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OFFICE LEASE
HSBC BUILDING
885 WEST GEORGIA STREET
VANCOUVER, B.C.
BETWEEN
P. SUN'S ENTERPRISES (VANCOUVER) LTD.
("LANDLORD")
AND
A SURE ECOMMERCE, INC.
("TENANT")
COLLIERS MACAULAY NICOLLS INC.
("Agent")
15th Floor, 200 Granville Street
Vancouver, B.C.
V6C 2R6
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HSBC BUILDING
885 WEST GEORGIA STREET
VANCOUVER, B.C.
SUITE # 2240
OFFICE LEASE
TABLE OF CONTENTS
ARTICLE I - INTERPRETATION.....................................................1
SECTION 1.01 - CERTAIN BASIC LEASE PROVISIONS.........................1
SECTION 1.02 - DEFINITIONS............................................2
SECTION 1.03 - EFFECT OF HEADINGS, ETC................................6
SECTION 1.04 - GOVERNING LAW .........................................6
SECTION 1.05 - SEVERABILITY...........................................6
SECTION 1.06 - JOINT COVENANTS AND GRAMMATICAL CHANGES................7
SECTION 1.07 - NET LEASE..............................................7
ARTICLE II - DEMISE, TERM AND RENT.............................................7
SECTION 2.01 - DEMISE.................................................7
SECTION 2.02 - TERM...................................................7
SECTION 2.03 - BASIC RENT.............................................7
SECTION 2.04 - POST-DATED CHEQUES.....................................8
SECTION 2.05 - DEPOSIT................................................8
SECTION 2.06 - RECOVERY OF ADDITIONAL RENT............................8
ARTICLE III - TAXES............................................................8
SECTION 3.01 - PAYMENT OF TAX FOR THE YEAR............................8
SECTION 3.02 - CONTESTATION OF TAX FOR THE YEAR.......................8
ARTICLE IV - OPERATING COSTS...................................................9
SECTION 4.01 - PAYMENT OF COMMON EXPENSES.............................9
SECTION 4.02 - ADJUSTMENT OF TENANT'S SHARE OF COMMON EXPENSES........9
SECTION 4.03 - BROKEN PERIOD..........................................9
ARTICLE V - TENANT'S COVENANTS.................................................9
SECTION 5.01 - RENT...................................................9
SECTION 5.02 - BUSINESS TAXES.........................................9
SECTION 5.03 - ELECTRIC CURRENT AND UTILITIES........................10
SECTION 5.04 - CLEANLINESS AND GARBAGE...............................10
SECTION 5.05 - REPAIRS AND MAINTENANCE...............................10
SECTION 5.06 - CONDITION OF PREMISES ON TERMINATION..................10
SECTION 5.07 - LANDLORD MAY INSPECT..................................10
SECTION 5.08 - REPAIRS WHERE TENANT AT FAULT.........................11
SECTION 5.09 - ASSIGNMENT AND SUBLETTING.............................11
SECTION 5.10 - RULES AND REGULATIONS.................................12
SECTION 5.11 - OBSERVANCE OF LAW.....................................12
SECTION 5.12 - WASTE AND NUISANCE....................................12
SECTION 5.13 - ENTRY BY LANDLORD.....................................12
SECTION 5.14 - EXHIBITING PREMISES...................................13
SECTION 5.15 - LIENS.................................................13
SECTION 5.16 - ALTERATIONS...........................................13
SECTION 5.17 - SIGNS.................................................13
SECTION 5.18 - LOCKS AND TRIMMINGS...................................14
SECTION 5.19 - RUBBISH...............................................14
SECTION 5.20 - INDEMNITY.............................................14
SECTION 5.21 - TENANT'S WORK.........................................14
SECTION 5.22 - ENERGY CONSERVATION...................................14
SECTION 5.23 - USE...................................................14
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TABLE OF CONTENTS
ARTICLE VI - LANDLORD'S COVENANTS.............................................14
SECTION 6.01 - QUIET ENJOYMENT.......................................14
SECTION 6.02 - TAXES.................................................15
SECTION 6.03 - REPAIR................................................15
SECTION 6.04 - HEATING AND AIR-CONDITIONING..........................15
SECTION 6.05 - ELEVATOR SERVICE......................................15
SECTION 6.06 - CARETAKING OF PUBLIC AREAS............................15
SECTION 6.07 - JANITORIAL SERVICES...................................15
SECTION 6.08 - WASHROOMS.............................................16
SECTION 6.09 - LANDLORD'S WORK.......................................16
ARTICLE VII - INSURANCE.......................................................16
SECTION 7.01 - INCREASE IN INSURANCE RATES OR CANCELLATION
OF POLICY..........................................16
SECTION 7.02 - LANDLORD'S INSURANCE - MANDATORY......................16
SECTION 7.03 - LANDLORD'S INSURANCE - OPTIONAL.......................16
SECTION 7.04 - TENANT'S INSURANCE....................................17
ARTICLE VIII - DAMAGE AND DESTRUCTION.........................................17
SECTION 8.01 - INJURY TO DEMISED PREMISES AND BUILDING...............17
SECTION 8.02 - DAMAGE TO PROPERTY....................................18
ARTICLE IX - TENANT'S DEFAULT AND LANDLORD'S REMEDIES.........................18
SECTION 9.01 - DEFAULT OF TENANT.....................................18
SECTION 9.02 - INTEREST ON OVERDUE PAYMENTS AND ADMINISTRATIVE FEE...19
SECTION 9.03 - BANKRUPTCY, ETC.......................................19
SECTION 9.04 - DISTRESS..............................................19
SECTION 9.05 - RIGHT OF ENTRY AS AGENT OF TENANT.....................19
SECTION 9.06 - RIGHTS OF TERMINATION.................................20
SECTION 9.07 - LANDLORD MAY REPAIR...................................20
SECTION 9.08 - LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS........20
SECTION 9.09 - LEGAL COSTS...........................................20
SECTION 9.10 - REMEDIES CUMULATIVE...................................20
ARTICLE X - MISCELLANEOUS.....................................................20
SECTION 10.01 - FIXTURES.............................................20
SECTION 10.02 - ASSIGNMENT BY LANDLORD...............................21
SECTION 10.03 - IMPOSSIBILITY OF PERFORMANCE.........................21
SECTION 10.04 - NON-WAIVER...........................................21
SECTION 10.05 - NO COLLATERAL AGREEMENTS.............................22
SECTION 10.06 - NOTICE...............................................22
SECTION 10.07 - CERTIFICATES.........................................22
SECTION 10.08 - SUBORDINATION........................................22
SECTION 10.09 - RELOCATION...........................................23
SECTION 10.10 - OVERHOLDING..........................................23
SECTION 10.11 - EXPROPRIATION........................................23
SECTION 10.12 - RENOVATION OR DEMOLITION.............................24
SECTION 10.13 - CHANGES AND ADDITIONS TO BUILDING....................24
SECTION 10.14 - TIME OF ESSENCE......................................24
SECTION 10.15 - FORM OF LEASE........................................24
SECTION 10.16 - [OMITTED]............................................24
SECTION 10.17 - SUCCESSORS AND ASSIGNS...............................25
SECTION 10.18 - SPECIAL PROVISIONS...................................25
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TABLE OF CONTENTS
SCHEDULES
SCHEDULE A - PLAN OF DEMISED PREMISES
SCHEDULE B - RULES AND REGULATIONS
SCHEDULE C - LANDLORD'S AND TENANT'S WORK
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OFFICE LEASE
THIS INDENTURE made effective the date specified in Section 1.01(i) in pursuance
of the "Land Transfer Form Act" between the Landlord and Tenant hereinafter
identified.
ARTICLE I - INTERPRETATION
SECTION 1.01 - CERTAIN BASIC LEASE PROVISIONS
The following are certain basic lease provisions, which are part of, and are in
certain instances referred to in other provisions of this lease:
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<S> <C> <C>
(i) Date of this Lease: May 1, 2000
(ii) "Landlord": P. Sun's Enterprises (Vancouver) Ltd., a body
corporate having an office at the City of Vancouver,
in the Province of British Columbia
(iii) Address of Landlord: P. Sun's Enterprises (Vancouver) Ltd.
c/o Colliers Macaulay Nicolls Inc.
15th Floor, 200 Granville Street
Vancouver, B.C.
V6C 2116
(iv) Tenant Name: A Sure ECommerce, Inc.
