EXHIBIT 99.10
AMENDED AND RESTATED LEASE
BETWEEN
COOPERS & ▇▇▇▇▇▇▇ LIMITED
AS RECEIVER AND MANAGER FOR
DUNDAS KIPLING II INC.
Landlord
- and -
ACC LONG DISTANCE LTD.
Tenant
SUMMARY OF AMENDED AND RESTATED LEASE
B E T W E E N:
COOPERS & ▇▇▇▇▇▇▇ LIMITED AS RECEIVER AND
MANAGER FOR DUNDAS KIPLING II INC.
(hereinafter referred to as "Landlord")
- and -
ACC LONG DISTANCE LTD.
(hereinafter referred to as "Tenant")
ARTICLE I
CERTAIN BASIC LEASE PROVISIONS
1.1 Certain Basic Lease Provisions
The following are certain basic lease provisions which are part of,
and are referred to in subsequent provisions of this Lease:
(1) Tenant's Trade Name and Style:
ACC LONG DISTANCE LTD.
(2) Address of Tenant:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: President
(3) Leased Premises: Part of the 4th floor and the entire 6th floor
as more particularly described and defined in Schedule "B" of the
Lease.
(4) Rentable Area of the Premises: 7,858 square feet - 4th floor and
17,624 square feet - 6th floor (but subject to revision as per
certification of the Landlord's Architect or Land Surveyor or
space planner).
(5) Fixturing Period: Nil days
(6) Term: 10 years, commencing March 1, 1994, subject to one (1)
right of renewal as provided for in the Lease at Rider No. 1.
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(7) Permitted Use of Leased Premises: Office as per Section 8.01.
(8) Minimum Rent: An annual minimum rent in equal monthly
instalments in advance on the first day of each month as follow:
Years 1, 2, 3 $10.50 per square foot
Years 4, 5, 6 $12.50 per square foot
Years 7, 8, 9, 10 $14.50 per square foot
(9) Additional Rent: As provided for in Section 1.01. Also see
Section 6.02.
ARTICLE 2
SCHEDULES, RIDERS AND DEFINITIONS
2.1 Schedules
The following schedules are annexed to and form part of the Lease:
Schedule "A" - Legal Description of the Building
Schedule "B" - Floor Plan
Schedule "C" - Landlord's and Tenant's Work
Schedule "D" - Rules and Regulations
Schedule "E" - Indemnity Agreement
2.2 Riders
The following riders are annexed to and form part of the Lease:
Rider No. 1 - Option to Extend the Term
Rider No. 2 - Free Rent Periods
Rider No. 3 - Lease Cancellation Provisions
Rider No. 4 - Option to Lease Additional Space
Rider No. 5 - Payment for Leasehold Improvements -Sixth Floor
Expansion Premises
2.3 Definitions
In the Lease the defined terms set forth in Article I have the
meanings therein indicated.
TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01 - "Additional Rent".................. 2
Section 1.02 - "Architect"........................ 2
Section 1.03 - "Building"......................... 3
Section 1.04 - "Commencement Date"................ 3
Section 1.05 - "Common Facilities"................ 3
Section 1.06 - "Fixturing Period"................. 4
Section 1.07 - "Fourth Floor Expansion Premises".. 4
Section 1.08 - "Indemnitor"....................... 4
Section 1.09 - "Land Surveyor".................... 4
Section 1.10 - "Landlord"......................... 4
Section 1.11 - "Landlord's Work".................. 4
Section 1.12 - "Leasable Premises"................ 4
Section 1.13 - "Manager".......................... 4
Section 1.14 - "Minimum Rent"..................... 4
Section 1.15 - "Mortgagee"........................ 4
Section 1.16 - "Normal Business Hours"............ 5
Section 1.17 - "Original Premises"................ 5
Section 1.18 - "Parking Facilities"............... 5
Section 1.19 - "Person"........................... 5
Section 1.20 - "Premises"......................... 5
Section 1.21 - "Proportionate Share".............. 5
Section 1.22 - "Rent"............................. 5
Section 1.23 - "Rentable Area of the Premises".... 5
Section 1.24 - "Rentable Area of the Building".... 6
Section 1.25 - "Rental Year"...................... 6
Section 1.26 - "Rules and Regulations"............ 6
Section 1.27 - "Sixth Floor Premises"............. 6
Section 1.28 - "Sixth Floor Expansion Premises"... 6
Section 1.29 - "Tenant"........................... 7
Section 1.30 - "Tenant's Work".................... 7
Section 1.31 - "Term"............................. 7
Section 1.32 - "Usable Floor Area"................ 7
ARTICLE II
Intent and Interpretation
Section 2.01 - Net Lease.......................... 8
Section 2.02 - Obligations as Covenants........... 8
Section 2.03 - Headings........................... 8
Section 2.04 - Extended Meanings.................. 8
Section 2.05 - Partial Invalidity................. 9
Section 2.06 - Entire Agreement................... 9
Section 2.07 - Governing Law...................... 10
Section 2.08 - Time of the Essence................ 10
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ARTICLE III
Grant and Term
Section 3.01 - Premises........................... 10
Section 3.02 - Use of Common Facilities........... 10
Section 3.03 - Commencement and Ending Date
of the Term...................... 10
Section 3.04 - Failure of Tenant to Open.......... 11
Section 3.05 - Certificates....................... 11
Section 3.06 - Early Occupancy.................... 12
Section 3.07 - Acceptance of Premises............. 12
Section 3.08 - Tenant's Work...................... 12
ARTICLE IV
Rent
Section 4.01 - Covenant to Pay.................... 13
Section 4.02 - Minimum Rent....................... 13
Section 4.03 - Deposit............................ 14
Section 4.04 - Security Deposit................... 14
Section 4.05 - Rent Past Due...................... 15
ARTICLE V
Taxes
Section 5.01 - Taxes - Definition................. 15
Section 5.02 - Taxes Payable by the Landlord...... 16
Section 5.03 - Taxes Payable by the Tenant........ 16
Section 5.04 - Business Taxes and Other
Taxes of Tenant.................. 17
Section 5.05 - Tenant's Indemnification With
Respect to Taxes under Sections
5.01, 5.03 and 5.04.............. 18
Section 5.06 - Landlord's Taxes................... 19
Section 5.07 - Per Diem Adjustment................ 19
ARTICLE VI
Building and Common Facilities - Control and Payment
Section 6.01 - Control of the Building by
the Landlord..................... 19
Section 6.02 - Tenant to Bear Share of Expense.... 21
Section 6.03 - Payment of Tenant's Share.......... 26
Section 6.04 - Landlord's Services................ 27
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ARTICLE VII
Utilities, Heating, Ventilating and Air Conditioning
Section 7.01 - Charges for Utilities.............. 28
Section 7.02 - Lighting........................... 30
Section 7.03 - Heating, Ventilating and
Air-Conditioning................. 31
Section 7.04 - After Hour Charges................. 31
ARTICLE VIII
Use of the Premises
Section 8.01 - Use of the Premises................ 31
Section 8.02 - Conduct of Business................ 32
Section 8.03 - Observance of Law.................. 34
ARTICLE IX
Insurance and Indemnity
Section 9.01 - Tenant's Insurance................. 35
Section 9.02 - Increase in Insurance Premiums..... 37
Section 9.03 - Cancellation of Insurance.......... 37
Section 9.04 - Insurance Risks.................... 38
Section 9.05 - Loss or Damage..................... 38
Section 9.06 - Landlord's Insurance............... 39
Section 9.07 - Indemnification of Landlord........ 40
ARTICLE X
Maintenance, Repairs and Alterations
Section 10.01 - Maintenance and Repairs by Tenant. 41
Section 10.02 - Landlord's Approval of
Tenant's Repairs................ 41
Section 10.03 - Maintenance by Landlord........... 42
Section 10.04 - Repair on Notice.................. 43
Section 10.05 - Surrender of the Premises......... 44
Section 10.06 - Repair Where Tenant at Fault...... 44
Section 10.07 - Tenant Not to Overload Facilities. 44
Section 10.08 - Tenant Not to Overload Floors..... 45
Section 10.09 - Removal and Restoration by Tenant. 45
Section 10.10 - Notice by Tenant.................. 46
Section 10.11 - Tenant to Discharge all Liens..... 46
Section 10.12 - Signs and Advertising............. 47
Section 10.13 - Directory Board................... 48
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ARTICLE XI
Damage and Destruction and Expropriation
Section 11.01 - Destruction of the Premises....... 48
Section 11.02 - Destruction of the Building....... 50
Section 11.03 - Expropriation..................... 51
Section 11.04 - Architect's Certificate........... 52
ARTICLE XII
Assignment, Subletting and Change of Control
Section 12.01 - Consent Required.................. 52
Section 12.02 - Conditions of Consent............. 55
Section 12.03 - No Advertising of Premises........ 56
Section 12.04 - Assignment by the Landlord........ 56
ARTICLE XIII
Access and Alterations
Section 13.01 - Right of Entry................... 57
ARTICLE IV
Status Statement, Attornment and Subordination
Section 14.01 - Status Statement.................. 58
Section 14.02 - Subordination and Attornment...... 59
Section 14.03 - Execution of Documents............ 59
Section 14.04 - Financial Information............. 60
ARTICLE XV
Default and Landlord's Remedies
Section 15.01 - Right to Re-Enter................. 60
Section 15.02 - Right to Relet.................... 62
Section 15.03 - Other Rights of the Landlord...... 63
Section 15.04 - Survival of Obligations........... 63
Section 15.05 - Expenses.......................... 63
Section 15.06 - Removal of Chattels............... 64
Section 15.07 - Waiver of Exemption from Distress. 64
Section 15.08 - Landlord May Cure Tenant's
Default or Perform Tenant's
Covenants....................... 64
Section 15.09 - Lien on Personal Property......... 65
Section 15.10 - Charges Collectible as Rent....... 65
Section 15.11 - Remedies Generally................ 66
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ARTICLE XVI
Miscellaneous
Section 16.01 - Rules and Regulations............. 66
Section 16.02 - Overholding - No Tacit Renewal.... 67
Section 16.03 - Successors........................ 67
Section 16.04 - Tenant Partnership................ 67
Section 16.05 - Waiver............................ 67
Section 16.06 - Accord and Satisfaction........... 68
Section 16.07 - Brokerage Commissions............. 68
Section 16.08 - No Partnership or Agency.......... 69
Section 16.09 - Agent............................. 69
Section 16.10 - Force Majeure..................... 69
Section 16.11 - Notices........................... 69
Section 16.12 - No Option......................... 70
Section 16.13 - Registration...................... 70
Section 16.14 - Compliance with The Planning Act.. 70
Section 16.15 - Metric Conversion................. 71
Section 16.16 - Limited Assets.................... 71
Section 16.17 - Bankruptcy and Insolvency Act..... 71
Section 16.18 - Parking Spaces.................... 71
Section 16.19 - Quiet Enjoyment................... 72
SCHEDULE A LEGAL DESCRIPTION OF THE BUILDING
SCHEDULE B FLOOR PLAN
SCHEDULE C LANDLORD'S AND TENANT'S WORK
SCHEDULE D RULES AND REGULATIONS
SCHEDULE E INDEMNITY AGREEMENT
RIDER NO. 1 OPTION TO EXTEND THE TERM
RIDER NO. 2 FREE RENT PERIODS
RIDER NO. 3 LEASE CANCELLATION PROVISIONS
RIDER NO. 4 OPTION TO LEASE ADDITIONAL SPACE
RIDER ▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ -
▇▇▇▇▇ ▇▇▇▇▇ EXPANSION PREMISES
AMENDED AND RESTATED LEASE
OFFICE LEASE
THIS LEASE is dated the 1st day of March, 1994.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
B E T W E E N:
COOPERS & ▇▇▇▇▇▇▇ LIMITED AS RECEIVER AND
MANAGER FOR DUNDAS KIPLING II INC.
