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EXHIBIT 10.1
STANDARD
DATED: MAY 5, 2000.
B E T W E E N:
THE ATRIUM ON BAY INC.
- AND -
DALEEN CANADA CORPORATION
- AND -
DALEEN TECHNOLOGIES INC.
THE ATRIUM ON BAY
OFFICE LEASE AGREEMENT
TORONTO, ONTARIO
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THE ATRIUM ON BAY - TORONTO
OFFICE LEASE
TABLE OF CONTENTS
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ARTICLE I - BASIC LEASE TERMS.....................................................................................5
SECTION 1.01 - VARIABLE DEFINED TERMS....................................................................5
SECTION 1.02 - STANDARD DEFINITIONS ....................................................................6
ARTICLE II - LEASED PREMISES - TERM - RENT.......................................................................12
SECTION 2.01 - LEASED PREMISES AND TERM.................................................................12
SECTION 2.02 - USE OF ADDITIONAL AREAS..................................................................12
SECTION 2.03 - CONSTRUCTION OF THE LEASED PREMISES......................................................13
SECTION 2.04 - ADJUSTMENT OF AREAS......................................................................13
SECTION 2.05 - AGREEMENT TO PAY.........................................................................13
SECTION 2.06 - BASIC RENT...............................................................................13
SECTION 2.07 - LATE PAYMENT CHARGE......................................................................13
SECTION 2.08 - NET LEASE................................................................................14
SECTION 2.09 - ACKNOWLEDGEMENT OF COMMENCEMENT DATE ...................................................14
ARTICLE III - TAXES AND OFFICE SECTION OPERATING COSTS...........................................................14
SECTION 3.01 - TAXES PAYABLE BY LANDLORD................................................................14
SECTION 3.02 - TENANT'S SHARE OF TAXES..................................................................14
SECTION 3.03 - TENANT'S PROPORTIONATE SHARE OF OFFICE SECTION OPERATING COSTS...........................14
SECTION 3.04 - TENANT'S TAXES...........................................................................14
SECTION 3.05 - TENANT'S RESPONSIBILITY..................................................................15
SECTION 3.06 - PAYMENT OF ESTIMATED TAXES AND OFFICE SECTION OPERATING COSTS............................15
ARTICLE IV - COMPLEX - CONTROL AND SERVICES......................................................................16
SECTION 4.01 - CONTROL OF THE COMPLEX BY THE LANDLORD...................................................16
SECTION 4.02 - LANDLORD'S SERVICES......................................................................16
SECTION 4.03 - SUBSTITUTION.............................................................................17
ARTICLE V - UTILITIES AND ADDITIONAL SERVICES....................................................................17
SECTION 5.01 - CHARGES FOR UTILITIES....................................................................17
SECTION 5.02 - ADDITIONAL SERVICES OF THE LANDLORD......................................................17
SECTION 5.03 - THIRD PARTY SERVICES.....................................................................17
ARTICLE VI - USE OF LEASED PREMISES..............................................................................17
SECTION 6.01 - USE OF THE LEASED PREMISES...............................................................17
SECTION 6.02 - OBSERVANCE OF LAW........................................................................18
SECTION 6.03 - ENERGY CONSERVATION......................................................................18
SECTION 6.04 - TENANT'S INDEMNITY re HAZARDOUS MATERIALS................................................18
ARTICLE VII - INSURANCE AND INDEMNITY............................................................................19
SECTION 7.01 - TENANT'S INSURANCE.......................................................................19
SECTION 7.02 - INCREASE IN INSURANCE PREMIUMS...........................................................20
SECTION 7.03 - CANCELLATION OF INSURANCE................................................................20
SECTION 7.04 - LOSS OR DAMAGE...........................................................................20
SECTION 7.05 - LANDLORD'S INSURANCE.....................................................................21
SECTION 7.06 - INDEMNIFICATION OF THE LANDLORD..........................................................21
SECTION 7.07 - LIMITATIONS OF LIABILITY.................................................................21
ARTICLE VIII - MAINTENANCE, REPAIRS AND ALTERATIONS..............................................................21
SECTION 8.01 - MAINTENANCE AND REPAIRS BY THE TENANT....................................................21
SECTION 8.02 - LANDLORD'S APPROVAL OF THE TENANT'S REPAIRS..............................................22
SECTION 8.03 - MAINTENANCE AND REPAIRS BY THE LANDLORD ................................................23
SECTION 8.04 - SURRENDER OF THE LEASED PREMISES.........................................................23
SECTION 8.05 - REPAIR WHERE THE TENANT IS AT FAULT......................................................23
SECTION 8.06 - TENANT NOT TO OVERLOAD FACILITIES........................................................23
SECTION 8.07 - TENANT NOT TO OVERLOAD FLOORS............................................................24
SECTION 8.08 - REMOVAL AND RESTORATION BY TENANT........................................................24
SECTION 8.09 - NOTICE BY THE TENANT ...................................................................24
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SECTION 8.10 - TENANT TO DISCHARGE ALL LIENS............................................................24
SECTION 8.11 - SIGNS AND ADVERTISING....................................................................24
ARTICLE IX - DAMAGE AND DESTRUCTION..............................................................................25
SECTION 9.01 - DESTRUCTION OF THE LEASED PREMISES.......................................................25
SECTION 9.02 - DESTRUCTION OF THE COMPLEX...............................................................26
ARTICLE X - TRANSFER AND SALE....................................................................................26
SECTION 10.01 - ASSIGNING AND SUBLETTING................................................................26
SECTION 10.02 - LANDLORD'S RIGHT TO TERMINATE...........................................................27
SECTION 10.03 - CONDITIONS OF TRANSFER..................................................................27
SECTION 10.04 - NO ADVERTISING OF THE LEASED PREMISES...................................................29
SECTION 10.05 - CORPORATE OWNERSHIP.....................................................................29
SECTION 10.06 - ASSIGNMENT BY THE LANDLORD..............................................................29
ARTICLE XI - ACCESS AND ALTERATIONS..............................................................................29
SECTION 11.01 - RIGHT OF ENTRY..........................................................................29
SECTION 11.02 - RIGHT TO SHOW LEASED PREMISES .........................................................29
SECTION 11.03 - ENTRY NOT FORFEITURE ..................................................................29
SECTION 11.04 - LANDLORD'S COVENANT FOR QUIET ENJOYMENT ................................................30
SECTION 11.05 - TENANT ACCESS ..........................................................................30
ARTICLE XII - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION.....................................................30
SECTION 12.01 - STATUS STATEMENT........................................................................30
SECTION 12.02 - GROUND LESSOR, SUBORDINATION o o o , ATTORNMENT AND NON-DISTURBANCE....................30
SECTION 12.03 - ATTORNEY................................................................................30
SECTION 12.04 - FINANCIAL INFORMATION...................................................................31
SECTION 12.05 - ACKNOWLEDGEMENT OF TITLE................................................................31
ARTICLE XIII - DEFAULT...........................................................................................31
SECTION 13.01 - RIGHT TO RE-ENTER ......................................................................31
SECTION 13.02 - RIGHT TO RE-LET.........................................................................32
SECTION 13.03 - TERMINATION.............................................................................32
SECTION 13.04 - ACCELERATED RENT........................................................................32
SECTION 13.05 - EXPENSES................................................................................32
SECTION 13.06 - WAIVER OF EXEMPTION FROM DISTRESS.......................................................33
SECTION 13.07 - LANDLORD MAY CURE TENANT'S DEFAULT OR PERFORM TENANT'S COVENANTS .......................33
SECTION 13.08 - ADDITIONAL RENT.........................................................................33
SECTION 13.09 - REMEDIES GENERALLY......................................................................33
SECTION 13.10 - HOLDING OVER............................................................................33
SECTION 13.11 - NO WAIVER...............................................................................33
ARTICLE XIV - MISCELLANEOUS......................................................................................33
SECTION 14.01 - RULES AND REGULATIONS ..................................................................34
SECTION 14.02 - SECURITY DEPOSIT .......................................................................34
SECTION 14.03 - PEST CONTROL ...........................................................................34
SECTION 14.04 - OBLIGATIONS AS COVENANTS ...............................................................34
SECTION 14.05 - AMENDMENTS AND SUPPLEMENTARY LEASE PROVISIONS ..........................................34
SECTION 14.06 - CERTIFICATES ...........................................................................34
SECTION 14.07 - TIME ...................................................................................35
SECTION 14.08 - SUCCESSORS AND ASSIGNS .................................................................35
SECTION 14.09 - GOVERNING LAW ..........................................................................35
SECTION 14.10 - HEADINGS................................................................................35
SECTION 14.11 - ENTIRE AGREEMENT .......................................................................35
SECTION 14.12 - SEVERABILITY ...........................................................................35
SECTION 14.13 - NO OPTION ..............................................................................35
SECTION 14.14 - OCCUPANCY PERMIT .......................................................................35
SECTION 14.15 - PLACE FOR PAYMENTS .....................................................................36
SECTION 14.16 - EXTENDED MEANINGS ......................................................................36
SECTION 14.17 - NO PARTNERSHIP OR AGENCY ...............................................................36
SECTION 14.18 - UNAVOIDABLE DELAY ......................................................................36
SECTION 14.19 - REGISTRATION ...........................................................................36
SECTION 14.20 - JOINT AND SEVERAL LIABILITY ............................................................37
SECTION 14.21 - NAME OF COMPLEX ........................................................................37
SECTION 14.22 - CHANGES IN THE COMPLEX .................................................................37
SECTION 14.23 - NOTICES ................................................................................37
ARTICLE XV - INDEMNITY AGREEMENT.................................................................................37
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SECTION 15.01 - INDEMNITY ..............................................................................37
SECTION 15.02 - FURTHER ASSURANCES ....................................................................39
SECTION 15.03 - LANDLORD'S REPRESENTATION AND WARRANTIES ..............................................39
SCHEDULE "A" - LEGAL DESCRIPTION ................................................................................41
SCHEDULE "B-1" - FLOOR PLAN......................................................................................42
SCHEDULE "B-2" - FLOOR PLAN......................................................................................43
SCHEDULE "C" - RULES AND REGULATIONS ............................................................................44
SCHEDULE "D" - STANDARD METHOD OF FLOOR MEASUREMENT..............................................................47
SCHEDULE "E" - ACKNOWLEDGEMENT OF COMMENCEMENT DATE..............................................................49
SCHEDULE "F" - SUPPLEMENTARY LEASE PROVISIONS....................................................................50
SCHEDULE "G-1" - FLOOR PLAN......................................................................................54
SCHEDULE "G-2" - FLOOR PLAN......................................................................................55
SCHEDULE "I" - LANDLORD'S WORK...................................................................................55
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THE ATRIUM ON BAY, TORONTO - OFFICE LEASE
ARTICLE I - BASIC LEASE TERMS
SECTION 1.01 - VARIABLE DEFINED TERMS
In this Lease the following terms will have the following
meanings:
(1) "LEASE" means this lease dated the 5TH DAY OF MAY, 2000, and
includes all schedules annexed hereto, as from time to time
amended in writing.
(2) "LANDLORD" - THE ATRIUM ON BAY INC. and its successors
and assigns.
(3) "LANDLORD'S ADDRESS" - Suite 231, 20 Dundas Street West,
Toronto, Ontario, M5G 2C2 or such other address as is
designated by the Landlord.
(4) "TENANT" - DALEEN CANADA CORPORATION and its successors and
permitted assigns.
(5) "TENANT'S ADDRESS" - Prior to the Commencement Date, 55 YORK
STREET, SUITE 1600, TORONTO, ONTARIO, M5J 1R7, ATTENTION: MR.
FRANK DICKINSON or such other address as is designated by the
Tenant within the City of Toronto. From and after the
Commencement Date, the Leased Premises.
(6) "INDEMNIFIER" - DALEEN TECHNOLOGIES INC.
(7) "INDEMNIFIER'S ADDRESS" - DALEEN TECHNOLOGIES INC., 1750 CLINT
MOORE ROAD, BOCA RATON, FLORIDA, USA, 33487, ATTENTION: LEGAL
DEPARTMENT or such other address as is designated IN WRITING
by the INDEMNIFIER.
(8) "LEASED PREMISES" - Those premises leased to the Tenant
pursuant to Section 2.01 hereof, shown cross-hatched on
SCHEDULE "B-1" AND SHOWN DIAGONALLY HATCHED ON SCHEDULE "B-2"
HERETO, BEING PART OF THE THIRD (3RD) FLOOR AND PART OF THE
FOURTH (4TH) FLOOR IN THE BUILDING KNOWN AS SUITES 310 AND
410.
(9) "RENTABLE AREA OF LEASED PREMISES" - The Rentable Area of the
Leased Premises being approximately 42,569 square feet of area
determined in accordance with Schedule "D" HEREOF WHICH SHALL
BE CERTIFIED BY THE LANDLORD'S ARCHITECT AND SHALL BE subject
to adjustment in accordance with Section 2.04 hereof. THE
RENTABLE AREA OF THE LEASED PREMISES SHALL NOT BE GREATER THAN
113% OF THE USEABLE AREA OF THE LEASED PREMISES.
(10) "BASIC RENT" - EIGHTEEN DOLLARS AND SEVENTY-FIVE CENTS
($18.75) per square foot of Rentable Area of the Leased
Premises per annum payable pursuant to Section 2.06 hereof:
(11) "COMMENCEMENT DATE" - AUGUST 1, 2000.
(12) "TERM" - SEVEN (7) YEARS and any extension or renewal if
exercised pursuant to the provisions of this Lease.
(13) "FIXTURING PERIOD" means the period commencing on the day THE
TENANT EXECUTES AND DELIVERS A COPY OF THIS LEASE TO THE
LANDLORD AND ENDING ON JULY 31, 2000.
(14) "BUILDING" means the building presently designated by the
Landlord as 40 DUNDAS STREET WEST, TORONTO, ONTARIO AND 595
BAY STREET, TORONTO, ONTARIO, AS APPLICABLE, in which the
Leased Premises are situated.
(15) "AGREEMENT TO LEASE" means the written agreement to lease
between the Landlord and the Tenant with respect to the Leased
Premises dated the 12TH day of APRIL, 2000,AS AMENDED BY A
LETTER AGREEMENT BETWEEN THE LANDLORD AND TENANT DATED MAY 3,
2000.
(16) "SECURITY DEPOSIT" means the sum of TWO HUNDRED AND
TWENTY-EIGHT THOUSAND, NINE HUNDRED AND EIGHTY-FIVE DOLLARS
($228,985.00), BEING EQUAL TO APPROXIMATELY TWO MONTH'S GROSS
RENT in respect of the Leased Premises and which amount is to
be applied in accordance with Section 14.02, and which amount
shall be increased so as to continue to equal two months'
gross rent if the Tenant exercises any option or right to
lease additional space.
(17) "TYPE OF BUSINESS OF THE TENANT:" means FOR GENERAL OFFICE
PURPOSES WHICH MAY INCLUDE DEVELOPMENT, PROMOTION, MARKETING
AND THE SALE OF COMPUTER SOFTWARE (NOT AT RETAIL) o o o .
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SECTION 1.02 - STANDARD DEFINITIONS
(1) "ADDITIONAL RENT" means all sums of money, other than Basic
Rent, which are required to be paid by the Tenant pursuant to
any provision of this Lease.
(2) "ADDITIONAL SERVICE" means any service which is requested or
required by or for a tenant (including the Tenant) in addition
to those supplied by the Landlord as part of the normal
services provided in the Complex, and which the Landlord is
prepared or elects to supply at an additional cost to the
Tenant and includes, without limitation, janitor and cleaning
services in addition to those normally supplied, the provision
of labour and supervision in connection with deliveries, the
making of any repairs or alterations on behalf of a tenant,
supervision in connection with the moving of any furniture or
equipment of any tenant, the supervision of the making of any
repairs or alterations by any tenant and the cost of replacing
electric light fixtures, ballasts, tubes, starters, lamps and
light bulbs not located within Common Facilities.
(3) "ADDITIONAL SERVICE COST" means the additional cost payable by
the Tenant to the Landlord for any Additional Service in
accordance with Section 5.02 hereof.
(4) "ARCHITECT" means the architect, professional engineer or
surveyor named by the Landlord from time to time WHO SHALL BE
QUALIFIED AND LICENSED AND WHO SHALL CARRY OUT HIS OR HER
RESPONSIBILITIES IN ACCORDANCE WITH THE STANDARDS OF SUCH
PROFESSION, AND WITHOUT REGARD TO THE INTERESTS OF THE
LANDLORD OR THE TENANT.
(5) "BANK RATE" means the interest rate per annum as announced by
the chartered bank of the Landlord at the principal office of
such bank in Toronto and reported by it to the Bank of Canada
as its prime rate.
(6) "BUSINESS HOURS" means the period from 7:00 a.m. to 6:00 p.m.
on Mondays to Fridays inclusive (excepting holidays as defined
in the INTERPRETATION ACT (Ontario)) or such other hours as
may be designated from time to time by the Landlord.
(7) "CAPITAL TAX IN RESPECT OF THE COMPLEX" means the aggregate
of:
(a) an amount of the tax or excise imposed by the
Province of Ontario upon the Landlord or the owners
of the Complex which is measured by or based in whole
or in part upon the capital, surplus, reserves or
indebtedness of such Landlord or owners, and which is
at present based upon the application of the
prescribed rate to the amount of such Landlord's or
owner's "taxable paid-up capital" as defined in the
CORPORATIONS TAX ACT (Ontario) the amount of the tax
or excise for the purposes hereof shall be calculated
in any year as if the Complex was the only
establishment in the Province of Ontario owned by
such Landlord or owners in the year and such Landlord
or owners had no establishment other than in the
Province of Ontario; and
(b) an amount of the tax or excise imposed by the
Government of Canada upon the Landlord or the owners
of the Complex which is measured by or based in whole
or in part upon the capital, surplus, reserves or
indebtedness of the Landlord or the owners, and which
tax is at present based upon the application of the
prescribed rate to the amount by which the "taxable
capital employed in Canada" by such Landlord or
owners as defined in the INCOME TAX ACT (Canada)
exceeds its or their "capital deduction" as defined
in such Act for the year; the amount of the tax or
excise for the purposes hereof shall be calculated in
any year as if the Complex was the only asset owned
by such Landlord or owners in the year and the
capital deduction of such Landlord or owners for the
year was nil.
(8) "COMMON FACILITIES" means those areas and facilities of or for
the Complex which serve or benefit the Complex including,
without limitation, roadways, landscaped areas, arcades,
sidewalks, public entrance doors, halls, public lobbies,
lavatories, stairways, passageways, elevators, escalators,
service ramps and common loading and receiving facilities and
Common Use Equipment, and which are designated from time to
time by the Landlord for the common use or enjoyment of the
tenants in the Complex and users of adjacent properties, and
their agents, invitees, servants, employees and licensees, or
for use by the public, but excluding the Parking Garage,
premises that are rented or designated or intended by the
Landlord to be rented on a permanent basis in the Complex and
other portions of the Complex which are from time to time
designated by the Landlord for private use by one or a limited
group of tenants.
(9) "COMMON USE EQUIPMENT" means all mechanical, plumbing,
electrical and heating, ventilating, and air-conditioning
equipment, security, communication equipment, pipes, ducts,
wiring, machinery and equipment and other integral services,
utility connections and the like providing services to the
Complex, including such services to and within rentable
premises (it being understood that any changes to such
services made by or on behalf of the Tenant shall be
considered to be Leasehold Improvements).
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(10) "COMPLEX" means the Lands and the buildings and other
improvements located thereon and includes all subcourts,
structures and improvements from time to time thereunder
associated therewith including the Building, all as from time
to time designated by the Landlord and presently known as
"Atrium on Bay".
(11) "HVAC COSTS" means the cost of heating, ventilating and
cooling the whole or a specified part of the Office Section
during Business Hours and includes, without limitation, cost
of fuel, electricity, operation of air distribution and
cooling equipment, labour, materials, non-capital repairs,
maintenance, service and other such costs, and depreciation
(computed in accordance with generally accepted accounting
principles, together with interest on the undepreciated
portion of such costs at an annual rate of interest that is
one percentage (1%) point above the Bank Rate in effect from
time to time) of fixtures and equipment used therefor which,
by their nature, require periodic replacement or substantial
replacement, reasonably attributable to the heating,
ventilating and cooling of the specified part.
(12) "INSURANCE COST" means, for any fiscal period, the total cost
to the Landlord calculated in accordance with generally
accepted accounting principles, for insuring the Complex
pursuant to the terms of this Lease.
(13) "INSURED DAMAGE" means that part of any damage occurring to
the Complex, including the Leased Premises, of which the cost
of repair (except as to any deductible amount provided for in
the applicable policy or policies of insurance) is actually
recovered by the Landlord under a policy or policies of
insurance from time to time effected by the Landlord pursuant
hereto.
(14) "JANITORIAL COSTS" means the Landlord's cost of providing
normal janitorial services to the whole or a specified part of
the Office Section.
(15) "LANDS" means the lands described in Schedule "A" attached
hereto and includes those lands bounded on the north by Edward
Street, on the west by Bay Street, on the south by Dundas
Street and on the east by Yonge Street and includes other
lands designated by the Landlord as part of the Complex in
which the Landlord from time to time has an interest
(including rights in and under adjacent public streets) and
passageways or tunnels leading to underground public
transportation facilities and, in each case, whether
contiguous or separated by public streets, all as from time to
time designated by the Landlord.
(16) "LEASEHOLD IMPROVEMENTS" means all items generally considered
as leasehold improvements, including, without limitation, all
fixtures, equipment, wiring and related equipment,
improvements, installations, alterations and additions from
time to time made, erected or installed by or on behalf of the
Tenant, or any previous occupant of the Leased Premises in the
Leased Premises, and by or on behalf of other tenants in other
premises in the Complex including any stairways for the
exclusive use of the Tenant, all partitions, however affixed
and whether or not movable, and all wall-to-wall carpeting
other than carpeting laid over finished floors and affixed so
as to be readily removable without damage; but excluding trade
fixtures, unattached furniture or free-standing partitions and
equipment not of the nature of fixtures.
(17) "MORTGAGE" means any instrument, mortgage, deed of trust,
document or security interest (resulting from any method of
financing or refinancing) or blanket mortgage pledge or other
charge (affecting the Complex in whole or in part, alone or in
conjunction with any other property) now or hereafter secured
upon the Complex or any part thereof, and includes all
renewals, modifications, consolidations, replacements and
extensions thereof.
(18) "MORTGAGEE" means the mortgagee, or other creditor or trustee
for bondholders or beneficiaries, or others named in any
Mortgage.
(19) "NOTICE" means any notice, statement, consent, approval,
demand, invoice or request herein required or permitted to be
given by any party to another pursuant to this Lease.
(20) "OFFICE SECTION" means those portions of the Complex
designated by the Landlord for office purposes and which are
leased or intended to be leased for office purposes (and which
includes the Leased Premises), consisting of three (3)
multi-storey office towers conjoined and constructed over a
retail podium at grade and concourse level, including the
entrances and entrance lobbies on court level, lobbies,
corridors, elevators and other areas and Common Facilities, in
each case within, serving or benefiting the Office Section, as
the same may from time to time be altered, expanded or
reconstructed, together with any other buildings or portions
thereof which are intended to be leased for office purposes
and which, by notice, are designated by the Landlord as part
of the Office Section from time to time.
(21) "OFFICE SECTION OPERATING COSTS" means that portion allocated
by the Landlord (WHICH ALLOCATION THE LANDLORD AGREES TO DO ON
A FAIR AND EQUITABLE BASIS) to the Office Section of the total
of all expenses, costs, fees, rentals, disbursements and
outlays of every kind paid, payable or ACTUALLY incurred by or
on behalf of the Landlord in respect of the Complex, or
allocated by the Landlord to
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the Office Section on an accrual basis (or on a cash basis to
the extent the Landlord considers appropriate), but without
duplication, in the complete maintenance, repair, operation,
supervision, replacement, administration and management of the
Office Section, and a reasonable amount, as determined by the
Landlord from time to time, for all OCCUPANCY RELATED expenses
incurred by or on behalf of tenants in the Office Section with
whom the Landlord may from time to time have agreements
whereby, in respect of their premises, those tenants perform
or provide any cleaning, maintenance or other work, utilities
or services usually performed or provided by the Landlord
which, if directly incurred by the Landlord, would have been
included in Office Section Operating Costs. THE LANDLORD
ACKNOWLEDGES AND AGREES TO USE COMMERCIALLY REASONABLE EFFORTS
TO CONTROL OFFICE SECTION OPERATING COSTS AND THAT THE
LANDLORD SHALL NOT RECOVER MORE THAN 100% OF THE OFFICE
SECTION OPERATING COSTS ACTUALLY INCURRED BY THE LANDLORD.