(v) Address of Tenant: 2240 - 885 West Georgia Street
Vancouver, B.C.
V6C 3E8
(vi) Rentable Area of the Demised 2,039.3 square feet located on the 22nd Floor of the
Premises referred to in Building
Section 2.01 and defined in
Section 1.02(xix):
(vii) Term of this Lease in Three (3) years.
Section 2.02:
(viii) Commencement Date in May 1, 2000
Section 2.02:
(ix) Termination Date of the Term: April 30, 2003
(x) Yearly rent in section 2.03: $53,931.55 (plus GST)
(xi) Equal monthly installments of $4,494.30 (plus GST)
rent in Section 2.03:
(xii) Amount of deposit in $14,435.78 (plus GST)
section 2.05:
(xiii) Guarantor: N/A
(xiv) Address of Guarantor N/A
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SECTION 1.02 - DEFINITIONS
In this Lease, unless otherwise stated, the following terms shall have the
following respective meanings:
(i) Additional Rent:
"Additional Rent" means any payments contemplated by this Lease by the
Tenant in addition to Basic Rent;
(ii) Basic Rent:
"Basic Rent" means the monthly rental installments referred to in
Section 2.03;
(iii) Building:
"Building" means the building complex situate on the Lands;
(iv) Capital Tax:
"Capital Tax" means the tax or excise imposed upon the Landlord under
the Corporation Capital Tax Act R.S.B.C. 1979, Chapter 69, or any
successor legislation, with respect to the Building and/or the Lands;
(v) Commencement Date:
"Commencement Date" means the date provided in Section 2.02 for the
commencement of the Term;
(vi) Common Areas:
"Common Areas" means all parts of the Lands and the Building not
leasable to tenants and includes the Parking Area, driveways,
pedestrian sidewalks and ways, landscaped areas, exterior ramps,
stairways, elevators, comfort stations, heating, air-conditioning,
electrical, plumbing and sanitary drainage systems (excluding such
systems or parts thereof running from the main systems of the Building,
if such is the case, provided for a particular tenant at the request of
such tenant) and other facilities of the Building which are from time
to time provided or designated (and which may be changed from time to
time) by the Landlord for the use by or benefit of tenants of the
Building, their employees, customers and other invitees or for general
public use and enjoyment;
(vii) Common Expenses:
"Common Expenses" means the total amount of all expenses paid or
incurred whether by the Landlord or others on behalf of the Landlord
for the operation, maintenance and management of the Lands and the
Building, including, without limitation, the following:
(a) the cost of fire and extended perils coverage, boiler and
pressure vessel coverage, public liability and property
damage, plate glass, loss of rental and other insurance the
Landlord is required to maintain or may maintain;
(b) the cost of cleaning, window cleaning, garbage collection and
removal, snow removal, salting and sanding, gardening and
landscaping;
(c) the cost of janitorial and caretaking services for the Common
Areas;
(d) the cost of electricity, lighting, fuel, gas, steam, telephone
and other utility costs and the cost of replacing electrical
fixtures, ballasts, tubes and bulbs not otherwise chargeable
to tenants;
(e) the cost of plumbing, sanitary drainage and elevator service
and maintenance;
(f) the cost of heating, cooling and providing hot and cold water
not otherwise chargeable to tenants;
(g) the salaries and remuneration (including contributions towards
fringe benefits, unemployment insurance, workmen's
compensation assessments and similar contributions and
indirect benefits) and office expenses of persons and staff
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employed at the Building to provide security, management,
maintenance, supervisory and operating services;
(h) fees and expenses of the Landlord's chartered accountants,
architects, professional engineers or quantity surveyors
pertaining only to services performed in the preparation of
certificates and performance of other work contemplated
hereunder;
(i) the cost of maintenance, repair, replacement, servicing,
operation, supervision and policing of the Lands and Building,
including relining, paving and repaving of the Parking Area,
and including all repairs and replacements not properly
chargeable to capital account under generally accepted
accounting principles;
(j) the cost of any modification and/or addition to the Building
and/or the machinery and equipment therein where, in the
reasonable opinion of the Landlord, such expenditure may
reduce Common Expenses, or the cost of any additional
equipment or improvements required by law or, in the
Landlord's reasonable opinion, made for the benefit or safety
of the users of the Building;
(k) depreciation of fixtures and equipment which, by their nature,
require periodic or substantial replacement, including heating
and air-conditioning equipment but excluding any costs of a
capital nature under generally accepted accounting principles;
(l) management of the Building, the annual cost of which for the
purposes of this Lease shall be deemed to be four percent (4%)
of the total rents, including Basic Rents and Additional Rents
but excluding any such amounts referable to management of the
Building, payable by all tenants in the Building;
(m) Capital Tax;
(n) business taxes imposed on the Landlord, if any, in respect of
the Building; and
(o) other costs and expenses not otherwise expressly excluded
hereunder attributable to the maintenance, repair,
replacement, servicing, operating, supervision and management
of the Lands and Building;
Notwithstanding the foregoing, there shall be excluded from the
foregoing, or deducted therefrom to the extent otherwise included:
(p) all monies recoverable under any insurance policies maintained
by the Landlord with respect to damage occurring to any
portion of the Lands and Building, the cost of repair of which
is included in the foregoing;
(q) all monies recoverable under claims for damage or indemnity
from third parties, to the extent applicable to repairs, the
cost of which is included in the foregoing;
(r) all recoveries made by the Landlord in respect of warranties
and construction guarantees, to the extent applicable to
repairs, the cost of which is included in the foregoing; and
(s) interest on the Landlord's debt or capital retirement of debt.
Costs shall be allocated to any relevant period without duplication in
accordance with generally accepted accounting practices, and insurance premiums
for any policy whose term is not concurrent with such period may be allocated to
a period in which the premium therefor is paid. If the Building is not fully
occupied during any period within the Term, the foregoing costs and expenses, or
any part of parts thereof, in this Section 1.02(vii) may be adjusted by the
Landlord to what they would have been if the Building had been fully occupied
during such period;
(viii) Full Floor Rentable Area:
"Full Floor Rentable Area" of a floor shall be computed by measuring to
the inside finished surface of the dominant portion of the permanent
outer building walls, excluding the area of Major Vertical Penetrations
and by making no deduction for columns and projections necessary for
the Building; and, in addition, with respect to the upper ground floor,
by excluding those Common Areas on such floor not for the exclusive
benefit of tenants on such floor such as the elevator lobby, building
management offices and entrance lobby or vestibule, and with respect to
the lower ground floor, by excluding those Common Areas on
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such floor not for the exclusive benefit of tenants on such floor. The
"dominant portion" shall mean that portion of the inside finished
surface of the permanent outer building wall which is 50% or more of
the vertical floor-to-ceiling dimension measured at the dominant
portion; provided, that if there is no dominant portion, or if the
dominant portion is not vertical, the measurement for area shall be to
the inside finished surface of the permanent outer building wall where
it intersects the finished floor. The Landlord may from time to time
adjust the Full Floor Rentable Area of any floor to give effect to any
structural, functional or other change. A certificate of the Landlord's
Architect as to the Full Floor Rentable Area of any floor at any time
shall be final and binding upon the parties hereto as to the facts so
certified;
(ix) Land Lease:
"Land Lease" means a lease of the Lands made the 24th day of February,
1984 between Bank of British Columbia, J.K.S. Holdings Ltd. and IBC
Properties Limited as Landlord, and the Landlord as tenant, and
registered at the Vancouver Land Title Office on the 24th day of
February, 1984, under number M14613;
(x) Landlord's Architect:
"Landlord's Architect" means the firm of architects from time to time
named by the Landlord;
(xi) Lands:
"Lands" means that parcel or tract of land situate in the City of
Vancouver, Province of British Columbia, legally described as: City of
Vancouver, Lots 5 through 20, both inclusive, Block 41, District Lot
541, Plan 210;
(xii) Lease Year:
"Lease Year" means a period of twelve (12) calendar months, provided
that if the Commencement Date is other than the first day of a month,
the first Lease year shall be twelve (12) calendar months plus the
number of days of the Term in the month in which the Commencement Date
occurs. The first Lease Year shall commence on the Commencement Date.
