any animal, fish or plant;
(b) any solid, liquid, gas or odour or combination of any of
them that, if emitted into the air, would create or
contribute to the creation of a condition of the air
that:
(i) endangers the health, safety or welfare of persons or
the health of animal life; (ii) interferes with normal enjoyment
of life or property; or (iii) causes damage to plant life or to
property;
(c) toxic substances; and
(d) any material or substance declared or deemed to be
hazardous, deleterious, caustic, dangerous, a
contaminant, a waste, a source of contaminant, a
pollutant or toxic under the Environmental Law.
Section 2 - Tenant's Covenant As To Hazardous Substances
The Tenant covenants and agrees that it will:
(a) not bring or allow any Hazardous Substance to be brought
onto the Lands, the Building or the Leased Premises
except in compliance with the Environmental Law;
(b) comply at all times and require all those for whom the
Tenant is in law responsible to comply at all times with
the Environmental Law as it affects the Leased Premises,
the Building or the Lands;
(c) give Notice to the Landlord of the presence at any time
during the Term of any Hazardous Substance on the Leased
Premises (or the Building or the Lands if such substance
is in the control of the Tenant) together with such
information concerning such Hazardous Substance and its
presence on the Leased Premises, the Building or the
Lands as the Landlord may require;
(d) give Notice to the Landlord of any occurrence which might
give rise to a duty under the Environmental Law in either
the Tenant or the Landlord with respect to the presence
of any Hazardous Substance on the Leased Premises, the
Building or the Lands including, without limitation,
Notice of any spill or escape into the environment of any
Hazardous Substance at the Leased Premises, the Building
or the Lands;
(e) in any case where the Tenant has given Notice as to the
presence of a Hazardous Substance at the Leased Premises,
the Building or the Lands or is required to give such
Notice or where the Landlord has reasonable grounds to
believe that any Hazardous Substance is or has been
brought upon the Leased Premises, the Building or the
Lands by the Tenant or any person for whom the Tenant is
in law responsible, to commission an Environmental Audit
at the Tenant's expense when required by the Landlord to
do so;
(f) comply with any investigative, remedial or precautionary
measures required under the Environmental Law or as
reasonably required by the Landlord, and the Tenant shall
be fully and completely liable to the Landlord for any
and all clean up costs or costs incurred to comply with
the Environmental Law or any request by the Landlord that
investigative, remedial or precautionary measures be
taken;
(g) protect, indemnify and save each of the Landlord and its
directors, officers, employees, agents, successors and
assigns completely harmless from and against any
Environmental Claim, directly or indirectly incurred,
sustained or suffered by or asserted against the Landlord
and/or its directors, officers, employees, agents,
successors and assigns caused by or attributable to,
either directly or indirectly, any act or omission of the
Tenant and/or any person for whom the Tenant is in law
responsible;
(h) enter into any additional contract of insurance
respecting the Leased Premises which the Landlord may
reasonably require to protect the Landlord and its
directors, officers, employees, agents, successors and
assigns from any Environmental Claim respecting the
Leased Premises;
and
(i) provide to the Landlord such security as the Landlord may
from time to time require, acting reasonably, to ensure
compliance by the Tenant of its covenants herein
contained.
Section 3 - Inquiries By Landlord
The Tenant hereby authorizes the Landlord to make
inquiries from time to time of any government or governmental
agency with respect to the Tenant's compliance with the
Environmental Law at the Leased Premises, and the Tenant covenants
and agrees that the Tenant will from time to time provide to the
Landlord such written authorization as the Landlord may reasonably
require in order to facilitate the obtaining of such information.
The Landlord or its authorized agent may inspect the Leased
Premises from time to time, without Notice, in order to verify the
Tenant's compliance with the Environmental Law and the requirements
of this Lease respecting Hazardous Substances. Upon request by the
Landlord from time to time, the Tenant shall provide to the
Landlord a certificate executed by a senior officer of the Tenant
certifying ongoing compliance by the Tenant with its covenants
contained herein.
Section 4 - Ownership Of Hazardous Substances
If the Tenant shall bring or create upon the property of
the Leased Premises, the Building or the Lands any Hazardous
Substance or if the conduct of the Tenant's business shall cause
there to be any Hazardous Substance upon the Lands, the Building or
the Leased Premises then, notwithstanding any 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 of the
Hazardous Substance or the goods containing the Hazardous Substance
to the Leased Premises, the Building or the Lands and
notwithstanding the expiry or earlier termination of this Lease.
Section 5 - Landlord's Remedies Upon Default
Upon the Tenant's material default under this Article and
in addition to the rights and remedies set forth elsewhere in this
Lease, the Landlord shall be entitled to the following rights and
remedies:
(a) at the Landlord's option, to terminate this Lease; and/or
(b) to recover any and all damages associated with the
material default, including without limitation, in
addition to any rights reserved or available to the
Landlord in respect of an early termination of this
Lease, cleanup costs and charges, civil and criminal
penalties and fees, loss of business and sales by the
Landlord and other tenants of the Building, any and all
damages and claims asserted by third parties and
Landlord's solicitors' fees and costs.