(hereinafter called the "Landlord"),
PARTY OF THE FIRST PART
- and -
ACC LONG DISTANCE LTD.
(hereinafter called the "Tenant")
PARTY OF THE SECOND PART
WHEREAS the Landlord and Tenant entered into a lease dated the 1st day
of August, 1991 (the "Original Lease") for premises comprised of 3,758 square
feet of Rentable Area (the "Original Premises") on the 4th floor of the building
(the "Building") municipally known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ West, in the City of
Etobicoke;
AND WHEREAS the Landlord and the Tenant have entered into a lease
amending agreement (the "First Lease Amending Agreement") made as of the 6th day
of February, 1992 in respect of an additional 4,100 square feet of Rentable Area
(the "Fourth Floor Expansion Premises") on the 4th floor of the Building;
AND WHEREAS the Tenant has occupied an additional 7,946 square feet of
Rentable Area on the 6th floor of the Building (the "Sixth Floor Premises")
pursuant to a proposed second lease amending agreement (the "Second Lease
Amending Agreement");
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AND WHEREAS the Landlord and Tenant have entered into a lease amending
agreement made as of the 12th day of January, 1994 (the "January 1994 Lease
Amending Agreement") pursuant to which, inter alia, the Landlord and the Tenant
agreed that the Tenant would lease from the Landlord the balance of the 6th
floor of the Building comprising approximately 9,678 square feet of Rentable
Area (the "Sixth Floor Expansion Premises") and pursuant to which the term, the
rental rate and other provisions in respect of the Original Premises, the Fourth
Floor Expansion Premises and the Sixth Floor Premises, will be amended;
AND WHEREAS the Landlord and Tenant have entered into an agreement
with respect to Suite 606 of the Building pursuant to a letter agreement dated
August 10, 1993, as amended by letter dated October 5, 1993, and as further
amended pursuant to the January 1994 Lease Amending Agreement (collectively the
"Suite 606 Agreement");
AND WHEREAS all of the conditions pursuant to the January 1994 Lease
Amending Agreement have either been satisfied or waived by the parties;
AND WHEREAS the parties are entering into this Amended and Restated
Lease to incorporate the provisions of the Original Lease, the First Lease
Amending Agreement, the Second Lease Amending Agreement referred to above and
the January 1994 Lease Amending Agreement;
NOW THEREFORE this agreement witnesseth that in consideration of the
sum of Two Dollars ($2.00) and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by each of the parties
hereto, the parties agree as follows:
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.
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Section 1.03 - "Building" means all those lands and premises located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ in the City of Etobicoke, 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 - "Commencement Date" means that date defined in the provisions of
Section 3.03 hereof.
Section 1.05 - "Common Facilities" means (a) 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, excluding the Parking Facilities and excluding
any elevator, garbage, compactor, entrance or other facilities designated from
time to time by the Landlord for the exclusive use of any particular tenant or
tenants of the Building.
Without limiting the generality of the foregoing, Common Facilities
includes any facilities shared by the Building and other buildings or lands, 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 entrances and exits thereto and all structural elements thereof;
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 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, lighting, 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.
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Section 1.06 - "Fixturing Period" means a period of Nil (0) days after the
Landlord gives notice to the Tenant that the Landlord's Work is completed to
such an extent that the Tenant's Work may be commenced.
Section 1.07 - "Fourth Floor Expansion Premises" means that part of the Premises
located on the 4th floor of the Building being composed of 3,930 square feet of
Useable Floor Area and 4,100 square feet of Rentable Area, as shown outlined in
blue on the plan attached as Schedule "B".
Section 1.08 - "Indemnitor" means the Person who/which has executed or agreed to
execute the Indemnity Agreement which is attached to this Lease as Schedule "E",
if applicable, and includes without limiting the generality of the foregoing,
the Indemnity Agreement executed by ACC TelEnterprises Ltd. and dated the 1st
day of March, 1994.
Section 1.09 - "Land Surveyor" means the accredited land surveyor from time to
time named by the Landlord.
Section 1.10 - "Landlord" means the Party of the First Part, 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 1.11 - "Landlord's Work" means the work performed by the Landlord as
described in the provisions of Schedule "C" hereto as Landlord's Work.
Section 1.12 - "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 1.13 - "Manager" means the Person retained by the Landlord from time to
time to manage the Building, and until such time as it may be replaced means
Oxford Development Group Inc.
Section 1.14 - "Minimum Rent" means the annual rent payable by the Tenant
pursuant to Section 4.02 hereof.
Section 1.15 - "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
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Mortgagee is not a creditor, chargee or security holder of a tenant of Leasable
Premises.
Section 1.16 - "Normal Business Hours" means the hours from 7:00 a.m. to 7:00
p.m. on Mondays to Fridays, and the hours from 9:00 a.m. to 1:00 p.m. on
Saturdays, unless any such day is a statutory holiday in the Province of
Ontario.
Section 1.17 - "Original Premises" means that part of the Premises located on
the 4th floor of the Building being composed of 3,419 square feet of Useable
Floor Area and 3,758 square feet of Rentable Area, as shown outlined in red on
the plan attached as Schedule "B".
Section 1.18 - "Parking Facilities" means the underground levels of parking and
other areas designated by the Landlord as parking areas, servicing the Building,
but excludes the elevator lobbies on each of such levels.
Section 1.19 - "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 1.20 - "Premises" means collectively the Original Premises, the Fourth
Floor Expansion Premises, the Sixth Floor Premises and the Sixth Floor Expansion
Premises.
Section 1.21 - "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 1.22 - "Rent" means all Minimum Rent and Additional Rent payable
pursuant to this Lease.
Section 1.23 - "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
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more than one (1) tenant, (except for a ground floor tenant), the Useable 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, determined
as if the Tenant had leased the entire floor for its lease purposes and the
denominator of which shall be the aggregate Useable Floor Area of the same floor
assuming a full corridor design for the floor upon which the Premises are
located, or, (iii) in the case of a ground floor tenant, where a floor is leased
or occupied by more than one (1) tenant, the Useable Floor Area of the Premises
plus a gross up factor based on assuming that the ground floor is a typical
multi-tenanted floor for office usage with a full corridor design for such
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 of June 21,
1989.
Section 1.24 - "Rentable Area of the Building" means the aggregate of the
individual Rentable Areas (measured in accordance with the method set out in
Section 1.23) of all Leasable Premises within the Building.
Section 1.25 - "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 1.26 - "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 1.27 - "Sixth Floor Premises" means that part of the Premises located on
the 6th floor of the Building as shown outlined in green on the plan attached as
Schedule "B".
Section 1.28 - "Sixth Floor Expansion Premises" means that part of the Premises
located on the 6th floor of the Building as shown outlined in yellow on the plan
attached as Schedule "B".
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Section 1.29 - "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 1.30 - "Tenant's Work" means the work completed or to be completed by
the Tenant, described in the provisions of Schedule "C" hereto.
Section 1.31 - "Term" means the period of time described in Section 3.03 hereof,
and any renewal or extension thereof, if applicable.
Section 1.32 - "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 of June 21,
1989.
SCHEDULES
"A" - legal description
"B" - sketch of the Premises outlined in red, blue, green and yellow, as
applicable
"C" - Landlord's Work and Tenant's Work
"D" - Rules and Regulations
"E" - Indemnity Agreement
RIDERS
No. 1 - Option to Extend the Term
No. 2 - Free Rent Periods
No. 3 - Lease Cancellation Provisions
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No. 4 - Option to Lease Additional Space
No. 5 - Payment for Leasehold Improvements - Sixth Floor Expansion Premises
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
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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 Schedules "A", "B", "C", "D" and "E" and Riders 1, 2,
3, 4 and 5 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. This
Lease, Schedules "A", "B", "C", "D" and "E" and Riders 1, 2, 3, 4 and 5 attached
hereto and the Rules and Regulations adopted and promulgated by the Landlord
pursuant to Section 16.01 hereof, supersede and replace the Original Lease, the
First Lease Amending Agreement, the Second Lease Amending Agreement, the January
1994 Lease Amending Agreement and the Suite 606 Agreement, and any other
proposals entered into in connection with the Premises or any part thereof;
provided that nothing herein shall prejudice the Landlord in the event that any
of the terms, conditions or covenants on the part of the Tenant to be performed
pursuant to the Original Lease, the First Lease Amending Agreement, the Second
Lease Amending Agreement, the January 1994 Lease Amending Agreement, and/or the
Suite 606 Agreement, have not been complied with in full, to the date hereof,
all of which rights and remedies are hereby
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expressly reserved in favour of the Landlord. 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. The space enclosed by the boundaries of the Premises extends
vertically from the top surface of the structural subfloor to the bottom surface
of the structural ceiling and horizontally to the limits of the Rentable Area of
the Premises determined in accordance with Section 1.23, 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,
1994 (the "Commencement
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Date") to and including the 29th day of February, 2004, subject to the
provisions hereof relating to earlier termination.