Each subsequent Lease Year shall be computed from the anniversary of
the Commencement Date, if it is the first day of a month, and
otherwise, from the anniversary of the first day of the month
immediately following the Commencement Date;
(xiii) Major Vertical Penetrations:
"Major Vertical Penetrations" means stairs, elevator shafts, flues,
pipe shafts, vertical ducts and the like and their enclosing walls but
does not include stairs, dumb waiters, lifts and the like exclusively
serving a tenant occupying premises on more than one (1) floor;
(xiv) Parking Area:
"Parking Area" means that portion of the Lands and/or the Building
which is set aside by the Landlord for the purpose of parking vehicles
or ancillary usage or for access thereto or egress therefrom;
(xv) Part Floor Usable Area:
"Part Floor Usable Area" of a part of a floor of the Building is to be
measured from the inside finished surface of the dominant portion of
the permanent outer building walls to the centre line of demising walls
with adjoining rentable premises and to the inside surface of other
walls including those separating such part from corridors and other
public areas, excluding the area of Major Vertical Penetrations and by
making no deduction for columns and projections necessary for the
Building. The "dominant portion" shall mean that portion of the inside
finished surface of the permanent outer building wall which is fifty
percent (50%) or more of the vertical floor-to-ceiling dimension
measured at the dominant portion; provided, that if there is no
dominant portion, or if the dominant portion is not vertical, the
measurement for area shall be to the inside finished surface of the
permanent outer building wall where it intersects the finished floor.
The Landlord may from time to time adjust the
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Part Floor Usable Area of any part of any floor to give effect to any
structural, functional or other change. A certificate of the Landlord's
Architect as to the Part Floor Usable Area at any time shall be final
and binding upon the parties hereto as to the facts so certified;
(xvi) Prime Rate:
"Prime Rate" means that certain annual Canadian dollar rate of interest
published or declared from time to time by the Royal Bank of Canada at
its main branch in Vancouver and designated by the Royal Bank of Canada
as its prime rate;
(xvii) Proportionate Share:
"Proportionate Share" means the fraction which has as its numerator the
Rentable Area of the Demised Premises and has as its denominator the
total Rentable Area of the Building whether rented or not;
(xviii) Rentable Area of the Building:
"Rentable Area of the Building" means the total rentable area of all
areas of the Building set aside by the Landlord for leasing to tenants
(whether leased or not) excluding the Parking Area and any basement
storage areas, calculated as if the Building were entirely occupied by
tenants leasing the Full Floor Rentable Area of each floor of the
Building. The Landlord may from time to time adjust the Rentable Area
of the Building to give effect to any structural, functional or other
change;
(xix) Rentable Area of the Demised Premises
"Rentable Area of the Demised Premises" is the aggregate of the
following:
(a) the Full Floor Rentable Area of every single tenancy floor of
the Demised Premises, if applicable, and
(b) the Part Floor Usable Area of every part of the Demised
Premises on a multiple tenancy floor, plus, with respect to
each such floor that area calculated as follows:
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<S> <C> <C>
(Full Floor Rentable Area of such (Part Floor Usable Area of the
floor of the Building on which the Demised Premises on such floor)
Demised Premises is located) - X /
(Part Floor Usable Areas of all (Part Floor Usable Areas of all
leasable premises on such floor) leasable premises on such floor)
</TABLE>
to cover the Tenant's share of Common Areas serving the Demised
Premises in common with other premises on such floor.
(xx) Structural Repairs:
"Structural Repairs" means only major repairs to the footings and
foundations, columns, beams, joists, bearing walls, perimeter walls,
floor slab and roof structure of the Building;
(xxi) Tax:
"Tax" means all taxes, rates, duties, levies and assessments whatsoever
(including those for education, schools and local improvements) whether
municipal regional, parliamentary or otherwise, levied, charged,
imposed or assessed against the rents, the Building or the Lands or
upon the Landlord on account thereof including all costs and expenses
incurred by the Landlord in good faith contesting, resisting or
appealing any such taxes, rates, duties, levies or assessments and
including any payments which the Landlord is obliged to make in lieu of
the foregoing or a component thereof if the Lands and/or the Building
or a portion thereof is or becomes exempt from the foregoing or from a
component of the foregoing as defined, but excluding such taxes as
corporate, income, profits or excess profits taxes assessed upon
the income of the Landlord and shall also include any and all taxes
which may in future be levied in lieu of Tax as hereinbefore defined;
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(xxii) Tenant's Improvements:
"Tenant's Improvements" means all improvements, property, fixtures,
equipment, arrangements, installations, additions and/or modifications
done to or placed in or upon the Demised Premises by the Tenant or by
the Landlord at the request of the Tenant and whether or not such
improvements, property, fixtures, arrangements, installations,
additions and/or modifications are paid for by the Landlord or the
Tenant;
(xxiii) Tenant's Share of Common Expenses:
"Tenant's Share of Common Expenses" means, in any Year or fiscal period
adopted by the Landlord, the Proportionate Share of Common Expenses
during that Year or fiscal period, or at the option of the Landlord,
the portion of Common Expenses allocated to the Tenant for that Year or
fiscal period by the Landlord, acting reasonably, on an equitable
basis;
(xxiv) Tenant's Share of Tax for the Year:
"Tenant's Share of Tax for the Year" means, in any Year, at the option
of the Landlord,
(a) the product of the separate assessment for the Demised
Premises and the applicable mill rate; or
(b) the Proportionate Share of Tax during that Year; or
(c) the portion of Tax allocated to the Tenant for that Year by
the Landlord, acting reasonably, on an equitable basis.
Provided that in any case, notwithstanding the foregoing, Tenant's
Share of Tax for the Year may, at the option of the Landlord, include
any taxes which may be attracted by Tenant's Improvements and an
equitable portion of Tax charged upon or attributable to the Common
Areas and/or basement storage areas;
(xxv) Term:
"Term" means the term of this Lease being the period from Commencement
Date to the date on which this Lease terminates, and includes any
renewal or extension thereof and any additional period during which the
Tenant shall overhold and for which the Landlord shall accept rental as
provided in this Lease; and
(xxvi) Year:
"Year" means a calendar year.
SECTION 1.03 - EFFECT OF HEADINGS, ETC.
The division of this Lease into Articles and Sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Lease.
SECTION 1.04 - GOVERNING LAW
This Lease shall be governed by and construed in accordance with the laws of the
Province of British Columbia and the laws of Canada applicable therein and shall
be treated in all respects as British Columbia contract.
SECTION 1.05 - SEVERABILITY
If any provision of this Lease, or the application thereof to any circumstances,
shall be held to be invalid .or unenforceable, then the remaining provisions of
this Lease, or the application thereof to other circumstances, shall not be
affected thereby and shall be held valid and enforceable to the full extent
permitted by law.
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SECTION 1.06 - JOINT COVENANTS AND GRAMMATICAL CHANGES
All covenants herein contained shall be construed as being joint and several
where there is more than one tenant, and when the context so requires or
permits, the singular number shall be read as if the plural were expressed, and
the neuter gender as if the masculine or feminine, as the case may be, were
expressed.
SECTION 1.07 - NET LEASE
It is the intention of the Landlord and the Tenant and it is hereby agreed by
them that, the Tenant shall pay all rental to be paid hereunder to the Landlord
without any deduction, abatement or set-off whatsoever; and notwithstanding any
statutory or other provisions, all charges, expenses, payments and costs of
every nature and kind whatsoever incurred in respect of the Demised Premises or
for any matter or thing affecting the Demised Premises shall (unless otherwise
expressly stipulated herein to the contrary) be borne by the Tenant so that the
rental herein provided for shall be absolutely net to the Landlord. The Landlord
shall not be responsible for any charge, claim or liability whatsoever in
connection with the Demised Premises except as expressly provided in this Lease.
ARTICLE II - DEMISE, TERM AND RENT
SECTION 2.01 - DEMISE
In consideration of the rents, covenants and agreements hereinafter reserved and
contained on the part of the Tenant, the Landlord does demise and lease unto the
Tenant all those premises on that floor of the Building set out in Section
1.01(vi) (hereinafter called the "Demised Premises") comprising the number of
square feet of Rentable Area specified in Section 1.0 1 (vi) as shown outlined
in red on the plan attached hereto as Schedule A.
SECTION 2.02 - TERM
To Have and To Hold the Demised Premises for and during the term of years,
months and days specified in Section 1.01(vii) to be computed from whichever of
the following days shall first occur (the "Commencement Date"):
(a) the date upon which the Tenant opens any part of the Demised
Premises for business; and
(b) the date specified in Section 1.01(viii);
subject to earlier termination in accordance with the provisions hereof.