Without limiting the generality of the foregoing, Office
Section Operating Costs shall include:
(A) (i) the Insurance Cost, HVAC Costs and
Janitorial Costs;
(ii) the cost of providing security, supervision,
traffic control, landscaping, exterior
window cleaning, garbage collection and
removal and snow removal services;
(iii) the cost of operating, providing,
inspecting, maintaining, servicing,
repairing and replacing the heating,
ventilating, cooling, electrical, water and
music systems, in each case in respect of
the Common Facilities but excluding the
original capital cost of same;
(iv) the cost of hot and cold water, electric
light and power, telephone, steam, gas,
cable TV, communications, sewage disposal
and other utilities and services to the
Common Facilities;
(v) the cost of maintaining and replacing signs
and directory boards;
(vi) accounting costs incurred in connection with
the maintenance, repair, replacement,
operation, administration or management of
the Complex, including computations required
for the imposition of charges to tenants,
the cost of preparing statements and
opinions for tenants and banking fees and
expenses and audit fees;
(vii) the cost of performing the Landlord's
obligations under Section 8.03;
(viii) the fair rental value (having regard to the
rentals prevailing from time to time for
similar space) of space in the Complex used
by the Landlord, acting reasonably, in
connection with the maintenance, repair,
replacement, operation, administration or
management of the Complex, together with the
Office Section Operating Costs and Taxes in
respect of such space;
(ix) any cost or expense of a capital nature
which is less than Ten Thousand Dollars
($10,000.00);
(x) all costs and expenses (including legal and
other professional fees and interest and
penalties on deferred payments TO THE EXTENT
THAT NON-PAYMENT IS NECESSARY IN ORDER TO
PRESERVE APPEAL OR OTHER CONTESTATION
RIGHTS) incurred by the Landlord in
contesting, resisting or appealing any
Taxes;
(xi) A REASONABLE administration and supervisory
fee, which fee shall be comparable to fees
charged by management companies for managing
and administering developments similar to
the Office Section;
(xii) the amount of all salaries, wages and fringe
benefits paid to or for personnel, managers,
and superintendents INVOLVED DIRECTLY WITH
THE COMPLEX, wherever located, to the extent
that they are employed or retained by or on
behalf of the Landlord in connection with
the maintenance, repair, replacement,
operation, administration or management of
the Complex, and amounts paid to independent
contractors for any services in connection
with the maintenance, repair, replacement,
operation, administration or management of
the Complex or any part of it;
(xiii) fees and expenses of architects, engineers,
quantity surveyors and other consultants
retained by the Landlord;
(xiv) the costs of uniforms for personnel, and of
supplies, tools, equipment and materials
used in connection with the maintenance,
repair, replacement, operation,
administration, management or caretaking of
the Complex;
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(xv) amortization (or depreciation) of the costs
incurred to make alterations, replacements
or additions to the Complex intended to
reduce the cost of other items included in
Office Section Operating Costs, improve the
operation of the Complex or maintain its
operation as a first-class commercial and
office complex; costs being amortized (or
depreciated) will include, without
limitation, costs incurred in respect of
alterations, replacements or additions to
the roof, elevators, escalators and other
machinery, equipment, facilities,
decorating, flooring, systems, and property
installed in or used in connection with the
Complex (except to the extent that the costs
are charged fully to income account in the
accounting period in which they are
incurred) and interest on the unamortized
(or undepreciated) portion of the original
cost of such items being amortized (or
depreciated), payable monthly, from or after
the date on which the relevant cost was
incurred at an annual rate of interest that
is one percentage (l%) point above the Bank
Rate in effect from time to time; the
amortization costs and interest charged
under this clause shall be calculated by the
Landlord, acting reasonably, in accordance
with sound and generally accepted accounting
principles BEING CALCULATED FOR A PERIOD
OVER THE USEFUL LIFE OF THE IMPROVEMENT TO
WHICH SUCH COST RELATES, but no amortization
(or depreciation) or interest will be
charged in respect of any such items
installed in conjunction with the original
construction of the Complex;
(xvi) goods and services taxes, business transfer
taxes, value-added taxes, multi-stage sales
taxes, sales, use or consumption taxes and
any like taxes on property or services
provided by or on behalf of the Landlord
except to the extent recoverable by the
Landlord;
(xvii) Capital Tax in respect of the Complex and
any business or similar taxes or licence
fees in respect of the business of the
Landlord which pertains to the management,
operation and maintenance of the Complex;
(xviii) the reasonable day-to-day costs of enforcing
and collecting payment of charges to tenants
and other occupants including, but not
limited to, such actions as initial and
reasonable follow-up telephone calls and
correspondence to advise of and collect late
rents arising from oversight, casual error,
late mail service and the like, but in no
event including the costs of enforcement
procedures against specific defaulting
tenants such as legal, bailiff, locksmithing
and other similar fees and charges; and
(xix) all other direct and indirect costs and
expenses of every kind, to the extent
incurred in or allocable to the maintenance,
repair, replacement, operation, supervision,
administration or management of all or any
part of the Complex, or any of its
appurtenances including expenses incurred or
contributions made by the Landlord in
respect of off-site facilities which are
utilized by or benefit the Complex or for
which the Landlord is required to
contribute;
(B) except to the extent otherwise SPECIFICALLY provided
in Part (A) of this definition, Office Section
Operating Costs shall exclude or shall have deducted
therefrom:
(i) Taxes;
(ii) debt service in respect of, AND ALL OTHER
COSTS INCURRED IN CONNECTION WITH, financing
secured by or related to the Complex and
interest on debt save for interest payable
if as and when costs and expenses in respect
of Office Section Operating Costs and Taxes
and goods and services taxes temporarily
exceed recoveries from time to time in
respect thereof;
(iii) depreciation of the initial construction
cost of the Office Section and any cost or
expense of a capital nature which is in
excess of Ten Thousand Dollars ($10,000.00)
(other than depreciation and amortization
charges in Part A (i) and (xv)
respectively);
(iv) the cost of replacing electric fixtures,
ballasts, tubes, starters, lamps and light
bulbs in each case not located within Common
Facilities;
(v) an amount equal to the net proceeds of
insurance actually recovered by the Landlord
for damage to the Complex to the extent that
the cost to repair such damage is included
in Office Section Operating Costs;
(vi) an amount equal to recoveries by the
Landlord in respect of warranties or
guarantees relating to repairs or
alterations to the Complex or any part of
it, to the extent that the repair or
alteration costs in respect of the work
covered by warranty or guarantee is included
in Office Section Operating Costs;
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<PAGE> 10
(vii) all Additional Service Costs chargeable to
specific tenants of the Complex for
Additional Service to the extent that those
amounts are included in Office Section
Operating Costs, including any
administrative or overhead charges;
(viii) an amount equal to the contribution actually
received from owners or occupants of
adjacent buildings who are, by agreement,
entitled to use any facilities of and for
the Complex;
(ix) all amounts which are attributable by the
Landlord, ACTING REASONABLY, to portions of
the Complex other than the Office Section
including, without limitation, the Parking
Garage; and
(x) an amount equal to the costs incurred by the
Landlord with respect to:
(1) structural repairs and/or
replacements to the footings,
foundations, structural columns and
beams, structural subfloors and
bearing walls of the Building;
(2) ADDITIONS TO THE COMPLEX;
(3) CAPITAL COSTS ASSOCIATED WITH
EQUIPMENT FOR THE COMPLEX; AND
(4) THE COST OF RECTIFYING DEFECTS BY
REPAIR OR REPLACEMENT RESULTING FROM
INFERIOR OR DEFICIENT WORKMANSHIP,
MATERIALS OR EQUIPMENT IN THE
INITIAL CONSTRUCTION OF THE COMPLEX.
(XI) LEASING COMMISSIONS OR FEES, LEGAL FEES,
ADVERTISING COSTS, DISBURSEMENTS AND OTHER
EXPENSES INCURRED IN CONNECTION WITH
PROCURING OTHER TENANTS FOR OTHER PREMISES
IN THE COMPLEX AND PREPARING AND NEGOTIATING
LEASES THEREFOR;
(XII) COSTS OF PREPARING, IMPROVING OR ALTERING
ANY SPACE FOR OTHER PREMISES IN THE COMPLEX
IN PREPARATION FOR OCCUPANCY BY ANY NEW OR
RENEWAL TENANT OR OTHER OCCUPANT, INCLUDING
PERMITS, LICENCES AND INSPECTION FEES;
(XIII) COSTS INCURRED DUE TO VIOLATION BY LANDLORD
OR ANOTHER TENANT OF ANY LEASE OR AGREEMENT
RELATING TO ANY PART OF THE COMPLEX;
(XIV) ANY COSTS, FINES OR PENALTIES BECAUSE THE
LANDLORD VIOLATED ANY GOVERNMENTAL RULE OR
AUTHORITY OR REQUIREMENT, OR MADE ANY LATE
PAYMENT OF ANY COMPONENT OF ADDITIONAL RENT,
UNLESS THE LANDLORD IS DISPUTING SAME IN
GOOD FAITH.
(XV) RENTS OR OTHER AMOUNTS PAYABLE BY THE
LANDLORD PURSUANT TO ANY GROUND LEASES WITH
RESPECT TO ALL OR ANY PART OF THE LANDS;
(XVI) COSTS INCURRED TO TEST, SURVEY, ABATE,
REMOVE OR OTHERWISE REMEDY HAZARDOUS
MATERIALS ON OR ABOUT THE COMPLEX WHICH
EXISTED PRIOR TO THE DATE OF THIS LEASE;
(XVII) COSTS FOR SCULPTURE, PAINTINGS AND OTHER
OBJECTS OF ART, UNLESS REQUIRED BY MUNICIPAL
AGREEMENT(S) OR OTHER RELEVANT GOVERNMENTAL
AUTHORITIES;
(XVIII) COSTS FOR CORRECTING ANY CODE VIOLATIONS
EXISTING PRIOR TO THE COMMENCEMENT OF THE
TERM AND COSTS OF MODIFYING THE COMPLEX;
(XIX) COSTS ARISING FROM THE LANDLORD'S CHARITABLE
OR POLITICAL CONTRIBUTIONS;
(XX) RESERVES FOR FUTURE EXPENSES;
(XXI) EXPENSES INCURRED FOR THE DEFENCE OF THE
LANDLORD'S TITLE TO THE LANDS;
(XXII) ANY COST REPRESENTING AN AMOUNT PAID FOR
SERVICES OR MATERIALS TO A PERSON, FIRM OR
ENTITY RELATED TO THE LANDLORD OR ANY
GENERAL PARTNER OF THE LANDLORD TO THE
EXTENT SUCH AMOUNT EXCEEDS THE AMOUNT THAT
WOULD BE PAID FOR SUCH SERVICES OR MATERIALS
AT THE THEN EXISTING MARKET RATE FOR
COMPARABLE BUILDINGS TO AN UNRELATED PERSON,
FIRM OR CORPORATION; AND
(XXIII) OFFICE SECTION OPERATING COSTS SHALL BE
REDUCED BY ALL CASH DISCOUNTS, TRADE
DISCOUNTS OR QUANTITY DISCOUNTS RECEIVED BY
THE LANDLORD OR THE LANDLORD'S MANAGING
AGENT IN THE PURCHASE OF ANY GOODS,
UTILITIES OR SERVICES IN CONNECTION WITH THE
PRUDENT OPERATION OF THE COMPLEX.
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<PAGE> 11
(C) in computing Office Section Operating Costs, if there
is less than full occupancy of the Total Office
Section Rentable Area during any period for which a
computation is being made, the amount of Office
Section Operating Costs will be increased (as
estimated by the LANDLORD, ACTING REASONABLY) to
reflect the additional OCCUPANCY RELATED costs that
would have been incurred had full occupancy of the
Total Office Section Rentable Area occurred during
that period;
(D) any costs that are not directly incurred by the
Landlord but are chargeable as Office Section
Operating Costs may be estimated by the Landlord on a
reasonable basis to the extent that the Landlord
cannot ascertain the exact amount; and
(E) the taxes enumerated in Section 1.02(21) (A) (xvi)
above are included amongst Office Section Operating
Costs upon the understanding that the Landlord will
look first for reimbursement of such taxes to its
input tax credits in the case of the goods and
services tax in force at the date hereof, and to
corresponding credits, if any, in the case of
subsequent taxes from time to time in force, the
intent being that so long as such credits are
available to the Landlord the taxes referred to in
Section 1.02(21) (A) (xvi) will not be included in
Office Section Operating Costs.
(22) "PARKING GARAGE" means those portions of the Complex and lands
adjacent thereto which are designated from time to time by the
Landlord for parking purposes including, without limitation,
the vehicular ramps and other entrances and exits thereto, and
all services, facilities and systems contained exclusively
within and serving such parking facilities, as the same may
from time to time be altered, expanded or reconstructed.
(23) "PROPORTIONATE SHARE" means, for any period, the fraction
which has as its numerator the Rentable Area of the Leased
Premises and as its denominator the Total Office Section
Rentable Area.
(24) "RENT" means Basic Rent and Additional Rent.
(25) "RENTABLE AREA" of the Leased Premises or any other premises
included in Total Office Section Rentable Area or other
portion of the Complex means the floor area expressed in
square feet, determined in accordance with the method of
measurement set out in Schedule "D" annexed hereto and
adjusted from time to time to reflect any addition, reduction,
rearrangement or relocation of such space.
(26) "RULES AND REGULATIONS" means those rules and regulations
stipulated in Schedule "C" annexed hereto, any reasonable
amendments thereto and any further reasonable rules and
regulations of which the Tenant receives Notice from the
Landlord which the Landlord, in its judgement, may from time
to time stipulate for the proper operation of the Complex, and
all such amendments and further rules and regulations shall be
read as forming a part of this Lease as if the same were
embodied herein.
(27) "TAXES" means all taxes, rates, duties, levies, fees, charges,
sewer levies, local improvement rates, and assessments
whatsoever imposed, assessed, levied or charged, now or in the
future, by any school, municipal, regional, provincial,
federal, parliamentary or other governmental body, corporate
authority, agency or commission (including, without
limitation, school boards and utility commissions), against
the Complex or any part thereof, and/or the Landlord and/or
the owners of the Complex in connection therewith, calculated
on the basis of the Complex being assessed as a fully leased
and operational building (with no special exemptions or
reductions, and without taking into account any actual or
potential reduction in Taxes or change of assessment category
or class for premises within the Complex which are vacant or
underutilized), but excluding (unless specifically referred to
above):
(a) income or profit taxes upon the income of the
Landlord to the extent such taxes are not levied in
substitution or in lieu of any of the foregoing;
(b) business or similar taxes or licence fees in respect
of the business of the Landlord which pertains to the
management, operation and maintenance of the Complex
(and which are included in Office Section Operating
Costs);
(c) goods and services taxes or similar taxes (and which
are payable pursuant to other provisions of this
Lease);
(d) business or similar taxes or licence fees in respect
of any business carried on by tenants and occupants
(including the Tenant) of the Complex; and
(e) Capital Tax in respect of the Complex (which is
included in Office Section Operating Costs).
(28) "TENANT'S TAXES" means the aggregate of:
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<PAGE> 12
(a) all taxes, rates, duties, levies, fees, charges and
assessments whatsoever imposed which are separately
identified by the lawful taxing authority as being
attributable to the personal property, furnishings,
fixtures and Leasehold Improvements installed in the
Leased Premises; and
(b) all taxes, rates, duties, levies, fees, charges and
assessments whatsoever imposed upon the Tenant which
are attributable to the business, income or occupancy
of the Tenant or any other occupant of the Leased
Premises, and to the use of any of the Common
Facilities by the Tenant or other occupant of the
Leased Premises.
(29) "TOTAL OFFICE SECTION RENTABLE AREA" means the aggregate
Rentable Area (including the Leased Premises) in the Office
Section determined in accordance with Schedule "D" and
adjusted from time to time to reflect any addition, reduction,
rearrangement or relocation of space.
(30) "TRANSFER" means an assignment of this Lease in whole or in
part, a sublease of all or any part of the Leased Premises,
any transaction whereby the rights of the Tenant under this
Lease to the Leased Premises are transferred to another, any
transaction by which any right of use or occupancy of all or
any part of the Leased Premises is conferred upon anyone, any
mortgage, charge or encumbrance of this Lease or the Leased
Premises or any part thereof, or other arrangement under which
either this Lease or the Leased Premises becomes security for
any indebtedness or other obligations, and includes any
transaction or occurrence whatsoever which has changed or
might change the identity of the person or persons having
lawful use or occupancy of any part of the Leased Premises.
(31) "UNAVOIDABLE DELAY" means any delay by a party in the
performance of its obligations under this Lease caused in
whole or in part by any acts of God, strikes, lockouts or
other industrial disturbances, acts of public enemies,
sabotage, war, blockades, insurrections, riots, epidemics,
washouts, nuclear and radiation activity or fallout, arrests,
civil disturbances, explosions, breakage of or accident to
machinery, any legislative, administrative or judicial action
which has been resisted in good faith by all reasonable legal
means, any act, omission or event, whether of the kind herein
enumerated or otherwise, not within the control of such party,
and which, by the exercise of control of such party, could not
have been prevented, but lack of funds on the part of such
party shall not constitute an Unavoidable Delay.
(32) "USEABLE AREA" of any rentable premises means the floor area
expressed in square feet, determined in accordance with
Schedule "D" annexed hereto, and adjusted from time to time to
reflect any addition, reduction, rearrangement or relocation
of space.
(33) "UTILITIES" means water, steam, fuel, power, telephone and
other utilities furnished by the Landlord to the Complex.
(34) "UTILITIES CHARGE" means the aggregate of:-
(a) the total cost of the Utilities used or consumed in
or with respect to the Leased Premises, including
those in connection with electricity for lighting,
heating, ventilating and cooling and normal office
equipment but excluding hot and cold water to
washrooms and excluding telephones to the extent paid
by the Tenant;
(b) the cost of any other charges levied or assessed in
respect of or in addition to the cost of such
Utilities, as determined by the Landlord; and
(c) any costs incurred by the Landlord in determining the
Utilities Charge, including, without limitation,
professional, engineering and consulting fees.
ARTICLE II - LEASED PREMISES - TERM - RENT
SECTION 2.01 - LEASED PREMISES AND TERM
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
Leased Premises for the Term.
SECTION 2.02 - USE OF ADDITIONAL AREAS
The use and occupation by the Tenant of the Leased Premises
includes for the purposes of carrying on its permitted use hereunder, the
non-exclusive right (subject to the Rules and Regulations) of the Tenant, the
Tenant's employees, agents, invitees, suppliers and persons having business with
the Tenant in common with the Landlord, its other tenants, sub-tenants and all
others entitled or permitted to the use of the Common Facilities.
Page 12 of 57
<PAGE> 13
SECTION 2.03 - CONSTRUCTION OF THE LEASED PREMISES
The provisions (if any) of the Agreement to Lease relating to
construction of the Leased Premises and delay in availability of the Leased
Premises for occupancy by the Tenant shall remain in effect and shall not merge
upon the execution of this Lease. The Tenant shall abide by the provisions of
Section 8.02 in respect of the construction of Leasehold Improvements and
fixtures in the Leased Premises whether prior to or following the commencement
of the Term.
SECTION 2.04 - ADJUSTMENT OF AREAS
The Landlord may from time to time re-measure the Useable Area
of the Leased Premises, the Office Section or other rentable premises or
re-calculate the Rentable Area of the Leased Premises, the Office Section or
other rentable premises and may re-adjust the Basic Rent or the amount of
Additional Rent accordingly. NOTWITHSTANDING THE FOREGOING, UPON WRITTEN REQUEST
OF THE TENANT, AT THE TENANT'S COST, THE LANDLORD SHALL RE-MEASURE THE USEABLE
AREA OF THE LEASED PREMISES OR RE-CALCULATE THE RENTABLE AREA OF THE LEASED
PREMISES AND MAY RE-ADJUST THE BASIC RENT OR THE AMOUNT OF ADDITIONAL RENT
ACCORDINGLY. The effective date of any o o o OF THE AFORESAID RE-ADJUSTMENTS
shall:
(a) in the case of an adjustment to the Rentable Area resulting
from a change in the Useable Area of the Leased Premises or
other rentable premises, be the date on which such change
occurred; and
(b) in the case of a correction to any measurement or calculation
error, be the first date as of which such error was introduced
in the calculation of Basic Rent or Additional Rent.
SECTION 2.05 - AGREEMENT TO PAY
The Tenant shall pay Basic Rent and Additional Rent as herein
provided in lawful money of Canada, without any prior demand therefor and
without any deduction, abatement, set-off or compensation whatsoever save as
provided in Section 9.01. The Tenant agrees to pay to the Landlord, in addition
to Basic Rent and Additional Rent, any goods and services tax, business transfer
tax, value-added tax, multi-stage sales tax, sales, use or consumption tax, and
any similar or other tax imposed by any governmental authority in respect of
this Lease or in respect of the property and services provided hereunder,
including without limitation, such taxes calculated on or in respect of any Rent
(whether Basic Rent or Additional Rent) payable under this Lease; any such tax
shall be deemed not to be Rent, but the Landlord shall have the same remedies
for and rights of recovery of such amount as it has for recovery of Rent under
this Lease. The obligation to pay Additional Rent (and adjustments thereto)
shall survive the expiration or sooner termination of this Lease. All amounts
payable under this Lease, unless otherwise provided, become due with the next
instalment of Basic Rent. The Landlord may, at its option, upon Notice to the
Tenant direct that the Tenant pay any or all Rent by way of pre-authorized bank
debit and/or to any other party specified by the Landlord. THE AFORESAID
LANDLORD RIGHT OF DIRECTION SHALL NOT APPLY TO THE TENANT PROVIDED THAT THE
TENANT IS NOT IN REPEATED DEFAULT UNDER THIS LEASE AND FURTHER PROVIDED THAT THE
TENANT IS DALEEN CANADA CORPORATION.
FOR THE PURPOSES OF THIS LEASE, ALL REFERENCES TO CURRENCY IN
THIS LEASE SHALL BE DEEMED TO BE REFERENCES TO CANADIAN DOLLARS.
SECTION 2.06 - BASIC RENT
The Tenant shall pay from and after the Commencement Date to
the Landlord the Basic Rent, such Basic Rent to be computed in accordance with
the definition of Basic Rent set out in Section 1.01 and payable in equal
monthly instalments in advance on the first day of each and every month. As soon
as reasonably possible after completion of construction of the Leased Premises,
the Landlord shall measure the Useable Area of the Leased Premises and shall
calculate the Rentable Area of the Leased Premises and at such time any
necessary adjustments in the Basic Rent and Additional Rent shall be made.
If the Commencement Date is not the first day of a calendar
month, then the Basic Rent for the first and last months of the Term shall be
appropriately adjusted, on a per diem basis, based upon a period of three
hundred and sixty-five (365) days, and the Tenant shall pay upon the
Commencement Date, the portion of the Basic Rent so adjusted from the
Commencement Date to the end of the month in which the Commencement Date occurs.
SECTION 2.07 - LATE PAYMENT CHARGE
The Tenant hereby acknowledges that late payment by the Tenant
to the Landlord of Basic Rent or Additional Rent due hereunder will cause the
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be difficult or impracticable to ascertain. Such costs include, but
are not limited to, processing and accounting charges and late charges which may
be imposed on the Landlord by the terms of any Mortgage. Accordingly, if any
Basic Rent or Additional Rent shall not be received by the Landlord or the
Landlord's designee within five (5) BUSINESS days after such amount shall be
due, the Tenant shall pay to the Landlord a late charge equal to o o o $500. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs the Landlord will incur by reason of late payment by the
Tenant. Acceptance of such late charge by the Landlord shall in no event
constitute a waiver of the Tenant's default with respect to such overdue amount,
nor prevent the Landlord from exercising any of the other rights and remedies
granted hereunder. The foregoing shall be without prejudice to any other right
or remedy available to the Landlord under or pursuant to this Lease by reason of
a monetary default by the Tenant.
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<PAGE> 14
SECTION 2.08 - NET LEASE
The Basic Rent payable under this Lease is intended to be an
absolutely net return to the Landlord, except as expressly herein set out to the
contrary. The Landlord is not responsible for any expenses or outlays of any
nature arising from or relating to the Leased Premises, or the use or occupancy
thereof, or the contents thereof or the business carried on therein. The Tenant
shall pay all charges, impositions and outlays of every nature and kind relating
to the Leased Premises except as expressly herein set out to the contrary.
SECTION 2.09 - ACKNOWLEDGEMENT OF COMMENCEMENT DATE
The Tenant agrees to execute and return to the Landlord,
within fifteen (15) days of written demand from the Landlord, an acknowledgement
of the Commencement Date in the form set forth in Schedule "E" annexed hereto,
subject to such variations as the facts require.
ARTICLE III - TAXES AND OFFICE SECTION OPERATING COSTS
SECTION 3.01 - TAXES PAYABLE BY LANDLORD
The Landlord shall pay directly to the appropriate and lawful
taxing authorities all Taxes, subject to Sections 3.02 and 3.04 hereof. The
Landlord may contest any Taxes and appeal any assessments with respect thereto;
withdraw any such contest or appeal; and agree with the taxing authorities on
any settlement or compromise with respect to Taxes.
SECTION 3.02 - TENANT'S SHARE OF TAXES
The Tenant shall pay to the Landlord as Additional Rent a
share of all Taxes which share shall be determined as follows:
(a) the Tenant's share of Taxes shall be the portion of the Taxes
that are attributable to the Leased Premises, as determined by
the Landlord, acting reasonably and equitably. Without
limiting the foregoing, the Landlord may allocate a portion of
the Taxes to the Office Section, acting reasonably and
equitably (having regard, without limitation, to the various
uses of the components of the Complex, costs of construction,
the benefits derived by the various components of the Complex
from the Common Facilities, assessment values relating to the
Complex and the components thereof, and agreements between
separate owners, if any, of various components of the
Complex), and may, if it so elects, determine that the
Tenant's share of Taxes attributable to the Leased Premises
shall be the Proportionate Share of the Taxes so allocated by
the Landlord to the Office Section. If there are separate
assessments (or, in lieu thereof, calculations made by
authorities having jurisdiction from which separate
assessments may, in the Landlord's opinion, be readily
determined) for the Leased Premises for Taxes the Landlord may
have regard thereto. For the purposes of determining the share
of Taxes which is payable by the Tenant pursuant to this
Lease, Taxes shall include such additional amounts as would
have formed part of Taxes had the Complex been fully assessed
during the whole of the relevant fiscal period as fully
completed and fully occupied by tenants, with no special
exemptions or reductions, and without taking into account any
actual or potential reduction of Taxes or change of assessment
category or class for premises within the Complex which are
vacant or underutilized;
(b) if the Landlord, acting reasonably and equitably, determines
that as a result of the construction or installation of any
Leasehold Improvements or fixtures in the Leased Premises, the
use of the Leased Premises, the particular location of the
Leased Premises within the Office Section or the Complex, or
any other factors which the Landlord considers to be relevant,
the Tenant's share of Taxes payable pursuant to Subsection
3.02(a) does not accurately reflect the proper share of the
Taxes which should, in the Landlord's opinion, acting
equitably, be payable by the Tenant, the Landlord may increase
or decrease the Tenant's share of Taxes and the Tenant will
pay such adjusted amount; and
(c) if the Tenant elects to be assessed as a separate school
supporter, the Tenant will pay to the Landlord, in addition to
any other amounts owing pursuant to this Section the excess,
if any, of the separate school taxes over public school taxes
resulting from such election.
SECTION 3.03 - TENANT'S PROPORTIONATE SHARE OF OFFICE SECTION OPERATING COSTS
The Tenant shall pay to the Landlord as Additional Rent in
accordance with Section 3.06 the Proportionate Share of Office Section Operating
Costs.
SECTION 3.04 - TENANT'S TAXES
The Tenant shall pay to the appropriate and lawful taxing
authorities, or to the Landlord, as appropriate, and shall discharge when the
same become due and payable, all Tenant's Taxes. In the event that the Tenant
fails to do so, the same shall be deemed a failure to pay a sum due hereunder as
contemplated in subsection 13.01(a) hereof and the Landlord shall have all of
the rights or remedies provided in Article XIII in respect thereof.
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<PAGE> 15
SECTION 3.05 - TENANT'S RESPONSIBILITY
The Tenant shall promptly deliver to the Landlord copies of
assessment notices, tax bills and other documents received by the Tenant
relating to Taxes and Tenant's Taxes and receipts for payment of Tenant's Taxes.
If, as a result of changes in existing applicable laws, in any fiscal year the
Tenant is prohibited by law from making payments of Taxes directly to the
Landlord, then it shall pay to the appropriate taxing authorities all Taxes
payable in respect of the Leased Premises and promptly deliver to the Landlord
receipts evidencing such payment. In such event, the Landlord and the Tenant
will make an adjustment within thirty (30) days after the final tax bills are
issued for such fiscal year and the Tenant will pay to the Landlord the amount
by which the Tenant's share of Taxes for such fiscal year exceeds the amount of
Taxes actually paid by the Tenant or the Landlord will pay to the Tenant the
amount by which the Taxes actually paid exceed the Tenant's share, as the case
may be. The Tenant shall not contest any Taxes or appeal any assessments
relating thereto and shall not contest any Tenant's Taxes or appeal any
assessments relating thereto without the Landlord's prior written approval WHICH
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. If the Tenant obtains such
approval, the Tenant shall deliver to the Landlord such security for the payment
of such Tenant's 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 3.06 - PAYMENT OF ESTIMATED TAXES AND OFFICE SECTION OPERATING COSTS
(a) The amounts payable by the Tenant to the Landlord pursuant to
Sections 3.02, 3.03 and 3.04 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
amounts so estimated in monthly instalments in advance during
such period as Additional Rent. At the Landlord's option, the
Tenant agrees to provide to the Landlord electronic banking
authorization to permit the automatic transfer of funds from
the Tenant's account to the Landlord's account on the first
day of each and every month during each fiscal year to pay
such estimated amount of monthly instalments (THE AFORESAID
LANDLORD OPTION SHALL NOT APPLY TO THE TENANT PROVIDED THAT
THE TENANT IS NOT IN REPEATED DEFAULT UNDER THIS LEASE AND
FURTHER PROVIDED THAT THE TENANT IS DALEEN CANADA
CORPORATION). Notwithstanding the foregoing, as soon as bills
for all or any portion of the said amounts so estimated are
received, the Landlord may bill the Tenant for the
Proportionate Share thereof and the Tenant shall pay the
Landlord such amounts so billed (less all amounts previously
paid on account by the Tenant on the basis of the Landlord's
estimate as aforesaid) as Additional Rent on demand.