Section 3.04 - Failure of Tenant to Open
The Tenant represents and warrants to the Landlord that it is in
possession of that part of the Premises constituting the Original Premises, the
Fourth Floor Expansion Premises and the Sixth Floor Premises. The Tenant
covenants to take possession of that part of the Premises constituting the Sixth
Floor Expansion Premises and to open such part of the Premises for business
fully fixtured, stocked and staffed no later than March 1st, 1994, and in the
event that the Tenant fails to do so, then the Tenant acknowledges that the
Landlord shall have the right, notwithstanding the foregoing, to collect the
Minimum Rent and Additional Rent in this Lease provided for each and every day
that the Tenant shall fail to commence to do business as in this Lease provided.
In addition to any and all other remedies in this Lease provided, the Landlord
shall have the right, at its option, to terminate this Lease upon ten (10) days
notice to the Tenant of its election to do so in the event the Tenant is in
default of its covenant pursuant to this Section 3.04.
Section 3.05 - Certificates
(a) The Landlord and Tenant acknowledge that the Rentable Area and the
Usable Area of the Original Premises, the Fourth Floor Expansion Premises and
the Sixth Floor Premises have been certified and consist of the following:
(i) Original Premises: Usable Floor Area - 3,419 square feet
Rentable Area - 3,758 square feet
(ii) Fourth Floor Expansion
Premises: Usable Floor Area - 3,930 square feet
Rentable Area - 4,100 square feet
(iii) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ -▇,▇▇▇ square feet
Rentable Area - 7,946 square feet,
and that such certificates are binding on the Landlord and the Tenant and form
part of this Lease.
(b) The Landlord agrees to provide at its expense a certificate from
its space planner certifying in writing the Rentable Area of that part of the
Premises constituting the Sixth
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Floor Expansion Premises expressed in square feet; the Tenant shall be bound by
such determination unless it shall within 30 days of receipt of such certificate
give written notice of its challenge to such certification and, in such event,
the Landlord and Tenant shall agree on an independent third party to determine
the Rentable Area of that part of the Premises constituting the Sixth Floor
Expansion Premises and, in the event there shall be a variation of 5% or more in
the subsequent certificate, the costs of obtaining the certification shall be
borne by the Landlord, and in every other case shall be borne by the Tenant.
The purposes of such certification shall be for the purposes of calculating the
Leasehold Improvement Allowance which the Landlord shall pay to the Tenant in
connection with the Sixth Floor Expansion Premises, as provided for in the
provisions of Rider No. 5, and for the purposes of calculating the Minimum Rent
and the Additional Rent payable in respect of the Sixth Floor Expansion
Premises.
Section 3.06 - Early Occupancy
If the Tenant begins to conduct business in all or any portion of the
Sixth Floor Expansion (except for Suite 606) 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 Sixth Floor Expansion Premises
before the Commencement Date without the Landlord's prior written approval
except with respect to Suite 606 which shall be governed by the Suite 606
Agreement.
Section 3.07 - Acceptance of Premises
The Tenant acknowledges and agrees that the Premises including the
Landlord's Work are in good and satisfactory condition 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 - Tenant's Work
The Tenant agrees to undertake and install the Tenant's Work.
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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
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, setoff or compensation whatsoever, as annual
Minimum Rent, payable as outlined below, each instalment in advance on the first
day of each and every month in the following periods, subject to the provisions
of Rider No.2, Free Rent Periods, and Rider No.4, Option to Lease Additional
Space:
(a) From and including the 1st day of March, 1994, to and including
the 28th day of February, 1997, as annual Minimum Rent, the sum
of Two Hundred and Sixty-Seven Thousand, Five Hundred and Sixty-
One Dollars ($267,561.00) payable in equal consecutive monthly
instalments of Twenty-Two Thousand, Two Hundred and Ninety-Six
Dollars and Seventy-Five Cents ($22,296.75) based on an annual
Minimum Rent rate of Ten Dollars and Fifty Cents ($10.50) per
square foot of Rentable Area of the Premises;
(b) From and including the 1st day of March, 1997, to and including
the 29th day of February, 2000, as annual Minimum Rent, the sum
of Three Hundred and Eighteen Thousand, Five Hundred and Twenty-
Five Dollars ($318,525.00) payable in equal consecutive monthly
instalments of Twenty-Six Thousand, Five Hundred and Forty-Three
Dollars and Seventy-Five Cents ($26,543.75) based on an annual
Minimum Rent rate of Twelve Dollars and Fifty Cents ($12.50) per
square foot of Rentable Area of the Premises;
(c) From and including the 1st day of March, 2000, to and including
the 29th day of February, 2004, as annual Minimum Rent, the sum
of Three Hundred and Sixty-Nine Thousand, Four Hundred and
Eighty-Nine Dollars ($369,489.00) payable in equal consecutive
monthly instalments of Thirty Thousand, Seven Hundred and Ninety
Dollars and Seventy-Five Cents
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($30,790.75) based on an annual Minimum Rent rate of Fourteen
Dollars and Fifty Cents ($14.50) per square foot of Rentable Area
of the Premises.
As provided for in the provisions of Section 3.05, the Rentable Area of the
Original Premises and the Fourth Floor Expansion Premises have been determined.
When the Rentable Area of that part of the Premises constituting the Sixth Floor
Premises together with the Sixth Floor Expansion Premises is certified pursuant
to the provisions of Section 3.05 hereof, the Minimum Rent shall, if necessary,
be adjusted accordingly as of the Commencement Date. 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 30 days after demand therefor.
Section 4.03 - Deposit
The Tenant and Landlord acknowledge that the deposit paid by the
Tenant pursuant to the Original Lease in the amount of Eight Thousand One
Hundred and Sixty-Two Dollars ($8,162.00) (the "Deposit") was held without
interest by the Landlord and was applied on account of the first month Minimum
Rent as it fell due and Additional Rent as it fell due under the Original Lease
and that there is no further credit owing to the Tenant in respect of the
Deposit.
Section 4.04 - Security Deposit
The Tenant and Landlord acknowledge that the sum of Eight Thousand One
Hundred and Sixty-Two Dollars ($8,162.00) paid by the Tenant to the Landlord as
a security deposit (the "Security Deposit") pursuant to the Original Lease will
continue to be held by the Landlord without liability or interest as security
for the faithful performance by the Tenant of all the terms, covenants and
conditions of this Lease by the Tenant to be kept, observed and performed. The
Landlord shall not be required to keep the Security Deposit separate from its
general funds.
If at any time during the Term, the Rent or any other sums payable by
the Tenant hereunder are overdue and unpaid, or if the Tenant fails to keep and
perform any of the terms, covenants and conditions of this Lease to be kept,
observed and performed by the Tenant, the Landlord at its option may, in
addition to any and all other rights and remedies provided for in this Lease or
by law, appropriate and apply the entire Security Deposit, or so much thereof as
is necessary to compensate the Landlord for loss or damage sustained or suffered
by the Landlord due to such breach on the part of the Tenant. If the entire
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Security Deposit, or any portion thereof is appropriated and applied by the
Landlord for the payment of overdue Rent or any other sums due and payable by
the Tenant hereunder, then the Tenant shall, upon written demand of the Landlord
forthwith remit to the Landlord a sufficient amount in cash to restore the
Security Deposit to the original sum deposited, and the Tenant's failure to do
so within five (5) days after receipt of such demand shall constitute a breach
of this Lease. If the Tenant complies with all of the terms, covenants and
conditions and properly pays all of the Rent and any other sums herein provided
and payable by the Tenant, the Security Deposit shall be returned in full to the
Tenant without interest within sixty (60) days after the end of the Term or any
renewal thereof.
The Landlord may deliver the Security Deposit to any purchaser of the
landlord's interest in the Premises or in the Building, if such interest is sold
and thereupon the landlord shall be discharged from any liability with respect
to the Security Deposit.
Section 4.05 - 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 four (4) 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 taxes, rates, duties, and assessments (including
local improvement taxes), impost charges or levies, whether general or special,
that are levied, rated, charged or assessed against the Building or any part
thereof 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 of the foregoing whether of the foregoing character or not or
whether in existence at the Commencement Date or not, and any such taxes
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levied or assessed against the Landlord or any owner on account of its ownership
of or interest in the Building. Capital taxes shall be based on the amount of
taxable paid up capital employed by the owner of the Building as at the 1st day
of August, 1991.
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, the different components of the Leasable Premises and other
premises available for leasing which do not constitute part of the Leasable
Premises and as between the Leasable Premises, the different components of 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.
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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.
(d) Notwithstanding the provisions of this Lease, the Landlord shall
not, in calculating Additional Rent, include goods and services taxes paid or
payable to third parties for goods and services acquired by the Landlord which
would have the effect of the Tenant paying goods and services taxes on the goods
and services taxes which the Landlord has paid or which is payable to third
parties for such goods and services so acquired by the Landlord, unless the
Landlord is not entitled to claim an input tax credit in respect of such goods
and services taxes and unless law provides otherwise and requires the Landlord
so to do. Provided that the foregoing shall not be construed so as to prevent or
prohibit the Landlord from collecting goods and services taxes on Additional
Rent as required by law.
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
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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, or the rental of the Premises or the
provision of any goods, services or utilities whatsoever by the Landlord to the
Tenant under this Lease, 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.
(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
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part thereof. The Tenant shall deliver to the Landlord on demand such security
for any such increase in such Business 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) hereof, the Tenant
shall not be responsible for the payment of taxes on the income or profits of
the Landlord to the extent that they are not imposed in lieu of Taxes or any
other tax otherwise payable by the Tenant hereunder.
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/retail 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
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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, 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; the Landlord reserves the right to impose charges
upon the Tenant and any person (including the general
public) for the use of parking facilities;
(vi) hire the services of a Manager which may be one of the
parties constituting the Landlord or which may be an
affiliate, associate, subsidiary or related Person to the
Landlord or any party constituting the Landlord;
(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
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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; and
(c) 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 or the Parking 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
or the Parking Facilities deemed constructive or actual eviction, or a breach of
any covenant for quiet enjoyment contained in this Lease.