SECTION 2.03 - BASIC RENT
Yielding and paying therefor yearly and every year during the Term unto the
Landlord the amount specified in Section 1.01(x) of lawful money of Canada, to
be payable in advance in equal monthly installments of the amount specified in
Section 1.01(xi) each on the first (1st) day of each calendar month during the
Term to the Landlord at the office of the Landlord's Building manager or at such
other place as the Landlord shall hereafter designate, the first (1st) of such
payments to be made on the Commencement Date or on the first (1st) day of the
month next following the Commencement Date if the Commencement Date is not on
the first (1st) day of the month. Provided that if the Term contains a broken
calendar month, Basic Rent for the broken calendar month shall be payable on the
first (1st) day (within the Term) of the broken calendar month as the instalment
for the broken calendar month in an amount equal to the amount of a monthly
instalment otherwise payable under this Section adjusted pro-rata.
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SECTION 2.04 - POST-DATED CHEQUES
The Tenant shall within five (5) days of the later of the execution hereof and
the production of the estimates referred to in Sections 3.01 and 4.01 give to
the Landlord twelve (12) post-dated cheques each in an amount equal to the
monthly Basic Rent plus one-twelfth (I /12) of the estimated annual Additional
Rent for the first (1st) twelve (12) months of the Term and shall, one (1) month
before each anniversary date, give twelve (12) post-dated cheques for the
ensuing twelve (12) months.
SECTION 2.05 - DEPOSIT
The Tenant shall pay to the Landlord the sum specified in Section 1.01 (xii)
which shall be applied firstly, on account of Basic Rent for the last full
calendar month of the Term and thereafter on account of rent first becoming due
under this Lease. Provided that such sum, or the amount remaining from time to
time, shall be held by the Landlord as security for the performance by the
Tenant of its obligations under this Lease and may be applied or appropriated by
the Landlord as necessary to compensate the Landlord as may be required in the
event of default by the Tenant under this Lease. Any amount so applied or
appropriated shall be forthwith paid by the Tenant to the Landlord to be held by
the Landlord pursuant to this Section 2.05.
SECTION 2.06 - RECOVERY OF ADDITIONAL RENT
Any additional payments by the Tenant contemplated by this Lease shall be deemed
to be and be treated as rent and payable and recoverable as rent, and the
Landlord shall have (in addition to any other right or remedy) the same rights
and remedies in the event of default by the Tenant in payment of any amount
payable by the Tenant hereunder as the Landlord would have in the case of
default by the Tenant in payment of rent.
ARTICLE III - TAXES
SECTION 3.01 - PAYMENT OF TAX FOR THE YEAR
The Tenant shall, in each Year of the Term, pay the Tenant's Share of Tax for
the Year in the manner hereinafter provided. The Tenant shall only be required
to pay its portion of Tax relating to any fiscal period of the taxing authority
in proportion to that part of such fiscal period which is included within the
Term. The Tenant shall pay the Landlord, each time that a payment of Basic Rent
is due and payable, on account of the obligation of the Tenant to pay the
Tenant's Share of Tax for the Year, that amount prescribed by the Landlord,
acting reasonably based on the Landlord's reasonable estimate of the amount of
the Tenant's Share of Tax for the Year (reduced proportionately as hereinbefore
provided, where applicable), so that the Landlord will have, in the case of each
item comprising such Tax, sufficient funds on hand to pay each such item of Tax
when due. Following the date of receipt by the Landlord of any bill or levy
(including any advance tax billing) from the appropriate taxing authority for
each item comprising such Tax the Landlord will be entitled to invoice the
Tenant for any shortfall to ensure that the Landlord, at least fifteen (15) days
prior to the date upon which the particular Tax payment by the Landlord is due,
shall have received a sufficient amount from the Tenant to pay, in full, the
particular taxing authority the Tenant's portion of the required payment. The
Landlord shall provide the Tenant with particulars of calculation of the
Tenant's Share of Tax for the Year as soon as reasonably possible.
SECTION 3.02 - CONTESTATION OF TAX FOR THE YEAR
The Tenant shall have at any time the right to contest any tax, rate (including
local improvement rates) assessment or other charge against the Demised Premises
if such contestation will not involve any forfeiture, foreclosure, escheat, sale
or termination of the title of the Landlord or the Landlord under the Land Lease
to the Building and/or the Lands, or any part thereof, and provided further that
all such proceedings shall be prosecuted with all due diligence and dispatch.
The Tenant will pay the cost of any such contestation and also pay the Landlord
on demand, all proper costs, penalties, interest or other charges payable as a
result of or incidental to such contestation. Notwithstanding such contestation
by the Tenant, the Tenant shall continue to pay to the Landlord the Tenant's
Share
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of Tax for the Year in the manner hereinbefore set out. Should, as a result of
such contestation, the amount of Tax payable by the Landlord be decreased as a
result of such contestation or appeal, the Landlord hereby agrees to reimburse
the Tenant accordingly.
ARTICLE IV - OPERATING COSTS
SECTION 4.01 - PAYMENT OF COMMON EXPENSES
During the Term, the Tenant shall pay to the Landlord the Tenant's Share of
Common Expenses as follows:
(i) before the commencement of each Year or each fiscal period adopted by
the Landlord, the Landlord shall reasonably estimate the Common
Expenses for such period and so notify the Tenant, and the Tenant shall
pay one-twelfth (1/12th) of the estimated Tenant's Share of Common
Expenses with each monthly instalment of rental payable throughout that
period (which monthly payments shall be adjusted if the Landlord,
acting reasonably, subsequently re-estimates Common Expenses for such
period or the remaining portion thereof); and
(ii) the actual amount of Common Expenses for such period and the Tenant's
Share of Common Expenses shall be certified by the Landlord within a
reasonable period of time after the expiration of such period, and such
certificate shall show in reasonable detail the information relevant
and necessary for the exact calculation and determination of these
amounts and shall be binding upon the parties.
SECTION 4.02 - ADJUSTMENT OF TENANT'S SHARE OF COMMON EXPENSES
Within fourteen (14) days after the delivery of the certificate by the Landlord,
an adjustment will be made by the Landlord or the Tenant, as the case may be, in
respect of any overpayment or underpayment by the Tenant of the Tenant's Share
of Common Expenses for the period covered by the certificate.
SECTION 4.03 - BROKEN PERIOD
If only part of a Year or of a fiscal period adopted by the Landlord for the
calculation of Common Expenses is included within the Term, any amounts payable
on account of Tenant's Share of Common Expenses for this period shall be reduced
proportionately.
ARTICLE V - TENANT'S COVENANTS
SECTION 5.01 - RENT
The Tenant covenants with the Landlord to pay Basic Rent and Additional Rent.
SECTION 5.02 - BUSINESS TAXES
The Tenant covenants with the Landlord to pay, as and when the same become due,
all business, income and other taxes, charges, rates, duties and assessments
from time to time levied, imposed, assessed or payable in respect of the use
and/or occupancy of the Demised Premises.
SECTION 5.03 - ELECTRIC CURRENT AND UTILITIES
The Tenant covenants with the Landlord to pay the cost of electric current and
other utilities including lighting, gas, telephone, water, heating and
air-conditioning, supplied to the Demised Premises as measured by separate meter
or as reasonably determined by the Landlord; and to pay the cost of any
electrical fixtures, ballasts, tubes and bulbs used to replace those installed
in the Demised Premises at the commencement of the Term. The Landlord shall have
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the right to require the Tenant to install a separate meter for electric current
and/or other utility or utilities at the Tenant's expense, and the Tenant
covenants with the Landlord to thereafter pay the cost of electric current
and/or such other utility or utilities supplied to the Demised Premises as
measured by separate meter. The Tenant shall, if requested by the Landlord, make
monthly payments to the Landlord throughout the Term on account of its
obligations under this Section 5.03 on the basis of estimates of the Landlord,
acting reasonably, from time to time.
SECTION 5.04 - CLEANLINESS AND GARBAGE
The Tenant covenants with the Landlord to keep the Demised Premises in a tidy,
clean and sanitary condition and to observe all rules, regulations and
directions of building inspectors, health, fire or other municipal or other
officers, agencies or departments and of the Landlord relating to cleanliness,
sanitation, garbage removal, refrigeration of all perishable garbage and
maintenance of the Demised Premises. In addition to the foregoing, the Landlord
may from time to time designate the areas and manner in which and the times at
which the Tenant shall deposit garbage.