(b) Within a reasonable period of time after the end of the period
for which such estimated payments have been made, the Landlord
shall deliver to the Tenant a statement from the Landlord,
confirmed by the Landlord's independent auditors (BEING
NATIONALLY RECOGNIZED AUDITORS), of the Office Section
Operating Costs and Taxes together with a calculation of the
Tenant's share of the costs and expenses payable to the
Landlord pursuant to Sections 3.02, 3.03 and 3.04, and, 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 refunded by the Landlord
within a reasonable period of time after the delivery of the
said statement, or, at the option of the Landlord, the excess
shall be credited to amounts payable to the Landlord pursuant
to Sections 3.02, 3.03 and 3.04 in the immediately following
fiscal year. If the amount the Tenant has paid is less than
the amounts due, the Tenant agrees to pay such additional
amounts dueooo WITHIN FIVE (5) DAYS OF RECEIPT OF WRITTEN
NOTICE THEREOF. If any fiscal year during the Term is greater
or less than any such period determined by the Landlord as
aforesaid, the Tenant's share of the costs and expenses
payable to the Landlord, pursuant to Sections 3.02, 3.03 and
3.04 shall be subjected to a per diem, pro rata adjustment
based upon a period of three hundred and sixty-five (365)
days. The obligations set out herein shall survive the
expiration of the Term or earlier termination of this Lease.
Failure of the Landlord to render any statement of Taxes and
Office Section Operating Costs shall not prejudice the
Landlord's right to render such statement thereafter or with
respect to any other period. The rendering of any such
statement shall also not affect the Landlord's right to
subsequently render an amended or corrected statement. The
Tenant may not claim a re-adjustment in respect of Office
Section Operating Costs or Taxes or the share payable by the
Tenant on account thereof for any fiscal year or portion
thereof except by notice given to the Landlord within ninety
(90) days after receipt of the Landlord's statement, stating
the particulars of the error in computation of Office Section
Operating Costs or Taxes or the Tenant's share thereof. THE
LANDLORD WILL RESPOND IN REASONABLE DETAIL TO ANY REASONABLE
QUESTIONS OF THE TENANT AS TO THE DETERMINATION OF OFFICE
SECTION OPERATING COSTS, PROVIDED SUCH REASONABLE QUESTIONS
ARE SUBMITTED WITHIN SIXTY (60) DAYS OF THE DELIVERY OF THE
STATEMENT REFERRED TO ABOVE. ANY SUCH RESPONSE BY THE LANDLORD
SHALL CONTAIN SUCH REASONABLE SUPPORTING MATERIAL AS THE
LANDLORD DETERMINES IS REASONABLY REQUIRED IN ORDER TO RESPOND
TO SUCH QUESTION.
Page 15 of 57
<PAGE> 16
ARTICLE IV - COMPLEX - CONTROL AND SERVICES
SECTION 4.01 - CONTROL OF THE COMPLEX BY THE LANDLORD
The Landlord shall operate and maintain the Complex in a first
class and reputable manner as would a prudent landlord of a similar commercial
office building, having regard to size, age and location.
The Complex is at all times subject to the exclusive control,
management and operation of the Landlord. Without limiting the generality of the
preceding sentence, the Landlord has the right, in its control, management and
operation of the Complex and by the establishment of Rules and Regulations and
general policies with respect to the operation of the Complex or any part
thereof at all times during the period when the Tenant is given possession of
the Leased Premises and throughout the Term to:
(a) construct improvements in or to the Complex and make
alterations and additions thereto, subtractions therefrom,
rearrangements thereof (including all entrances and exits
thereto), build additional storeys on the Complex and
construct additional facilities adjoining or proximate to the
Complex;
(b) relocate or re-arrange the various facilities and improvements
comprising the Complex or erected on the Lands from those
existing at the Commencement Date;
(c) do and perform such other acts in and to the Complex as in the
use of good business judgement the Landlord determines to be
advisable for the more efficient and proper operations of the
Complex.
Notwithstanding anything contained in this Lease, it is understood and
agreed that if as a result of the exercise by the Landlord of its right set out
in this Section 4.01, the facilities in or improvements to the Complex are
diminished or altered in any manner whatsoever, the Landlord is not subject to
any liability, nor is the Tenant entitled to any compensation, nor shall any
such diminution or alteration of the facilities or improvements in or to the
Complex be deemed constructive or actual eviction, or a breach of any covenant
for quiet enjoyment contained in this Lease or implied by law provided that the
Landlord shall not materially impede access to the Leased Premises except when
necessary during the completion of any such work and provided further that the
Landlord shall complete all such work diligently and with due speed, AND SHALL
USE COMMERCIALLY REASONABLE EFFORTS TO AVOID ANY MATERIAL INTERFERENCE WITH THE
TENANT'S USE OF THE LEASED PREMISES.
SECTION 4.02 - LANDLORD'S SERVICES
(a) The Landlord shall provide climate control to the Leased
Premises during Business Hours to maintain a temperature
adequate for occupancy, except during the making of repairs,
alterations or improvements, and provided 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 other Unavoidable Delay.
Any rebalancing of the climate system in the Leased Premises
necessitated by the installation of partitions, equipment or
fixtures by the Tenant or by any use of the Leased Premises
not in accordance with the design standards of such system
will be performed by the Landlord as an Additional Service to
the Tenant.
(b) Subject to the Rules and Regulations, the Landlord shall
furnish, except when repairs, maintenance or replacements are
being made, elevator and escalator service during Business
Hours in common with others, provided that the Tenant and its
employees and all other Persons using the same shall do so at
their own risk. The Landlord shall operate at least one (1)
elevator serving the Leased Premises at all times in addition
to Business Hours (except during Unavoidable Delay), such
operation to be carried out, however, in a manner consistent
with the Landlord's security arrangements then in place.
(c) The Landlord will provide janitorial services to the Leased
Premises consistent with the standards of a first-class office
building. The Landlord shall not be responsible for any
indirect or consequential damages sustained by the Tenant or
others as a result of the failure to provide such services or
any act or omission or commission on the part of the persons
employed to perform such work. Such work shall be done at the
Landlord's direction without interference by the Tenant and
its servants or employees.
(d) The Landlord shall make available electricity for normal
lighting and miscellaneous power requirements and in normal
quantities water and other public utilities generally made
available to other tenants of the Building by the Landlord.
The Landlord shall not be responsible for any indirect or
consequential damages sustained by the Tenant or others as a
result of the failure to provide such services or any act of
omission or commission on the part of the persons employed to
provide such service.
(e) Provided that adequate Notice is given to the Landlord, access
to the Leased Premises during hours other than Business Hours
will be given, subject to the Landlord's reasonable security
requirements for the Complex and payment by the Tenant, during
hours other than Business Hours, for all heating, cooling and
ventilating costs, as an Additional Service Cost.
Page 16 of 57
<PAGE> 17
(f) The Landlord may carry out periodic replacement of building
standard tubes, bulbs and ballasts within the Leased Premises
as an Additional Service Cost and shall, upon Notice, carry
out any replacement requested by the Tenant as an Additional
Service Cost to the Tenant.
SECTION 4.03 - SUBSTITUTION
At any time (BUT ONLY ONCE DURING THE TERM), upon six (6)
months prior notice to the Tenant, the Landlord may substitute for the Leased
Premises o o o other premises in the Complex (the "New Leased Premises"), in
which event the New Leased Premises shall be deemed to be the Leased Premises o
o o for all purposes hereunder, provided that the New Leased Premises shall be
similar in area and utility AND COMPARABLE IN ALL OTHER MATERIAL RESPECTS for
the Tenant's purposes. If the Tenant is occupying the Leased Premises at the
time of such substitution, the Landlord shall pay all reasonable o o o
out-of-pocket costs (provided the Tenant delivers copies of paid invoices
relating to the Tenant's cost of such relocation) relating to relocating the
Tenant, its property and equipment to the New Leased Premises. Such costs shall
include, but shall not be limited to, the Tenant's moving costs, amended
stationery and business cards o o o , the connection and relocation of the
Tenant's systems and furniture, INSTALLATION OF ALL TELEPHONE COMMUNICATIONS AND
COMPUTER EQUIPMENT AND CABLING AND THE COST OF LEASEHOLD IMPROVEMENTS IN THE NEW
LEASED PREMISES TO A SUBSTANTIALLY SIMILAR QUALITY OF THOSE LEASEHOLD
IMPROVEMENTS EXISTING IN THE LEASED PREMISES AT THE TIME OF SUCH RELOCATION.
ARTICLE V - UTILITIES AND ADDITIONAL SERVICES
SECTION 5.01 - CHARGES FOR UTILITIES
The Tenant shall be solely responsible for and shall promptly
pay to the Landlord, or as the Landlord otherwise directs, in the manner
hereinafter provided as Additional Rent, the Utilities Charge applicable to the
Leased Premises on the basis of separate meters and otherwise on the basis of
the Rentable Area of the Leased Premises. To the extent not separately metered
and payable directly to the utility supplier, the Utilities Charge shall be
payable in equal monthly instalments in advance on the basis of the rate
determined by the Landlord's engineer from time to time. The Landlord shall be
entitled, acting equitably, to allocate to the Leased Premises an Additional
Service Cost for any Additional Service in respect of usage of Utilities in the
Leased Premises in excess of those covered by the basic rate. In order to more
accurately determine an increased use of electricity by the Tenant, the Landlord
is entitled at its option and at the Tenant's expense to install check meters or
other form of measurement in or near the Leased Premises. THE TENANT SHALL BE
ENTITLED TO INSTALL, AT THE TENANT'S EXPENSE, SEPARATE METERS FOR ANY UTILITIES
SERVICING THE LEASED PREMISES. THE LANDLORD ACKNOWLEDGES AND AGREES THAT THE
UTILITIES CHARGE SHALL NOT INCLUDE A MARK-UP ABOVE THE ACTUAL AMOUNT CHARGED BY
THE UTILITY SUPPLIER TO THE LANDLORD, SAVE AND EXCEPT FOR THE LANDLORD'S
REASONABLE ADMINISTRATION AND SUPERVISORY CHARGE.
SECTION 5.02 - ADDITIONAL SERVICES OF THE LANDLORD
Subject to Article 4 hereof, and excluding services supplied
by the Landlord and charged to the Tenant as Office Section Operating Costs and
the Utilities Charge, one hundred and fifteen per cent (115%) of the cost to the
Landlord of all Additional Services provided by the Landlord or its agent to the
Tenant shall be payable forthwith by the Tenant, upon demand by the Landlord, as
an Additional Service Cost. Such services shall include any services performed
at the Tenant's request including, without limitation, maintenance, repair,
special janitorial or cleaning services, construction of additional Leasehold
Improvements, replacement of bulbs (including non-standard bulbs), tubes and
ballasts, any o o o LIGHTING and any heating, ventilating and cooling services
during hours other than Business Hours. Such services shall also include any
services provided at the Landlord's reasonable discretion including, without
limitation, o o o supervising the movement of furniture, equipment, freight and
supplies for the Tenant. Additional Services provided by the Landlord or its
agent on behalf of the Tenant in respect of any of the Tenant's obligations set
out in the Lease which the Tenant fails to perform shall be one hundred and
o o o FIFTEEN per cent o o o (115%) of the cost to the Landlord.
SECTION 5.03 - THIRD PARTY SERVICES
Excluding services supplied by the Landlord and charged to the
Tenant as Office Section Operating Costs, Utilities Charges, or as an Additional
Service Cost, the Tenant shall be solely responsible for, and promptly pay to
the appropriate third party, all charges for services used or consumed in or
provided to the Leased Premises, including, without limitation, rug shampooing,
telephone service and other services not available through the Landlord. In no
event will the Landlord be liable to the Tenant in damages or otherwise for any
failure to supply any third-party services to the Leased Premises.
ARTICLE VI - USE OF LEASED PREMISES
SECTION 6.01 - USE OF THE LEASED PREMISES
The Leased Premises shall be used for general office purposes
for the Type of Business of the Tenant, provided such purposes comply with the
terms, covenants and conditions of this Lease and all applicable laws, by-laws,
regulations or other governmental ordinances from time to time in existence. The
Leased Premises may not be used for any other purposes.
Page 17 of 57
<PAGE> 18
SECTION 6.02 - OBSERVANCE OF LAW
The Tenant shall at its sole cost and expense and, where
applicable, in compliance with Sections 8.01 and 8.02 hereof, promptly observe
and comply with all laws or requirements of all governmental authorities,
including federal, provincial and municipal legislative enactments, by-laws and
other regulations and all other authorities having jurisdiction, including fire
insurance underwriters, now or hereafter in force which pertain to or affect the
Leased Premises, the Tenant's use of the Leased Premises or the conduct of any
business in the Leased Premises, or the making of any repairs, replacements,
alterations, additions, changes, substitutions or improvements of or to the
Leased Premises. The Tenant shall carry out all modifications, alterations or
changes of or to the Leased Premises and the Tenant's conduct of business in or
use of the Leased Premises which are required by any such authorities.
THE LANDLORD SHALL AT ITS SOLE COST AND EXPENSE, PROMPTLY
OBSERVE AND COMPLY WITH ALL LAWS OR REQUIREMENTS OF ALL GOVERNMENTAL
AUTHORITIES, INCLUDING FEDERAL, PROVINCIAL AND MUNICIPAL LEGISLATIVE ENACTMENTS,
BY-LAWS AND OTHER REGULATIONS AND ALL OTHER AUTHORITIES HAVING JURISDICTION,
INCLUDING FIRE INSURANCE UNDERWRITERS, NOW OR HEREAFTER IN FORCE WHICH PERTAIN
TO OR AFFECT THE COMPLEX (SAVE AND EXCEPT FOR THE LEASED PREMISES AND ANY SPACE
IN THE COMPLEX WHICH IS LEASED TO OTHER TENANTS). THE LANDLORD SHALL CARRY OUT
ALL MODIFICATIONS, ALTERATIONS OR CHANGES OF OR TO SUCH SPACE WHICH ARE REQUIRED
BY ANY SUCH AUTHORITIES.
SECTION 6.03 - ENERGY CONSERVATION
Consistent with its obligations to keep the Leased Premises in
good repair, order and condition hereunder, the Tenant will at its cost comply
with all laws, by-laws, regulations and orders relating to the conservation of
energy affecting the Leased Premises and the conduct of business therein,
including compliance with all reasonable requests and demands of the Landlord
intended to achieve the conservation of energy.
SECTION 6.04 - TENANT'S INDEMNITY RE HAZARDOUS MATERIALS
The Tenant agrees to protect, indemnify and save each of the
Landlord, the Mortgagee and their respective directors, officers, employees,
agents, successors and assigns completely harmless from and against any
Environmental Claim, directly or indirectly incurred, sustained or suffered by
or asserted against the Landlord, the Mortgagee and their respective directors,
officers, employees, agents, successors and assigns caused by or attributable
too o O THE NEGLIGENCE OR WRONGful act or omission of the Tenant and/or any
other person claiming through or under Tenant prior to, during and after the
term of the Lease.
IN THE EVENT THAT HAZARDOUS MATERIAL IS LOCATED ON OR
DISCOVERED IN THE LEASED PREMISES WHICH, OR THE REMEDIATION OF WHICH, MATERIALLY
ADVERSELY EFFECTS THE TENANT'S ABILITY TO CONDUCT BUSINESS IN THE LEASED
PREMISES AND REMEDIATION IS NECESSARY, THEN UNLESS THE PRESENCE OF SUCH
HAZARDOUS MATERIAL IS ATTRIBUTABLE TO THE NEGLIGENCE OR WRONGFUL ACT OR OMISSION
OF THE TENANT, RENT PAYABLE HEREUNDER SHALL ABATE DURING THE PERIOD OF SUCH
REMEDIATION, IN PROPORTION TO THE AMOUNT OF THE LEASED PREMISES AFFECTED
THEREBY. IN THE EVENT THAT THE LANDLORD'S WORK IS DELAYED BY SUCH REMEDIATION,
THEN THE COMMENCEMENT DATE AND THE EXPIRATION OF THE TERM SHALL BE POSTPONED BY
AN AMOUNT EQUAL TO SUCH DELAY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY,
HAZARDOUS MATERIAL SHALL MEAN HAZARDOUS MATERIAL DECLARED, DEFINED OR DEEMED TO
BE REGULATED OR CONTROLLED PURSUANT TO THE ENVIRONMENTAL LAWS EXISTING AS OF THE
DATE OF THIS LEASE.
In this Section 6.04, the terms "Hazardous Material",
"Environmental Law", Environmental Claim" and "Release" shall have the following
meanings:
(a) "Hazardous Material" means any contaminant, pollutant,
dangerous substance, noxious substance, toxic substance,
hazardous waste, flammable or explosive material, radio-active
material, urea formaldehyde foam insulation, asbestos,
polychlorinated biphenyls, polychlorinated biphenyl waste,
polychlorinated biphenyl related waste and any other substance
or material now or hereafter declared, defined or deemed to be
regulated or controlled in or pursuant to the Environmental
Laws.
(b) "Environmental Laws" means any law, by-law, order, ordinance,
ruling, regulation, certificate, approval, consent or
directive of any applicable Federal, Provincial or municipal
government, governmental department, agency or regulatory
authority or any court of competent jurisdiction, relating to
environmental matters and/or regulating the import, storage,
use, distribution, sale, handling, transport or disposal of
Hazardous Material, including, but not limited to, the
ENVIRONMENTAL PROTECTION ACT (Ontario).
(c) "Environmental Claim" means all claims, losses, costs,
expenses, fines, penalties, payments and/or damages
(including, without limitation, all solicitors' fees on a
solicitor and his own client basis) relating to, arising out
of, resulting from or in any way connected with the Release
in, on, over, upon or from the Complex, including the Leased
Premises of any Hazardous Material including, without
limitation, all costs and expenses of any remediation or
restoration of the Leased Premises and/or any property
adjoining or in the vicinity of the Leased Premises required
or mandated by the Environmental Laws.
(d) "Release" means any release, spill, emission, leakage,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration.
Page 18 of 57
<PAGE> 19
ARTICLE VII - INSURANCE AND INDEMNITY
SECTION 7.01 - TENANT'S INSURANCE
(a) The Tenant shall throughout the period that the Tenant is
given possession of the Leased Premises and during the entire
Term, at its sole cost and expense, take out and keep in full
force and effect, the following insurance:
(i) all-risk property insurance (including but not
limited to sprinkler leakage, flood, earthquake and
collapse coverage) in an amount equal to the full
replacement cost thereof upon property of every
description and kind owned by the Tenant or for which
the Tenant is liable, or installed by or on behalf of
the Tenant and which is located within the Complex
including, without limitation, Leasehold
Improvements, Tenant's fixtures, the Tenant's
stock-in-trade, furniture and personal property
provided that if there is a dispute as to the amount
which comprises full replacement cost, the decision
of the Landlord shall be conclusive;
(ii) business interruption insurance in such amount as
will reimburse the Tenant for direct or indirect loss
of earnings attributable to all perils insured
against in Section 7.01(a)(i) and other perils
commonly insured against by prudent tenants or
attributable to prevention of access to the Leased
Premises or the Building or the Complex as a result
of such perils;
(iii) comprehensive general and legal liability insurance,
including property damage and bodily injury and
personal injury liability, tenant's legal liability,
contractual liability and owners' and contractors'
protective insurance coverage with respect to the
Leased Premises and the Tenant's use of the Complex,
coverage to include the activities and operations
conducted by the Tenant and any other person for whom
the Tenant is in law responsible. Such policies shall
be written on a comprehensive basis with inclusive
limits of not less than ooo FIVE Million Dollars ooo
($5,000,000) for bodily injury to any one or more
persons or property damage, and such higher limits as
the Landlord, acting reasonably, or the Mortgagee
requires from time to time, and shall contain a
severability of interests clause and a
cross-liability clause;
(iv) if appropriate, broad form comprehensive boiler and
machinery insurance on a blanket repair and
replacement basis with limits for each accident in an
amount not less than the full replacement cost of all
Leasehold Improvements and of all boilers, pressure
vessels, air-conditioning equipment and miscellaneous
electrical apparatus owned or operated by the Tenant
or by others (other than the Landlord) on behalf of
the Tenant in or serving the Leased Premises;
(v) any other form of insurance which the Landlord or any
Mortgagee, acting reasonably, requires from time to
time in form, in amounts and for risks against which
a prudent tenant would insure.
(b) All policies shall:
(i) be taken out with insurers acceptable to the Landlord
(AND THE LANDLORD ACKNOWLEDGES THAT CHUBB SECURITY
SYSTEMS, A DIVISION OF CSG SECURITY INC. IS
ACCEPTABLE);
(ii) be in a form satisfactory from time to time to the
Landlord which form may include a reasonable
deductible, the amount of which will be subject to
the Landlord's approval, which approval may not be
unreasonably withheld;
(iii) be non-contributing with and shall apply only as
primary and not as excess to any other insurance
available to the Landlord or any Mortgagee;
(iv) not be invalidated as respects the interests of the
Landlord and of any Mortgagee by reason of any breach
or violation of any warranties, representations or
conditions contained in the policies;
(v) contain an undertaking by the insurers to notify the
Landlord and every Mortgagee in writing not less than
thirty (30) days prior to any material change,
cancellation or termination thereof; and
(vi) name the Landlord, its property manager/agent; the
owners and anyone else with an interest in the
Complex and each Mortgagee as insured parties and, in
respect of property damage insurance, incorporate the
Mortgagee's standard mortgage clause.
(c) Certificates of insurance on the Landlord's standard form
o o o (OR CERTIFIED COPIES OF EACH Such INSURANCE POLICY, if
required by the Landlord o o o AS A RESULT OF AN INSURANCE
CLAIM AND UPON WRITTEN NOTICE TO THE TENANT), TO be delivered
to the Landlord as soon as practicable after the placing of
the required insurance and in any event at least ten (10) days
prior to the effective date of coverage.
Page 19 of 57
<PAGE> 20
Provided that no review or approval of any such insurance
certificate by the Landlord shall derogate from or diminish
the Landlord's rights or the Tenant's obligations contained in
this Article.
(d) If the Tenant fails to take out or keep in force any insurance
referred to in this Section 7.01, or should any such insurance
not be approved by either the Landlord or the Mortgagee and
should the Tenant not commence to diligently rectify (and
thereafter proceed to diligently rectify) the situation within
twenty-four (24) hours after written notice by the Landlord to
the Tenant (stating, if the Landlord or the Mortgagee does not
approve of such insurance, the reasons therefor), the Landlord
has the right without assuming any obligation in connection
therewith to effect such insurance at the sole cost of the
Tenant and all outlays by the Landlord shall be paid by the
Tenant to the Landlord on demand as Additional Rent without
prejudice to any other rights and remedies of the Landlord
under this Lease.
(e) The Tenant agrees that in the event of damage or destruction
to the Leasehold Improvements in the Leased Premises covered
by insurance pursuant to Section 7.01(a)(i), the Tenant shall
use the proceeds of such insurance for the purpose of
repairing or restoring such Leasehold Improvements. In the
event of damage to or destruction of the Complex or the
Building entitling the Landlord to terminate the Lease
pursuant to Section 9.01(b) or 9.02, then if the Leased
Premises have also been damaged or destroyed and the Lease is
terminated, the Tenant shall forthwith pay to the Landlord all
of its insurance proceeds relating to the Leasehold
Improvements in the Leased Premises and if the Leased Premises
have not been damaged or destroyed, the Tenant shall upon
demand deliver to the Landlord in accordance with the
provisions of this Lease the Leasehold Improvements and the
Leased Premises.
SECTION 7.02 - INCREASE IN INSURANCE PREMIUMS
The Tenant shall not keep, use, sell or offer to sell in or
upon the Leased Premises any article which may be prohibited by any fire
insurance policy in force from time to time covering the Leased Premises, the
Building or the Complex. If:
(a) the occupation of the Leased Premises;
(b) the conduct of business in the Leased Premises; or
(c) any act or omission of the Tenant in the Complex or any part
thereof;
causes or results in any increase in premiums for the insurance carried from
time to time by the Landlord with respect to the Complex, the Tenant shall pay
any such increase in premiums as Additional Rent forthwith o o o WITHIN FIVE (5)
DAYS OF RECEIPT OF THE INVOICE. In determining whether increased premiums are
caused by or result from the use or occupancy of the Leased Premises, a schedule
issued by the organization computing the insurance rate on the Complex showing
the various components of such rate shall be conclusive evidence of the several
items and charges which make up such rate. The Tenant shall comply promptly with
all requirements of any insurer or insurance advisory bureau now or hereafter in
effect pertaining to or affecting the Leased Premises, the Building or the
Complex.
SECTION 7.03 - CANCELLATION OF INSURANCE
If any insurance policy upon the Complex or any part thereof
shall be cancelled or shall be threatened by the insurer to be cancelled or the
coverage thereunder reduced in any way by the insurer by reason of the use or
occupation of the Leased Premises or any part thereof by the Tenant or by any
assigns or sub-tenant of the Tenant, or by anyone permitted by the Tenant to be
upon the Leased Premises, the Tenant shall remedy the condition giving rise to
cancellation, threatened cancellation or reduction of coverage within
twenty-four (24) hours after notification by the insurers or Notice thereof by
the Landlord whichever is the earlier.
SECTION 7.04 - LOSS OR DAMAGE
<PAGE> 21
The Landlord, its agents, officers, employees, contractors and
others for whom the Landlord is legally responsible shall not be liable for any
death or injury arising from or out of any occurrence in, upon, at or relating
to the Complex, or damage to property of the Tenant or of others located on the
Leased Premises or elsewhere in the Complex, nor shall it or they be responsible
for any loss of or damage to any property of the Tenant or others from any cause
whatsoever, except for any such death, injury, loss or damage which results from
the negligence of the Landlord, its agents, officers, employees, contractors and
others for whom the Landlord is legally responsible and provided that in no
event shall the Landlord, its agents, officers, employees, contractors and
others for whom the Landlord is legally responsible be responsible for any loss,
injury or damage contemplated by Section 7.07(b), or for any indirect or
consequential damages sustained by the Tenant or others. Without limiting the
generality of the foregoing, but subject to the exceptions to the limitation of
the liability of the Landlord set out herein, the Landlord shall not be liable
for any injury or damage to persons or property resulting from fire, explosion,
dampness, falling plaster, falling ceiling tile, falling ceiling fixtures
(including part or all of the ceiling T grid system) and diffuser coverings, or
from steam, gas, electricity, water, rain, flood, snow or leaks from any
rentable premises or the Parking Garage or from the pipes, sprinklers,
appliances, plumbing works, roof, windows or subsurface of any floor or ceiling
of the Complex or from the street or any other place or by any other cause
whatsoever. The Landlord shall not be liable for any such damage caused by other
tenants or persons in the Complex or by occupants of adjacent property thereto,
or the public, or caused by construction or by any private, public or
quasi-public work. All property of the Tenant kept or stored on the Leased
Premises or elsewhere in the Complex shall be so kept or stored at the risk of
the Tenant only and the Tenant shall
Page 20 of 57
<PAGE> 22
indemnify the Landlord and save it harmless from any claims arising out of any
damage to the same including, without limitation, any subrogation claims by the
Tenant's insurers.
