Exhibit 10.6
SEVENTH LEASE AMENDING AGREEMENT
THIS AGREEMENT is dated the 18th day of February, 2005.
BETWEEN:
THE CADILLAC FAIRVIEW CORPORATION LIMITED
(the "landlord")
OF THE FIRST PART
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LOYALTY MANAGEMENT GROUP CANADA INC.
(the "Tenant")
OF THE SECOND PART
WHEREAS:
A. By a lease dated the 28th day of may, 1997, and made between YCC LIMITED and
LONDON LIFE INSURANCE COMPANY, collectively as landlord and the Tenant (the
"Lease"), the landlord leased to the Tenant for and during a term of ten (10)
years, from and including the 1st day of September, 1997, to and including the
31st day of August, 2007 (the "Term"), subject to and upon the terms, covenants
and conditions contained in the Lease, certain premises containing a Rentable
Area for Seventy-three thousand, five hundred and thirty-four(73,534) square
feet approximately located on the 2nd and 3rd floors(the "Original Premises")
shown outlined on red on the plan attached to the Lease as Schedule "B-1" and
"B-2", located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Building"), in the City of Toronto, in
the Province of Ontario.
B. By an agreement dated the 19th day of June, 1997 (the "First Amending
Agreement") made between YCC LIMITED and LONDON LIFE INSURANCE COMPANY
collectively as landlord and the Tenant, the Lease was amended so that the term
of the Lease would commence on the 17th day of September, 1997 and expire on the
16th day of September, 2007, and to further amend the Lease in accordance with
the terms and conditions more particularly set out therein.
C. By an agreement dated the 15th day of January, 1998 (the Second Lease
Amending leased to the Tenant additional premises on the 4th floor of the
Building comprising:(i) a Rentable Area of approximately eighteen thousand
(18,000) square feet (the "First Additional Premises") and (ii) a Rentable Area
of approximately nineteen thousand one hundred and forty seven (19,147) square
feet (the "Special Refusal space") and to further amend the Lease in accordance
with the terms and conditions more particularly set out therein.
D. By and agreement dated the 14th day of April, 2000(the Third Lease Amending
Agreement), the Tenant exercised its right of first refusal pursuant to Section
1207 of the Lease and YCC LIMITED and LONDON LIFE INSURANCE COMPANY collectively
as landlord leased to the Tenant additional premises comprising a Rentable Area
of approximately fifteen thousand one hundred and sixty-eight (15,168) square
feet on the 5th floor of the Building (the "Second Additional Premises") and to
further amend the Lease in accordance with the terms and conditions more
particularly set out therein.
E. By and agreement dated the 17th day of January, 2001(the Fourth Lease
Amending Agreement), YCC LIMITED and LONDON LIFE INSURANCE COMPANY collectively
as landlord leased to the Tenant additional premises comprising a Rentable Area
of approximately eleven thousand two hundred and ninety two (11,292) square feet
on the 5th floor of the Building (the "Third Additional Premises") for a period
commencing from and including February 1, 2001 to and including September 16,
2007 and to further amend the Lease in accordance with the terms and conditions
set out therein.
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F. By and agreement dated the 12th day of June, 2002 (the "Fifth Lease Amending
Agreement"), YCC LIMITED and LONDON LIFE INSURANCE COMPANY collectively as
landlord and the Tenant agreed to add Schedule "F" to the Lease in order to
accommodate the Tenant's diesel generator, in accordance with the terms and
conditions more particularly set out therein;
G. By and agreement dated the 27th day of September, 2002(the "Sixth Lease
Amending Agreement"), YCC LIMITED and LONDON LIFE INSURANCE COMPANY collectively
as landlord and the Tenant agreed to further amend the Lease in accordance with
the terms and conditions more particularly set out therein;
H. The Landlord is now The Cadillac Fairview Corporation Limited; and
I. The Landlord and the Tenant have agreed to add further additional space to
the Premises effective July 1, 2005(the "Effective Date") and to amend the Lease
as of the Effective Date to give effect to the foregoing in accordance with the
terms and conditions herein after set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the sum of two
dollars ($2.00) now paid by each of the parties to the other (the receipt and
sufficiency whereof is hereby acknowledged), and other mutual covenants and
agreements, the parties do hereby agree as follows:
1. The parties hereby acknowledge, confirm and agree that the foregoing recitals
are true in substance and in fact.
2. Provided this Agreement has been executed by both the Landlord and the
Tenant,the Tenant shall as of the 1st day of March, 2005 (the "Occupancy Date")
be provided vacant possession of approximately five thousand, five hundred and
eighty-six (5,586) square feet located on the 5th floor of the Building (the
"Fourth Additional premises") as shown outlined in red on schedule "B-7"
attached to this Agreement. From the Occupancy Date up to and including the day
prior to the Effective Date, the Tenant shall not be required to pay Net Rent or
Additional Rent in respect to the Four Additional Premises but shall during such
early occupancy period observe and perform all other provisions contained in the
Lease and shall, without limiting generality of the foregoing, place and
maintain all policies of insurance in respect to the Fourth Additional Premises
as required by the Lease.
3. The Tenant acknowledges and agrees that (i) it is accepting possession of the
Fourth Additional Premises in an "as is" condition as of the Occupancy Date,
(ii) the Landlord has no responsibility or liability for making any renovation,
alteration or improvements in or to the Fourth Additional Premises, and (iii)
all further renovations, alterations or improvements in or to the Fourth
Additional Premises are the sole responsibility of the Tenant and shall be
undertaken and completed at the Tenant's expanse and strictly in accordance
with the provisions of the Lease.