SECTION 5.05 - REPAIRS AND MAINTENANCE
The Tenant covenants with the Landlord to decorate and to make all repairs and
replacements to and to maintain in first class order and repair the Demised
Premises and its appurtenances, fixtures and equipment including, without
limitation, heating, ventilating, air-conditioning, electrical and plumbing
equipment (including any heating, ventilating or air-conditioning equipment
located outside the Demised Premises which serve only the Demised Premises and
any parts of the heating, ventilating, air conditioning, electrical, plumbing or
other mechanical systems of the Building located outside the Demised Premises
provided for the Tenant at the request of the Tenant), doors and hardware
attached thereto and plate glass and all Tenant's Improvements, at the Tenant's
own expense throughout the Term, (provided, that all work in connection with or
affecting the heating, ventilating, air-conditioning, electrical, plumbing or
other mechanical systems of the Building shall, if the Landlord so elects, be
performed for the Tenant by the Landlord and, if the Landlord does not so elect,
shall not be performed without the prior written consent of the Landlord, and in
any event the cost of such work shall be paid by the Tenant), except only for
Structural Repairs, for repairs necessitated by damage for which the Landlord
has insured or is obligated to insure pursuant to this Lease (unless such
repairs are necessitated by the acts or omissions of the Tenant, its agents,
employees, invitees or licensees). The Tenant covenants that all redecoration,
repairs and replacements will be done with due diligence and dispatch to a
standard of materials and workmanship at least equivalent to that existing on
the Commencement Date.
SECTION 5.06 - CONDITION OF PREMISES ON TERMINATION
The Tenant covenants with the Landlord to leave the Demised Premises in the
state of repair required to be maintained by the Tenant during the Term upon
vacating the Demised Premises at the end or sooner termination of the Term.
SECTION 5.07 - LANDLORD MAY INSPECT
The Tenant covenants with the Landlord to permit the Landlord or its authorized
agents or employees or representatives of any of the Landlord's mortgagees to
enter and view the state of repair of the Demised Premises during all normal
business hours and during any emergency and to forthwith repair and maintain
according to notice in writing from the Landlord or its agents or employees.
SECTION 5.08 - REPAIRS WHERE TENANT AT FAULT
The Tenant covenants with the Landlord that if the Building or any part thereof,
including the Demised Premises, gets out of repair or becomes damaged or
destroyed through the negligence, carelessness or misuse of the Tenant, its
agents, employees, invitees or licensees in any way stopping up or injuring the
heating apparatus, elevators, water pipes, drainage pipes or other equipment or
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part of the Building, the expense of all necessary repairs, replacements or
alterations shall be borne by the Tenant which shall pay the same to the
Landlord forthwith on demand.
SECTION 5.09 - ASSIGNMENT AND SUBLETTING
The Tenant covenants with the Landlord not to permit the whole or any part of
the Demised Premises to be used or occupied by any person, including any
licensee or concessionaire, other than the Tenant or anyone otherwise permitted
hereunder. The Tenant covenants with the Landlord not to assign this Lease or
sublet the whole or any part of the Demised Premises without the prior written
consent of the Landlord, such consent not to be unreasonably withheld, provided
it shall not be unreasonable for the Landlord to withhold its consent if such
assignment or subletting would breach the obligations of the Landlord to other
tenants in the Building, and provided nevertheless:
(i) that the Landlord shall be entitled to withhold leave arbitrarily if
the Landlord exercises the right hereinafter set out in clause (ii) of
this Section 5.09;
(ii) if the Tenant requests the Landlord's consent to an assignment of this
Lease or to a subletting of the whole or any part of the Demised
Premises (provided that in the case of part only of the Demised
Premises, such Part must have perimeter walls and a separate entrance
directly from the Common Areas) to any person, firm or corporation, the
Tenant shall submit to the Landlord the name of the proposed assignee
or subtenant and such information as to the nature of its business and
its financial responsibility and standing as the Landlord may
reasonably require. Upon the receipt of such request and information
from the Tenant the Landlord shall have the right, exercisable in
writing within fourteen (14) days after such receipt, to cancel and
terminate this Lease if the request is to assign this Lease or to
sublet all of the Demised Premises or, if the request is to sublet a
portion of the Demised Premises only, to cancel and terminate this
Lease with respect to such portion, in each case as of the date set
forth in Landlord's notice of exercise of such right (hereinafter
called the "Termination Date"), which shall be neither less than sixty
(60) nor more than one hundred twenty (120) days following the service
of such notice;
(iii) if the Landlord shall exercise its rights under clause (ii) of this
Section 5.09, the Tenant shall surrender possession of the entire
Dernised Premises or the portion which is the subject of the right, as
the case may be, on the date set forth in such notice in accordance
with the provisions of this Lease relating to surrender of the Dernised
Premises at the expiration of the Term. If this Lease shall be
cancelled as to a portion of the Dernised Premises only, the rent
payable by the Tenant under this Lease shall be abated proportionately.
If the Landlord shall not exercise the right to cancel this Lease as
above provided after the receipt of Tenant's written request, then the
Landlord's consent to such request shall not be unreasonably withheld,
provided it shall not be unreasonable for the Landlord to withhold its
consent if such assignment or subletting would breach the obligations
of the Landlord to other tenants in the Building, and provided, in the
case of an assignment, the Landlord's consent thereto shall be subject
to the assignee agreeing in writing with the Landlord to be bound by
this Lease as if such assignee had originally executed this Lease as
Tenant;
(iv) in no event shall any assignment or subletting to which the Landlord
may have consented release or relieve the Tenant from its obligations
fully to perform all the terms, covenants and conditions of this Lease
on its part to be performed;
(v) sales transfers or other dispositions aggregating fifty percent (50%)
or more of the capital or voting stock of the Tenant (if the Tenant is
a non-public corporation) or transfers aggregating fifty percent (50%)
or more of the Tenants partnership interest (if the Tenant is a
partnership) shall be deemed to be an assignment of this Lease. The
Tenant will make available to the Landlord or its agent all corporate
or partnership books and records of the Tenant for inspection at all
reasonable times. As used in the foregoing sentence, the word "Tenant"
shall also mean any entity which has guaranteed the Tenant's
obligations under this Lease and the prohibition hereof shall be
applicable to any sales or transfers of the stock or partnership
interest of such guarantor;
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(vi) the Tenant shall not display, advertise or offer the whole or any part
of the Demised Premises for the purposes of assignment or subletting
and shall not permit any broker or other party to so do unless the
complete text and format of any such display, advertisement or offer
shall have first been approved in writing by the Landlord. Without in
any way restricting or limiting the Landlord's right to refuse any text
and format on other grounds, any text and format proposed by the Tenant
shall not contain any reference to the rental rate for the Demised
Premises; and
(vii) whether or not the Landlord consents to any assignment or subletting as
aforesaid, the Tenant shall pay to the Landlord all costs incurred by
the Landlord in considering any request by the Tenant for such consent
and in completing any of the documentation involved, including all
legal costs.
SECTION 5.10 - RULES AND REGULATIONS
The Tenant covenants with the Landlord to observe the rules and regulations set
out in Schedule B and all other rules and regulations as the Landlord may from
time to time make for the operation, reputation, safety, care or cleanliness of
the Building and the Demised Premises, the operation and maintenance of
equipment, the use of the Common Areas, the hours of business, the lighting of
premises, the display of signs visible outside the Demised Premises, other
matters affecting the operation of the Building and the Demised Premises and the
establishing and maintaining of a suitable image for the Building, provided,
however, that such rules and regulations are reasonable and consistent with the
provisions of this Lease. Nothing in this Lease shall be construed to impose
upon the Landlord any obligation to enforce the rules and regulations, or the
terms, covenants or conditions in any other lease, against any other tenant, and
the Landlord shall not be liable to the Tenant for violation of the same by any
other tenant, its servants, employees, agents, visitors or licensees.
SECTION 5.11 - OBSERVANCE OF LAW
The Tenant covenants with the Landlord in its use and occupation of the Demised
Premises, not to violate any law, by-law, ordinance, order, rule, regulation or
requirement of any federal, provincial or municipal government or any
department, commission, board or officer thereof.
SECTION 5.12 - WASTE AND NUISANCE
The Tenant covenants with the Landlord not to make or suffer any waste or cause
or allow to be caused any damage, disfiguration or injury to the Demised
Premises or the fixtures and equipment thereof or permit or suffer any
over-loading of the floors thereof-, and not to use or permit to be used any
part of the Demised Premises for any dangerous, noxious or offensive trade,
business or other activity; and not to cause or maintain any nuisance in, at or
on the Demised Premises.