SECTION 7.05 - LANDLORD'S INSURANCE
The Landlord shall at all times throughout the Term carry:
(a) insurance on the Building (excluding the foundations and
excavations) and the machinery, boilers and equipment
contained therein or servicing the Building and owned by the
Landlord or the owners of the Complex (specifically excluding
any property with respect to which the Tenant and other
tenants are obliged to insure pursuant to Section 7.01 or
similar sections of their respective leases) against damage by
fire and extended perils or all-risks coverage;
(b) public liability and property damage insurance with respect to
the Landlord's operations in the Complex;
(c) loss of rental income insurance, or loss of insurable gross
profits commonly insured against by prudent landlords,
including loss of all rentals receivable from tenants in the
Complex in accordance with the provisions of their leases,
including basic and additional rentals; and
(d) such other form or forms of insurance as the Landlord or the
Mortgagee reasonably considers advisable.
Such insurance shall be in such reasonable amounts and with
such reasonable deductibles as would be carried by a prudent owner of a
reasonably similar commercial office building, having regard to size, age and
location. Notwithstanding the Landlord's covenant contained in this Section
7.05, and notwithstanding any contribution by the Tenant to the cost of
insurance premiums provided herein, the Tenant acknowledges and agrees that no
insurable interest is conferred upon the Tenant under any policies of insurance
carried by the Landlord, and the Tenant has no right to receive any proceeds of
any such insurance policies carried by the Landlord. THE LANDLORD SHALL OBTAIN
FROM ITS INSURER A WAIVER OF SUBROGATION RIGHTS IN FAVOUR OF THE TENANT AND
THOSE FOR WHOM IT IS RESPONSIBLE AT LAW.
SECTION 7.06 - INDEMNIFICATION OF THE LANDLORD
Except as provided in Section 7.07(a) but notwithstanding any
other provision of this Lease, the Tenant shall indemnify the Landlord and save
it harmless from and against any loss (including loss of Basic Rent and
Additional Rent), claims, actions, damages, liability and expenses in connection
with loss of life, personal injury, damage to property or any other loss or
injury whatsoever arising out of this Lease, or any occurrence in, upon or at
the Leased Premises, or the occupancy or use by the Tenant of the Leased
Premises or any part thereof, or occasioned wholly or in part by any act or
omission of the Tenant or by anyone permitted to be on the Leased Premises by
the Tenant. If the Landlord shall, without fault on its part, be made a party of
any litigation commenced by or against the Tenant, then the Tenant shall
protect, indemnify and hold the Landlord harmless and shall pay all costs,
expenses and reasonable legal fees incurred or paid by the Landlord in
connection with such litigation. The Tenant shall also pay all costs, expenses
and legal fees that may be incurred or paid by the Landlord in reasonably
enforcing the terms, covenants and conditions in this Lease unless a court of
law having jurisdiction shall decide otherwise. THE LANDLORD ACKNOWLEDGES AND
AGREES THAT THE TENANT SHALL NOT BE RESPONSIBLE TO INDEMNIFY THE LANDLORD FOR
INJURY OR DAMAGE RESULTING FROM THE WILFUL MISCONDUCT OF THE LANDLORD AND THOSE
FOR WHOM IT IS RESPONSIBLE AT LAW.
SECTION 7.07 - LIMITATIONS OF LIABILITY
(a) The Tenant shall not be liable to the Landlord in respect of
any loss, injury or damage insured (OR REQUIRED TO BE INSURED)
by the Landlord under Sections 7.05(a) and (c) (EXCEPT TO THE
EXTENT OF ANY COMMERCIALLY REASONABLE DEDUCTIBLE AMOUNT) to
the extent of any recovery by the Landlord under such
insurance; and
(b) The Landlord shall not be liable to the Tenant in respect of
any loss, injury or damage to property insured or required to
be insured by the Tenant under Sections 7.01(a)(i), (ii) and
(iv).
ARTICLE VIII - MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 8.01 - MAINTENANCE AND REPAIRS BY THE TENANT
(a) Subject to Sections 9.01 and 9.02, the Tenant shall at all
times at its sole cost, keep and maintain the Leased Premises,
exclusive of Common Use Equipment, in good order, first class
condition and repair (which shall include, without limitation,
periodic painting and decoration and preventative
maintenance), o o o IN ACCORDANCE WITH ITS OBLIGATIONS
HEREUNDER.
(b) The Tenant shall examine the Leased Premises before taking
possession thereof and unless the Tenant furnishes the
Landlord with a Notice specifying any defect in the
construction of the Leased Premises within ooo TWENTY (20)
days after such taking of possession, the Tenant shall
conclusively be deemed to have examined the Leased Premises,
to have agreed that they are in order, and such taking of
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<PAGE> 23
possession without the giving of such Notice as aforesaid
within such ooo TWENTY (20) day period is conclusive evidence
against the Tenant that at the time thereof the Leased
Premises were in good order and satisfactory condition,
subject to latent defects, if any. The Tenant agrees that
there is no promise, representation or undertaking by or
binding upon the Landlord with respect to the use of the
Leased Premises or any alteration, remodelling or redecorating
of or installation of equipment or fixtures in the Leased
Premises, except such, if any, as are expressly set forth in
this Lease or the Agreement to Lease.
SECTION 8.02 - LANDLORD'S APPROVAL OF THE TENANT'S REPAIRS
(a) o o o DURING the Term of this Lease or any renewal or
extension hereof, the Tenant shall not make any repairs,
replacements, Leasehold Improvements or install trade fixtures
in any part of the Leased Premises without first obtaining the
Landlord's written approval, such approval not to be
unreasonably withheld, and in connection therewith the Tenant
shall, prior to commencing any such work, submit to the
Landlord:
(i) for its prior approval details of the proposed work,
including drawings and specifications prepared by
qualified architects or engineers and conforming to
good engineering practice;
(ii) such indemnification against liens, costs, damages
and expenses (including Landlord's costs and expenses
incurred, or which may be incurred, in reviewing the
proposed work and supervising its completion) and
such insurance coverages as the Landlord requires;
and
(iii) 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.
(b) All such repairs, replacements, Leasehold Improvements or
trade fixtures made or installed by the Tenant in the Leased
Premises and approved by the Landlord shall be performed:
(i) with first class materials owned by the Tenant 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, supervision,
controls and inspection of the Landlord.
(c) If any such repairs, replacements, Leasehold Improvements or
trade fixtures would affect the structure of the Building, or
any of the electrical, mechanical or other base building
systems or their warranties, such work shall, at the option of
the Landlord, be performed by the Landlord as an Additional
Service. If such would affect such warranties, the Landlord
may reasonably refuse to allow such work to be done. Upon
completion thereof, and thereafter to the extent requiring
ongoing maintenance, repair or replacement, the Tenant shall
pay to the Landlord the Additional Service Cost in respect
thereof.
(d) Upon being invoiced therefor the Tenant shall pay to the
Landlord, as Additional Rent, a fee equal to the sum of One
Dollar ($l.00) per square foot of Rentable Area of the Leased
Premises at the Commencement Date, such fee to cover the
reasonable costs and fees of the Landlord, direct and
indirect, for its services in monitoring the Tenant's
construction and installation of Leasehold Improvements
pursuant to the Agreement to Lease prior to or at the
Commencement Date, which costs shall include the costs of
review and approval of plans and specifications by the
Landlord's in-house staff (but not the Landlord's
out-of-pocket architects' and engineers' fees if such are
required), the costs of hoisting during Business Hours, the
cost of garbage removal from the Complex loading dock, and the
cost of the Utilities consumed in connection therewith
(collectively, the "Included Costs"). In respect of repairs,
alterations or replacements of or to the Leased Premises
thereafter during the Term, the Tenant shall pay to the
Landlord, as Additional Rent, a fee equal to five percent (5%)
of the cost of such work, such fee to cover the reasonable
costs and fees of the Landlord, direct and indirect, for its
services in monitoring the Tenant's construction and
installation or the conduct thereof, as the case may be (which
fee shall cover the Included Costs). ooo NOTWITHSTANDING THE
FOREGOING, THE AFORESAID FIVE PERCENT (5%) FEE SHALL NOT APPLY
TO ANY SUCH WORK CONDUCTED BY THE TENANT WHICH DOES NOT
REQUIRE THE LANDLORD'S APPROVAL IN ACCORDANCE WITH THE TERMS
OF THIS LEASE OR WHICH RELATES TO COSMETIC WORK TO THE LEASED
PREMISES. IN ADDITION TO THE FOREGOING, any cost or expense of
the Landlord in providing hoisting services after Business
Hours, garbage removal to the Complex loading dock and, if the
Landlord's architects and engineers responsible for the
Complex are not retained by the Tenant to complete any
improvements in the Leased Premises affecting the structure of
the Complex or any of the electrical, mechanical or other base
building systems or their warranties, any cost or expense of
the Landlord's architects and engineers in respect of approval
of plans, and
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<PAGE> 24
supervision and/or inspection of such work, will each be
payable by the Tenant as Additional Rent upon being invoiced
by the Landlord.
SECTION 8.03 - MAINTENANCE AND REPAIRS BY THE LANDLORD
(a) Subject to the payment of Rent, the Landlord agrees with the
Tenant to keep in a good and reasonable state of repair, and
consistent with the general standards of comparable FIRST
CLASS office buildings of comparable age in the immediate area
of the Complex, but subject to Sections 9.01 and 9.02, and
with the exception of reasonable wear and tear:
(i) those portions of the Office Section consisting of
the courts, concourses, lobbies, landscaped areas,
entrances and other facilities from time to time
provided for common use and enjoyment, and the
exterior portions of all buildings and structures
from time to time forming part of the Office Section
and affecting its general appearance;
(ii) the Building (other than the Leased Premises and
premises of other tenants) including the foundation,
roof, exterior walls, the Common Use Equipment, the
elevators, escalators, entrances, stairways,
corridors and lobbies and washrooms from time to time
provided for use in common by the Tenant and other
tenants of the Buildings; and
(iii) the structural members or elements of the Leased
Premises.
(b) Subject to Sections 9.01 and 9.02, the Landlord agrees with
the Tenant to repair Insured Damage.
(c) The Tenant acknowledges and agrees that the Landlord is not
liable for any damages, costs or expenses direct, indirect or
consequential, or for damages for personal discomfort, illness
or inconvenience of the Tenant or the Tenant's servants,
clerks, employees, invitees or other persons by reason of
failure of any equipment, facilities or systems servicing the
Building or of reasonable delays in the performance of any
repairs, replacements and maintenance for which the Landlord
is responsible pursuant to this Lease and no such delay shall
entitle the Tenant to any compensation or abatement
whatsoever.
(d) If the Tenant refuses or neglects to carry out any repairs
properly required to be carried out by it under this Lease and
to the reasonable satisfaction of the Landlord, the Landlord
may, but shall not be obliged to, make such repairs 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 Additional
Service Cost in respect thereof.
SECTION 8.04 - SURRENDER OF THE LEASED PREMISES
At the expiration of the Term or earlier termination of this
Lease, the Tenant shall peaceably surrender and yield up the Leased Premises to
the Landlord in as good condition and repair as the Tenant is required to
maintain the Leased Premises throughout the Term, REASONABLE WEAR AND TEAR
EXCEPTED, and the Tenant shall surrender all keys and pass cards for the Leased
Premises or the Complex to the Landlord at the place then fixed for the payment
of rent and shall inform the Landlord of all combinations of locks, safes and
vaults, if any, in the Leased Premises. The Tenant shall, however, remove all of
its trade fixtures and any o o o special installations if requested by the
Landlord as provided in Section 8.08 hereof before surrendering the Leased
Premises as aforesaid. The Tenant's obligations under this covenant shall
survive the expiration of the Term or earlier termination of this Lease.
SECTION 8.05 - REPAIR WHERE THE TENANT IS AT FAULT
Save for the limitation of liability contained in Section
7.07(a) but notwithstanding any other provision of this Lease, if the Complex or
any part thereof, or any equipment, machinery, facilities or improvements
contained therein or made thereto, or the roof or outside walls of the Complex
or any other structural portions thereof require repair or replacement or become
damaged or destroyed by reason of any act, omission to act, neglect or default
of the Tenant or those for whom the Tenant is in law responsible or through any
of them in any way stopping up or damaging the climate control, heating
apparatus, water pipes, drainage pipes or other equipment or facilities or parts
of the Complex or the Building, the cost of the resulting repairs, replacements
or alterations shall be an Additional Service Cost to the Tenant.
SECTION 8.06 - 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 Leased Premises, and the Tenant will not bring into the Leased Premises or
install any utility, electrical or mechanical facility or service which the
Landlord does not approve. The Tenant agrees that if any changes proposed or use
by the Tenant requires additional utility, electrical or mechanical facilities,
the Landlord may, in its sole discretion, if they are available, elect to
install them in accordance with plans and specifications to be approved in
advance in writing by the Landlord and the cost thereof shall be an Additional
Service Cost to the Tenant.
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<PAGE> 25
SECTION 8.07 - TENANT NOT TO OVERLOAD FLOORS
The Tenant shall not bring upon the Complex or the Leased
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 Complex or the Leased Premises and shall not at any time overload the floors
of the Leased Premises.
SECTION 8.08 - REMOVAL AND RESTORATION BY TENANT
(a) All Leasehold Improvements shall immediately become the
property of the Landlord upon affixation or installation
without compensation therefor to the Tenant, but the Landlord
is under no obligation to repair, maintain or insure any
Leasehold Improvements. Leasehold Improvements and trade
fixtures shall not be removed from the Leased Premises either
during or at the expiration or earlier termination of the Term
except that:
(i) the Tenant may during the Term in the usual or normal
course of its business and without the prior written
consent of the Landlord remove its trade fixtures,
provided that 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 the Tenant is not in default under
this Lease; and
(ii) the Tenant shall, immediately prior to the expiration
of the Term and at its own cost, remove all trade
fixtures and repair any damage to the Leased Premises
caused by their installation and removal, failing
which such may be completed and repaired by the
Landlord as an Additional Service to the Tenant.
NOTWITHSTANDING THE FOREGOING, THE LANDLORD
ACKNOWLEDGES AND AGREES THAT THE TENANT SHALL HAVE NO
OBLIGATION TO RESTORE THE LEASED PREMISES BACK TO
BASE BUILDING CONDITION.
(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, become the
property of the Landlord and, as an Additional Service to the
Tenant, may be removed from the Leased Premises and sold or
disposed of by the Landlord in such manner as it deems
advisable.
All property of the Tenant or of any person or entity claiming
through or under the Tenant remaining on the Leased Premises after the
termination of the tenancy shall be deemed to have been abandoned by the Tenant
in favour of the Landlord and may be disposed of by the Landlord at its
discretion without prejudice to the rights of the Landlord to claim damages from
the Tenant for failure to remove the same.
SECTION 8.09 - NOTICE BY THE TENANT
The Tenant shall when it becomes aware of same notify the
Landlord by Notice of any damage to or deficiency or defect in any part of the
Complex, including the Leased 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 8.10 - TENANT TO DISCHARGE ALL LIENS
The Tenant shall at all times during the period that the
Tenant is engaged in the construction or installation of its improvements or has
been given possession of the Leased Premises and throughout the Term promptly
pay all its architects, engineers, 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 Leased Premises and the Tenant shall do any and all things
necessary so as to ensure that no lien is registered against the Complex or any
part thereof or against the Landlord's interest in the Leased Premises
(including, without limitation, obtaining a waiver of lien from its contractors
and subcontractors) o o o IN RESPECT of WORK DONE BY OR ON BEHALF OF THE TENANT
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 reasonable legal fees (on a solicitor and his client basis) incurred
as a result of the registration of any such lien shall be immediately due and
payable by the Tenant to the Landlord as Additional Rent on demand.
SECTION 8.11 - SIGNS AND ADVERTISING
The Landlord will prescribe a uniform pattern of
identification signs for tenants (such signs for the Tenant to be installed by
the Landlord at the Tenant's expense as an Additional Service) and other than
such identification signs, the Tenant shall not paint, affix or display any
sign, picture, advertisement, notice, lettering or decoration on any part of the
Complex or the Leased Premises for exterior view without the prior written
consent of the Landlord which consent may be unreasonably withheld. Any such
signs shall remain the property of the Tenant and shall be maintained at the
Tenant's sole cost and expense. At the expiration of the Term or earlier
termination of this Lease, the Tenant shall remove any such sign, picture,
advertisement, notice, lettering or decoration from the Leased Premises
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<PAGE> 26
at the Tenant's expense and shall promptly repair all damage caused by any such
installation and removal failing which such may be performed by the Landlord as
an Additional Service to the Tenant. The Tenant's obligation to observe and
perform this covenant shall survive the expiration of the Term or earlier
termination of this Lease. The Landlord, at its expense, shall install building
standard signage beside the entrance doors to the Leased Premises, in the common
area o o o on the third (3rd) and fourth (4th) floors of the Building and in the
ground floor lobby directory of the Building. The Landlord shall design the
style of such directory board and shall in its own discretion determine the
location of the same.
ARTICLE IX - DAMAGE AND DESTRUCTION
SECTION 9.01 - DESTRUCTION OF THE LEASED PREMISES
(a) If the Leased 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 7.05 hereof or otherwise insured against by the
Landlord, and if as a result of such occurrence:
(i) the Leased Premises are rendered untenantable only in
part, this Lease shall continue in full force and
effect and the Landlord shall, subject to Sections
9.01(b) and 9.02(a) hereof, commence diligently to
reconstruct, rebuild or repair the Leased Premises to
the extent only of its obligations under Section
8.03, and if the damage is such that the portion of
the Leased Premises rendered untenantable is not
reasonably capable of use and occupancy by the Tenant
for the purposes of its business for any period of
time in excess of ten (10) days, Rent shall abate
proportionately to the portion of the Leased Premises
rendered untenantable from and after such ten (10)
day period and until the Landlord's repairs have been
completed;
(ii) the Leased Premises are rendered wholly untenantable
for a period in excess of ten (10) days, this Lease
shall continue in full force and effect and the
Landlord shall, subject to Sections 9.01(b) and
9.02(a) hereof, commence diligently to reconstruct,
rebuild or repair the Leased Premises to the extent
only of its obligations under Section 8.03 and Rent
shall abate entirely from and after such ten (10) day
period and until the Landlord's repairs have been
completed;
(iii) the Leased Premises are not rendered untenantable in
whole or in part, this Lease shall continue in full
force and effect, the Rent and other amounts payable
by the Tenant shall not terminate, be reduced or
abate and the Landlord shall, subject to Sections
9.01(b) and 9.02(a) hereof, commence diligently to
reconstruct, rebuild or repair the Leased Premises to
the extent only of its obligations under Section
8.03.
(b) Notwithstanding anything contained in Section 9.01(a), if the
Leased Premises are damaged or destroyed by any cause
whatsoever, and if, in the opinion of the Landlord reasonably
arrived at, the Leased Premises cannot be reconstructed,
rebuilt or repaired and made fit for the purposes of the
Tenant within one hundred and eighty (180) days of the
happening of the damage or destruction, or if the damage or
destruction occurs in the last twenty-four (24) months of the
Term (or any exercised renewal or extension thereof), the
Landlord, instead of reconstructing, rebuilding or repairing
the Leased Premises in accordance with Section 9.01(a), may at
its option (AND WITHOUT DISCRIMINATION IN RESPECT OF OTHER
TENANTS IN THE COMPLEX WITH RESPECT TO DAMAGE OR DESTRUCTION
TO THE COMPLEX) OR THE TENANT MAY, AT ITS OPTION, elect to
terminate this Lease by giving to theooo OTHER, Notice of
termination within forty-five (45) days after such damage or
destruction, and thereupon Rent and other payments for which
the Tenant is liable under this Lease shall be apportioned and
paid to the date of such damage or destruction, and the Tenant
shall immediately deliver up vacant possession of the Leased
Premises to the Landlord in accordance with the terms of this
Lease.
(c) Upon the Tenant being given Notice by the Landlord that the
Landlord's reconstruction, rebuilding or repairs have been
substantially completed, the Tenant shall forthwith complete
all repairs to the Leased Premises which are the Tenant's
responsibility under Section 8.01 and all other work required
to fully restore the Leased Premises for business in every
case at the Tenant's cost and without any contribution to such
cost by the Landlord, whether or not the Landlord has at any
time made any contribution to the cost of supply, installation
or construction of Leasehold Improvements in the Leased
Premises. The Tenant shall diligently complete the Tenant's
repairs and if the Leased Premises have been closed for
business, commence carrying on business within sixty (60) days
after notice that the Landlord's reconstruction, rebuilding or
repairs have been substantially completed.
(d) Nothing in this Section 9.01 requires the Landlord to rebuild
the Leased Premises in the condition and state that existed
before any such occurrence, provided that the Leased Premises
as rebuilt will have reasonably similar facilities and
services to those in the Leased Premises prior to the damage
or destruction having regard, however, to the age of the
Complex at such time.
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<PAGE> 27
SECTION 9.02 - DESTRUCTION OF THE COMPLEX
(a) Notwithstanding anything contained in this Lease and
specifically notwithstanding the provisions of Section 9.01
hereof, if:
(i) thirty-five per cent (35%) or more of the area of the
Building or the Complex; or
(ii) fifty per cent (50%) or more of either the Rentable
Area of the Building or the Total Office Section
Rentable Area;
is damaged or destroyed by any cause whatsoever (irrespective
of whether the Leased Premises are damaged or destroyed) and
if, in the opinion of the Landlord reasonably arrived at (AND
WITHOUT DISCRIMINATION O O O IN RESPECT OF OTHER TENANTS IN
THE COMPLEX WITH RESPECT TO DAMAGE OR DESTRUCTION TO THE
COMPLEX) , either (A) such area of the Building or the Complex
or the Total Office Section Rentable Area, as the case may be,
so damaged or destroyed cannot be rebuilt or made fit for the
purposes of such space within one hundred and eighty (180)
days of the happening of the damage or destruction or (b) the
estimated cost of repairing, restoring or rebuilding it shall
exceed by one million dollars or more the proceeds of
insurance available to the Landlord for the purpose; then and
so often as any of such events occur, the Landlord may, at its
option (to be exercised by Notice to the Tenant within sixty
(60) days following any such occurrence), elect to terminate
this Lease. In the case of such election, the Term and the
tenancy hereby created shall expire upon the sixtieth (60th)
day after such notice is given, without indemnity or penalty
payable by, or any other recourse against the Landlord, and
the Tenant shall, within such sixty (60) day period, vacate
the Leased Premises and surrender them to the Landlord, with
the Landlord having the right to re-enter and repossess the
Leased Premises discharged of this Lease and to expel all
persons and remove all property therefrom. Rent shall be due
and payable without deduction or abatement subsequent to the
destruction or damage and until the date of termination,
unless the Leased Premises shall have been destroyed or
damaged as well, in which event Section 9.01 shall apply.
(b) If all or any part of the Complex is at any time destroyed or
damaged as set out in Section 9.02(a), 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, if necessary, that part of the
Office Section, the Complex or the Building which was damaged
or destroyed, but only to the extent of the Landlord's
responsibilities pursuant to the terms of the various leases
for the premises in the Complex and the Building, as the case
may be, and exclusive of any tenant's responsibilities set out
therein. If the Landlord elects to repair, reconstruct or
rebuild the Office Section, the Complex and the Building, as
the case may be, or any part thereof, the Landlord may repair,
reconstruct or rebuild according to plans and specifications
and working drawings other than those used in the original
construction of the Complex and the Building, as the case may
be, or any part thereof.
ARTICLE X - TRANSFER AND SALE
SECTION 10.01 - ASSIGNING AND SUBLETTING
The Tenant will not enter into, consent to or permit a
Transfer without the prior written consent of the Landlord in each instance,
which consent shall not be unreasonably withheld or delayed, but shall be
subject to the Landlord's rights under Section 10.02. Notwithstanding any
statutory provision to the contrary, it shall not be considered unreasonable for
the Landlord to withhold its consent if, without limiting any other factors or
circumstances which the Landlord may reasonably take into account:
(a) the Tenant is then in default under this Lease;
(b) the proposed Transfer would be or could result in violation or
breach of any covenants or restrictions granted by the
Landlord to its Mortgagee, other tenants or occupants or
prospective tenants or occupants in the Complex;
(c) in the Landlord's reasonable opinion the financial background,
business history and capability of the proposed transferee is
NOT satisfactory;
(d) the Landlord will have o o O AT THE TIME OF SUCH REQUest other
premises in the Complex which might be suitable for the needs
of the proposed person or entity to whom the Transfer is being
made;
(e) the proposed person or entity to whom the Transfer is being
made is an existing tenant in the Complex;
(f) such Transfer provides for Rent which is less than o o o
PREVAILING MARKET RENTAL RATES IN THE BUILDING FOR A SIMILAR
AMOUNT OF SPACE AND SIMILAR TERM in respect of the Rentable
Area of the Leased Premises included in the proposed Transfer
(SAVE AND EXCEPT THAT THE FOREGOING SHALL NOT APPLY IF THE
OFFICE SECTION IS AT LEAST 95% OCCUPIED); or
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<PAGE> 28
(g) the use of the Leased Premises by the proposed transferee, in
the Landlord's reasonable opinion, could result in excessive
use of the elevators or other Common Facilities of the
Complex, be inconsistent with the image and standards of the
Complex, or expose the occupants of the Complex to risk of
harm, damage or interference with their use and enjoyment
thereof.
The consent by the Landlord to any Transfer, if granted, shall
not constitute a waiver of the necessity for such consent to any subsequent
Transfer, whether by the Tenant or any assignee or sublessee of the Tenant. This
prohibition against a Transfer is construed so as to include a prohibition
against any Transfer by operation of law and no Transfer shall take place or be
deemed to have been consented to or approved by reason of a failure by the
Landlord to give notice to the Tenant within o o o FIFTEEN (15) days as required
by Section 10.02. Notwithstanding any Transfer (whether or not permitted or
consented to by the Landlord), the Tenant and the Indemnifier (if any) shall
remain liable under this Lease and shall not be released from performing any of
their obligations hereunder.