If the Landlord is directly undertaking itself or through its
contractors any matter or any action, which will result in an interference with
the Tenant's use and enjoyment of the Building and the Premises for a period in
excess of 24 hours, then the Landlord shall first notify the Tenant of its
intention so to do, failing which, the Tenant shall have the right to give
written notice to the Landlord that it has breached the aforesaid covenant and
demanding that within 48 hours of receipt of such notice the Landlord ceases to
unreasonably interfere with the Tenant's use and enjoyment of the Building and
the Premises, and failing rectification within the aforesaid 48 hours, the
Minimum Rent shall ▇▇▇▇▇ in proportion to the use of the Premises that is not
usable for the purposes intended as determined by the Tenant, acting reasonably,
until such matters have been rectified. It is acknowledged by the Tenant that
notwithstanding the foregoing, it will be necessary for the Landlord from time
to time to construct or demolish tenants' improvements within the Building
(including the floor upon which the Premises are located) during Normal Business
Hours and that such activity may temporarily create some disruption to the
Tenant's normal quiet use and enjoyment of the Building and the Premises and the
Tenant acknowledges and agrees that in such instances there shall be no
abatement of Minimum Rent.
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,
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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 or under any
arrangements entered into by the Landlord in respect of the Building and/or
other adjoining buildings to the extent of any rights accruing to the Building.
Any allocation of costs, charges or expenses which is determined by the Landlord
under this Lease shall be done on a reasonable and equitable basis.
(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 (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, 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;
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(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) reasonable auditing, accounting, bookkeeping, legal and
other professional and consulting fees and disbursements;
(viii) the reasonable 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
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incurred in accordance with sound accounting principles;
(x) all reasonable 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, subject
to reasonable increase thereof from time to time for
inflation of costs;
(xiii) reserves established by the Landlord for capital
expenditures based on $.20 per square foot, per annum, of
the Rentable Area of the Building, subject to reasonable
increase thereof from time to time for the inflation of
costs;
(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) sales, value added and excise or other taxes on goods and
services provided by or on behalf of the Landlord in
connection with the maintenance, repair, operation,
administration or management of the Building, whether or not
in existence at the Commencement Date;
(xvi) capital taxes, if applicable, being the amount of any
tax or taxes levied against the Landlord and owners of the
Building by any governmental authority having jurisdiction
based upon or computed by reference to the paid-up capital
or place of business of the
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Landlord and owners of the Building or other similar
criteria as determined for the purposes of such tax or
taxes, or any similar tax, rate, duty, levy, fee, charge or
assessment levied, imposed or assessed in the future in lieu
thereof or in addition thereto by any governmental
authority. For the purposes hereof such tax or taxes shall
mean the amount of tax that would be payable if the Building
were the only establishment of the Landlord and owners of
the Building and capital taxes shall be limited to the
extent that they do not exceed the taxes on the capital
employed by the owners of the Building in the Building as at
August 1, 1991;
(xvii) 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)(viii) inclusive and Section 6.02(b)(x) to
Section 6.02(b)(xii) inclusive and Section 6.02(b)(xiv) to
Section 6.02(b)(xvi) (or such greater amount as shall be
standard from time to time in the property management
industry, as determined by the Landlord, acting reasonably);
(xviii) in the event that the Landlord has hired the services
of the 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
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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.
Provided further that in computing such costs and expenses described
in Section 6.02 (a) and (b), the Tenant acknowledges that certain of such costs
and expenses may not be incurred in respect of or for the benefit of all tenants
and occupants in the Building, and that the Landlord shall have the right to
allocate such costs and expenses in a reasonable and equitable manner amongst
the several components and areas of the Building, including the Common
Facilities and the Leasable Premises and amongst the various components of
Leasable Premises in the Building, and the Tenant shall pay its Proportionate
Share of such allocation to the Common Facilities plus a share of such costs and
expenses so allocated to other components of the Building wherein such cost or
expense relates to the Premises based upon the Rentable Area of the Premises and
the Rentable Area of those Leasable Premises in connection with which such
allocation has been made.
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 installments in
advance during such period as Additional 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.
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(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 an audited statement issued by the Landlord's auditors, 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, as
provided for herein. 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.
Section 6.04 - Landlord's Services
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 and provided that the Landlord shall
have no responsibility or liability for failure to supply climate control
service when stopped as aforesaid or when prevented from so doing by strikes or
causes beyond the Landlord's reasonable control. 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 the basis of one (1) Person to every one
hundred (100) to one hundred and fifty (150) square feet of space 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.
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
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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 (except on the ground floor) upon which the Premises are 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 first class office
building.
(e) To furnish appropriate facilities for bringing telephone services
by ▇▇▇▇ Canada to a point on the floor on which the Premises are located, and
cold water to a point on the floor on which the Premises are located.
(f) To provide access, reasonable security and elevator service to the
Tenant, employees and invitees at all times, subject to the Rules and
Regulations for the Building.
ARTICLE VII
Utilities, 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
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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 as between the various different
Leasable Premises in the Building, using as a basis, without limitation, (i)
check meters installed in the Common Facilities, and individual Leasable
Premises and other premises available for leasing which do not constitute part
of the Leasable Premises; (ii) the relevant rates of demand and consumption of
Utilities in the respective areas; and/or (iii) the connected load of the
respective areas comprising the Common Facilities, and those individual Leasable
Premises and such other leasable premises and other leasable premises for which
there are no check or other meters.
(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 or other share thereof as provided in
Section 6.02, 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
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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. 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
- 31 -
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.
Section 7.03 - Heating, Ventilating and Air-Conditioning
The Tenant shall, throughout the Term, operate, maintain and regulate
the heating, ventilating and air-conditioning equipment within, or installed by
or on behalf of the Tenant for the Premises in such a manner as to maintain such
reasonable conditions of temperature and humidity within the Premises as is
determined by the Landlord and its Architect and engineers so that no direct or
indirect appropriation of heating, ventilating or air-conditioning from the
Common Facilities or other leasable premises in the Building or the Parking
Facilities occurs. The Tenant shall comply with such stipulations and with all
Rules and Regulations of the Landlord pertaining to the maintenance and
operation of such equipment.
Section 7.04 - After Hour Charges
The Tenant shall be solely responsible for and shall promptly pay to
the Landlord, or as it may otherwise direct, an hourly charge with respect to
the Premises for the use of utilities, heating, ventilation and air-conditioning
after Normal Business Hours. The Landlord shall have the right to make
reasonable adjustments to the hourly charge each year of the Term of the Lease.
Such consumption shall be measured by a check meter, installed as provided for
herein.
ARTICLE VIII
Use of the Premises
Section 8.01 - Use of the Premises
The Tenant shall use the Premises solely for the purposes of office
premises for carrying on of the business of voice and data telecommunication
services and related purposes 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.
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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 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. Notwithstanding the foregoing, the Landlord agrees that certain
business equipment may be leased or pledged or charged as security by the Tenant
in the normal course of business operations and further provided that,
notwithstanding the foregoing, the Tenant shall not be entitled to lease, pledge
or charge as security or otherwise any property in connection with which the
Landlord has provided to the Tenant a leasehold improvement allowance or
inducement, a cash payment, or other form of assistance whether prior to, on the
date hereof or hereafter;
(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 without
written approval of the Landlord. It is agreed by the Landlord that a
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small digital type radio transmitter may be installed by the Tenant at the
Tenant's cost on the Building roof. The right of the Tenant hereinbefore
provided shall be subject to applicable codes and regulations of the City of
Etobicoke and the Municipality of Metropolitan Toronto and any other authorities
having jurisdiction. Such radio transmitter shall remain the property of the
Tenant and shall be maintained at the Tenant's cost and expense and at the
expiration of the Term or earlier termination of the Lease, the Tenant shall
remove such radio transmitter at the Tenant's expense and shall promptly repair
all damage caused by any such removal. The Tenant's obligation to observe and
perform these covenants shall survive the expiration of the Term or earlier
termination of the Lease;
(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;
(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
- 34 -
(j) 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 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 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.
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ARTICLE IX
Insurance and Indemnity
Section 9.01 - Tenant's Insurance
(a) The Tenant, at its expense, will maintain, throughout the Term and
any period when it is in possession of the Premises, the insurance (the
"Insurance") described below. The Tenant will cause each such insurance policy
to, a) be primary, non-contributing with and not in excess of any other
insurance available to the Landlord or the Mortgagees, b) contain a prohibition
against cancellation or material change that reduces or restricts the Insurance
except on thirty (30) days prior notice to the Landlord, acting reasonably, and
the Mortgagee. Upon request from the Landlord or upon the placement, renewal,
amendment or extension of all or any part of the Insurance, the Tenant will
immediately deliver to the Landlord evidence of the Insurance on the Landlord's
standard form of certificate or, if required by the Mortgagee, evidence in the
form of certified copies of the policies. The Insurance is as follows:
(i) all risks (including flood and earthquake) property
insurance, and broad comprehensive boiler and machinery
insurance on all objects owned or operated by the Tenant or
by others (other than the Landlord) or on behalf of the
Tenant in the Premises or relating to or serving the
Premises, insurance for all property owned by the Tenant or
for which the Tenant is legally liable, located within the
Building, and insurance for all Tenant's fixtures and all
leasehold improvements situate at the Premises, whether
installed by the Tenant, by the Landlord or on behalf of the
Tenant, whether prior to the date of this Lease or installed
hereafter, and whether it is the property of the Landlord or
the Tenant, in an amount of the full replacement cost
thereof, subject to an agreed amount clause, with reasonable
deductibles of up to three percent (3%) of the replacement
cost of property insured. This insurance will, 1) name the
Landlord and the Mortgagee, as insureds, 2) contain a waiver
of any subrogation rights that the insurers may have against
the Landlord or the Mortgagee and against those for whom any
of them is responsible in law, 3) (except with respect to
the Tenant's stock-in-trade, furniture and
- 36 -
trade fixtures) incorporate the standard mortgage clause of
the Mortgagee;
(ii) Two Million Dollars ($2,000,000.00) inclusive limits
comprehensive general liability insurance. This insurance
will, 1) include owners' and contractors' protective,
products, completed operations, personal injury, employers',
contingent employers' and blanket contractual liability
coverages; provisions for cross liability, severability of
interests and occurrence property damage, 2) name the
Landlord as an additional insured, and 3) contain a
provision that precludes invalidation as respects the
interests of the Landlord and the Mortgagee, by reason of
any breach or violation of warranties, representations,
declarations, or conditions;
(iii) all risks tenant's legal liability insurance for the
replacement cost of the Premises;
(iv) One Million Dollars ($1,000,000.00) inclusive limits
automobile liability insurance on a non-owned form including
contractual liability, and on an owners form, covering all
licensed vehicles operated by or on behalf of the Tenant;
and
(v) any other form of insurance that the Tenant, or the
Landlord, acting reasonably, or that the Mortgagee requires,
in amounts and for insurance risks against which a prudent
tenant would insure.