SECTION 5.13 - ENTRY BY LANDLORD
The Tenant covenants with the Landlord to permit the Landlord or its agents to
enter upon the Demised Premises at any time and from time to time for the
purpose of inspecting and of making repairs, alterations, improvements or
additions to the Demised Premises or to the Building or any part thereof,
including, without limitation, adjustments to and changes of location of pipes,
conduits, wiring, ducts and other installations serving any part of the
Building, and the Tenant shall not be entitled to compensation for any
inconvenience, nuisance or discomfort occasioned thereby.
SECTION 5.14 - EXHIBITING PREMISES
The Tenant covenants with the Landlord to permit the Landlord or its agent to
exhibit the Demised Premises to prospective tenants during normal business hours
of the last twelve (12) months of the Term.
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SECTION 5.15 - LIENS
The Tenant covenants with the Landlord not to suffer or permit during the Term
any mechanics', builders' or other liens for work, labour, services or materials
ordered by it or for the cost of which it may be in any way obligated to attach
to the Demised Premises or to the Building and/or the Lands and that whenever
and so often as any such liens shall attach or claims therefor be filed, the
Tenant shall within fifteen (15) days after the Tenant has notice of the claim
or lien obtain the discharge thereof by payment or by giving security or in such
other manner as is or may be required or permitted by law.
SECTION 5.16 - ALTERATIONS
The Tenant covenants with the Landlord that the Tenant will not make or erect in
or to the Demised Premises any installations, alterations, additions or
partitions without submitting plans and specifications to the Landlord and
obtaining the Landlord's prior written consent in each instance (and the Tenant
must further obtain the Landlord's prior written consent to any change or
changes in such plans and specifications submitted as aforesaid), subject to
payment of the Landlord's cost of having its architect or architects or other
professional consultants approve of such plans and specifications or change or
changes thereto prior to proceeding with any work based upon such plans and
specifications; such work may be performed by employees of, or contracted for
with contractors engaged by the Tenant, subject to all conditions which the
Landlord may impose; including, without limitation, the right, at the option of
the Landlord, to require that the Landlord's contractors be engaged for any
structural, mechanical or electrical work. The Tenant shall promptly pay to the
Landlord's contractors or the Tenant's contractors, as the case may be, when
due, the cost of all such work and of all materials, labour and services
involved therein and of all costs of redecoration or of alterations or additions
to the Demised Premises or the Building necessitated thereby. Without limiting
the generality of any of the foregoing, any work performed by or for the Tenant
shall be performed by competent workmen whose trade union affiliations are not
incompatible with those of any workmen who may be employed in the Building by
the Landlord, its contractors or subcontractors, and shall be subject to the
reasonable supervision and direction of the Landlord.
SECTION 5.17 - SIGNS
Except with the prior written consent of the Landlord, which consent may not be
unreasonably withheld, the Tenant shall not erect, install, display, inscribe,
paint or affix any sign, notice, direction, lettering or advertising medium on
any part of the outside or inside of the Building or the Demised Premises,
provided that, upon receiving the Landlord's consent as aforesaid, the Tenant
may place a sign showing the name of the Tenant at the entrance to the Demised
Premises leading to the public hallway, at the cost of the Tenant, and, at the
request of the Tenant, the Landlord will cause a sign showing the name of the
Tenant to be placed on the directory board or boards in the Building, the
colour, size, style, character and material of which shall be such as the
Landlord shall determine, at the cost of the Landlord, the cost of all other
signs, notices, directions, lettering or advertising medium to be paid for by
the Tenant. Should the Landlord at any time object to anything not previously
specifically consented to in writing by the Landlord as herein required, the
Tenant shall remove the same forthwith at its own expense. Any sign, notice,
direction, lettering or advertising medium erected by the Tenant pursuant to
this Section must comply with all requirements of any applicable governmental
authorities and with any signage criteria established by the Landlord in respect
of the Building.
SECTION 5.18 - LOCKS AND TRIMMINGS
The Landlord shall provide at its own expense a lock on the doors of the Demised
Premises leading to the public hallway and shall furnish the Tenant with four
(4) keys therefor. The Tenant may obtain additional keys upon payment to the
Landlord of the Building standard rate for same. The Tenant shall return to the
Landlord all such keys to the Demised Premises when vacating the Demised
Premises. The Tenant covenants with the Landlord that all locks and trimmings of
the doors and windows in or upon the Demised Premises shall be kept whole and
whenever broken shall be immediately replaced or repaired under the direction
and to the reasonable satisfaction of the Landlord and that such replacement
and/or repairs shall be paid by the Tenant.
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SECTION 5.19 - RUBBISH
The Tenant covenants with the Landlord to keep the Demised Premises free of
rubbish and debris at all times, to provide proper receptacles for waste and
rubbish and at the end of each business day to leave the Demised Premises in a
condition such as to reasonably facilitate the performance of the janitor
services supplied by the Landlord pursuant to this Lease.
SECTION 5.20 - INDEMNITY
The Tenant covenants with the Landlord to indemnify and save harmless the
Landlord against and from any and all claims, demands, awards, judgments,
actions and proceedings by whomsoever made, brought or prosecuted in respect of
loss or damage to or destruction of property or personal injuries, including
death, and from and against any and all loss of, damage to or destruction of
property and expenses and costs suffered or incurred by the Landlord by reason
of the act, omission, negligence or misconduct of the Tenant or any assignee or
its and their servants, agents, invitees and licensees or any of them while in
the course of exercising any right, licence or privilege or doing any thing
which is required or permitted by reason of this Lease. If the Landlord shall be
made a party to any litigation commenced by or against the Tenant, the Tenant
shall hold the Landlord harmless and shall pay all costs, expenses and legal
fees incurred or paid by the Landlord in connection with such litigation.
SECTION 5.21 - TENANT'S WORK
The Tenant covenants with the Landlord to complete the "Tenant's Work" in
Schedule C in accordance with the terms thereof
SECTION 5.22 - ENERGY CONSERVATION
The Tenant covenants with the Landlord that the Tenant will cooperate with the
Landlord in the conservation of all forms of energy in the Demised Premises, and
that the Tenant will comply with all laws, by-laws, regulations and requirements
relating to the conservation of energy and affecting the Demised Premises and/or
the Building.
SECTION 5.23 - USE
The Tenant covenants with the Landlord to use the Demised Premises only for
general office purposes.
ARTICLE VI - LANDLORD'S COVENANTS
SECTION 6.01 - QUIET ENJOYMENT
The Landlord covenants with the Tenant that the Tenant, upon paying the rent
hereby reserved and performing and observing the covenants and provisos herein
contained on its part to be performed and observed, shall peaceably enjoy and
possess the Demised Premises for the Term without any interruption from the
Landlord or from any other person or persons lawfully claiming by, from or under
it.
SECTION 6.02 - TAXES
The Landlord covenants with the Tenant to pay, subject to the provisions of this
Lease, all Tax that may be charged, levied, rated or assessed against the
Building. If, in the sole opinion and discretion of the Landlord, any Tax is not
fair and equitable, the Landlord may take all steps necessary to contest or
appeal the validity thereof, but the Tenant shall not postpone or omit payment
of the Tenant's Share of Tax for the Year whether because of any such appeal or
on-going contest or otherwise. Provided that the Landlord shall notify and
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account to the Tenant for any portion to which the Tenant may be entitled of any
savings, refund or reduction which may be forthcoming as a result of such appeal
or contest.
SECTION 6.03 - REPAIR
The Landlord covenants with the Tenant to make Structural Repairs and repairs
necessitated by damage for which the Landlord has insured or is obligated to
insure pursuant to this Lease (unless such repairs are necessitated by the acts
or omissions of the Tenant, its agents, employees, invitees or licensees).
SECTION 6.04 - HEATING AND AIR-CONDITIONING
The Landlord covenants with the Tenant to provide heating and air-conditioning
of the Demised Premises to an extent sufficient to maintain therein a reasonable
temperature at all times during normal business hours, except during the making
of repairs. In no event shall the Landlord have, at any time, any obligation or
liability in connection with the cessation, unavailability, interruption or
suspension of any such service provided, except that repairs and maintenance
work shall be carried out with reasonable dispatch so as to have the least
adverse effect on the business operations of the Tenant.