NOTWITHSTANDING THE FOREGOING, PROVIDED THAT THE TENANT IS
DALEEN CANADA CORPORATION AND IS NOT IN DEFAULT UNDER THIS LEASE, THE TENANT
SHALL BE PERMITTED TO SUBLET ALL OR PART OF THE LEASED PREMISES OR ASSIGN THIS
LEASE TO A HOLDING BODY CORPORATE, AFFILIATED BODY CORPORATE OR SUBSIDIARY BODY
CORPORATE OF THE TENANT (AS SUCH TERMS ARE DEFINED IN THE BUSINESS CORPORATIONS
ACT (ONTARIO) R.S.O. 1990, C.B.16 AS OF THE DATE OF THIS LEASE) OR A PURCHASER
OF SUBSTANTIALLY ALL OF THE TENANT'S ASSETS (COLLECTIVELY, THE "PERMITTED
TRANSFEREE") WITHOUT THE PRIOR CONSENT OF THE LANDLORD, PROVIDED THAT THE
PERMITTED TRANSFEREE HAS O O O NET ASSETS AT THE TIME OF THE TRANSFER WITH AN
AGGREGATE VALUE AT LEAST EQUAL TO THOSE OF THE TENANT AS OF THE DATE OF THIS
LEASE, AND PROVIDED THAT THE TENANT SHALL GIVE PRIOR WRITTEN NOTICE OF SUCH
SUBLEASE OR ASSIGNMENT TO THE LANDLORD ALONG WITH SUFFICIENT FINANCIAL EVIDENCE
OF THE NET ASSETS, IN THE LANDLORD'S OPINION, ACTING REASONABLY, O O O OF THE
PERMITTED TRANSFEREE.
SECTION 10.02 - LANDLORD'S RIGHT TO TERMINATE
For the purposes of this Section 10.02, "Tenant" means the
Tenant and any subtenant, assignee, or licensee or other transferee of all or
any part of the Leased Premises or the Tenant's interest in this Lease.
The Tenant shall not effect a Transfer (SAVE AND EXCEPT TO A
PERMITTED TRANSFEREE AS DEFINED IN SECTION 10.01 ABOVE) unless:
(a) it shall have received or procured a bona fide written offer
to effect a Transfer which is not inconsistent with, and the
acceptance of which would not breach any provision of this
Lease if this Section 10.02 is complied with and which the
Tenant has accepted subject only to compliance with this
Section 10.02, and
(b) it shall have first requested and obtained the consent in
writing of the Landlord thereto.
Any request for such consent shall be in writing and
accompanied by a true copy of such offer, and the Tenant shall furnish to the
Landlord all information available to the Tenant and requested by the Landlord
as to the responsibility, reputation, ownership, financial standing and business
of the proposed person or entity to whom the Transfer is being made. The
Landlord shall within o o o FIFTEEN (15) days after having received such request
and aLL such necessary information, notify the Tenant in writing either that:
(i) it consents or does not consent to the Transfer in
accordance with the provisions of this Article X; or
(ii) it elects to terminate this Lease as to the whole or
the part, as the case may, of the Leased Premises
affected by the proposed Transfer.o o o
If the Landlord elects to terminate this Lease it shall
stipulate in its Notice the date of termination of this Lease, which date shall
be no less than thirty (30) days nor more than ninety (90) days following the
giving of such Notice of termination. If the Landlord elects to terminate this
Lease as aforesaid, the Tenant shall notify the Landlord in writing within five
(5) days thereafter of the Tenant's intention either to refrain from such
Transfer or to accept the termination of this Lease or the part thereof in
respect of which the Landlord has exercised its rights. If the Tenant fails to
deliver such Notice within such period of five (5) days or notifies the Landlord
that it accepts the Landlord's termination, this Lease will, as to the whole or
the affected part of the Leased Premises, as the case may be, be terminated on
the date of termination stipulated by the Landlord in its Notice. If the Tenant
notifies the Landlord it intends to refrain from such Transfer, the Landlord's
election to terminate this Lease as aforesaid shall become null and void in such
instance.
SECTION 10.03 - CONDITIONS OF TRANSFER
(a) If there is a permitted Transfer, the Landlord may collect
rent from the transferee and apply the net amount collected to
the Rent required to be paid pursuant to this Lease, but no
acceptance by the Landlord of any payments by the transferee
shall be deemed a waiver of the provisions of Article X hereof
or the acceptance of the transferee as tenant or a release of
the Tenant from the further performance by the Tenant of the
covenants or obligations on the part of the Tenant herein
contained. Any consent by the Landlord shall be subject to the
Tenant executing and causing any such transferee
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to promptly execute, prior to the Transfer being made, an
agreement directly with the Landlord agreeing:
(i) to be bound by all of the terms, covenants and
conditions contained in this Lease as if such
transferee had originally executed this Lease as
tenant; and
(ii) to amend the Lease to incorporate such terms,
covenants and conditions as are COMMERCIALLY
REASONABLE AND necessary so that the Lease will be in
accordance with the Landlord's standard form of lease
in use at such time and so as to incorporate any
conditions imposed by the Landlord in its consent or
required by this Section 10.03.
(b) . . . SAVE AND EXCEPT IN THE CASE OF A TRANSFER TO A PURCHASER
OF SUBSTANTIALLY ALL OF THE TENANt'S ASSETS IN ACCORDANCE WITH
SECTION 10.01 ABOVE, NOTWITHSTANDING ANY Transfer permitted or
consented to by the Landlord, the Tenant shall be jointly and
severally liable with the transferee under this Lease and
shall not be released from performing any of the terms,
covenants and conditions of this Lease, UNLESS OTHERWISE
AGREED TO IN WRITING.
(c) . . . SAVE AND EXCEPT IN THE CASE OF A TRANSFER TO A PURCHASER
OF SUBSTANTIALLY ALL OF THE TENANT'S ASSETS IN ACCORDANCE WITH
SECTION 10.01 ABOVE, THE Tenant agrees that if this Lease is
ever disclaimed or terminated in a bankruptcy proceeding
relating to a transferee, or if the Landlord terminates this
Lease as a result of any act or default of any transferee, the
Tenant shall, at the Landlord's option exercised by Notice to
the Tenant, enter into a new lease of the Leased Premises on
terms (insofar as they apply to the balance of the Term of
this Lease - i.e. excluding any free rent periods or other
inducements previously used or received by the Tenant)
identical to this Lease for a term commencing on the date
which the Landlord exercises its right to require the Tenant
to enter into such new lease and expiring upon the date of
expiry of this Lease; in such event, the Tenant will accept
the Leased Premises in an "as is" condition.
(d) . . . SAVE AND EXCEPT IN THE CASE OF A TRANSFER TO A PERMITTED
TRANSFEREE AS DEFINED IN SECTION 10.01 ABOVE, THE Landlord's
consent to any Transfer shall be subject to the condition that
the Basic Rent payable by the transferee thereafter per square
foot of Rentable Area of the Leased Premises included in the
Transfer shall be the greatest of (i) the ooo PREVAILING
MARKET RENTAL RATE IN THE BUILDING FOR A SIMILAR AMOUNT OF
SPACE AND SIMILAR TERM AS PROPOSED IN THE TRANSFER (PROVIDED
THAT THE AFORESAID CONDITION WITHIN SECTION 10.03(D)(I) SHALL
NOT APPLY IF THE OFFICE SECTION IS AT LEAST 95% OCCUPIED),
(ii) an amount equal to the Landlord's posted rental rate for
rentable premises in the Building similar to the Leased
Premises at the time of the granting of the Landlord's consent
multiplied by the Rentable Area of the Leased Premises
(PROVIDED THAT THE AFORESAID CONDITION WITHIN SECTION
10.03(D)(II) SHALL NOT APPLY IF THE OFFICE SECTION IS AT LEAST
95% OCCUPIED)and (iii) the Basic Rent payable under the
Transfer agreement.
(e) Any document or consent evidencing any Transfer permitted by
the Landlord or setting out any terms applicable to such
Transfer or the rights and obligations of the Tenant or the
transferee thereunder, shall be prepared by the Landlord or
its solicitors, and all reasonable legal and other costs and
disbursements with respect thereto shall be paid by the Tenant
to the Landlord or its solicitors forthwith upon demand as
Additional Rent, together with the Landlord's standard
administrative fee payable to the Landlord, which at the date
of this Lease is in the amount of One Thousand Dollars
($1,000.00).
(f) If the proposed Transfer is in the nature of an assignment of
this Lease, and if the Tenant receives from any proposed
transferee, either directly or indirectly, any consideration
for the assignment WHICH IS PROPERLY ATTRIBUTABLE TO THE
LEASED PREMISES, THE LOCATION THEREOF OR THIS LEASE, the
Tenant shall immediately pay such consideration to the
Landlord who shall be entitled to retain such consideration
for its own benefit absolutely as Additional Rent payable
hereunder. If the proposed Transfer is in the nature of a
sublease or other transaction not in the nature of an
assignment any consideration received by the Tenant from the
proposed transferee, whether directly or indirectly, for such
Transfer (including any monthly payments) in excess of the
Rent payable by the Tenant pursuant to this Lease, shall be
paid forthwith by the Tenant to the Landlord who shall be
entitled to retain such consideration for its own benefit
absolutely, as Additional Rent payable hereunder.
NOTWITHSTANDING THE FOREGOING, ANY CONSIDERATION RECEIVED BY
THE TENANT FOR THE SELLING PRICE OF THE BUSINESS OPERATING
FROM THE LEASED PREMISES OR THE GOODWILL OF THE TENANT PAID BY
A TRANSFEREE, WHO IS PURCHASING SUBSTANTIALLY ALL OF THE
ASSETS OF THE TENANT, WHICH AMOUNTS ARE PROPERLY ATTRIBUTABLE
TO SAME IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES SHALL NOT BE REQUIRED TO BE PAID BY THE TENANT TO
THE LANDLORD.
(g) If the Tenant receives from any proposed transferee, either
directly or indirectly, any consideration other than minimum
rent or additional rent for such Transfer, either in the form
of cash, goods or services, the Tenant shall forthwith pay to
the Landlord an amount equivalent to such consideration. The
Tenant and the proposed transferee shall execute any agreement
required by the Landlord to give effect to the foregoing
terms.
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SECTION 10.04 - NO ADVERTISING OF THE LEASED PREMISES
The Tenant shall not print, publish, post, display or
broadcast any notice or advertisement or otherwise advertise the whole or any
part of the Leased Premises for the purpose of any Transfer and it shall not
permit any broker or other person to do any of the foregoing, unless the
complete text and format of any such notice or advertisement 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 Rent nor to
any proposed rent sought by the Tenant of and for the Leased Premises.
SECTION 10.05 - CORPORATE OWNERSHIP
If the Tenant is a corporation or partnership or if the
Landlord has consented to a Transfer to a corporation or a partnership, any
actual or proposed Change of Control in such corporation (other than that
occurring as the result of trading in shares listed upon a recognized stock
exchange o o o ) or partnership shall be deemed to be A Transfer and subject to
all of the provisions of this Article X.
The Tenant shall make available to the Landlord, or its
representatives, . . . THOSE of its corporaTE or partnership books and records,
as the case may be, AS ARE NECESSARY for inspection at all reasonable times, to
enable the Landlord to ascertain whether there has been any Change of Control of
the Tenant from time to time. Similarly, any Indemnifier shall make the same
information available to the Landlord in respect of its records and, if there
shall be a Change of Control of the Indemnifier the Landlord may terminate this
Lease upon notice to the Tenant unless it consents to such Change of Control.
For the purposes of this Section, "Change of Control" means
the transfer or issue by sale, assignment, transmission on death, encumbrance,
issuance from treasury, operation of law or otherwise, of any shares, voting
rights or interest which would result in any change in the identity of the
person or entity exercising, or who might exercise, effective control of the
corporation or partnership and, in the case of a partnership, includes a change
in any of its partners.
SECTION 10.06 - ASSIGNMENT BY THE LANDLORD
The Landlord, at any time and from time to time, may sell,
transfer, lease, assign or otherwise dispose of the whole or any part of its
interest in the Complex, and at any time and from time to time may enter into
any Mortgage of the whole or any part of its interest in the Complex. If the
party acquiring such interest shall have agreed, so long as it holds such
interest, to assume and to perform each of the covenants, obligations and
agreements of the Landlord under this Lease in the same manner and to the same
extent as if originally named as the Landlord in this Lease, the Landlord shall
thereupon be released from all of its covenants and obligations under this
Lease.
ARTICLE XI - ACCESS AND ALTERATIONS
SECTION 11.01 - RIGHT OF ENTRY
The Landlord and its agents have the right to enter the Leased
Premises at all times DURING REGULAR BUSINESS HOURS, EXCEPT IN THE CASE OF
EMERGENCY IN WHICH CASE THE LANDLORD MAY ENTER THE LEASED PREMISES AT ANY TIME,
to examine the same and to make such repairs, alterations, changes, checks,
adjustments, calibrations, improvements or additions to the Leased Premises or
the Complex or any part thereof or systems therein or any adjacent to the Leased
Premises. The Tenant shall not obstruct any pipes, conduits, ducts, mechanical
shafts or electrical equipment so as to prevent reasonable access thereto.
SECTION 11.02 - RIGHT TO SHOW LEASED PREMISES
The Landlord and its agents have the right to enter the Leased
Premises at all times during Business Hours to show them to prospective
purchasers, lessees or Mortgagees and during the . . . NINE (9) months prior to
tHE expiration of the Term, the Landlord may place upon the Leased Premises the
usual "For Rent" notices which the Tenant shall permit to remain thereon without
molestation or complaint.
SECTION 11.03 - ENTRY NOT FORFEITURE
No entry into the Leased Premises or anything done therein 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 any actual or
constructive eviction. The Tenant shall have no claim for injury, damages or
loss suffered as a result of any such entry or thing done by the Landlord unless
such injury, damage or loss is due to, as a result of or arising from the
negligence of the Landlord or those for whom it is responsible in law. The Rent
required to be paid pursuant to this Lease shall not abate or be reduced due to
loss or interruption of business of the Tenant or otherwise while any repairs,
alterations, changes, adjustments, improvements or additions permitted by this
Lease are being made by the Landlord.
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SECTION 11.04 - LANDLORD'S COVENANT FOR QUIET ENJOYMENT
The Landlord hereby agrees to perform or cause to be performed
all of the obligations of the Landlord under this Lease, and further agrees that
if the Tenant pays the Basic Rent and Additional Rent and continuously performs
all its obligations under this Lease, the Tenant shall, subject to the terms and
conditions of this Lease, peaceably possess and enjoy the Leased Premises
throughout the Term without any interruption or disturbance from the Landlord or
any other person or persons lawfully claiming by, through or under the Landlord.
SECTION 11.05 - TENANT ACCESS
SUBJECT TO THE LANDLORD'S SECURITY REQUIREMENTS AND
EMERGENCIES, THE TENANT SHALL HAVE THE RIGHT TO ACCESS THE LEASED PREMISES
DURING THE TERM FOR 24 HOURS PER DAY, 365 DAYS PER YEAR, SUBJECT TO THE TERMS OF
THIS LEASE.
ARTICLE XII - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 12.01 - STATUS STATEMENT
Within ten (10) days after request by Notice therefor by the
Landlord, the Tenant shall deliver, in a form supplied by the Landlord, a status
statement or a certificate to the Landlord, or to any Mortgagee or to any
proposed Mortgagee or purchaser, or as the Landlord may otherwise direct 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);
(b) the Commencement Date;
(c) the date to which Basic Rent and Additional Rent have been
paid under this Lease and the particulars of any prepaid Rent
and security deposit held by the Landlord;
(d) whether 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 defences or counterclaims against
enforcement of the obligations to be performed by the Tenant
under this Lease;
(f) with reasonable particularity, details respecting the Tenant's
and any Indemnifier's financial standing and corporate
organization; and
(g) any other information that the Landlord or any Mortgagee or
proposed Mortgagee may reasonably request.
SECTION 12.02 - GROUND LESSOR, SUBORDINATION . . . , ATTORNMENT AND
NON-DISTURBANCE
It is a condition of this Lease and the Tenant's rights
granted hereunder that this Lease and all of the rights hereunder are and shall
at all times be subject and subordinate to any and all Mortgages from time to
time in existence against the Lands. Upon request, the Tenant shall subordinate
the Lease and all of its rights hereunder in such form as the Landlord
reasonably requires to any and all Mortgages, and to all advances made or
hereafter to be made upon the security thereof and, if requested, the Tenant
shall attorn to the holder thereof. Any subordination will provide that the
rights of the Tenant under this Lease shall not be interfered with so long as
the Tenant is not in default hereunder. The form of such subordination shall be
as required by the Landlord or any Mortgagee. NOTWITHSTANDING THE FOREGOING, THE
TENANT SHALL NOT BE REQUIRED TO SUBORDINATE THE LEASE AND ALL OF ITS RIGHTS
HEREUNDER TO ANY AND ALL FUTURE MORTGAGES (BEING REGISTERED ON TITLE TO THE
COMPLEX SUBSEQUENT TO THE DATE OF THIS LEASE), AND TO ALL ADVANCES TO BE MADE
THEREAFTER UPON THE SECURITY THEREOF AND, IF REQUESTED, TO ATTORN TO THE HOLDER
THEREOF, UNLESS SUCH FUTURE MORTGAGEE EXECUTES A NON-DISTURBANCE AGREEMENT IN
FAVOUR OF THE TENANT.
UPON EXECUTION OF THIS LEASE BY THE TENANT AND UPON THE
TENANT'S WRITTEN REQUEST, THE LANDLORD SHALL USE REASONABLE EFFORTS TO OBTAIN IN
FAVOUR OF THE TENANT, A NON-DISTURBANCE AGREEMENT FROM ANY MORTGAGEE REGISTERED
ON TITLE TO THE COMPLEX AS AT THE DATE OF THIS LEASE.
SECTION 12.03 - ATTORNEY
The Tenant irrevocably constitutes the Landlord, its agent and
attorney for the purpose of executing any agreement, certificate, attornment or
subordination required by this Lease if the Tenant fails to execute and deliver
such documents within ten (10) days after request by the Landlord.
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<PAGE> 32
SECTION 12.04 - FINANCIAL INFORMATION
INTENTIONALLY DELETED.
SECTION 12.05 - ACKNOWLEDGEMENT OF TITLE
The Tenant acknowledges that its interest under this Lease is
subject to:
(a) covenants, restrictions, easements, agreements and
reservations of record, and any easements, licences,
rights-of-way and cost sharing arrangements and agreements
respecting the same hereafter made in connection with the
provision of access or services to the Complex or otherwise in
connection with the Common Facilities and which may affect the
Landlord's title;
(b) all laws, by-laws, ordinances, regulations and orders of the
City of Toronto, Province of Ontario and Government of Canada,
and of all statutory commissions, boards and bodies having
jurisdiction over the Leased Premises;
(c) the condition of the Landlord's title existing at the date
hereof; and
(d) municipal realty taxes, local improvement rates, duties,
assessments, water and sewer rates and other impositions
accrued or unaccrued.
ARTICLE XIII - DEFAULT
SECTION 13.01 - RIGHT TO RE-ENTER
If and whenever:
(a) the Tenant fails to pay any Basic Rent or Additional Rent or
other sums due hereunder on the day or dates appointed for the
payment thereof (providing the Landlord first gives five (5)
BUSINESS days' 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) Notice of any such failure to perform and the Tenant
within such period of . . . FIFTEEN (15) days (or such shorter
period, as aforesaid) fails to commence diligently and,
thereafter, to proceed diligently to cure any such failure to
perform; or
(c) the Tenant or any agent of the Tenant falsifies any report or
statement required to be furnished to the Landlord pursuant to
this Lease; or
(d) the Tenant or any Indemnifier of this Lease or any person
occupying the Leased Premises or any part thereof or any
licensee, concessionaire or franchisee operating any business
in the Leased Premises becomes bankrupt or insolvent or takes
the benefit of any act now or hereafter in force for bankrupt
or insolvent debtors or files any proposal or makes any
assignment for the benefit of creditors or any arrangement or
compromise; or
(e) a receiver or a receiver and manager is appointed for all or a
portion of the property of the Tenant, any Indemnifier or any
such occupant, licensee, concessionaire or franchisee or a
material adverse change in the financial status of the
Indemnifier occurs; or
(f) 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
(g) the Tenant makes a sale in bulk of any of its assets wherever
situate (other than a bulk sale made pursuant to a permitted
Transfer hereunder OR TO A PERMITTED TRANSFEREE and pursuant
to the BULK SALES ACT of Ontario); or
(h) the Tenant abandons or attempts to abandon the Leased Premises
or sells or disposes of a substantial part of the trade
fixtures, goods and chattels of the Tenant or removes them
from the Leased Premises; or
(i) the Leased Premises become and remain vacant WITHOUT THE
LANDLORD'S PRIOR CONSENT for a period of GREATER THAN . . .
SEVEN (7) consecutive BUSINESS days or are used by any persons
other than such as are entitled to use them hereunder; or
(j) the Tenant purports to make a Transfer, except in a manner
permitted by this Lease; or
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(k) this Lease or any of the Tenant's assets are taken under any
writ of execution; 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 by law, has the immediate right of
re-entry upon the Leased Premises and it may repossess the Leased Premises and
enjoy them as of its former estate and may expel all persons and remove all
property from the Leased Premises and such property may be removed and sold or
disposed of by the Landlord as it deems advisable or may be stored in a public
warehouse or elsewhere at the cost and for the account of the Tenant, all
without service of notice or resort to legal process and without the Landlord
being considered guilty of trespass or becoming liable for any loss or damage
which may be occasioned thereby.
SECTION 13.02 - RIGHT TO RE-LET
If the Landlord elects to re-enter the Leased Premises as
herein provided or it takes possession pursuant to legal proceedings or pursuant
to any notice provided for by law, it may either terminate this Lease or it may
from time to time without terminating this Lease, make such alterations and
repairs as are necessary to re-let the Leased Premises or any part thereof for
such term or terms (which may be for a term extending beyond the Term) and at
such rent and upon such other terms, covenants and conditions as the Landlord in
its sole discretion, acting reasonably, considers advisable. Upon each such
reletting, all rent received by the Landlord from such re-letting shall be
applied, first, to the payment of any indebtedness other than Basic Rent or
Additional Rent due hereunder from the Tenant to the Landlord; second, to the
payment of any brokerage fees and legal fees and of costs of such alterations,
repairs and re-letting (including tenant inducements); third, to the payment of
Basic Rent and Additional Rent due and unpaid hereunder; and the residue, if
any, to the extent applicable to any period of time within the Term, shall be
held by the Landlord and applied in payment of future rent as the same becomes
due and payable hereunder. If such rent to be received from such re-letting
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 Leased Premises by the Landlord
shall be construed as an election on its part to terminate this Lease unless a
Notice of such intention is given to the Tenant. Notwithstanding any such
re-letting without termination, the Landlord may at any time thereafter elect to
terminate this Lease for such previous breach.
SECTION 13.03 - TERMINATION
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 the cost of
recovering the Leased Premises, legal fees (on a solicitor and his client basis)
and including the worth at the time of such termination of the excess, if any,
of the amount of Basic Rent, Additional Rent and charges equivalent to the Basic
Rent, Additional Rent and other charges required to be paid pursuant to this
Lease for the remainder of the stated Term over the then reasonable rental value
of the Leased Premises for the remainder of the stated Term (less an allowance
for a reasonable time to re-lease the Leased Premises and any costs which would
normally be incurred to re-lease the Leased Premises, including without
limitation brokerage fees and legal expenses) all of which amounts shall be
immediately due and payable by the Tenant to the Landlord.
SECTION 13.04 - ACCELERATED RENT
In any of the events referred to in Section 13.01, in addition
to any and all other rights available to the Landlord, the full amount of the
current month's instalment of Basic Rent and of all Additional Rent for the
current month, together with the next . . . THREE (3) months' instalments of
Basic Rent and of all Additional Rent for the next . . . THREE (3) months, all
of which shall be deemed to be accruing due on a day-to-day basis, shall
immediately become due and payable as accelerated rent, and the Landlord may
immediately distrain for the same, together with any arrears then unpaid.
SECTION 13.05 - EXPENSES
If legal action is brought for recovery of possession of the
Leased Premises, for the recovery of Basic Rent or Additional Rent or any other
amount due under the 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 such breach is established, the Tenant shall pay to the Landlord
all expenses incurred therefor, including legal fees (on a solicitor and client
basis).
IF LEGAL ACTION IS BROUGHT BY THE TENANT IN CONNECTION WITH A
BREACH BY THE LANDLORD OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS
LEASE, AND SUCH BREACH IS ESTABLISHED, THE LANDLORD SHALL PAY TO THE TENANT ALL
EXPENSES INCURRED BY THE TENANT AS A RESULT OF SUCH BREACH, INCLUDING LEGAL FEES
(ON A SOLICITOR AND CLIENT BASIS).
<PAGE> 34
SECTION 13.06 - WAIVER OF EXEMPTION FROM DISTRESS
The Tenant hereby agrees with the Landlord that
notwithstanding anything contained in Section 30 of Chapter L.7 of the Revised
Statutes of Ontario, 1990, or any Statute subsequently passed to take the place
of or amend the said Act, none of the goods and chattels of the Tenant at any
time during the continuance of the Term on the Leased Premises shall be exempt
from levy by distress for Basic Rent or Additional Rent in arrears and the
Tenant waives any
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such exemption. If any claim is made for such exemption by the Tenant or if a
distress is made by the Landlord, this provision may be pleaded as an estoppel
against the Tenant in any action brought to test the right of the Landlord to
levy such distress.
SECTION 13.07 - LANDLORD MAY CURE TENANT'S DEFAULT OR PERFORM TENANT'S COVENANTS
If the Tenant fails to pay when due any amounts or charges
required to be paid pursuant to this Lease, the Landlord after giving five (5)
days' Notice 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 Basic Rent,
Additional Rent or other sums required to be paid pursuant to this Lease), the
Landlord may, but shall not be obligated to, 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 Leased Premises and doing such things upon or in
respect of the Leased Premises or any part thereof as the Landlord reasonably
considers requisite or necessary. All expenses incurred and expenditures made
pursuant to this Section 13.07 including the Landlord's overhead in connection
therewith plus a sum equal to twenty-five per cent (25%) thereof shall be paid
by the Tenant as Additional Rent forthwith upon demand.
SECTION 13.08 - ADDITIONAL RENT
If the Tenant is in default in the payment of any amounts or
charges required to be paid pursuant to this Lease, they shall, if not paid when
due, be collectible as Additional Rent forthwith on demand, but nothing herein
contained is deemed to suspend or delay the payment of any amount of money at
the time it 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. All such monies
payable to the Landlord hereunder shall bear interest at a rate per annum which
is five (5) percentage points in excess of the Bank Rate calculated on a daily
basis from the time such sums become due until paid by the Tenant.
SECTION 13.09 - REMEDIES GENERALLY
Mention in this Lease of any particular remedy of the Landlord
in respect of the default by the Tenant does not preclude the Landlord from any
other remedy in respect thereof, whether available at law or in equity or by
statute or expressly provided in this Lease. No remedy shall be exclusive or
dependant upon any other remedy, but the Landlord may from time to time exercise
any one or more of such remedies generally or in combination, such remedies
being cumulative and not alternative. In the event of a breach or threatened
breach by the Tenant of any of the covenants, provisions or terms hereof, the
Landlord shall have the right to invoke any remedy allowed at law or in equity
(including injunction) as if re-entry and other remedies were not provided for
herein.
SECTION 13.10 - HOLDING OVER
If the Tenant shall hold over after the original Term or any
extended term hereof with the consent of the Landlord, such holding over shall
be construed to be a tenancy from month to month only and shall have no greater
effect, any custom, statute, law or ordinance to the contrary notwithstanding.
Such month-to-month tenancy shall be governed by the terms and conditions
hereof, notwithstanding any statutory provision or rule of law to the contrary.