(b) The Tenant agrees that if the Tenant fails to take out or keep any
such Insurance referred to in this Section 9.01, or should any such Insurance
not be approved by the Landlord or the Mortgagee and should the Tenant not
commence to diligently rectify (and thereafter proceed diligently to rectify)
the situation within forty-eight (48) hours after written notice by the Landlord
to the Tenant (stating if the Landlord or the Mortgagee does not approve of such
insurance, the reasons therefor) the Landlord has the right, without assuming
any obligation in connection therewith and without prejudice to any other rights
and remedies of the Landlord under this Lease, to effect such insurance at the
sole cost of the Tenant and all outlays by the Landlord shall be immediately
paid by the Tenant to the Landlord as Additional Rent on the first day of the
next month following such payment by the Landlord.
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Section 9.02 - Increase in Insurance Premiums
The Tenant shall not keep, use, sell or offer for sale 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 or the Building. If (a) the
occupancy of the Premises; (b) the conduct of business in the Premises; or (c)
any acts or omissions of the Tenant in the Building or any part thereof, causes
or results in any increase in premiums or requires an increase in the amount of
insurance carried from time to time by the Landlord with respect to the
Building, the Tenant shall pay any such increase in premiums as Additional Rent
forthwith after invoices for such additional premiums are rendered 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 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 recommendations of
any insurance rating and inspection authority or of any insurer now or hereafter
in effect, pertaining to or affecting the Premises or the Building.
Section 9.03 - Cancellation of Insurance
If any insurance policy upon the Building 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 and occupation
of the Premises or any part thereof by the Tenant or by any Transferee, or by
anyone permitted by the Tenant to be upon the Premises, and if the Tenant fails
to remedy the condition giving rise to cancellation, threatened cancellation, or
reduction of coverage within forty-eight (48) hours after notice thereof by the
Landlord, the Landlord may, at its option, either (a) re-enter and take
possession of the Premises forthwith by leaving upon the Premises a notice in
writing of its intention so to do and thereupon the Landlord shall have the same
rights and remedies as are contained in Article XV, or (b) enter upon the
Premises and remedy the condition giving rise to such cancellation, threatened
cancellation or reduction, and the Tenant shall forthwith pay the cost thereof
to the Landlord, as Additional Rent and the Landlord shall not be liable for any
loss or damage caused to any property of the Tenant or of others located on the
Premises as a result of any such entry. The Tenant agrees that any such entry
by the Landlord is not a re-entry or a breach of any covenant for quiet
enjoyment contained in this Lease.
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Section 9.04 - Insurance Risks
The Tenant shall not omit or permit to be done or omitted to be done
on or in the Building anything which would cause an increase in the Landlord's
cost of insurance or the cost of insurance of another tenant of the Building or
any property in the vicinity of the Building, against perils as to which the
Landlord, such other tenant or owners of such property in the vicinity of the
Building have insured or which shall cause any policy of such insurance to be
subject to cancellation.
Section 9.05 - Loss or Damage
(a) Except for the negligence of the Landlord, its agents, servants,
employees or those for whom it may in law be responsible, the Landlord shall not
be liable or responsible in any way to the Tenant or others for (i) any injury
or death arising from or out of any occurrence in, upon, at, or relating to the
Building or any loss or damage to property (including loss of use thereof) of
the Tenant or others located in the Building from any cause whatsoever, whether
or not any such injury, death, loss or damage results from the acts, omission or
fault of the Landlord, or its agents, servants, employees or other Persons for
whom it is in law responsible, (ii) (without limiting the generality of the
foregoing) any injury or death to Persons or loss or damage to property
resulting from fire, smoke, explosion, falling plaster, falling ceiling tiles,
falling fixtures, steam, gas, fumes, vapours, electricity, water, rain, flood,
snow, sleet, ice, or leaks from any part of the Building, or from any pipes,
sprinklers, appliances, electrical or other wiring, plumbing works, roof,
windows, or subsurface of any floor or ceiling of any part of the Building, or
from the street or any other place, or by dampness or by any other cause
whatsoever, or (iii) any such injury, death, loss or damage caused by other
tenants or Persons in the Building, or by occupants of adjacent property
thereto, or by the public, or by construction, or by any private, public or
quasi-public work, or by interruption, cessation or failure of any public or
other utility service or by Force Majeure. 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 promptly indemnify and hold harmless the Landlord
from any and all claims arising out of any loss of or damage to such property,
including loss of use thereof, and including without limitation, any subrogation
claims by the Tenant's insurers. Notwithstanding anything herein provided, the
liability of the Landlord pursuant to this Section 9.05 shall be limited to the
amount of insurance proceeds actually received by the Landlord in respect of the
foregoing.
(b) With respect to any liability which the Landlord may have arising
from the provisions of this Section 9.05, the Landlord shall promptly indemnify
and hold harmless the Tenant
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from and against all claims in connection therewith, including in connection
with any injury or death or any loss or damage to property; if the Tenant shall,
without fault on the Tenant's part, be made a party to any litigation commenced
by or against the Landlord in respect of the liability the Landlord may have
arising from this Section 9.05, and subject to the judgment or order of a Court,
the Landlord shall promptly indemnify and hold harmless the Tenant and shall pay
out costs, expenses and legal fees incurred or paid by the Tenant in connection
with such litigation forthwith on demand therefor. If the Landlord fails to
conduct its defence in a vigorous and effective manner, the Tenant may, at its
option and at the landlord's expense, participate in or assume carriage of any
such litigation in which the Tenant is a co-defendant or settlement discussions
relating to the foregoing, or any other matter for which the Landlord is
required to indemnify the Tenant thereunder. Alternatively, the Tenant may
require the Landlord, at the expense of the Landlord, to assume carriage of and
responsibility for all or any part of such litigation or discussions. Without
limiting the generality of the foregoing, the Landlord shall also pay all
reasonable costs and expenses, including, without limitation, any professional,
consultant, and legal fees (on a solicitor and its client basis) that may be
reasonably incurred or paid by the Tenant in enforcing the terms, covenants and
conditions in this Lease, unless a Court shall otherwise award. The provisions
of this Section 9.05(b) shall survive the expiration or earlier termination of
this Lease.
Section 9.06 - Landlord's Insurance
The Landlord shall, at all times throughout the Term, carry (a) all
risks property insurance on the Building and comprehensive boiler and machinery
insurance on the equipment of the Landlord situate at the Building and owned by
the Landlord (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) and on such boiler and machinery,
on a replacement cost basis, in such reasonable amounts and with such reasonable
deductions as would be carried by a prudent owner of a reasonably similar
building, having regard to size, age and location; (b) public liability and
property damage insurance with respect to the Landlord's operations in the
Building in such reasonable amounts and with such reasonable deductions as would
be carried by a prudent owner of a reasonably similar building, having regard to
size, age and location; and (c) such other form or forms of insurance as the
Landlord or the Mortgagee reasonably considers advisable. The cost of such
insurance shall be included in Section 6.02(b)(i) hereof. Notwithstanding the
Landlord's covenant contained in this Section 9.06 and notwithstanding any
contribution by the Tenant to the cost of insurance premiums provided herein,
the Tenant expressly acknowledges and agrees
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that: (i) the Tenant is not relieved of any liability arising from or
contributed to by its negligence or its acts or omissions, and (ii) 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 9.07 - Indemnification of Landlord
Notwithstanding any other terms, covenants and conditions contained in
this Lease, the Tenant shall promptly indemnify and hold harmless the Landlord
from and against any and all claims in connection with any injury or death or
any loss or damage to property arising from or out of any occurrence in, upon or
at the Premises, or the occupancy or use by the Tenant of the Premises, or any
part thereof, or occasioned wholly or in part by any act, default, negligence or
omission of the Tenant or by anyone permitted to be on the Premises by the
Tenant. If the Landlord shall, without fault on the Landlord's part, be made a
party to any litigation commenced by or against the Tenant, then subject to the
judgment or order of a Court, the Tenant shall promptly indemnify and hold
harmless the Landlord and shall pay all costs, expenses and legal fees incurred
or paid by the Landlord in connection with such litigation, as Additional Rent,
on demand. If the Tenant fails to conduct its defence in a vigorous and
effective manner, the Landlord may, at its option and at the Tenant's expense,
participate in or assume carriage of any litigation in which the Landlord is a
co-defendant or settlement discussions relating to the foregoing, or any other
matter for which the Tenant is required to indemnify the Landlord under this
Lease. Alternatively, the Landlord may require the Tenant at the Tenant's
expense to assume carriage of and responsibility for all or any part of such
litigation or discussions. Without limiting the generality of the foregoing,
the Tenant shall also pay all reasonable costs and expenses, including without
limitation, any professional, consultant, and legal fees (on a solicitor and his
client basis) that may be reasonably incurred or paid by the Landlord in
enforcing the terms, covenants and conditions in this Lease, unless a Court
shall otherwise award. The provisions of this Section 9.07 shall survive the
expiration or earlier termination of this Lease.
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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 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, and all telephone outlets and
conduits and special mechanical and electrical equipment within or serving the
Premises); and (iv) all damaged glass and plate glass serving the Premises. The
Tenant shall not be responsible for any repairs occasioned as a result of the
Landlord's, or anyone directly under the Landlord's control, negligent acts or
omissions.
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 whose
labour union affiliations are compatible with others employed by the Landlord
and its contractors; (iii) in a good and workmanlike manner; (iv) in accordance
with the drawings and specifications approved by the Landlord; and (v) subject
to the reasonable regulations, controls and inspection of the Landlord. 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
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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
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.
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
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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
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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 its trade fixtures and such of the 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
- 45 -
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 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 of the alterations, decorations,
additions,
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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.
Notwithstanding the foregoing in Section 10.09(a)(ii), the
Tenant's obligation shall be limited to restoring the
Premises to the condition that existed at the respective
dates upon which the Tenant took possession of the different
portions constituting the Premises.