4. The Tenant will submit four sets of detailed working drawings to the Landlord
for any work which the Tenant is required or proposes to do in the premises. All
Tenant's work will be performed at the Tenant's expense in a good and
workmanlike manner in accordance with the leasehold improvements manual by
unionized contractors, sub-contractors and workers engaged by the Tenant but
approved by the Landlord. The Tenant's working drawings, contractors,
sub-contractors and workers will be subject to the Landlord's approval. The
Landlord will not unreasonably deny or delay its approval.
5. The Lease is amended as of the Effective Date as follows:
(A) Section 1.01 (Grant and Premises) is hereby amended by adding the
following:
In consideration of the performance by the Tenant of its obligations
under this Lease, the Landlord leases additional premises (the
"Fourth Additional Premises") to the Tenant on an "as is" basis for a
term (the "Term of the Fourth Additional Premises") commencing on
July 1, 2005 and ending at midnight on September 16, 2007. The
Fourth Additional Premises are located on the 5th floor of the
Building as shown outlined in red on the floor plan attached as
Schedule "B-7" and has a Rentable Area of approximately five thousand,
five hundred and eight-six (5,586) square feet."
(B) Section 1.02 (Term) is hereby amended by adding the following:
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"The Term of this Lease with respect to the Fourth Additional Premises is
two (2) years, two (2) months and sixteen (16) days from the 1st day of
July, 2005 to the 16th day of September, 2007."
(C) Section 2.02 (Net Rent) Is hereby amended by adding the following:
The Tenant shall pay Net Rent with respect to the Fourth Additional
Premises during the period from and including July 1, 2005 to and
including September, 16, 2007, in the sum of eighty-nine thousand three
hundred and seventy-six dollars ($89,376,00) per annum payable in equal
monthly installments of seven thousand four hundred and forty-eight
dollars ($7,448.00) each in advance on the first day of each calendar
month during the aforesaid period based on an annual rate of sixteen
dollars ($ 16.00) per square foot of the Rentable Area of the Fourth
Additional Premises.
As soon as reasonably possible after completion of construction of the
Premises the Landlord shall measure the Net Rentable Area of the Premises
and shall calculate the Rentable Area of the Premises and Rent shall be
adjusted accordingly.
(D) Commencing July 1, 2005 the Tenant shall pay Additional Rent with respect
to the fourth additional Premises in accordance with the terms of the
Lease.
(E) Provided the Tenant is LOYALTY MANAGEMENT GROUP CANADA INC. and is not in
default under the terms of the Lease, the Landlord will pay the Tenant a
Leasehold Improvement allowance of ten dollars ($10.00) per square foot of
the Rentable Area of the Fourth Additional Premises (the "Allowance") to
be applied towards the cost of construction of the Tenant's Leasehold
Improvements. Ninety percent (90%) of the Allowance will be paid fifteen
(15) days after the last to occur of:
(a) occupancy of the Fourth Additional premises by the Tenant for
business.
(b) commencement of the Term.
(c) execution of the Lease by all parties; and
(d) receipt by the Landlord of a statutory declaration documenting (i)
that payment has been made in fall to all contractors,
sub-contractors, suppliers and any other personnel retained to
complete construction of the Tenant's Leasehold Improvements; (ii)
the last date on which any work was done or materials were provided
in connection with the construction of the Leasehold improvements;
and (iii) that all assessments under the workers Compensation Act
against the Tenant its contractors, subcontractors and other persons
or business entities who performed work in the Building or the
Fourth Additional Premises in connection with the Tenant's work have
been in full.
The remaining ten percent (10%) of the Allowance will be paid forthwith
after the expiry of the statutory lien period provided no liens have been
registered in respect of the Tenant's Leasehold Improvements. To the
extent that the Allowance exceeds the cost of construction such extra
amount will be applied by the Landlord to the first rentals due under the
Lease. The Tenant agrees to provide invoices documenting the cost of
construction.
If the Lease is terminated by the Landlord in accordance with Article IX
hereof or the Tenant becomes bankrupt or takes the benefit of any statute
for bankrupt or insolvent debtors (including without limiting the
generality of the foregoing the Companies Creditors. Arrangement Act,
R.S.C 1985, c. C-36, as amended or replaced) then the Tenant will repay to
the Landlord, as Additional Rent, the unamortized portion of the
Allowance, calculated from the date of payment by the Landlord on the
basis of an assumed rate of depreciation on a straight line basis to zero
over the initial Term."
6. Except as otherwise provided herein all references in the lease to the
"premises" shall be deemed to include the First Additional Premises, the Special
Refusal Space, the Second Additional Premises, the Third Additional Premises and
the Fourth Additional Premises.
7. Schedule "B-7" attached to this Agreement is deemed appended to the Lease.
8. The parties confirm that in all other respects, the terms, covenants and
conditions of the Lease remain unchanged and in full force and effect, except as
modified by this Agreement. It is understood and agreed that all terms and
expressions when used in this Agreement, unless a contrary intention is
expressed herein, have the same meaning as they have in the Lease.
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9. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, the successors and assigns of the Landlord and the permitted successors
and permitted assigns of the Tenant.
IN WITNESS WHEREOF the parties hereto have duly excuted this Agreement as
of the day and year first above written.
THE CADILLAC FAIRVIEW CORPORATION LIMITED
(Landlord)
Per: /s/ [ILLEGIBLE]
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Authorized Signature
Per: /s/ [ILLEGIBLE]
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Authorized Signature
I/We have authority to bind the corporation.
LOYALTY MANAGEMENT GROUP CANADA INC.
(Tenant)
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Authorized Signature
Per: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Authorized Signature
I/We have authority to bind the corporation.
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SCHEDULE "B"
Tenant Data Sheet
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▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
5th FLOOR
[MAP OF ▇▇▇▇▇▇▇▇ ARCHITECTS]
The purpose of this plan is to identity the approximate location of the Premises
in the Building.
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