During any such period of holding over, whether with the consent of the Landlord
or not, the Tenant shall be required to pay the monthly Basic Rent payable
during the month immediately preceding the expiration or termination of this
Lease times . . . ONE POINT FIVE (1.5), plus all Additional Rent payable
hereunder. The rights of the Landlord under this section shall be in addition to
all other remedies available to the Landlord under this Lease or otherwise at
law or in equity arising as a result of such holding over.
SECTION 13.11 - NO WAIVER
The failure of the Landlord to insist upon a strict
performance of any of the covenants and provisions herein contained shall not be
deemed a waiver of any rights or remedies that the Landlord may have and shall
not be deemed a waiver of any subsequent breach or default in the covenants and
provisoes herein contained.
ARTICLE XIV - MISCELLANEOUS
SECTION 14.01 - RULES AND REGULATIONS
The Rules and Regulations adopted and promulgated by the
Landlord from time to time acting reasonably including, without limitation,
those set out in Schedule "C" attached, are hereby made a part of this Lease as
if they were embodied herein, and the Tenant shall comply with and observe the
same. The Rules and Regulations may differentiate between the different types of
business in the Building and the Complex, 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 commercial development. Failure
by the Tenant to keep and observe any of the Rules and Regulations now or from
time to time in force 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 Leased Premises or the Building as in the Landlord's judgement acting
reasonably are
Page 33 of 57
<PAGE> 36
needed from time to time for the safety, care, cleanliness and more efficient
operation of the Building or the Complex and for the preservation of good order
therein. Notice of the Rules and Regulations and amendments and supplements, if
any, shall be given to the Tenant and the Tenant shall thereupon comply with and
observe all such Rules and Regulations, provided that no Rule or Regulation
shall contradict any terms, covenants and conditions of this Lease.
The Landlord is not responsible to the Tenant in the event of
non-observance or violation of any of such Rules and Regulations or of the
terms, covenants or conditions of any other lease of the premises in the Complex
and is under no obligation to enforce any such Rules and Regulations or terms,
covenants or conditions.
SECTION 14.02 - SECURITY DEPOSIT
. . . WITHIN TWENTY (20) DAYS FROM THE DATE OF THE TENANT'S
execution of this Lease . . ., THE TENANT SHALL DELIVER TO the Landlord the
Security Deposit. The Security Deposit shall be held by the Landlord with
interest as security for the prompt performance by the Tenant of all of the
terms, covenants, conditions and provisions of this Lease to be kept and
performed by the Tenant during the Term and any tenancy resulting from an
overholding. If at any time any Rent or any tax as described in section 2.05
shall be overdue, the Landlord may, at its option, appropriate and apply all or
any portion of the Security Deposit to the payment of such Rent or tax. In
addition, if the Tenant defaults in the performance of any of the terms,
covenants, conditions or provisions of this Lease, then the Landlord may, at its
option, appropriate and apply all or any part of the Security Deposit on account
of any losses or damages as sustained by the Landlord as a result of such
default. If all or any part of the Security Deposit is appropriated and applied
by the Landlord, then the Tenant shall, within three (3) days after . . .
WRITTEN NOTICE from the Landlord, remit to the Landlord a sufficient amount to
restore the Security Deposit to the original sum deposited. If the Tenant
complies with all the terms, covenants, conditions and provisions of this Lease
and promptly pays all Rent and other amounts and remits all tax as herein
provided when due, the Security Deposit shall be returned in full with interest
to the Tenant within thirty (30) days after the later of the end of the Term or
the Tenant vacating the Leased Premises. The Landlord may deliver the Security
Deposit, or such portion thereof remaining on hand to the credit of the Tenant,
to any purchaser, mortgagee or assignee of the Landlord's interest in the Leased
Premises or this Lease and thereupon the Landlord shall be and is hereby
discharged from any further liability with respect to the Security Deposit.
SECTION 14.03 - PEST CONTROL
At the Landlord's option, the Landlord may enter into a
service contract for the control and extermination of pests and vermin providing
for regular inspections and spraying of the Leased Premises and other premises
in the Complex in order to control pests and vermin in accordance with all
applicable laws, by-laws, ordinances and regulations of any governmental or
other authority having jurisdiction. The Landlord and the holder of such service
contract from time to time shall have a right to enter the Leased Premises at
all reasonable times for the purposes of performing such service contract in
accordance with Article XI of this Lease. All costs incurred by the Landlord
under such service contract shall be included in Office Section Operating Costs.
SECTION 14.04 - OBLIGATIONS AS COVENANTS
Each obligation or agreement of the Landlord or the Tenant
expressed in this Lease, even though not expressed as a covenant, is considered
to be a covenant for all purposes.
SECTION 14.05 - AMENDMENTS AND SUPPLEMENTARY LEASE PROVISIONS
This Lease shall not be modified or amended except by an
instrument in writing of equal formality herewith and signed by the parties
hereto or by their permitted successors or assigns. Each of the Landlord and
Tenant agrees that, if a Schedule "F" is annexed to this Lease, the terms and
provisions thereof shall be binding upon the parties hereto as part of the
Lease.
SECTION 14.06 - CERTIFICATES
The following certificates shall be conclusive and binding
upon the parties to this Lease in respect of any question of fact or opinion in
dispute with respect to the matters stipulated:
<PAGE> 37
(a) a certificate procured by the Landlord from an architect,
professional engineer, quantity surveyor or other individual
qualified in the Landlord's sole opinion, and who may be an
employee of the Landlord, as to the Rentable Area or the
Useable Area of the Leased Premises, or the Total Office
Section Rentable Area, any question of fact concerning the
completion of any construction or other work either by the
Landlord or the Tenant, the extent to which the completion of
any such work has been delayed by Unavoidable Delay, the time
necessary to complete repairs, the allocation of insurance
proceeds, whether the Complex or any part thereof is being
kept in good repair, order and condition as required by this
Lease, the determination or allocation of any costs of
Utilities, the appropriateness of costs and expenses included
in Office Section Operating Costs and Utilities Charge, the
allocation of Taxes to the Leased Premises, the aggregate of
the cost of the Complex and the costs of additional
improvements of a capital nature, the cause of any destruction
or damage, the extent to which rentable premises or any area
in the Complex or Building are incapable of being used for
their intended purposes by reason of any destruction or
damage; and
Page 34 of 57
<PAGE> 38
(b) a certificate procured by the Landlord from a licensed public
accountant, who may be the Landlord's auditor or employee, as
to any question of fact or opinion concerning the computation
of Taxes, Office Section Operating Costs and Utilities Charge
and the proper amount of any payment to the Landlord or the
Tenant under this Lease.
Any certificate procured by the Landlord shall be prepared
using generally accepted practices and procedures appropriate to such
certificate.
SECTION 14.07 - TIME
Time shall in all respects be of the essence of this Lease.
SECTION 14.08 - SUCCESSORS AND ASSIGNS
This Lease and everything contained shall extend to and bind
and enure to the benefit of the Landlord and its successors and assigns and the
Tenant and the Indemnifier, if any, and their respective heirs, executors,
administrators, successors and permitted assigns. No rights shall enure to the
benefit of any transferee unless the provisions of Article X hereof relevant to
such transferee are complied with.
SECTION 14.09 - GOVERNING LAW
This Lease shall be construed and governed by the laws of the
Province of Ontario.
SECTION 14.10 - HEADINGS
The Section numbers, article numbers, headings and table of
contents appearing in this Lease are inserted only as a matter of convenience
and in no way define, limit, construe or describe the scope or intent of such
paragraphs or articles of this Lease nor in any way affect this Lease.
SECTION 14.11 - ENTIRE AGREEMENT
This Lease and the schedules attached hereto and forming a
part hereof and the Agreement to Lease set forth all the covenants, promises,
agreements, conditions and understandings between the Landlord and the Tenant
concerning the Leased Premises and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them, other than
as are herein and therein set forth; for greater certainty, the Tenant
acknowledges that it has not entered into the Agreement to Lease or this Lease
on the basis of any information contained in the promotional brochure for the
Building or the Complex. In the event of a conflict between the provisions of
this Lease and the provisions of the Agreement to Lease, the provisions of this
Lease shall prevail.
SECTION 14.12 - SEVERABILITY
If any term, covenant or condition of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby and each
term, covenant or condition of this Lease shall be valid and enforced to the
fullest extent permitted by law.
SECTION 14.13 - NO OPTION
The submission of this Lease for examination does not
constitute a reservation of or option for the Leased Premises and this Lease
becomes effective as a lease only upon execution and delivery thereof by
Landlord and Tenant.
SECTION 14.14 - OCCUPANCY PERMIT
Provided further that notwithstanding the Commencement Date of
the Lease as hereinbefore set out, the Tenant shall not be permitted to enter
into possession of the Leased Premises until the Tenant has obtained, at its
sole expense, any required occupancy permit from the proper governmental
authority. The Landlord in its sole discretion may waive this provision,
provided further the Tenant agrees to use its best efforts to obtain same prior
to occupancy.
SECTION 14.15 - PLACE FOR PAYMENTS
All payments required to be made by the Tenant herein shall be
made to the Landlord at the Landlord's Address or to such agent or agents of the
Landlord or at such other place as the Landlord shall hereafter from time to
time direct by Notice.
Page 35 of 57
<PAGE> 39
SECTION 14.16 - 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 the
Landlord or the Tenant is deemed a proper reference, even though the Landlord or
the Tenant 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 and to either corporations,
associations, partnerships or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed.
Whenever a statement or provision in this Lease is followed by
words denoting inclusion or example (such as "including" or "such as") and then
a list of, or reference to, specific matters or items, such list or reference
shall not be read so as to limit or restrict the generality of such statement or
provision, even though words such as "without limitation" or "without limiting
the generality of the foregoing" do not precede such list or reference.
SECTION 14.17 - NO PARTNERSHIP OR AGENCY
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
venture or a member of a joint enterprise with the Tenant, nor is the
relationship of principal and agent created.
SECTION 14.18 - UNAVOIDABLE DELAY
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 Unavoidable Delay, then performance of such term, covenant or act is excused
for the period of the delay and the party so delayed, hindered or prevented
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 Basic Rent, Additional Rent or any other payments required by this
Lease.
SECTION 14.19 - REGISTRATION
(a) The Tenant hereby covenants and agrees that neither the Tenant
nor anyone on the Tenant's behalf or claiming under the Tenant
shall register this Lease or any assignment or sublease of
this Lease or any document evidencing any interest of the
Tenant in the Lease or the Leased Premises. If the covenant
contained in this Section 14.19(a) is breached, this Lease and
the Term shall, at the option of the Landlord upon Notice to
the Tenant, forthwith become forfeited and terminated and the
Landlord may thereupon re-enter and repossess the Leased
Premises in accordance with Article XIII of this Lease. The
Tenant acknowledges that any breach of such covenant may
occasion substantial costs to the Landlord. The Tenant shall
indemnify the Landlord and save it harmless from and against
any loss, claim, action, damages, liability and expenses
arising in connection with any breach by the Tenant of such
covenant.
(b) Notwithstanding Section 14.19(a),if either party intends to
register a document for the purpose only of giving notice of
this Lease or of any permitted Transfer, then upon request of
such party the Landlord shall cause to be executed a short
form of this Lease ("Short Form"), and the Tenant shall join
therein, solely for the purpose of supporting an application
for registration of notice of this Lease or of any permitted
Transfers. The form of the Short Form and of the application
to register notice of this Lease or of any permitted Transfer
shall:
(i) be prepared by the Landlord or its solicitors at the
Tenant's expense; and
(ii) only describe the registered owner of the Lands, the
Tenant, the Leased Premises, the Commencement Date,
the expiration of the Term and any renewal options.
(c) The Short Form shall contain a provision whereby the Tenant
constitutes and appoints the Landlord or its nominee as the
agent and attorney of the Tenant for the purpose of executing
any instruments in writing required from the Tenant to give
effect to the provisions of Section 12.01 of the Lease,
including the right to make application at any time and from
time to time register postponements of this Lease or the Short
Form in favour of any Mortgage pursuant to Section 12.02. All
costs, expenses and taxes necessary to register or file the
application to register notice of this Lease or of any
permitted Transfer shall be the sole responsibility of the
Tenant, and the Tenant will complete any necessary affidavits
required for registration purposes, including affidavits
necessary to register the power of attorney from time to time
as may be required to give effect to this Section.
(d) Notwithstanding that the Short Form may be executed and
delivered after the execution and delivery of this Lease, none
of the terms of this Lease shall be considered to have been
superseded thereby or no longer in effect, but rather this
Lease shall continue in full force and effect and continue to
enure to the benefit of and be binding upon the parties to
this Lease. To the extend that the terms of the Short Form are
inconsistent with the terms of this Lease, the terms of this
Lease shall govern.
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<PAGE> 40
SECTION 14.20 - JOINT AND SEVERAL LIABILITY
The liability to pay Rent and perform all other obligations
under this Lease of each individual, corporation, group, partnership or business
association signing this Lease or otherwise agreeing to be bound by the terms
hereof and of each partner or member of any such group, partnership or business
association, the partners or members of which are by law subject to personal
liability, shall be deemed to be joint and several (including, in any event, any
person who ceases to be a partner or member or any person who becomes a partner
or member, in each case following the execution of this Lease).
SECTION 14.21 - NAME OF COMPLEX
The Landlord may designate, change, alter or remove the name
of the Complex or any part thereof at any time without requiring the Tenant's
consent thereto or incurring any liability to the Tenant thereby.
Any trade name or mark adopted by the Landlord for the Complex
shall be used by the Tenant only in association with its business conducted in
or from the Leased Premises and subject to such limitations, regulations and
restrictions as the Landlord may from time to time impose on its use. The Tenant
will not acquire any rights to or interest in any such trade name or mark and
shall cease all use thereof upon ceasing to be a permitted occupant of the
Leased Premises.
SECTION 14.22 - CHANGES IN THE COMPLEX
This Lease shall affect only the Lands from time to time
comprising the Building as designated by the Landlord and as such Lands may from
time to time be altered, varied, diminished, enlarged or supplemented by the
Landlord. The Tenant shall, at the request of the Landlord, enter into such
further assurances, releases or other documents as may reasonably be required by
the Landlord to give effect to such alteration, variation, diminution,
enlargement or supplementation, provided such does not unreasonably affect
access to the Leased Premises.
SECTION 14.23 - NOTICES
Any Notice herein required or permitted to be given under this
Lease shall be in writing and shall be deemed to have been sufficiently and
effectually given if signed by or on behalf of the party giving the Notice and
personally delivered or mailed by registered prepaid post:
(a) in the case of Notice to the Landlord, to it at the Landlord's
Address; and
(b) in the case of Notice to the Tenant, to it at the Tenant's
Address . . ., AND AS A COURTESY ONLY, A COPY TO THE
INDEMNIFIER AT THE INDEMNIFIER'S ADDRESS; and
(c) in the case of Notice to the Indemnifier (if any) to it at the
Indemnifier's Address.
Any such Notice given as aforesaid shall be deemed to have been given, if
delivered, on the date of such delivery or, if mailed, on the fifth day
following the date of such mailing. The Landlord may from time to time by Notice
change the address to which notices to it are to be given. Notwithstanding the
foregoing, during any interruption, threatened interruption or substantial delay
in postal services, any Notice shall be personally delivered. If a copy of any
Notice to the Tenant is to be sent to a second address or to anyone other than
the Tenant, the failure to give any such copy shall not vitiate the delivery of
the Notice to the Tenant.
ARTICLE XV - INDEMNITY AGREEMENT
SECTION 15.01 - INDEMNITY
In consideration of the Landlord entering into this Lease and
for other good and valuable consideration, (the receipt and sufficiency of which
is hereby acknowledged), the Indemnifier hereby represents, warrants to and
covenants and agrees with the Landlord that:
(a) the Indemnifier has the full power and authority to enter into
this Lease and agreements under this Lease and to perform its
obligations contained herein;
(b) the Indemnifier has read and understood this Lease, the Lease
is valid and binding on the Indemnifier and enforceable
against it in accordance with the terms contained herein;
(c) the Tenant will duly perform and observe all of its covenants,
obligations and agreements under this Lease and the
Indemnifier shall indemnify and hold harmless the Landlord
from any loss, damage or injury arising out of or in
connection with any default of the Tenant under this Lease;
(d) if the Tenant shall default in the performance or observance
of any of its covenants, obligations or agreements under this
Lease, including but not limited to the payment of Rent, the
Indemnifier shall, upon the demand of the Landlord or its
agent, perform, observe or cause to be performed or observed
such covenant, obligation or agreement;
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<PAGE> 41
(e) the Indemnifier's obligation under this Section 15.01 is that
of a principal obligor and not a mere guarantor or surety, and
the Indemnifier shall be jointly and severally liable with the
Tenant to the Landlord for the due performance of all the
Tenant's covenants, obligations and agreements under this
Lease, the Indemnifier hereby expressly waiving any benefits
of division and discussion which it may have, it being
acknowledged that the Indemnifier has assumed a primary and
parallel obligation to the Landlord with the Tenant; if the
Tenant shall default in the performance or observance of any
of its covenants, obligation or agreements under this Lease,
the Landlord shall not be required to proceed against the
Tenant or any other person, or to have recourse to or exhaust
any security from time to time held by it for the performance
or observance of such covenant, obligation or agreement, or to
pursue any other remedy which may be available to it before
proceeding against the Indemnifier, but shall be entitled to
the benefit of this Section 15.01 as soon as such default
occurs and may proceed against the Indemnifier as if the
Indemnifier were the Tenant under this Lease;
(f) this Agreement is and shall be an independent and continuing
security to the Landlord for the performance by the Tenant of
all terms, covenants, conditions and agreements in this Lease;
(g) the covenants, obligations and agreements of the Indemnifier
under this Section 15.01 are absolute and unconditional and
shall in no way be limited or released and the rights of the
Landlord under this Section 15.01 shall in no way be
prejudiced or impaired by an act, omission or thing (other
than an agreement in writing between the Landlord and the
Indemnifier), including but not limited to:
(i) any neglect, delay or forbearance of the Landlord in
demanding, requiring or enforcing performance or
observance of any of the Tenant's or Indemnifier's
covenants, obligations or agreements under this
Lease,
(ii) granting any extension of time for performance or
observance,
(iii) waiving any performance or observance (except as to
the particular performance or observance which has
been waived),
(iv) permitting or consenting to any Transfer under
Article X,
(v) the bankruptcy, insolvency, dissolution or other
liquidation of the Tenant,
(vi) any release or discharge of the Tenant in any
receivership, bankruptcy, winding-up or other
creditor's proceedings,
(vii) the rejection, repudiation, disaffirmation or
disclaimer of this Lease in any such proceeding (and
for greater certainty, the covenants, obligations and
agreements of the Indemnifier under this Section
15.01 shall continue with respect to the periods
prior thereto and thereafter as if the Lease had not
been rejected, repudiated, disaffirmed or
disclaimed),
(viii) any other occurrence which would have the effect at
law of terminating the existence or obligations of
the Tenant prior to the expiration of the Term
(except by the voluntary acceptance by the Landlord
of a surrender of the Lease),
(ix) any agreements between the Landlord and the Tenant
affecting this Lease or the obligations of the Tenant
hereunder, or
(x) any lack or deficiency of notice by the Landlord to
the Indemnifier of any default of the Tenant.
(h) the Indemnifier shall be liable under this Section 15.01
throughout the Term and any overholding thereafter and any
renewal of the Lease and such liability shall survive the
expiration or sooner termination of the Lease.
Upon the occurrence or alleged occurrence of anything
contemplated in Subsections 15.01(g)(v), (vi), (vii) or (viii), the Indemnifier
shall, if required by the Landlord, enter into a new lease with the Landlord for
the balance of the Term and otherwise upon the same terms and conditions as are
contained in this Lease, mutatis mutandis.
SECTION 15.02 - FURTHER ASSURANCES
The Indemnifier shall upon demand by the Landlord perform all
acts reasonably required to carry out the intent of this Article XV including,
without limitation, the execution, acknowledgement and delivery of all documents
as the Landlord may from time to time require to carry out the intent of this
Article XV forthwith on demand
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<PAGE> 42
SECTION 15.03 - LANDLORD'S REPRESENTATION AND WARRANTIES
THE LANDLORD HEREBY REPRESENTS AND WARRANTS THAT:
(A) IT IS THE LEGAL OWNER OF THE COMPLEX;
(B) IT HAS THE FULL RIGHT AND AUTHORITY TO LEASE THE LEASED
PREMISES IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED
HEREIN;
(C) ALL ELECTRICAL, MECHANICAL, HEATING, VENTILATING AND
AIR-CONDITIONING, PLUMBING, FIRE SUPPRESSION SYSTEMS AND
EQUIPMENT AND ALL OUTSIDE PERMANENT STRUCTURES AND SIDEWALKS
ARE IN SUBSTANTIAL COMPLIANCE WITH ALL APPLICABLE LAWS AND
REGULATIONS AT THE COMMENCEMENT DATE;
(D) THE LANDLORD IS NOT PARTY TO ANY LEASE OR AGREEMENT TO LEASE
WITH ANY OTHER PARTY WITH RESPECT TO THE LEASED PREMISES, AND
THE LEASED PREMISES ARE NOT SUBJECT TO ANY OTHER AGREEMENT
WHICH WOULD HAVE THE AFFECT OF OBLIGING THE LANDLORD TO LEASE
OR GRANT ANY RIGHT TO USE THE LEASED PREMISES TO ANY OTHER
PARTY;
(E) THE LANDLORD'S TITLE TO THE LEASED PREMISES IS SUBJECT ONLY TO
THE COVENANT, AGREEMENTS, RESERVATIONS, LIENS, EASEMENTS,
RESTRICTIONS, LEASES, NOTICES OF LEASE AND/OR ENCUMBRANCES AS
ARE DISCLOSED BY REGISTERED TITLE AND AS HAVE BEEN DISCLOSED
TO THE TENANT ("ENCUMBRANCES") AND NONE OF THE ENCUMBRANCES
SHALL PROHIBIT THE TENANT FROM USING THE LEASED PREMISES AS
SET FORTH IN THIS LEASE;
(F) GENERAL OFFICE PURPOSES, AND RELATED USES INVOLVING SOFTWARE
SALES AND DEVELOPMENT (NOT AT RETAIL) IS PERMITTED BY THE
APPLICABLE ZONING BY-LAW AFFECTING THE LEASED PREMISES; AND
(G) TO THE BEST OF THE LANDLORD'S KNOWLEDGE, THE LEASED PREMISES
DO NOT CONTAIN HAZARDOUS MATERIAL AS OF THE DATE OF THIS
LEASE, BEYOND ANY ACCEPTABLE LIMITS, AS MAY BE PERMITTED BY
APPLICABLE LAWS, AND IF DURING THE TERM OR ANY RENEWAL
THEREOF, ANY HAZARDOUS MATERIAL, BEYOND ANY ACCEPTABLE LIMITS,
NOT INTRODUCED BY THE TENANT IS DISCOVERED WITHIN THE LEASED
PREMISES, OR ANY PROVINCIAL, FEDERAL OR MUNICIPAL GOVERNMENTAL
AUTHORITY OR AGENCY HAVING JURISDICTION REQUIRES THE REMOVAL
OF ANY SUCH HAZARDOUS MATERIAL, WHICH HAZARDOUS MATERIAL WOULD
HAVE BEEN REQUIRED TO BE REMOVED IN ACCORDANCE WITH APPLICABLE
LAWS EXISTING AS OF THE DATE OF THIS LEASE, THE LANDLORD
SHALL, AT THE LANDLORD'S EXPENSE, REMOVE OR TAKE OTHER
ACCEPTED ABATEMENT MEASURES WITH RESPECT TO SUCH HAZARDOUS
MATERIAL IN COMPLIANCE WITH OR AS REQUIRED BY ALL APPLICABLE
LAWS AND REGULATIONS.
THE LANDLORD AGREES TO DEFEND, INDEMNIFY AND SAVE THE TENANT
HARMLESS FROM AND AGAINST ANY INJURIES, CLAIMS, ACCIDENTS, DAMAGES, LIABILITIES
AND REASONABLE EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF ANY
BREACH OF THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE
LANDLORD DESCRIBED IN THIS SECTION 15.03 OF THIS LEASE. . . .
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<PAGE> 43
IN WITNESS WHEREOF the Landlord, the Tenant and the
Indemnifier have executed this Lease.
LANDLORD:
THE ATRIUM ON BAY INC.
By: /s/ Don Kile
----------------------------------------
Name: Don Kile
Position: Senior Vice-President
I have authority to bind the Corporation
TENANT:
DALEEN CANADA CORPORATION
By: /s/ Stephen Wagman
----------------------------------------
Name: Stephen Wagman
Position: Secretary
By:
----------------------------------------
Name:
Position:
I/We have authority to bind the Corporation
INDEMNIFIER:
DALEEN TECHNOLOGIES INC.
By: /s/ Stephen Wagman
----------------------------------------
Name: Stephen Wagman
Position: Executive Vice President,
Corporate Development
and Secretary
By:
----------------------------------------
Name:
Position:
I/We have authority to bind the Corporation
Page 40 of 57
<PAGE> 44
SCHEDULE "A" - LEGAL DESCRIPTION
PARCEL 23-1, SECTION A-2A
In the City of Toronto, Municipality of Metropolitan Toronto, being composed of
Lots 6, 7, 8 and 9, south side of Edward Street, and parts of Lots 10, 11, and
12, south side of Edward Street, according to Plan 243, registered in the Land
Registry Office for the Registry Division of Toronto, and Lots 24, 25, 26, 27,
28 and 29, north side of Dundas Street, and parts of Lots 23 and 34, north side
of Dundas Street, according to Plan 2A, registered in the said Land Registry
Office, all designated as Parts 4, 5, 7, 8, 9, 10 and 11, Reference Plan
66R-14021, deposited in the said Land Registry Office.
The Boundaries of the north side of Dundas Street West, of the south side of
Edward Street and of the east side of Bay Street have been confirmed by
BOUNDARIES ACT Plan BA-1773, registered in the said Land Registry Office as
Instrument CT-421043.
PARCEL 4-1, SECTION A-2A
In the City of Toronto, Municipality of Metropolitan Toronto, being composed of
Lot 4, on the west side of Yonge Street, on Plan 2-A (Toronto), being Parcel
4-1, Section A-2A, designated as Part 1 on Reference Plan 66R-17427.
Together with a right-of-way over Part of Lot 3, Plan 2-A, designated as Part 2
on Reference Plan 66R-17427.
PARCEL 30-2, SECTION A-2A
In the City of Toronto, Municipality of Metropolitan Toronto, being composed of:
Lots 1 and 2, west side of Yonge Street; Lots 1, 2, 3, 4 and 5, south side of
Edward Street and part of Lots 10 and 11, south side of Edward Street, according
to Plan 243 registered in the Land Registry Office for the Registry Division of
Toronto; and Lots 30, 31, 32 and 33, north side of Dundas Street, and part of
Lot 34, north side of Dundas Street, according to Plan 2A registered in the said
Land Registry Office; all designated as Parts 1, 2, 3 and 6, Reference Plan
66R-14021, deposited in the said Land Registry Office.
The Boundaries of the north side of Dundas Street West, of the south side of
Edward Street and of the west side of Yonge Street have been confirmed by
BOUNDARIES ACT Plan BA-1773, registered in the said Land Registry Office as
Instrument CT-421043.