(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 drapes or curtains; (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 - Tenant to Discharge all 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
- 47 -
Premises, 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 payable by the Tenant to the
Landlord on demand as Additional Rent.
Section 10.12 - Signs and Advertising
(a) Subject to Section 10.12(b), the 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.
(b) The Tenant, subject to the following terms and provisions, shall
have the right to affix prominent corporate signage on the north-west elevation
of the penthouse of the Building, being the uppermost part of the Building
facia, to be made up of the letters "ACC", together with the Tenant's corporate
logo, subject to reasonable approval of the Landlord, to applicable codes and
regulations of the City of Etobicoke and the Municipality of Metropolitan
Toronto and any other authorities having jurisdiction. Provided, however, that
the Tenant shall:
(i) on or before the 1st day of September, 1994, provide
evidence to the Landlord that the Tenant has applied for a
permit and any necessary variances, required, for the said
sign, and
(ii) the Tenant has erected such sign on or before the 1st day
of March, 1995,
failing which, the Tenant shall cease to have the rights to signage provided for
in this Section 10.12(b). Provided further that ACC Long Distance Ltd. or a
Related Company (as defined in Section 12.01(e) hereof) shall occupy the entire
Premises and the Additional Premises (as defined in Rider No. 4) if applicable,
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failing which the Tenant shall cease to have the rights to signage provided for
in this Section 10.12(b).
(c) 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.
(d) Any signs shall remain the property of the Tenant and shall be
provided for, erected and maintained at the Tenant's cost and expense. At the
expiration of the Term or earlier termination of the Lease, or upon the Tenant
ceasing to have the rights provided for in Section 10.12(b), as the case may be,
the Tenant shall remove any such signs, pictures, advertisements, notices,
letterings or decorations from the Premises and the Building 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 9.06 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 Minimum Rent and Additional Rent shall
▇▇▇▇▇ proportionately to the portion of
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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, 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
of the Landlord's Work and Minimum Rent and 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, as provided in Section 11.01(a)(i) or (ii) above,
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
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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 up to the date of the Notice.
(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
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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, or, (c) more than ten per cent (10%) of the
area of those Common
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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, and the Tenant shall be entitled to claim from
the Expropriating Authority in respect to its leasehold interests that may be
expropriated.
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
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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. Notwithstanding the foregoing
Section 12.01(b)(iii), the Landlord shall give consideration
to a request by the Tenant for the consent of the Landlord
to an assignment or subletting of the interest of the Tenant
in this Lease and in the Premises, as a security interest,
provided that the said security interest shall not interfere
with the Landlord's financing needs, shall not without
exception rank in priority to any security interests of the
Landlord hereunder and, the lender entering into a written
agreement with the Landlord on terms and conditions
satisfactory to the Landlord acting reasonably; and/or
(iv) the Landlord does not receive sufficient information,
material, books or records from
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the Tenant or the Transferee to enable the Landlord, in the
Landlord's opinion, acting reasonably, to make a
determination as to the credit worthiness, financial
responsibility, the nature of business, the business
history, the business experience and the integrity of the
Transferee and to make a determination as to whether or not
it should give its consent, and/or based on the aforesaid
information or otherwise, the Landlord is not satisfied with
those matters hereinbefore set forth.
(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) Section 12.01(b) does not apply to a Transfer consisting of an
assignment if the Transferee is a Related Company (as hereinafter described in
Section 12.01(e)), provided that the Tenant will not affect or permit such a
Transfer without in each instance fulfilling the following:
(i) The Tenant shall give at least ten (10) days' prior
written notice to the Landlord of its intention to effect
such a Transfer to a Related Company, which notice shall
provide particulars in reasonable detail as to how the
Transferee is a Related Company;
(ii) The Tenant and the Transferee have agreed in writing with
the Landlord that (i) the Transferee shall remain a Related
Company and, (ii) upon the Transferee ceasing to be a
Related Company, the event giving rise to the Transferee
ceasing to be a Related Company shall be deemed for the
purposes of this Lease to constitute a Transfer and the
provisions of Section 12.01(b) shall apply upon the
happening of such event;
(iii) The Tenant and the Transferee, as the case may be,
shall have complied with the provisions of Section 12.02(e),
(f), (g) and (h); and
(iv) The Tenant is not then in default under any of the terms,
covenants and conditions herein on its part to be observed
and performed.
(e) The term "Related Company" shall mean a corporation which directly
or indirectly controls, is controlled
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by, or is under common control with ACC Long Distance Ltd. or ACC Long Distance
Inc.; the term "control", "controls" and "controlled" shall mean that at least
51% of the voting shares are directly or beneficially held which are sufficient
to elect a sufficient number of directors to control the affairs of such
corporation.
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) and (d) 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;
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(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 one hundred percent
(100%) 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; and
(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.
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,
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thereupon and without further agreement, be freed and relieved of all liability
with respect to all covenants and obligations to be performed or observed by the
Landlord. 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
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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
of thing.
ARTICLE IV
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, as the
Landlord may direct, 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 setoffs, 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.
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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
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and deliver in the name of the Tenant any such instruments, statements,
acknowledgements or certificates.
Section 1.4.04 - Financial Information
The Tenant shall, upon request, provide the Landlord with such public
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 five (5) 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 fifteen (15) 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 fifteen (15) 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
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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, or otherwise, shall have the
immediate right to terminate this lease by notice to the Tenant or to re-enter
the Premises and repossess the Premises and enjoy them as of its former estate,
and the Tenant hereby agrees 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
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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 thereafter terminate this Lease, or, it may from
time to time without terminating this Lease make such alterations and repairs as
are necessary in order to relet the Premises or any part thereof and to relet
the Premises or part thereof as agent for the Tenant 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
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termination the Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
Section 15.03 - Other Rights of the Landlord
The Landlord shall have the right to recover from the Tenant all
damages, costs and expenses incurred by the Landlord as a result of any default
by the Tenant including, if the Landlord terminates this Lease, any deficiency
between those amounts which would have been payable by the Tenant for the
portion of the Term following such termination and the net amounts actually
received by the Landlord during such period of time with respect to the
Premises. In any of the events referred to in Section 15.01 hereof, in addition
to any other rights of the Landlord, the Landlord shall have the right to
recover from the Tenant the full amount of the current month's Rent together
with the next three months instalments of Rent, all of which shall accrue on a
day to day basis and 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. 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 and solicitor's fees (on a
solicitor-client basis).
Section 15.04 - Survival of Obligations
The indemnity provisions of this Lease and the rights of the Landlord
in respect thereof and the rights of the Landlord in respect of any failure by
the Tenant to perform any of its obligations under this Lease shall remain in
full force and effect notwithstanding the expiration or earlier termination of
the Term.
Section 15.05 - 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.
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Section 15.06 - Removal of Chattels
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 15.07 - 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 15.08 - 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 15.08 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.
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Section 15.09 - 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. The Tenant confirms the first lien and
charge granted pursuant to Section 15.09 of the Original Lease which provisions
shall remain in full force and effect and shall continue to bind the Tenant in
favour of the Landlord and its successors and assigns. All liens and charges
hereinbefore provided 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. 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
15.09 shall survive the expiration or earlier termination of this Lease.
Provided that the Tenant is not in default hereunder, the Landlord shall execute
its subordination of the Landlord's security hereby granted, in favour of
security granted by the Tenant in the normal course of its business operations
to facilitate the financing of the Tenant's equipment or the Tenant's business.
Section 15.10 - 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.
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Section 15.11 - 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.
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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 110% of 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
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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 and Additional 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 re-instate, 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
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
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from any and all claims with respect thereto, except in respect of LNR
Corporation and the commission owing with respect to the January 1994 Lease
Amending Agreement.
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 - Agent
The Landlord may perform all or any of its obligations hereunder by or
through such manager or other agency as it may from time to time determine, and
the Tenant shall, as from time to time directed by the Landlord in writing pay
to such manager or agent any monies payable hereunder to the Landlord.
Section 16.10 - Force Majeure
Notwithstanding anything to the contrary contained in this Lease, if
either party hereto 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 party so delayed shall be entitled
to perform such term, covenant or act within the appropriate time period after
the expiration of the period of such delay. However, the provisions of this
Section do not operate to excuse the Tenant from the prompt payment of Rent or
any other payments required under this Lease.
Section 16.11 - 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 Coopers & ▇▇▇▇▇▇▇ Limited, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Senior Vice-President, 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,
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at the Premises, Suite 401, Attention: President. 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 16.12 - 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 16.13 - 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.
Section 16.14 - Compliance with The Planning Act
It is an express condition of this Lease, that the provisions of
Section 50 of the Planning Act, Statutes of Ontario, 1990, 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
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application and in order to obtain such consent. Notwithstanding the foregoing
provisions of this Section 16.14, 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 16.15 - 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 16.16 - Limited Assets
The Tenant shall look solely to the Landlord's interest in the
Building 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 any other assets.
Section 16.17 - Bankruptcy and Insolvency Act
The Tenant hereby irrevocably waives any right it may have under
Section 65.2(1) of the Bankruptcy and Insolvency Act, S.C. 1992, or any
successor or similar legislation, to repudiate this Lease, and any such
purported repudiation of this Lease shall be of no force or effect.
Section 16.18 - Parking Spaces
The Landlord agrees to make available to the Tenant for the herein
Term sixty-three (63) parking spaces in the Parking Facilities on the P2 or P3
levels. The Tenant agrees to abide by the rules and regulations established
from time to time by the Landlord and/or the parking operator of the Parking
Facilities. The Tenant agrees to pay as part of the Rent, the monthly parking
charge of the Parking Facilities at the prevailing rates from time to time, on
or before the due dates thereof each month for each such underground parking
space. The parking spaces shall be on an "unreserved basis". The Tenant
acknowledges that the Landlord shall have no obligation to police the Parking
Facilities. Each parking space shall be used only for the parking of one motor
vehicle. The Tenant shall not be permitted to Transfer any of the parking
spaces and acknowledges that the entitlement may not be shared by any other
Person.
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Section 16.19 - 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.
IN WITNESS WHEREOF, the Landlord and the Tenant have executed this
Lease.
SIGNED, SEALED AND DELIVERED )
in the presence of ) COOPERS & ▇▇▇▇▇▇▇ LIMITED AS
) RECEIVER AND MANAGER FOR
) DUNDAS KIPLING II INC.