SECTION 6.05 - ELEVATOR SERVICE
The Landlord covenants with the Tenant to furnish, except during the making of
repairs, passenger elevator service during normal business hours and restricted
elevator service at other times (it being agreed that operatorless automatic
elevator service shall be deemed "elevator service" within the meaning' of this
Section), and to permit the Tenant and the employees of the Tenant and all
persons lawfully requiring communication with them to use such elevator service
in common with others, but the Tenant and such employees and all other persons
using the same shall do so at their sole risk and under no circumstances shall
the Landlord be held responsible for any damage or injury happening to any
person while using the same or occasioned to any person by any elevator or any
of its appurtenances. In no event shall the Landlord have, at any time, any
obligation or liability in connection with the cessation, unavailability,
interruption or suspension of any such elevator service,
SECTION 6.06 - CARETAKING OF PUBLIC AREAS
The Landlord covenants with the Tenant to maintain and keep clean all public
areas in the Building but, except as to the obligation to cause such maintenance
and cleaning to be done, the Landlord shall not be responsible for any act of
omission or commission or for any negligence on the part of the person or
persons employed to perform such work.
SECTION 6.07 - JANITORIAL SERVICES
The Landlord covenants with the Tenant to supply normal janitor services for the
Demised Premises such as are in keeping with maintaining the standard of a first
class office building; but, except as to the obligation to cause such janitorial
work to be done, the Landlord shall not be responsible for any act of omission
or commission or for any negligence on the part of the person or persons
employed to perform such work. All such work shall be done at the Landlord's
direction and without any interference by the Tenant, its servants or employees.
SECTION 6.08 - WASHROOMS
Except in the case of one or more washrooms being within the Demised Premises,
the Landlord covenants with the Tenant to permit the Tenant and the employees of
the Tenant in common with others entitled thereto to use the washrooms of the
Building which the Landlord may designate for the Demised Premises.
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SECTION 6.09 - LANDLORD'S WORK
The Landlord covenants with the Tenant to complete the "Landlord's Work" in
Schedule C in accordance with the terms thereof
ARTICLE VII - INSURANCE
SECTION 7.01 - INCREASE IN INSURANCE RATES OR CANCELLATION OF POLICY
The Tenant covenants with the Landlord not to do or omit or permit to be done or
omitted upon the Demised Premises anything which shall cause the rate of
insurance upon the Building, or any part thereof, to be increased or any
insurance policy on the Building, or any part thereof, to be cancelled and if
the Tenant shall be in breach of these provisions, the Tenant shall not only be
responsible for all consequences flowing therefrom and shall indemnify the
Landlord in respect thereof, but also:
(i) if the rate of insurance on the Building, or any part thereof, be
increased by reason of the use made of the Demised Premises or by
reason of anything done or omitted or permitted to be done or omitted
by the Tenant or anyone permitted by the Tenant to be upon the Demised
Premises, the Tenant will pay to the Landlord on demand the amount of
such increase; and
(ii) if any insurance policy upon the Building, or any part thereof, shall
be cancelled or threatened to be cancelled by the insurer by reason of
the use or occupation of the Demised Premises or any part thereof by
the Tenant or by any assignee or subtenant of the Tenant or by anyone
permitted by the Tenant to be upon the Demised Premises, the Landlord
may, at its option, terminate this Lease forthwith by leaving upon the
Demised Premises notice in writing of its intention so to do and
thereupon rent and any other payments for which the Tenant is liable
under this Lease shall be apportioned and paid in full to the date of
such determination and the Tenant shall immediately deliver up
possession of the Demised Premises to the Landlord and the Landlord may
re-enter and take possession of the same.
SECTION 7.02 - LANDLORD'S INSURANCE - MANDATORY
The Landlord shall take out and maintain to the full replacement value, fire and
other hazard insurance, as the Landlord in its sole discretion may deem
advisable, on the Building, excluding any property thereon with respect to which
the Tenant or other tenants are obligated to insure, and its own general
liability insurance, including general liability insurance in respect of the
Common Areas in an amount no less than $ 1,000,000.00 in respect of any injury
to or death or one or more persons and loss or damage to the property of others.
SECTION 7.03 - LANDLORD'S INSURANCE - OPTIONAL
The Landlord reserves the right to take out and maintain any insurance which the
Landlord may deem necessary or advisable, including without limitation, loss of
rental insurance, all risks insurance on a replacement cost basis, plate glass
insurance and loss of use and occupancy under boiler coverage.
SECTION 7.04 - TENANT'S INSURANCE
Throughout the Term, the Tenant shall take out and maintain at his own expense
in the name of the Tenant, in such form and with such companies as the Landlord
may reasonably require:
(i) comprehensive general liability insurance of not less than
$1,000,000.00 combined limit in respect of bodily injury or death and
property damage arising out of the Tenant's business and/or use and
occupancy of the Demised Premises (including the Tenant's construction
of any leasehold improvements) showing the Landlord and any mortgagee
of the Landlord as additional named insureds as their respective
interests may appear with a severability of interest and a
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cross-liability clause and with the following extensions: owner's
and/or contractor's protective, products and completed operations,
medical payments, occurrence property damage, broad form property
damage including completed operations, contingent employees liability
or employer's liability, broad form automobile, employees as additional
named insureds, personal injury, blanket contractual, and intentional
acts to protect persons or property;
(ii) insurance upon the Tenant's furniture, fixtures, leasehold improvements
and stock-in-trade in the Demised Premises in an amount not less than
the full replacement value thereof with coverage against at least the
perils of fire and standard extended coverage;
(iii) broad form boiler and machinery insurance on a blanket repair and
replacement basis with limits for each accident in an amount not less
than the 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 the Demised
Premises, or relating to or serving the Demised Premises;
(iv) Tenant's legal liability insurance for the actual cash value of the
Demised Premises, including loss of use thereof, and
(v) any other form of insurance as the Landlord, acting reasonably, or any
mortgagee of the Landlord, requires from time to time in form, in
amounts and for insurance risks against which a prudent tenant would
insure.
The aforesaid insurance shall exclude the exercise of any claim by the Tenant's
insurer against the Landlord by subrogation and shall provide that such
insurance may not be terminated, cancelled or materially altered unless thirty
(30) days' written notice of such termination, cancellation or material
alteration is given by the insurers to the Landlord, and any mortgagee of the
Landlord. The Tenant shall, prior to gaining entry to all or part of the Demised
Premises, deliver to the Landlord certificates of such insurance, or the
original or certified copy of such insurance policies.
ARTICLE VIII - DAMAGE AND DESTRUCTION
SECTION 8.01 - INJURY TO DEMISED PREMISES AND BUILDING
If during the Term the Demised Premises or the Building shall be damaged or
destroyed by fire, lightning, tempest, explosion, acts of God or the Queen's
enemies, structural defects or weakness, impact of aircraft, riots or
insurrection or other casualty, then the following provisions shall have effect:
(i) if the Demised Premises or other parts of the Building shall be so
badly injured so as to render the Demised Premises unfit for the
Tenant's use and occupancy and shall be incapable, with reasonable
diligence, of being repaired within one hundred eighty (180) days from
the happening of such injury, or if such injury shall occur during the
last Lease Year of this Lease, the Landlord may declare the Term to be
forthwith terminated and the Tenant shall immediately surrender the
Demised Premises to the Landlord and shall pay rent only to the
time of such injury, and the Landlord may re-enter and repossess the
Demised Premises discharged from this Lease and may remove all persons
therefrom;
(ii) if the Demised Premises or other parts of the Building shall be damaged
or destroyed as aforesaid and the Lease shall not have been terminated
pursuant to sub-paragraph (i), or if the Demised Premises or other
parts of the Building shall be capable, with reasonable diligence, of
being repaired and rendered fit for the Tenant's use and occupancy
within one hundred eighty (180) days from the happening of such injury
as aforesaid, the Landlord and/or the Tenant, as the case may be,
according to the nature of the damage and their respective obligations
to repair as provided in sections 6.03 and 5.05, shall repair such
damage, and:
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(A) if the damage is such as to render the Demised Premises wholly
unfit for occupancy during the process of such repairs, then
the rent hereby reserved shall not run or accrue after such
injury or while the process of repair is going on and the rent
shall recommence immediately after such repairs have been
completed (provided that with respect to any repairs to be
carried out by the Tenant, such repairs shall be deemed to be
completed when such repairs would have been completed if the
Tenant had proceeded with due diligence and dispatch); or
(B) if the damage is so slight that the Demised Premises are
partially fit for occupancy and use for the purposes of the
Tenant's business, then until damage has been repaired the
rent hereby reserved shall abate only in proportion to the
extent that possession and enjoyment are interfered with and
until such possession and enjoyment are fully restored
(provided that with respect to any repairs to be carried out
by the Tenant, such repairs shall be deemed to be completed
when such repairs would have been completed if the Tenant had
proceeded with due diligence and dispatch); and
(iii) the certificate of the Landlord's Architect as to the extent to which
the Demised Premises are fit for occupancy, as to whether any such
injury can or cannot be repaired within a period of 180 days from the
happening of any such injury or as to the completion of repairs shall
be final and binding upon the parties hereto as to the facts so
certified.