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<PAGE> 45
SCHEDULE "B-1" - FLOOR PLAN
THIRD FLOOR PORTION OF THE LEASED PREMISES
The Floor Plan is for identification purposes only and is not
to be interpreted as being a representation or warranty on the part of the
Landlord as to the exact location, configuration and layout.
[A diagram that identifies a portion of the third floor that forms
part of the Leased Premises.]
INITIALLED FOR IDENTIFICATION:
THE ATRIUM ON BAY INC. DALEEN CANADA CORPORATION
/s/ Don Kile /s/ Stephen Wagman
---------------------------------- ----------------------------------
EXECUTIVE VICE PRESIDENT,
CORPORATE DEVELOPMENT
Page 42 of 57
<PAGE> 46
SCHEDULE "B-2" - FLOOR PLAN
FOURTH FLOOR PORTION OF THE LEASED PREMISES
The Floor Plan is for identification purposes only and is not to be interpreted
as being a representation or warranty on the part of the Landlord as to the
exact location, configuration and layout.
[A diagram that identifies a portion of the fourth floor that forms
part of the Leased Premises.]
INITIALLED FOR IDENTIFICATION:
THE ATRIUM ON BAY INC. DALEEN CANADA CORPORATION
/s/ Don Kile /s/ Stephen Wagman
---------------------------------- ----------------------------------
EXECUTIVE VICE PRESIDENT,
CORPORATE DEVELOPMENT
Page 43 of 57
<PAGE> 47
SCHEDULE "C" - RULES AND REGULATIONS
OFFICE PREMISES
1. The sidewalks, hallways, entries, passages, elevators and staircases
shall not be obstructed or used by the Tenant, his agents, servants,
contractors, invitees or employees for any purpose other than ingress
to and egress from the Leased Premises. The Landlord reserves entire
control of all parts of the Complex employed for the common benefit of
the tenants and, without restricting the generality of the foregoing,
the sidewalks, entries, corridors and passages not within the Leased
Premises, washrooms, lavatories, air-conditioning closets, fan rooms,
janitors' closets, electrical closets and other closets, stairs,
elevator shafts, flues, stacks, pipe shafts and ducts, and shall have
the right to place such signs and appliances therein as it may deem
advisable, provided that ingress to and egress from the Leased Premises
is not unduly impaired thereby.
2. The Tenant, his agents, servants, contractors, invitees or employees,
shall not bring in or take out, position, construct, install or move
any safe, business machine or other heavy office equipment without
first obtaining the consent in writing of the Landlord. In giving such
consent, the Landlord shall have the right, in its sole discretion, to
prescribe the weight permitted and the position thereof and the use and
design of planks, skids or platforms to distribute the weight thereof.
All damages done to the Complex 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 between 6:00 o'clock
p.m. and the following 7:00 o'clock a.m. or any other time consented to
by the Landlord and the persons employed to move the same in and out of
the Complex must be acceptable to the Landlord. Safes and other heavy
equipment will 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 Complex except through facilities and designated
doors and at hours designated by the Landlord, acting reasonably and
under the supervision of the Landlord, and the Tenant shall pay the
reasonable expense in connection therewith.
3. All persons entering and leaving the Complex at any time other than
during Business Hours shall comply with the Landlord's security
requirements for the Complex.
4. In connection with any computer-accessed security system for
after-hours operation which the Landlord may operate from time to time,
such will result in personnel of the Tenant receiving a computer access
key-card or being apprised of a personal combination for the purpose of
access to the Building and/or the Leased Premises, an initial deposit
may be required from the Tenant for each key-card and charges will be
made for loss of or changes to key-cards. After Business Hours, no one,
other than the Landlord's staff or security personnel, will have access
to the outside entrance doors of the Building other than the main
entrance. The Landlord shall have absolute control respecting security
of the Complex.
5. The Tenant shall advise the Landlord of the names of its personnel who
are to be issued any such key-card or personal combination and of
changes thereto forthwith. Should a key or key-card be lost, or should
a personal combination come to the knowledge of any unauthorized
person, the Tenant shall forthwith advise the Landlord. The Landlord
shall not be required to open the entrance door to the Complex or the
Leased Premises for the purpose of permitting entry therein to any
person not having a key or key-card that permits access to the Leased
Premises.
6. The Tenant shall not place or cause to be placed any additional locks
or locking device upon any doors of the Leased Premises without the
approval of the Landlord, and subject to any conditions imposed by the
Landlord. Additional keys or key-cards must be obtained from the
Landlord at the cost of the Tenant, and all keys and key-cards must be
so keyed to integrate with the key or key-card systems of the Complex.
7. 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 (other than such
substances as the water closets and other water apparatus were intended
to receive) shall be thrown therein and Tenants shall not let the water
run unless it is in actual use. Any damage resulting from misuse shall
be borne by the Tenant by whom or by whose agents, servants, or
employees the same is caused.
8. No one shall use the Leased Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or
articles other than those required for business purposes.
9. The Tenant shall permit window cleaners to clean the windows of the
Leased Premises during normal business hours.
10. Canvassing, soliciting and peddling in or about the Complex is
prohibited.
11. Any hand trucks, carry-alls, or similar appliances used in the Complex
shall be equipped with rubber tires, side guards and such other
safeguards as the Landlord shall require.
12. No animals (other than trained guide-dogs accompanying the
vision-impaired) or birds shall be brought into the Complex or kept in
the Leased Premises.
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<PAGE> 48
13. The Tenant shall not install or permit the installation or use of any
machine dispensing goods for sale in the Leased Premises or the Complex
SAVE AND EXCEPT FOR A REASONABLE NUMBER OF MACHINES TO BE LOCATED IN
THE LEASED PREMISES AND TO BE USED SOLELY BY THE TENANT'S EMPLOYEES OR
VISITORS.
14. No noise caused by any instrument or other device or otherwise which,
in the opinion of the Landlord, may be calculated to disturb the other
tenants of the Complex, shall be permitted.
15. The Landlord will have the care of all heating and air-conditioning
apparatus installed by it and give all information for the regulation
of same.
16. The Tenant, when closing the Leased Premises in the day or evening,
shall see that all doors, windows and skylights are closed, thus
avoiding possible damage from fire, storms, rain or freezing, and shall
assist in the security of the Leased Premises and Complex.
17. No Tenant shall do or permit anything to be done in or upon the Leased
Premises, or bring or keep anything therein, which will in any way
conflict with the laws relating to fire or with the regulations of the
Fire Department or the Health Department, or with any of the rules or
regulations of any governing authority having jurisdiction over the
Complex.
18. Each Tenant shall keep the Leased Premises in a good state of
preservation and cleanliness.
19. The Tenant shall not place or maintain any supplies, merchandise or
other articles outside the Leased Premises.
20. The Tenant shall not place any debris, garbage, trash or refuse or
permit the same to be placed or left in or upon any part of the Complex
outside of the Leased Premises except areas designated for such
purposes, and the Tenant shall not allow any undue accumulation of any
debris, garbage, trash or refuse in the Leased Premises. If the Tenant
is using perishable articles or generates wet garbage, the Tenant shall
provide suitable storage facilities approved by the Landlord in writing
and remove such garbage at such time or times as required by the
Landlord. Tenant shall cooperate with any recycling program and
pre-sort recyclable garbage.
21. No flammable oils or other flammable, dangerous or explosive materials
(save those approved in writing by the Landlord's insurers), shall be
kept or permitted to be kept in the Leased Premises which the
Landlord's insurers prohibit and, if not prohibited by the Landlord's
insurers, shall be kept in protective containers.
22. The Tenant shall not interfere with or obstruct any perimeter heating,
air-conditioning or ventilating units. The Tenant will cause all blinds
on exterior windows to be lowered and closed during periods of direct
sunlight to prevent heat gain in the Leased Premises; consistent
therewith, at the close of business on any day the blinds on the
exterior windows on the east and south side of the Leased Premises
shall be lowered and closed to prevent heat gain on the morning of the
next day.
23. The Tenant shall give the Landlord prompt notice of any accident to or
any defect in the plumbing, heating, air-conditioning, ventilating,
mechanical or electrical apparatus or any other part of the Complex.
24. The parking of automobiles shall be subject to the charges and the
reasonable regulations of the Landlord. The Landlord shall not be
responsible for damage to or theft of any car, its accessories or
contents, whether the same be the result of negligence or otherwise.
25. If the Tenant desires any electrical or communications wiring, the
Landlord reserves the right to direct qualified persons as to where and
how the wires are to be introduced, and without such directions, no
borings or cuttings for wires shall take place. No other wires or pipes
of any kind shall be introduced without the prior written consent of
the Landlord.
26. The Tenant shall be entitled to have its name upon the directory board
of the Complex all at the Tenant's expense, but the Landlord shall, in
its sole discretion, design the style of such identification and
allocate the space on the directory board for the Tenant.
27. The Tenant shall not mark, drill into or in any way deface the walls,
ceilings, partitions, floors, wood, stone or iron work, or any other
appurtenance to the Leased Premises, EXCEPT FOR HANGING ART WORK.
28. The Tenant shall permit the cleaning staff to clean the Leased Premises
after Business Hours.
29. The Tenant shall take care of the rugs and drapes (if any) and for
purposes of security, efficiency and uniformity of housekeeping
standards, any special cleaning, or shampooing required by the Tenant
shall be performed by the Landlord's cleaning contractor as an
Additional Service unless otherwise authorized by the Landlord in
writing.
30. The Tenant shall permit the periodic closing of lanes, driveways and
passages for the purpose of preserving the Landlord's rights over such
lanes, driveways and passages.
31. The Tenant shall not place or permit to be placed any sign,
advertisement, notice or other display on any part of the exterior of
the Leased Premises or elsewhere if such sign, advertisement, notice or
other display is visible
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<PAGE> 49
from outside the Leased Premises without the prior written consent of
the Landlord which may be arbitrarily withheld. The Tenant, upon
request of the Landlord, shall immediately remove any sign,
advertisement, notice or other display which the Tenant has placed or
permitted to be placed which, in the opinion of the Landlord, is
objectionable, and if the Tenant shall fail to do so, the Landlord may
remove the same at the expense of the Tenant.
32. The Landlord shall have the right to make such other and further
reasonable rules and regulations and to alter the same as in its
judgement may from time to time be necessary for the safety, care,
cleanliness and appearance of the Leased Premises and the Complex, and
for the preservation of good order therein, and the same shall be kept
and observed by the tenants, their employees and servants. The Landlord
also has the right to suspend or cancel any or all of these rules and
regulations herein set out.
33. No one shall attend to replacement of ceiling electric light bulbs,
tubes or ballasts other than the Landlord. The replacement of same
shall be effected at times convenient to the Tenant.
34. No bicycles or other vehicles shall be brought within the Building
without the consent of the Landlord.
35. No auction sales shall be allowed to take place in the Leased Premises.
36. The Tenant shall not permit any cooking or the heating of foods (other
than by way of microwave) or liquors, or the use of any electrical
apparatus likely to cause an overloading of electrical circuits in the
Leased Premises without the written consent of the Landlord.
Page 46 of 57
<PAGE> 50
SCHEDULE "D" - STANDARD METHOD OF FLOOR MEASUREMENT
1. GENERAL
A single-tenancy office floor means a full floor occupied by
one tenant, and a multi-tenant office floor means a floor occupied or to be
occupied by more than one tenant or a floor with varying uses.
The vertical boundaries of the rentable premises shall conform
with those specified in Section 2 of this Schedule for the purpose of
establishing the Rentable Area for single or multi-tenant office floors and the
horizontal boundaries of the rentable premises shall consist of the upper
surface of the concrete slab forming the floor, and the lower surface of the
concrete slab forming the ceiling. The rentable premises shall not include
Common Use Equipment and structural components and the areas which comprise
stairwells (other than stairwells, if any, contained within the rentable
premises, for the exclusive use of the occupant), elevator shafts, flues,
stacks, pipe shafts and vertical ducts.
No deductions shall be made for columns and projections within
the Building.
Except as otherwise specified herein, the standard method of
floor measurement shall be in accordance with the American National Standard
Method for Measuring Floor Areas in Office Buildings ANSI 565.1 - 1980
(reaffirmed 1989) as published by the Building Owners and Managers Association
International, AND SHALL BE CARRIED OUT BY THE LANDLORD'S ARCHITECT.
2. RENTABLE AREA
(a) RENTABLE AREA OF A SINGLE-TENANCY FLOOR:
The Rentable Area and Useable Area of any premises situated on
a single-tenancy office floor shall be the floor area expressed in square feet
of a full floor, computed by measuring, in the case of outer building walls,
from the inside surface of glass in such walls (or the inside surface of the
exterior wall if the wall contains no glass); but excluding from such area the
areas of stairwells (other than those stairwells contained within the premises
of a tenant, for the exclusive use of such tenant), elevator shafts, flues,
stacks, pipe shafts and vertical ducts, the space occupied by mechanical and
service equipment serving more than one floor or level or located in any
building core together with their enclosing walls, measured to the outer
(premises side) surface line of such enclosing walls and, for greater certainty,
without deduction for the elevator lobby, public corridors, if any, washrooms,
electrical rooms, telephone rooms, janitorial rooms and air-conditioning and/or
fan rooms serving only that floor.
(b) RENTABLE AREA OF A MULTI-TENANT FLOOR:
The Rentable Area of any premises situated on a multi-tenant
office floor or any other floor with varying uses shall be the aggregate of the
following, expressed in square feet:-
(i) the Useable Area, which means the floor area of such
premises computed by measuring, in the case of
permanent outer building walls, from the inside
surface of glass in such walls if the dominant
portion of the wall in question is glass (or the
inside surface of the outer building wall if the
dominant portion of such wall is not glass), and in
the case of partitions separating such premises from
corridors, from the finished surface of the office
side of such partitions, and in the case of
partitions separating such premises from adjoining
rentable premises, from the centre line of such
partitions, and in the case of any other abutting
walls or partitions, from the centre line of such
walls or partitions; and
(ii) a Pro Rata Share (as hereinafter defined) of the
floor area of those areas on any multiple-tenancy
office floor which are comprised of public corridors,
elevator lobbies, washrooms, janitor closets,
electrical closets, telephone, air-conditioning and
fan rooms serving only the full floor in question,
together with their enclosing walls and access
corridors and their enclosing walls, in each case
measured to the outer (premises side) surface of such
walls.
(c) PRO RATA SHARE:
Pro Rata Share, for the purpose of determining the Rentable
Area of any premises situated on a multi-tenant office floor, means the fraction
(expressed as a percentage) obtained by dividing the Useable Area of such
premises by the Useable Area of all premises on such multi-tenant office floor
leased or available for lease.
(d) TOTAL OFFICE SECTION RENTABLE AREA:
The Total Office Section Rentable Area of the Complex is the
sum of the Rentable Area of all areas of the Complex which are rented, or
designated or intended by the Landlord to be rented, for office and includes the
Page 47 of 57
<PAGE> 51
Rentable Area of all office space occupied by the Landlord for the purpose of
carrying on its business generally in contrast to space that it occupies or
utilizes for the purpose of operating or managing the Complex, including
required storage space; and, subject to the foregoing exclusion for certain
space occupied by the Landlord, for the purpose of calculating the Total Office
Section Rentable Area, the Rentable Area of any office tenancy floor will be
calculated as if it were a single-tenancy floor; but the Total Office Section
Rentable Area specifically excludes any Common Facilities other than Common
Facilities located on office floors, mechanical and service equipment floors,
any part of the Parking Garage or any retail, post office, recreational,
day-care, health care or storage areas located at or below the main floor (at
court level) of the Complex.
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<PAGE> 52
SCHEDULE "E" - ACKNOWLEDGEMENT OF COMMENCEMENT DATE
TO: THE ATRIUM ON BAY INC.
(THE "LANDLORD").
AND TO:
The undersigned Tenant under a certain lease between the undersigned and the
Landlord dated (the "Lease"), hereby acknowledges and certifies to
you that:
1. The Commencement Date of the Lease was , 19
2. We have accepted possession of the Leased Premises pursuant to the
terms of the Lease and are now in possession thereof.
3. The Leased Premises have been erected and delivered in accordance with
the terms of the Lease.
4. The Leased Premises have been fixtured and our normal business
operations are being conducted therein.
5. There has been no violation of any of the terms of the Lease, there is
no set-off of Rent or any other payment under the Lease, and none of
the Rent reserved under the Lease has been prepaid.
6. There is no violation of any of the terms of the Lease either on the
part of the Landlord or the Tenant.
7. The Lease is now in full force and effect in accordance with the terms,
and there are no oral or written modifications, violations or
alterations thereof.
8. We have no knowledge of any assignment or subletting of the Lease.
DATED at this day of , 19 .
TENANT
Per:
------------------------------------
Title:
Per:
------------------------------------
Title:
INDEMNIFIER
Per:
------------------------------------
Title:
Per:
------------------------------------
Title:
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<PAGE> 53
SCHEDULE "F" - SUPPLEMENTARY LEASE PROVISIONS
With reference to the Lease dated the 5TH day of MAY, 2000 made between
THE ATRIUM ON BAY INC., as Landlord, and DALEEN CANADA CORPORATION, as Tenant,
and DALEEN TECHNOLOGIES INC., AS INDEMNIFIER, pertaining to Leased Premises at
Atrium on Bay, and with specific reference to Section 14.05 therein, the
following supplementary provisions shall be a part of the Lease:
1. GENERAL TO ALL CLAUSES
Where any provision of any paragraph contained in this Schedule "F" is
inconsistent with any provision or provisions of this Lease, the
provision of the paragraph in this Schedule "F" shall govern, and the
inconsistent provision or provisions of this Lease shall be of no
effect.
2. RENT FREE PERIOD
PROVIDED THAT THE TENANT IS NOT IN DEFAULT UNDER THIS LEASE, THE TENANT
SHALL NOT BE REQUIRED TO PAY BASIC RENT OR ADDITIONAL RENT FOR THE
FIRST TWO MONTHS OF THE TERM (THE "RENT FREE PERIOD"). THE TENANT
SHALL, HOWEVER, BE RESPONSIBLE FOR ANY ADDITIONAL SERVICE COST IN
ACCORDANCE WITH SECTION 5.02 HEREOF. NOTWITHSTANDING THE FOREGOING, THE
TENANT ACKNOWLEDGES THAT IT SHALL BE OBLIGATED TO COMPLY WITH ALL OTHER
TERMS OF THIS LEASE DURING THE RENT FREE PERIOD.
3. ADVANCE RENT DEPOSIT
THE LANDLORD ACKNOWLEDGES RECEIPT OF AN ADVANCE RENT DEPOSIT FROM THE
TENANT IN THE AMOUNT OF $249,980.00 (THE "DEPOSIT"). THE LANDLORD SHALL
APPLY THE DEPOSIT WITH INTEREST TOWARDS THE BASIC RENT AND ADDITIONAL
RENT, PLUS G.S.T. PAYABLE HEREUNDER BY THE TENANT PURSUANT TO THIS
LEASE. o o O
4. ESTIMATE OF ADDITIONAL RENT
BASED ON INFORMATION CURRENTLY AVAILABLE TO THE LANDLORD AS OF THE DATE
OF THIS LEASE, THE LANDLORD'S ESTIMATE OF THE AMOUNT PAYABLE BY THE
TENANT PURSUANT TO THIS LEASE FOR TAXES, OFFICE SECTION OPERATING COSTS
AND THE UTILITIES CHARGE FOR THE 2000 LEASE YEAR IS APPROXIMATELY
$17.34 PER SQUARE FOOT OF RENTABLE AREA OF THE LEASED PREMISES.
NOTWITHSTANDING SUCH ESTIMATE, THE TENANT SHALL BE RESPONSIBLE FOR
PAYMENT OF ALL ADDITIONAL RENT AS DETERMINED IN ACCORDANCE WITH THIS
LEASE.
5. LANDLORD'S WORK
THE TENANT SHALL ACCEPT THE LEASES PREMISES IN AN "AS IS", "WHERE IS"
CONDITION, SAVE AND EXCEPT THAT THE LANDLORD SHALL PERFORM THE
LANDLORD'S WORK AS DESCRIBED IN SCHEDULE "I" TO THIS LEASE. PROVIDED
THAT THIS LEASE HAS BEEN EXECUTED AND DELIVERED TO THE LANDLORD BY THE
TENANT, THE LANDLORD SHALL SUBSTANTIALLY COMPLETE THE LANDLORD'S WORK
IN A GOOD AND WORKMANLIKE MANNER PRIOR TO THE COMMENCEMENT DATE.
THE TENANT ACKNOWLEDGES AND AGREES TO ACCEPT THE EXISTING CEILING
CONDITION RELATING TO THE FOURTH (4TH) FLOOR PORTION OF THE LEASED
PREMISES.
6. TENANT'S WORK
DURING THE FIXTURING PERIOD, THE TENANT SHALL HAVE ACCESS TO THE LEASED
PREMISES FOR THE PURPOSE OF CONSTRUCTING ITS LEASEHOLD IMPROVEMENTS,
INSTALLATION OF FURNITURE AND NECESSARY CABLING CONNECTIONS IN THE
LEASED PREMISES (THE "TENANT'S WORK") PROVIDED THAT THE LANDLORD, ITS
CONTRACTORS, SUB-CONTRACTORS OR EMPLOYEES SHALL ALSO HAVE ACCESS TO THE
LEASED PREMISES DURING THE FIXTURING PERIOD IN ORDER TO COMPLETE THE
LANDLORD'S WORK. DURING THE FIXTURING PERIOD, THE TENANT SHALL NOT BE
RESPONSIBLE FOR THE PAYMENT OF BASIC RENT OR ADDITIONAL RENT.
NOTWITHSTANDING THE FOREGOING, DURING THE FIXTURING PERIOD, THE
LANDLORD SHALL PROVIDE TO THE TENANT AT THE TENANTS'S SOLE EXPENSE, ALL
NECESSARY BUILDING SERVICES (SUCH AS SERVICE ELEVATOR, UTILITY
CONSUMPTION AND GARBAGE REMOVAL) TO ENABLE THE TENANT TO CONSTRUCT ITS
LEASEHOLD IMPROVEMENTS. THE CHARGE TO THE TENANT FOR THE AFORESAID
BUILDING SERVICES SHALL BE $0.25 PER SQUARE FOOT OF RENTABLE AREA OF
THE LEASED PREMISES PER MONTH DURING THE FIXTURING PERIOD OR PORTION
THEREOF DURING WHICH THE TENANT'S WORK IS BEING COMPLETED WHICH SHALL
BE PAID BY THE TENANT TO THE LANDLORD OR WHICH MAY BE DEDUCTED BY THE
LANDLORD FROM THE IMPROVEMENT ALLOWANCE, AS HEREINAFTER DEFINED.
ANY IMPROVEMENTS TO BE MADE TO THE LEASED PREMISES BY THE TENANT SHALL
BE AT THE TENANT'S SOLE EXPENSE AND SHALL REQUIRE THE LANDLORD'S PRIOR
WRITTEN APPROVAL (NOT TO BE UNREASONABLY WITHHELD OR DELAYED) AND THE
APPROVAL OF ANY MUNICIPAL AUTHORITY IF REQUIRED AND THE TENANT'S WORK
SHALL BE MADE IN ACCORDANCE WITH THE TERMS OF THIS LEASE.
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<PAGE> 54
PRIOR TO COMMENCING THE TENANT'S WORK, THE TENANT SHALL PREPARE AND
SUBMIT TO THE LANDLORD, FOR THE LANDLORD'S WRITTEN APPROVAL (NOT TO BE
UNREASONABLY WITHHELD OR DELAYED), PLANS AND SPECIFICATIONS OF THE
PROPOSED TENANT'S WORK IN ORDER TO MAKE THE LEASED PREMISES READY FOR
OCCUPANCY. THE TENANT SHALL HAVE THE OPTION TO ACT AS GENERAL
CONTRACTOR AND/OR PROJECT MANAGER AND/OR HAVE THE RIGHT TO SOLICIT
COMPETITIVE BIDS FROM UNION AND NON-UNION LABOUR FOR ALL OF THE
TENANT'S WORK, PROVIDED THAT THE TENANT PROVIDES THE LANDLORD WITH
REASONABLE PRIOR WRITTEN NOTICE TO SUCH EFFECT PRIOR TO THE
COMMENCEMENT OF CONSTRUCTION OF THE TENANT'S WORK. PROVIDED THE TENANT
USES THE LANDLORD'S BASE BUILDING CONSULTANTS FOR REVIEW OF ELECTRICAL
AND MECHANICAL PLANS, THE TENANT SHALL NOT BE RESPONSIBLE FOR ANY OF
THE LANDLORD'S COSTS RELATED TO THE LANDLORD'S REVIEW OF SUCH PLANS.
THE LANDLORD ALSO ACKNOWLEDGES AND AGREES THAT THE TENANT WILL NOT BE
REQUIRED TO PAY ANY OF THE LANDLORD'S SUPERVISION OR CONSTRUCTION FEES
DURING THE FIXTURING PERIOD.
THE TENANT SHALL HAVE THE RIGHT TO USE AND OCCUPY THE LEASED PREMISES
FOR THE PURPOSE OF ITS BUSINESS PRIOR TO THE COMMENCEMENT DATE,
PROVIDED THAT THE TENANT DOES NOT INTERFERE WITH THE LANDLORD'S WORK.
ALL TERMS AND CONDITIONS OF THIS LEASE AND THE AGREEMENT TO LEASE SHALL
APPLY TO THE TERM OF OCCUPATION PRIOR TO THE COMMENCEMENT DATE SAVE AND
EXCEPT THAT THE TENANT SHALL NOT BE RESPONSIBLE FOR THE PAYMENT OF
BASIC RENT, ADDITIONAL RENT OR A UTILITIES CHARGE, BUT SHALL BE
RESPONSIBLE FOR ANY ADDITIONAL SERVICE COST IN ACCORDANCE WITH SECTION
5.02 HEREOF.
7. LEASEHOLD IMPROVEMENT ALLOWANCE
PROVIDED THAT THE TENANT IS NOT IN DEFAULT UNDER THE AGREEMENT TO LEASE
OR THIS LEASE, AND PROVIDED THAT THERE ARE NO CONSTRUCTION LIENS
ATTRIBUTABLE TO THE PERFORMANCE OF THE TENANT'S WORK, REGISTERED
AGAINST THE COMPLEX, AND PROVIDED THAT THE TENANT HAS EXECUTED THIS
LEASE, THE LANDLORD SHALL, SUBJECT TO THE HOLDBACK REQUIREMENT, PAY TO
THE TENANT, AS A LEASEHOLD IMPROVEMENT ALLOWANCE BASED ON PAID
INVOICES, AN AMOUNT EQUAL TO THE PRODUCT OF TWENTY-FIVE DOLLARS
($25.00) AND THE NUMBER OF SQUARE FEET OF RENTABLE AREA OF THE LEASED
PREMISES (THE "LEASEHOLD IMPROVEMENT ALLOWANCE") PLUS G.S.T, IF
APPLICABLE AND INVOICED BY THE TENANT. THE LEASEHOLD IMPROVEMENT
ALLOWANCE SHALL, SUBJECT TO THE HOLDBACK REQUIREMENT, BE PAID, AS
FOLLOWS:
(A) 50% ON JULY 1, 2000; AND
(B) 50% ON AUGUST 15, 2000.