)
) Per: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ c/s
) ---------------------
) Senior Vice President
)
) ACC LONG DISTANCE LTD.
)
) Per: ▇. ▇. ▇▇▇▇▇▇▇ c/s
) --------------------
V. P. Finance
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SCHEDULE "A"
LEGAL DESCRIPTION OF THE BUILDING
Those lands and premises lying, situate and being in the City of
Etobicoke, in the Municipality of Metropolitan Toronto, consisting of Part of
▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇, designated as Parts 3 and 5 on 64R-
5004.
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SCHEDULE "B"
FLOOR PLAN
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
4th Floor
The purpose of this plan is to identify the approximate location of
the Premises in the Building. The Landlord reserves the right at any time to
relocate, rearrange or alter the buildings and structures, other premises and
Common Facilities.
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SCHEDULE "B"
FLOOR PLAN
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
6th Floor
The purpose of this plan is to identify the approximate location of
the Premises in the Building. The Landlord reserves the right at any time to
relocate, rearrange or alter the buildings and structures, other premises and
Common Facilities.
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SCHEDULE "C"
LANDLORD'S AND TENANT'S WORK
1. LANDLORD'S WORK (Base Building Standard)
The Landlord shall finish the Premises in the manner and standard to
the Building which, without limiting the generality of the foregoing, will
include the following:
(a) Supply and install a smooth concrete floor, ready for the Tenant's
floor covering.
(b) Supply and install standard Building ceiling system, including T-
Bar ceiling, ceiling tiles, and recessed fluorescent lighting based on a typical
open office floor area.
(c) Supply and install adequate heating and air-conditioning to the
Premises (and to be thermostat-controlled within the Premises) and to supply and
install all necessary duct work and diffusers within the Premises based on a
typical open office floor area.
Any additional diffusers or zones required within the Premises, over and above
what is being provided based on a typical open office floor area, will be at the
Tenant's expense.
Specialized Tenant needs, as for example, computer rooms, may require separate
mechanical systems at the Tenant's expense.
(d) Supply and install building standard window coverings.
(e) Power will be supplied to the Premises based on a general power
formula of one outlet per ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇.
Outlet boxes will be provided in each floor ceiling space.
(f) (i) For multi-tenancy floors, dividing partitions between the
Premises and the remainder of the floor on which the
Premises are located, together with a standard entrance door
and such other standard door or doors from the public
corridor to the Premises as are required by the appropriate
municipal or other governmental authorities. The colour of
the interior surfaces of the dividing partitions will be
prime painted. It is understood that the location of the
demising partitions dividing the Premises
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from the balance of the floor on which the Premises are
located is subject to approval of the appropriate municipal
or other governmental authorities;
(ii) For single tenancy floors, two (2) Building standard
washrooms in a location to be chosen by the Landlord and
exterior wall surfaces primed for painting.
2. TENANT'S WORK
(a) Any changes desired by the Tenant which depart from the Base
Building standard or which involve the use of materials not standard to the
Building or which involve leasehold improvements are subject to the Landlord's
prior written approval, which approval may be subject to such terms and
conditions as the Landlord deems desirable, including without limiting the
generality of the foregoing choice of contractors, labour compatibility, and
bonding, and any extra expense above that of the Base Building standard and any
expense in installing leasehold improvements shall be made at the expense of the
Tenant including without limitation, the preparation of the space plan and the
working drawings. The Landlord has the right to retain the services of its
consultants to review the Tenant.s space plans and working drawings, at the
Tenant's expense. The Landlord has the right to request the Tenant to use
contractors of the Landlord's choice.
(b) All permits necessary for the installation of the Tenant's
leasehold improvements and approval of plans must be obtained by the Tenant from
the applicable authorities prior to the commencement of installations by the
Tenant, at its expense and a copy sent to the Landlord.
(c) The Tenant and its contractors are responsible for removing
garbage and debris from the Premises and the Building daily and to place same
into garbage containers for that purpose as provided. All tenants will be
assessed their proportionate share of the cost of providing empty garbage
containers on the job site during the construction of their premises. Any of
the Tenant's garbage or debris removed by the Landlord's forces will be charged
to the Tenant's account.
(d) The Tenant will pay to the Landlord forthwith upon demand (i) the
reasonable costs incurred by the Landlord in retaining consultants to review the
Tenant's space plan and working drawings, (ii) a fee equal to fifteen percent
(15%) of the cost of the Tenant's leasehold improvements toward the cost of the
Landlord's supervision and overhead during installation of the said leasehold
improvements; and (iii) all reasonable costs incurred by the Landlord during the
period the Tenant fixtures
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the Premises including without limitation the cost of elevators to vertically
transport workers and materials with respect to the carrying out of the Tenant's
Work in the Premises.
(e) All work shall be constructed in a good and workmanlike manner,
free and clear of liens, as expeditiously as possible, and so as to not
prejudice any warranties or affect any installations with respect to Base
Building work including without limitation the mechanical, electrical,
sprinkler, plumbing, and other systems servicing the Building or any part or
parts thereof, or affect the operation and balancing of the said systems.
(f) All plans and specifications and working drawings, showing details
of all the Tenant's leasehold improvements within the Premises, including the
location of plumbing and electrical outlets, must, prior to the commencement of
the work, be submitted by the Tenant to the Landlord for its written approval.
The work shall be done in accordance with the provisions of the Lease, and the
provisions of Section 10.02 of the Lease shall apply mutatis mutandis to work
undertaken by the Tenant.
(g) The cost of all leasehold improvements whether constructed by the
Tenant's own contractor or by the Landlord's contractor shall be paid promptly
by the Tenant in accordance with the provisions of the Construction Lien Act.
(h) The Tenant shall perform all work required to provide all
leasehold improvements so that the Premises are available for carrying on the
Tenant's business at the Premises.
(i) In undertaking Tenant's Work, the Tenant shall ensure that its
contractors, subcontractors and consultants co-operate with the Landlord while
the Landlord is undertaking the Landlord's Work.
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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
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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.
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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
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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.
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SCHEDULE "E"
INDEMNITY AGREEMENT
THIS AGREEMENT is dated the 1st day of March, 1994.
BETWEEN:
COOPERS & ▇▇▇▇▇▇▇ LIMITED AS RECEIVER AND MANAGER FOR DUNDAS KIPLING
II INC.
(hereinafter called the "Landlord"),
PARTY OF THE FIRST PART
- and -
ACC TELENTERPRISES LTD.
(hereinafter called the "Indemnitor"),
PARTY OF THE SECOND PART
In order to induce the Landlord to enter into an amended and restated
lease dated the 1st day of March, 1994, and made between the Landlord and ACC
Long Distance Ltd., as Tenant, as may be supplemented by an agreement relating
to any and all Additional Premises (collectively, the "Lease"), and for other
good and valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged, the Indemnitor hereby makes the following indemnity and agreement
(the "Indemnity") with and in favour of the Landlord:
1. The Indemnitor hereby agrees with the Landlord that at all times
during the Term and any extension or renewal of the Lease it will, (a) make the
due and punctual payment of all Rent, monies, charges and other amounts of any
kind whatsoever payable under the Lease by the Tenant whether to the Landlord or
otherwise and whether the Lease has been disaffirmed or disclaimed; (b) effect
prompt and complete performance of all of the terms, covenants and conditions
contained in the Lease on the part of the Tenant therein to be kept, observed
and performed; and, (c) indemnify and save harmless the Landlord from any claims
for non-payment of Rent, money, charges or other amounts expressed to be due
under the Lease or resulting from any failure by the Tenant to observe and
perform any of the terms, covenants and conditions in the Lease.
2. This Indemnity is absolute and unconditional and the obligations of
the Indemnitor shall not be released, discharged,
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mitigated, impaired or affected by, (a) any extension of time, indulgences or
modifications which the Landlord extends to or makes with the Tenant in respect
of the performance of any of the obligations of the Tenant under the Lease; (b)
any waiver by or failure of the Landlord to enforce any of the terms, covenants
and conditions contained in the Lease; (c) any Transfer of the Lease by the
Tenant or by any Transferee or by any trustee, receiver or liquidator; (d) any
consent which the Landlord gives to any such Transfer; (e) any amendment to the
Lease or any waiver by the Tenant of any of its rights under the Lease; (f) the
expiration or other termination of the Term, or, (g) any overholding by the
Tenant of the Premises or any part thereof.
3. The Indemnitor hereby expressly waives notice of the acceptance of
this Agreement and all notice of non-performance, non-payment or non-observance
on the part of the Tenant of the terms, covenants and conditions in the Lease.
Without limiting the generality of the foregoing, any notice which the Landlord
desires to give to the Indemnitor shall be sufficiently given if delivered in
person to the Indemnitor or if mailed by prepaid registered or certified post
addressed to the Indemnitor at the Premises, and every such notice is deemed to
have been given upon the day it was delivered in person, or if mailed, seventy-
two (72) hours after it was mailed. The Indemnitor may designate by notice in
writing a substitute address for that set forth above and thereafter notices
shall be directed to such substitute address. If two or more parties are named
as Indemnitor, any notice given hereunder or under the Lease shall be
sufficiently given if delivered or mailed in the foregoing manner to any one of
such parties.
4. In the event of a default under the Lease or under this Indemnity, the
Indemnitor waives any right to require the Landlord to, (a) proceed against the
Tenant or pursue any rights or remedies against the Tenant with respect to the
Lease, (b) proceed against or exhaust any security of the Tenant held by the
Landlord, or, (c) pursue any other remedy whatsoever in the Landlord's power.
The Landlord has the right to enforce this Indemnity regardless of the
acceptance of additional security from the Tenant and regardless of any release
or discharge of the Tenant by the Landlord or by others or by operation of any
law.
5. Without limiting the generality of the foregoing, the liability of the
Indemnitor under this Indemnity is not and is not deemed to have been waived,
released, discharged, impaired, or affected by reason of the release or
discharge of the Tenant in any receivership, bankruptcy, winding-up or other
creditors' proceedings or the rejection, disaffirmance or disclaimer of the
Lease in any proceeding or the termination of the Lease for any reason
whatsoever and shall continue with respect to the periods prior thereto and
thereafter, for and with respect to the Term as if the Lease had not been
disaffirmed, disclaimed, or terminated,
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and in furtherance hereof, the Indemnitor agrees, upon any such disaffirmance,
disclaimer, or termination, that the Indemnitor shall, at the option of the
Landlord, become the Tenant of the Landlord upon the same terms and conditions
as are contained in the Lease, applied mutatis mutandis. The liability of the
Indemnitor shall not be affected by any repossession of the Premises by the
Landlord, provided, however, that the net payments received by the Landlord
after deducting all costs and expenses of repossessing and reletting the
Premises shall be credited from time to time by the Landlord against the
indebtedness of the Indemnitor hereunder and the Indemnitor shall pay any
balance owing to the Landlord form time to time immediately upon demand.
6. No action or proceedings brought or instituted under this Indemnity
and no recovery in pursuance thereof shall be a bar or defence to any further
action or proceeding which may be brought under this Indemnity by reason of any
further default hereunder or in the performance and observance of the terms,
covenants and conditions in the Lease.
7. No modification of this Indemnity shall be effective unless it is in
writing and is executed by both the Indemnitor and the Landlord.
8. The Indemnitor shall, without limiting the generality of the
foregoing, be bound by this Indemnity in the same manner as though the
Indemnitor were the Tenant named in the Lease.
9. If two or more individuals, corporations, partnerships or other
business associations (or any combination of two or more thereof) execute this
Indemnity as Indemnitor, the liability of each such individual, corporation,
partnership or other business association hereunder is joint and several. In
like manner, if the Indemnitor named in this Indemnity is a partnership or other
business association, the members of which are by virtue of statutory or general
law, subject to personal liability, the liability of each such member is joint
and several.
10. All of the terms, covenants and conditions of this Indemnity extend to
and are binding upon the Indemnitor, his or its heirs, executors,
administrators, successors and assigns, as the case may be, and enure to the
benefit of and may be enforced by the Landlord, its successors and assigns, as
the case may be, and any mortgagee, chargee, trustee under a deed of trust or
other encumbrancer of all or any part of the Building referred to in the Lease.
11. The expressions "Landlord," "Tenant," "Rent," "Term," "Premises,"
"Building," "Transfer" and "Additional Premises" and
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other terms or expressions where used in this Indemnity respectively, have the
same meaning as in the Lease.
12. This Indemnity shall be construed in accordance with the laws of the
province of Ontario.
13. Wherever in this Indemnity reference is made to either the Landlord or
the Tenant, the reference is deemed to apply also to the respective heirs,
executors, administrators, successors and assigns and permitted assigns,
respectively, of the Landlord and the Tenant, as the case may be, named in the
Lease. Any assignment by the Landlord of any of its interest in the Lease
operates automatically as an assignment to such assignee of the benefit of this
Indemnity.
IN WITNESS WHEREOF the Landlord and the Indemnitor have executed this
Indemnity.
SIGNED, SEALED AND DELIVERED )
in the presence of ) COOPERS & ▇▇▇▇▇▇▇ LIMITED AS
) RECEIVER AND MANAGER FOR
) DUNDAS KIPLING II INC.
)
) Per: c/s
) --------------------
) Name:
) Title:
)
) I have authority to bind the
) Corporation.
)
) ACC TELENTERPRISES LTD.
)
) Per:
) ------------------------
) Name:
) Title:
)
) Per: c/s
) --------------------
) Name:
) Title:
)
) We have authority to bind the
) Corporation
- 87 -
RIDER NO. 1
OPTION TO EXTEND THE TERM
The Tenant, if not in material default under the Lease, either in
payment of Rent or observance of the covenants herein, shall have the option to
extend the Lease with respect to all of the Premises, together with all of the
Additional Premises, for a further term of five (5) years upon giving at least
twelve (12) months' written notice of the exercise of such right and subject to
the same provisions as are contained in this Lease except that there shall be no
further right of extension, the Rent for the extension term shall be the then
market rent for the Premises as determined by agreement between the Landlord and
the Tenant and any tenant inducements, (which includes without limitation, any
rent-free periods), improvement allowance, turnkey package and/or cash
inducements shall be negotiated between the Landlord and the Tenant at that time
which tenant inducements, (which includes without limitation, any rent-free
periods), improvement allowance, turnkey package and/or cash inducements, as
applicable, shall be taken into account for the purposes of determining the
market rent for the Premises during the extension term, provided that there
shall be no obligation by the Landlord to provide any tenant inducements, (which
includes without limitation, any rent-free periods), improvement allowance,
turnkey package and/or cash inducements). The Landlord shall advise the Tenant
as to the proposed extension rental rate at least ninety (90) days prior to the
last date upon which the option is required to be exercised. The Tenant and the
Landlord shall have ninety (90) days from the Tenant's notice to negotiate and
agree upon the rate of Minimum Rent payable during the extension term and any
other terms and conditions, failing which the matter shall be referred to
arbitration by a single arbitrator subject to the Arbitration Act (1990) and the
decision of the arbitrator shall be final and binding on the parties. In the
event that the rate of Minimum Rent has not been established either by agreement
or by arbitration by the commencement date of the extension term, then the
Tenant shall continue to pay to the Landlord on account of Minimum Rent, the
same Minimum Rent which the Tenant was obligated to pay during the last year of
the initial term hereof; once the Minimum Rent has been determined by agreement
or by arbitration for the extension term, any adjustment shall be made by the
parties with any underpayment having been made by the Tenant, payable to the
Landlord within thirty (30) days of the determination of the rate of Minimum
Rent applicable to the extension term, and with any overpayment which may have
been made by the Tenant to the Landlord, to be credited by the Landlord in
favour of the Tenant as the Minimum Rent next falls due, until such overpayment
has been fully credited to the Tenant.
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RIDER NO. 2
FREE RENT PERIODS
Notwithstanding the provisions of this Lease, the actual rent payable
in respect of portions of the Premises shall be adjusted as follows:
(a) for the period March 1, 1994, to February 28, 1995, the Tenant
shall not be obligated to pay Minimum Rent or Additional Rent
with respect to 5,678 square feet of the Sixth Floor Expansion
Premises;
(b) for the period of March 1, 1995 to February 29, 1996, the Tenant
shall not be obligated to pay Minimum Rent with respect to 1,678
square feet of the Sixth Floor Expansion Premises.
Notwithstanding the foregoing, Additional Rent as provided in the
Lease shall be due and payable on the entire Sixth Floor
Expansion Premises (9,678 square feet).
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RIDER NO. 3
LEASE CANCELLATION PROVISIONS
The Tenant, if not in default under the terms of this Lease, shall
have the one time right to terminate the Term of the Lease and to give up vacant
possession of the Premises, effective February 29, 2000, provided it gives at
least twelve (12) months' prior written notice to the Landlord and makes payment
of a cancellation fee to the Landlord at the rate of $35.00 per square foot of
Rentable Area of the Premises. In the event that the Tenant does not provide
written notice to the Landlord exercising its right of termination by February
28, 1999, the termination right shall become null and void. The Tenant shall be
obligated to perform all of the obligations of the Tenant, including without
limitation, the obligation to pay Rent up until the termination date of February
29, 2000, and shall, notwithstanding any such termination, remain responsible
for the performance of all covenants which survive termination. The
cancellation fee shall be due and payable on or before such termination date and
failure to pay such cancellation fee by such date shall, at the option of the
Landlord, entitle the Landlord to declare that the cancellation right is null
and void, in which case the Tenant shall be obligated to pay Rent during the
entire remainder of the Term, as well as remain liable for payment of the
cancellation fee.
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RIDER NO. 4
OPTION TO LEASE ADDITIONAL SPACE
If, during the Term, the Landlord becomes aware that any space
contiguous to the Premises situate on the 4th or 6th floors of the Building or
floors adjacent to the 4th or 6th floors of the Building (the "Additional
Premises") will become available for leasing, the Landlord shall by written
notice to the Tenant, offer to the Tenant the right to lease such Additional
Premises in an "as is" condition, provided that the Tenant is not in default
under this Lease. The Tenant shall have thirty (30) days from receipt of such
notice to exercise this right, failing which the Tenant shall have no further
rights in respect of the Additional Premises so offered by the Landlord to the
Tenant in such written notice, and the Landlord may lease the Additional
Premises on whatever terms it may determine.
If the Tenant accepts such offer, all the provisions of this Lease
(except for the rate of Minimum Rent per square foot of the Rentable Area of
such Additional Premises) shall apply and except for any tenant inducements
which form part of this Lease, shall apply with respect to the Additional
Premises. The Minimum Rent applicable to the Additional Premises shall be the
then market rent for similar premises in the vicinity of the Building. The term
of the Lease with respect to the Additional Premises shall commence on the later
of the date upon which the Tenant gives notice that it exercises its right with
respect to the Additional Premises and the date upon which the Additional
Premises are vacated by the former tenant, and shall be for the same length of
term as then remaining with respect to the Premises. The Landlord and Tenant
shall enter into a supplement to this Lease to include the Additional Premises,
mutatis mutandis, save and except with respect to the rate of the Minimum Rent
and for any tenant inducements which may form part of this Lease.
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RIDER NO. 5
PAYMENT FOR LEASEHOLD IMPROVEMENTS -
SIXTH FLOOR EXPANSION PREMISES
Provided the Tenant is not in default under this Lease, the Landlord
shall pay to the Tenant a leasehold improvement allowance (the "Improvement
Allowance") as a once only contribution applicable only to the Commencement
Date, equal to the actual cost to the Tenant of completing its leasehold
improvements in the Sixth Floor Expansion Premises, but not to exceed $20.00 per
square foot of Rentable Area of the Sixth Floor Expansion Premises. The
Improvement Allowance shall be paid, subject to compliance with the holdback
requirements of the Construction Lien Act, after presentation to the Landlord of
paid invoices from the Tenant's contractors and suppliers for completion of such
leasehold improvement work, upon the latest of:
(a) the Commencement Date of this Lease;
(b) the date of execution of this Lease; and
(c) the date the Tenant completes all of its leasehold improvement
work in the Sixth Floor Expansion Premises and takes occupancy
thereof.
The Landlord shall be entitled to holdback ten percent (10%) of the Improvement
Allowance, or such greater amount if required in order to comply with the
Construction Lien Act, until the expiry of all relevant periods for filing of
any construction lien claim relating to such work, and shall release such
holdback only if no notice of any claim for lien is received.
The Tenant acknowledges that it is accepting the Sixth Floor Expansion Premises
in an "as is" condition.