THE "HOLDBACK REQUIREMENT" MEANS THAT THE LANDLORD SHALL BE ENTITLED TO
HOLDBACK TEN PERCENT (10%) OF THE LEASEHOLD IMPROVEMENT ALLOWANCE UNTIL
A DATE WHICH IS FORTY FIVE (45) DAYS AFTER THE LANDLORD RECEIVES
EVIDENCE FROM THE TENANT SATISFACTORY TO THE LANDLORD, THAT THE TENANT
HAS SUBSTANTIALLY COMPLETED THE LEASED PREMISES SO THAT THE LEASED
PREMISES CAN BE USED FOR ITS INTENDED PURPOSE AND THAT THE TENANT HAS
FULLY PAID FOR ALL WORK, SERVICES AND MATERIALS PERFORMED OR SUPPLIED
IN CONNECTION WITH THE TENANT'S WORK, AND THE LANDLORD HAS NOT RECEIVED
ANY NOTICE OF ANY THIRD PARTY CLAIM RELATING THERETO.
ANY PORTION OF THE LEASEHOLD IMPROVEMENT ALLOWANCE NOT EXPENDED UP TO
THE AMOUNT OF THE LEASEHOLD IMPROVEMENT ALLOWANCE SHALL BE CREDITED TO
THE ACCOUNT OF THE TENANT IN THE FORM OF A BASIC RENT ABATEMENT. ANY
ADDITIONAL COSTS IN EXCESS OF THE AMOUNT OF THE LEASEHOLD IMPROVEMENT
ALLOWANCE SHALL BE THE SOLE RESPONSIBILITY OF THE TENANT.
8. PARKING
THE LANDLORD SHALL LICENCE TO THE TENANT DURING THE TERM, THE USE OF UP
TO TWENTY (20) UNRESERVED PARKING STALLS IN THE UNDERGROUND PARKING
GARAGE ON A MONTHLY BASIS, AT THE PREVAILING MARKET RATES ESTABLISHED
BY THE OPERATOR OF THE PARKING GARAGE FROM TIME TO TIME, (WHICH SHALL
BE SUBJECT TO THE PERIODIC RATE REVIEWS), PLUS APPLICABLE GOODS AND
SERVICES TAX. THE RATE FOR THE FIRST YEAR OF THE TERM SHALL NOT EXCEED
$225.00, PLUS GOODS AND SERVICES TAX AND OTHER APPLICABLE TAXES, PER
STALL PER MONTH FOR UNRESERVED STALLS. IN THE EVENT THE TENANT WISHES
TO RELINQUISH ANY OF THE PARKING STALLS, IT SHALL PROVIDE THE LANDLORD
WITH REASONABLE PRIOR WRITTEN NOTICE. SUBJECT TO AVAILABILITY, AND ON
REASONABLE PRIOR WRITTEN NOTICE TO THE LANDLORD, THE TENANT MAY PICK UP
ADDITIONAL PARKING STALLS, ON THE FOREGOING TERMS, SUBJECT TO AN
OVERALL MAXIMUM OF TWENTY (20) UNRESERVED PARKING STALLS AT ANY TIME.
IF REQUESTED BY THE LANDLORD, THE TENANT AGREES TO ENTER INTO THE
LANDLORD'S STANDARD FORM PARKING LICENSE AGREEMENT WITH RESPECT TO THE
AFORESAID PARKING LICENSES.
9. SPACE PLAN
THE LANDLORD SHALL PROVIDE THE TENANT WITH ONE (1) SPACE PLAN OF THE
LEASED PREMISES AND ONE (1) REVISION OF SAME AT THE LANDLORD'S COSTS TO
A MAXIMUM COST OF $0.08 PER SQUARE FOOT OF RENTABLE AREA OF THE LEASED
PREMISES.
10. OPTION TO EXTEND
PROVIDED THAT THE TENANT IS NOT IN DEFAULT UNDER THIS LEASE BEYOND
APPLICABLE CURE PERIODS AND PROVIDED THAT THE TENANT IS ITSELF IN
OCCUPANCY OF GREATER THAN 75% OF THE LEASED PREMISES, THE TENANT SHALL
HAVE
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<PAGE> 55
THE PERSONAL OPTION TO EXTEND THE TERM OF THIS LEASE FOR ONE ADDITIONAL
PERIOD OF FIVE (5) YEARS (THE "EXTENDED TERM"). IN ORDER TO EXERCISE
ITS OPTION FOR THE EXTENDED TERM THE TENANT MUST GIVE THE LANDLORD
WRITTEN NOTICE TO SUCH EFFECT NOT LATER THAN TWELVE (12) MONTHS PRIOR
TO THE EXPIRATION OF THE ORIGINAL TERM. IF THE TENANT EXERCISES SUCH
OPTION AS AFORESAID, THE TERM OF THIS LEASE SHALL BE EXTENDED ON THE
FOLLOWING TERMS AND CONDITIONS :
(A) THERE SHALL BE NO FURTHER OPTION OR RIGHT TO EXTEND THE TERM
OF THIS LEASE AFTER THE EXTENDED TERM;
(B) THERE SHALL BE NO TENANT'S IMPROVEMENT ALLOWANCE, CASH
ALLOWANCE OR OTHER INDUCEMENT PAYABLE BY THE LANDLORD TO THE
TENANT FOR THE EXTENDED TERM;
(C) THE ANNUAL BASIC RENT PAYABLE DURING THE EXTENDED TERM SHALL
BE THE THEN CURRENT RENTAL RATE FOR EXTENDING TENANTS OF
SIMILAR PREMISES IN A SIMILAR BUILDING, ALL ECONOMIC FACTORS
BEING CONSIDERED. IF THE LANDLORD AND THE TENANT ARE UNABLE TO
AGREE ON THE BASIC RENT PAYABLE DURING THE EXTENDED TERM, AT
LEAST SIX (6) MONTHS PRIOR TO THE EXPIRY OF THE ORIGINAL
TERM,THEN SUCH RENT SHALL BE DETERMINED BY A SINGLE ARBITRATOR
IN ACCORDANCE WITH THE ARBITRATION ACT, 1991 (ONTARIO).
(D) THE TENANT WILL TAKE THE LEASED PREMISES DURING THE EXTENDED
TERM ON AN "AS IS" AND "WHERE IS" BASIS.
(E) THE TENANT SHALL EXECUTE, AT THE LANDLORD'S OPTION, THE
LANDLORD'S STANDARD LEASE AMENDING AGREEMENT FOR OFFICE
PREMISES IN THE COMPLEX.
IF THE TENANT FAILS TO EXERCISE ITS OPTION TO EXTEND WITHIN THE TIME
LIMIT PROVIDED IN THIS PARAGRAPH, THEN SUCH OPTION SHALL BE NULL AND
VOID AND THE TENANT WILL HAVE NO FURTHER OPTIONS OR RIGHTS TO EXTEND
WITH RESPECT TO THE LEASED PREMISES. FOR THE PURPOSES OF THIS SECTION
10, THE "LEASED PREMISES" SHALL BE DEEMED TO INCLUDE THE LEASED
PREMISES AND ANY ADDITIONAL PREMISES AND ROFO PREMISES LEASED BY THE
TENANT PURSUANT TO SECTIONS 11 AND 13 OF THIS SCHEDULE "F".
THE ABOVE OPTION IS PERSONAL TO DALEEN CANADA CORPORATION. ANY
REFERENCE TO THE TERM "TENANT" IN THIS SECTION 10 OF SCHEDULE "F" TO
THIS LEASE SHALL MEAN DALEEN CANADA CORPORATION ONLY AND SHALL NOT
EXTEND TO OR BE EXERCISABLE BY ANY ASSIGNEE, SUBTENANT OR OTHER
TRANSFEREE OF THE LEASED PREMISES OR THIS LEASE.
11. RIGHT OF FIRST REFUSAL
PROVIDED THAT THE TENANT IS NOT IN MATERIAL DEFAULT OF THIS LEASE OR
THE AGREEMENT TO LEASE, AND FURTHER PROVIDED THAT THE TENANT IS ITSELF
IN OCCUPANCY OF GREATER THAN 75% OF THE LEASED PREMISES, THE TENANT
SHALL HAVE THE ONGOING PERSONAL RIGHT OF FIRST REFUSAL, DURING THE TERM
OR ANY RENEWAL THEREOF, TO LEASE ANY CONTIGUOUS OFFICE SPACE LOCATED ON
THE THIRD (3RD) FLOOR OF THE BUILDING (THE "ADDITIONAL PREMISES")
WITHIN THE AREA SHOWN CROSS-HATCHED ON SCHEDULE "G-1", WHICH MAY BECOME
AVAILABLE FOR LEASE DURING THE TERM OR ANY EXTENSION THEREOF, SUBJECT
TO THE PRIOR RIGHTS OF EXISTING TENANTS ON SUCH FLOORS. SUCH TENANCY
SHALL BE ON THE SAME NET EFFECTIVE RENT AND TERMS AND CONDITIONS AS THE
LANDLORD IS WILLING TO LEASE SUCH PREMISES TO A BONA FIDE THIRD PARTY
FOR A TERM BEING CO-TERMINOUS WITH THE TERM OF THIS LEASE. THE LANDLORD
SHALL DELIVER A TRUE COPY TO THE TENANT OF ANY SUCH TERMS AND
CONDITIONS ON WHICH THE LANDLORD IS WILLING TO OFFER ANY ADDITIONAL
PREMISES TO A BONA FIDE THIRD PARTY (THE "OFFER"). UPON RECEIPT OF THE
OFFER, THE TENANT SHALL HAVE THREE (3) BUSINESS DAYS TO EXERCISE THE
AFORESAID RIGHT OF FIRST REFUSAL BY DELIVERING NOTICE TO THE LANDLORD
WITHIN SUCH TIME OF THE TENANT'S DESIRE TO EXERCISE SUCH RIGHT. UPON
DELIVERY OF SUCH NOTICE BY THE TENANT, A BINDING AGREEMENT TO LEASE
SHALL EXIST BETWEEN THE LANDLORD AND THE TENANT AT THE SAME NET
EFFECTIVE RENT (USING A 10% DISCOUNT RATE) AND ON THE SAME TERMS AND
CONDITIONS AS CONTAINED IN THE OFFER AND FOR A TERM WHICH IS
CO-TERMINOUS WITH THE TERM OF THIS LEASE. UPON EXERCISE OF SUCH RIGHT
OF FIRST REFUSAL, THE TENANT SHALL ENTER INTO THE LANDLORD'S STANDARD
FORM OF LEASE AMENDING AGREEMENT WITH RESPECT TO THE ADDITIONAL
PREMISES WHICH ARE SUBJECT TO THE OFFER, WHICH AGREEMENT SHALL
INCORPORATE THE TERMS OF THE OFFER.
IF THE TENANT FAILS TO EXERCISE ITS RIGHT OF FIRST REFUSAL AS
AFORESAID, THE LANDLORD SHALL BE PERMITTED TO LEASE THE ADDITIONAL
PREMISES, WHICH ARE SUBJECT TO THE OFFER, TO THE BONA FIDE THIRD PARTY
ON TERMS AND CONDITIONS AS IT MAY SEE FIT.
THE ABOVE RIGHT OF FIRST REFUSAL WILL CONTINUE WITH RESPECT TO THE
BALANCE OF ANY CONTIGUOUS OFFICE SPACE WITHIN THE ADDITIONAL PREMISES
WHICH HAVE NOT BEEN THE SUBJECT OF AN OFFER.
THE ABOVE RIGHT OF FIRST REFUSAL IS PERSONAL TO DALEEN CANADA
CORPORATION. ANY REFERENCE TO THE TERM "TENANT" IN THIS SECTION 11 OF
SCHEDULE "F" TO THIS LEASE SHALL MEAN DALEEN CANADA CORPORATION ONLY
AND SHALL NOT EXTEND TO OR BE EXERCISABLE BY ANY ASSIGNEE, SUBTENANT OR
OTHER TRANSFEREE OF THE LEASED PREMISES OR ADDITIONAL PREMISES, THIS
LEASE OR ANY OF THE TENANT'S RIGHTS UNDER THIS SECTION 11 OF SCHEDULE
"F" TO THIS LEASE.
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<PAGE> 56
12. RIGHT TO LEASE ADDITIONAL PREMISES
INTENTIONALLY DELETED
13. RIGHT OF FIRST OFFER
PROVIDED THAT THE TENANT IS NOT IN DEFAULT OF THIS LEASE OR THE
AGREEMENT TO LEASE, THE TENANT SHALL HAVE THE ONGOING PERSONAL RIGHT OF
FIRST OFFER, DURING THE TERM OR ANY EXTENSION THEREOF, TO LEASE ANY
SPACE LOCATED ON THE THIRD (3RD) OR FOURTH (4TH) FLOORS OF THE BUILDING
(THE "ROFO PREMISES") WHICH ARE CONTIGUOUS TO THE LEASED PREMISES AND
WHICH MAY BECOME AVAILABLE FOR LEASE DURING THE TERM, SUBJECT TO THE
PRIOR RIGHTS OF EXISTING TENANTS ON SUCH FLOORS. THE LANDLORD
ACKNOWLEDGES AND AGREES TO NOTIFY THE TENANT OF THE DATE OF
AVAILABILITY OF ANY ROFO PREMISES AND THE TERMS UPON WHICH THE LANDLORD
IS PREPARED TO LEASE SUCH PREMISES TO THE TENANT (A "ROFO NOTICE") ,
AND THE TENANT WILL HAVE A PERIOD OF TEN (10) BUSINESS DAYS THEREAFTER
WITHIN WHICH TO AGREE TO LEASE THE ROFO PREMISES, WHICH ARE THE SUBJECT
OF THE ROFO NOTICE, ON THE TERMS OFFERED BY THE LANDLORD. THE LANDLORD
AND THE TENANT SHALL NEGOTIATE REASONABLY AND IN GOOD FAITH DURING THE
SAID TEN (10) BUSINESS DAYS. IF THE LANDLORD AND THE TENANT FAIL TO
EXECUTE AN AGREEMENT TO LEASE RELATING TO THE ROFO PREMISES, WHICH ARE
THE SUBJECT OF THE ROFO NOTICE, DURING THE AFORESAID TEN (10) BUSINESS
DAY PERIOD, THEN THE LANDLORD SHALL BE FREE THEREAFTER AT ANY TIME AND
FROM TIME TO TIME TO LEASE THE ROFO PREMISES, WHICH ARE THE SUBJECT OF
THE ROFO NOTICE, ON SUCH TERMS AND CONDITIONS AS IT MAY SEE FIT TO ANY
OTHER PARTY OR PARTIES, AND THIS LEASE SHALL BE DEEMED TO HAVE BEEN
AMENDED SO THAT THE RIGHT OF FIRST REFUSAL SET OUT IN SECTION 11, AND
THE TERM "ADDITIONAL PREMISES" SHALL BE DEEMED TO EXCLUDE THE ROFO
PREMISES, WHICH ARE THE SUBJECT OF THE ROFO NOTICE. THE SIZE OF THE
ROFO PREMISES SHALL BE CONFIRMED IN ACCORDANCE WITH THE TERMS OF THIS
LEASE. THE ABOVE RIGHT OF FIRST OFFER WILL CONTINUE WITH RESPECT TO THE
BALANCE OF ANY CONTIGUOUS OFFICE SPACE WITHIN THE ROFO PREMISES WHICH
HAVE NOT BEEN THE SUBJECT OF AN ROFO NOTICE.
THE ABOVE RIGHT OF FIRST OFFER IS PERSONAL TO DALEEN CANADA
CORPORATION. ANY REFERENCE TO THE TERM "TENANT" IN THIS SECTION 13 OF
SCHEDULE "F" TO THIS LEASE SHALL MEAN DALEEN CANADA CORPORATION ONLY
AND SHALL NOT EXTEND TO OR BE EXERCISABLE BY ANY ASSIGNEE, SUBTENANT OR
OTHER TRANSFEREE OF THE LEASED PREMISES OR THIS LEASE.
14. LETTER OF CREDIT
WITHIN TWENTY (20) DAYS FROM THE DATE OF THE TENANT'S EXECUTION OF THIS
LEASE, THE TENANT SHALL DELIVER TO THE LANDLORD AN IRREVOCABLE DEMAND
LETTER OF CREDIT IN FORM SATISFACTORY TO THE LANDLORD, ATTACHED HERETO
AS SCHEDULE "H" FROM A MUTUALLY ACCEPTABLE SCHEDULE "1" CANADIAN
CHARTERED BANK IN THE PRINCIPAL AMOUNT EQUAL TO $25.00 PER SQUARE FOOT
OF RENTABLE AREA OF THE LEASED PREMISES (THE "LETTER OF CREDIT"). THE
TERM OF THE LETTER OF CREDIT SHALL BE FOR 28 MONTHS COMMENCING ON JULY
1, 2000. UPON DEFAULT BY THE TENANT OF ANY TERMS AND/OR CONDITIONS OF
THIS LEASE BEYOND THE ALLOWABLE CURE PERIOD FOR SUCH DEFAULT, THE
LETTER OF CREDIT MAY BE CALLED UPON BY THE LANDLORD, WITH PRIOR NOTICE
TO THE TENANT, TO THE EXTENT NECESSARY IN ORDER TO CURE SUCH DEFAULT BY
THE TENANT.
15. ESTIMATE OF ADDITIONAL SERVICE COSTS
BASED ON INFORMATION CURRENTLY AVAILABLE TO THE LANDLORD AS OF THE DATE
OF THIS LEASE, THE LANDLORD'S ESTIMATE OF THE AMOUNT PAYABLE BY THE
TENANT PURSUANT TO THIS LEASE FOR ADDITIONAL SERVICE COSTS AS OF THE
DATE OF THIS LEASE IS APPROXIMATELY AS FOLLOWS:
(A) HVAC - $40.00 PER HOUR PER FLOOR OF THE LEASED PREMISES; AND
(B) LIGHTING - $.0000794 PER SQUARE FOOT OF RENTABLE AREA OF THE LEASED
PREMISES.
NOTWITHSTANDING SUCH ESTIMATE, THE TENANT SHALL BE RESPONSIBLE FOR
PAYMENT OF ALL ADDITIONAL SERVICE COSTS AS DETERMINED IN ACCORDANCE
WITH THIS LEASE.
16. ESTIMATE OF ADMINISTRATION AND SUPERVISORY FEE
BASED ON INFORMATION CURRENTLY AVAILABLE TO THE LANDLORD AS OF THE DATE
OF THIS LEASE, THE LANDLORD'S ESTIMATE OF THE AMOUNT PAYABLE BY THE
TENANT PURSUANT TO THIS LEASE FOR AN ADMINISTRATION AND SUPERVISORY FEE
WHICH IS TO BE INCLUDED IN OFFICE SECTION OPERATING COSTS AS DESCRIBED
IN SECTION 1.02(21)(A)(XI) IS FIFTEEN PERCENT (15%) OF THE OFFICE
SECTION OPERATING COSTS, EXCLUDING TAXES.
NOTWITHSTANDING SUCH ESTIMATE, THE TENANT SHALL BE RESPONSIBLE FOR
PAYMENT OF A REASONABLE ADMINISTRATION AND SUPERVISORY FEE AS
DETERMINED IN ACCORDANCE WITH THIS LEASE.
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<PAGE> 57
SCHEDULE "G-1" - FLOOR PLAN
THIRD FLOOR PORTION OF THE ADDITIONAL PREMISES
The Floor Plan is for identification purposes only and is not
to be interpreted as being a representation or warranty on the part of the
Landlord as to the exact location, configuration and layout.
[A diagram that identifies a portion of the third floor that forms
part of the Additional Premises.]
INITIALLED FOR IDENTIFICATION:
THE ATRIUM ON BAY INC. DALEEN CANADA CORPORATION
/s/ Don Kile /s/ Stephen Wagman
------------------------------------ -----------------------------------
EXECUTIVE VICE PRESIDENT,
CORPORATE DEVELOPMENT
Page 54 of 57
<PAGE> 58
SCHEDULE "G-2" - FLOOR PLAN
RETURN TO BASE BUILDING AREA
(PORTION OF 3RD FLOOR OF LEASED PREMISES - APPROXIMATELY 10,199 SQUARE FEET)
The Floor Plan is for identification purposes only and is not to be interpreted
as being a representation or warranty on the part of the Landlord as to the
exact location, configuration and layout.
[A diagram that identifies a portion of the third floor that forms
part of the Leased Premises - Approximately 10, 199 square feet.]
INITIALLED FOR IDENTIFICATION:
THE ATRIUM ON BAY INC. DALEEN CANADA CORPORATION
/s/ Don Kile /s/ Stephen Wagman
------------------------------------ -----------------------------------
EXECUTIVE VICE PRESIDENT,
CORPORATE DEVELOPMENT
Page 55 of 57
<PAGE> 59
SCHEDULE "H"
FORM OF LETTER OF CREDIT
DATE _________________ , 200__
IRREVOCABLE STANDBY LETTER OF CREDIT NO. P FOR (AMOUNT)
BENEFICIARY APPLICANT
NAME: NAME:
ADDRESS: ADDRESS:
AMOUNT
____________________________________
AMOUNT______________
EXPIRY DATE - 200__
AT OUR COUNTERS IN TORONTO, ONTARIO
--------------------------------------------------------------------------------
WE HEREBY ISSUE IN YOUR FAVOUR THIS IRREVOCABLE STANDBY LETTER OF CREDIT WHICH
IS AVAILABLE BY PAYMENT AGAINST YOUR WRITTEN DEMAND, ADDRESSED TO O BANK O,
TORONTO, ONTARIO, BEARING THE CLAUSE:-"DRAWN UNDER STANDBY LETTER OF CREDIT NO.
P T ISSUED BY O BANK." WHEN ACCOMPANIED BY THE FOLLOWING
DOCUMENTS:-
1) Beneficiary's certification signed by an Officer or Director specifying
amount claimed and stating that the amount drawn is due and payable by
Applicant and that Applicant is in default of its payment obligations
under a lease dated ______________ of premises located at (Address) or
that such amount is owing or represents damages or losses arising as a
result of a default of the Applicant's obligations under such Lease or
the disclaimer or repudiation of such lease.
2) The original of this Letter of Credit for our endorsement of any
payment.
3) We shall honour such demand without enquiring whether you have a right
as between yourself and the Applicant to make such demand and without
recognizing any claim of the Applicant.
THIS LETTER OF CREDIT WILL NOT BE RELEASED, DISCHARGED OR AFFECTED BY THE
BANKRUPTCY OR INSOLVENCY OF THE APPLICANT OR BY ANY DISCLAIMER BY ANY TRUSTEE IN
BANKRUPTCY OR BY THE APPLICANT CEASING TO EXIST (WHETHER BY WINDING-UP,
FORFEITURE, CANCELLATION OR SURRENDER OF CHARTER, MERGER OR ANY OTHER
CIRCUMSTANCES).
PARTIAL DRAWINGS ARE PERMITTED
EXCEPT AS OTHERWISE EXPRESSLY STATED THIS CREDIT IS ISSUED SUBJECT TO UNIFORM
CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, 1993 REVISION, ICC PUBLICATION NO.
500.
We engage to honour presentations submitted within the terms and conditions
indicated above.
Page 56 of 57
<PAGE> 60
SCHEDULE "I"
LANDLORD'S WORK
THE LANDLORD WILL, AT ITS OWN EXPENSE, COMPLETE THE FOLLOWING WORK PRIOR TO JULY
1, 2000 (PROVIDED THAT THIS LEASE IS EXECUTED AND DELIVERED BY THE TENANT BY NO
LATER THAN JUNE 13, 2000) IN RESPECT OF THE LEASED PREMISES:
1. CONSTRUCT DEMISING WALLS, WITH SOUND ATTENUATION INSULATION, FROM
CONCRETE SLAB TO CONCRETE SLAB TAPED, SANDED AND READY TO RECEIVE PAINT
IF REQUIRED.
2. WITH RESPECT TO THE SECTION OF THE THIRD (3RD) FLOOR PORTION OF THE
LEASED PREMISES, AS SHOWN CROSS-HATCHED ON SCHEDULE "G-2", PROVIDED
THAT THE TENANT HAS EXERCISED ITS RIGHT TO OBLIGATE THE LANDLORD TO
RETURN SUCH PREMISES BACK TO BASE BUILDING CONDITION, THE LANDLORD
SHALL DEMOLISH AND REMOVE EXISTING LEASEHOLD IMPROVEMENTS AS REQUESTED
AND INDICATED BY THE TENANT AND REPAIR OR REPLACE T-BAR CEILING AND
TILES WITH BUILDING STANDARD TILES TO MATCH EXISTING TILES, WHERE
APPLICABLE, IF DAMAGED BY SUCH DEMOLITION OR REQUESTED BY THE TENANT.
3. REPLACE ALL CRACKED, CHIPPED OR STAINED ACOUSTIC CEILING TILES WITH
MATCHING ACOUSTIC CEILING TILES.
4. ENSURE THAT THE BASE BUILDING SYSTEMS HVAC, SPRINKLERS, PLUMBING AND
ELECTRICAL OUTLETS ARE IN GOOD WORKING CONDITION.
5. WITH RESPECT TO THE SECTION OF THE THIRD (3RD) FLOOR PORTION OF THE
LEASED PREMISES, AS SHOWN CROSS-HATCHED ON SCHEDULE "G-2", REMOVE ALL
DEBRIS, INCLUDING ALL CABLING, IF SO REQUESTED BY THE TENANT SUCH THAT
SUCH PORTION OF THE LEASED PREMISES IS LEFT IN A CLEAN, BROOMSWEPT
MANNER.
7. ENSURE HORIZONTAL BLINDS ON ALL THE PERIMETER WINDOWS ARE FULLY
OPERABLE.
8. THE LANDLORD SHALL BE RESPONSIBLE TO ENSURE THAT THE LEASED PREMISES
COMPLIES WITH ALL CODES AFFECTING THE LEASED PREMISES AND BUILDING.
9. THE LANDLORD SHALL RETURN A SECTION OF THE THIRD (3RD) FLOOR PORTION OF
THE LEASED PREMISES, AS SHOWN CROSS-HATCHED ON SCHEDULE "G-2", BEING AN
AREA COMPRISED OF APPROXIMATELY 10,199 SQUARE FEET OF RENTABLE AREA,
BACK TO BASE BUILDING CONDITION.
IN ADDITION TO THE FOREGOING, THE LANDLORD SHALL UPGRADE THE BALLASTS IN THE
LEASED PREMISES (AND THE RELATED COMPONENTS OF THE BALLASTS NECESSARY FOR THEIR
OPERATION AND FUNCTION) IN ACCORDANCE WITH THE BUILDING RETROFIT PROGRAM AND TO
BE COMPLETED AT THE TIME OF THE OF THE LANDLORD'S SCHEDULED IMPLEMENTATION OF
THE BUILDING RETROFIT PROGRAM.
PRIOR TO THE COMMENCEMENT DATE, THE LANDLORD SHALL UPGRADE THE WASHROOMS LOCATED
ON THE FOURTH (4TH) FLOOR OF THE BUILDING (40 DUNDAS STREET WEST) IN ACCORDANCE
WITH THE LANDLORD'S NEW BUILDING STANDARD FIXTURES.
Page 57 of 57