SECTION 8.02 - DAMAGE TO PROPERTY
The Landlord shall not be liable or responsible in any way for any loss of or
damage or injury to any property belonging to the Tenant or to employees of the
Tenant or to any other person while such property is in or upon the Demised
Premises or in the Building unless such loss, damage or injury shall have been
caused by the negligence of the Landlord or of its employees, servants or
agents; but, notwithstanding the foregoing, in no event shall the Landlord be
liable for any damage to any such property caused by steam, water, rain or snow
which may leak into, issue or flow from any part of the Building or from the
water, steam or drainage pipes or plumbing works of the Building or from any
other place or quarter or for any damage caused by or attributable to the
condition or arrangement of any electric or other wiring or for any damage
caused by anything done or omitted to be done by any other tenant.
ARTICLE IX - TENANT'S DEFAULT AND LANDLORD'S REMEDIES
SECTION 9.01 - DEFAULT OF TENANT
If and whenever the rent hereby reserved, or any part thereof, shall not be paid
on the day which is ten (10) days after the day appointed for payment thereof,
although no demand shall have been made therefor, or in case of the breach,
non-observance or non-performance of any of the covenants or agreements or Rules
and Regulations herein contained or referred to on the part of the Tenant to be
observed and performed other than a covenant to pay rent, or if re-entry is
permitted under the terms of this Lease, then and in each such case, it shall be
lawful for the Landlord at any time thereafter to re-enter into and upon the
Demised Premises or any part thereof in the name of the whole and the same to
have again, repossess and enjoy as of its former estate and to remove all
persons and property from the Demised Premises which property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of
the Tenant, all without service of notice or resort to legal process and without
being considered guilty of trespass or becoming liable for loss or damage
occasioned thereby, anything herein contained to the contrary notwithstanding.
SECTION 9.02 - INTEREST ON OVERDUE PAYMENTS AND ADMINISTRATIVE FEE
The Tenant shall pay to the Landlord interest at that rate per annum which is
three percent (3%) in excess of the Prime Rate payable on demand and compounded
monthly, on all overdue payments required to be made by the Tenant under anyone
or more of the provisions under this Lease. In the event of any default by the
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Tenant under this Lease, the Landlord shall be entitled to an administrative fee
in an amount reasonably determined by the Landlord to compensate the Landlord
for administrative acts in connection with such default and which shall be
collectible from the Tenant on Additional Rent.
SECTION 9.03 - BANKRUPTCY, ETC.
If the Demised Premises shall become and remain vacant or not be used for a
period of fifteen (IS) days or be used by any person other than the Tenant or
for any purpose other than that as herein or in the Rules and Regulations
provided, without the written consent of the Landlord, or the Term or any of the
goods and chattels of the Tenant shall be at any time seized in execution or
attachment by any creditor of the Tenant or the Tenant shall make any assignment
for the benefit of creditors or any sale or other disposition of all or
substantially all of the Tenant's assets or any other sale or disposition which
is out of the normal course of the Tenant's business or become bankrupt or
insolvent or take the benefit of any Act now or hereafter in force for bankrupt
or insolvent debtors or (if the Tenant is a company or corporation) any order
shall be made for the winding-up of the Tenant, or a receiver-manager is
appointed to control the conduct of the business on or from the Demised
Premises, then in any such case this Lease shall, at the option of the Landlord,
cease and determine and the Term shall immediately become forfeited and void and
the then current month's Basic Rent and Additional Rent and the next ensuing
three months' Basic Rent and Additional Rent shall immediately become due and
payable and the Landlord may reenter and take possession of the Demised Premises
as though the Tenant or other occupant or occupants of the Demised Premises was
or were holding over after the expiration of the Term without any right
whatever, but if permitted by law, the Tenant shall continue to be liable to the
Landlord for the rent hereby reserved for the balance of the Term.
SECTION 9.04 - DISTRESS
The Tenant waives and renounces the benefit of any present or future statute
taking away or limiting the Landlord's right of distress and covenants and
agrees that notwithstanding any such statute none of the goods and chattels of
the Tenant or of any other person in or upon the Demised Premises at any time
during the Term shall be exempt from levy by distress for rent in arrears.
SECTION 9.05 - RIGHT OF ENTRY AS AGENT OF TENANT
The Tenant covenants and agrees that upon the Landlord becoming entitled to
re-enter upon the Demised Premises under any of the provisions of this Lease,
the Landlord in addition to all other rights, shall have the right to enter the
Demised Premises as the agent of the Tenant, either by force or otherwise,
without being liable for any prosecution therefor and to re-let the Demised
Premises, as the agent of the Tenant, and to receive the rent therefor and, as
the agent of the Tenant, to take possession of any furniture or other property
on the Demised Premises and to sell the same at public or private sale with or
without notice and to apply any proceeds of such sale and any rent derived from
re-letting the Demised Premises upon account of the rent hereby reserved, and
the Tenant shall be liable to the Landlord for the deficiency, if any.
SECTION 9.06 - RIGHTS OF TERMINATION
The Tenant covenants and agrees that upon the Landlord becoming entitled to
re-enter upon the Demised Premises under any of the provisions of this Lease,
the Landlord, in addition to all other rights, shall have the right to terminate
forthwith this Lease and the Term by leaving upon the Demised Premises notice in
writing of its intention so to do, and thereupon rent and any other payments for
which the Tenant is liable under this Lease shall be computed, apportioned and
paid in full to the date of such termination of this Lease, and the Tenant shall
immediately deliver up possession of the Demised Premises to the Landlord, and
the Landlord may re-enter and take possession of the same. Any termination of
this Lease by the Landlord shall be wholly without prejudice to the right of the
Landlord to recover arrears of rent or damages for any antecedent default by the
Tenant hereunder, loss of rent and any other matter whatsoever suffered by
reason of this Lease having been prematurely terminated.
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SECTION 9.07 - LANDLORD MAY REPAIR
If the Tenant fails to repair or maintain the Demised Premises in accordance
with the provisions hereof, the Landlord, its agents, contractors or employees
may (but shall not be obliged so to do) at any reasonable time enter the Demised
Premises to remedy such failure or default and recover from the Tenant as
Additional Rent the cost thereof (including the cost of repairs or cleaning
required to be done after the Tenant vacates the Demised Premises at the end or
sooner termination of the Tenn) plus a fifteen per cent (15%) supervision charge
on the total amount of such costs. In making such repairs or doing such
maintenance or cleaning the Landlord may bring and leave upon the Demised
Premises all necessary materials, tools and equipment, and the Landlord shall
not be liable to the Tenant for any inconvenience, annoyance, loss of business,
or any injury suffered by the Tenant by reason of the Landlord effecting such
repairs, maintenance or cleaning.
SECTION 9.08 - LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS
Notwithstanding any other provisions herein contained, the Landlord may, but
need not, remedy any default of the Tenant. Any costs incurred by the Landlord
in performing any act which the Tenant has failed to perform or in remedying any
situation which has arisen through the neglect or default of the Tenant plus a
fifteen percent (15%) supervision charge on the total amount of such costs shall
be collectible from the Tenant as Additional Rent.
SECTION 9.09 - LEGAL COSTS
Any legal costs arising from a breach of any covenant by the Tenant shall be
recoverable by the Landlord against the Tenant on a solicitor and client basis.
SECTION 9.10 - REMEDIES CUMULATIVE
No remedy herein conferred upon or reserved to the Landlord shall exclude any
other remedy herein or by law provided, but each shall be cumulative and in
addition to every other remedy given hereunder or now or hereinafter existing at
law or in equity or by statute.
ARTICLE X - MISCELLANEOUS
SECTION 10.01 - FIXTURES
No installation, alterations, additions, partitions, built-in cabinet work or
fixtures in or upon the Demised Premises, whether placed there by the Tenant or
by the Landlord, shall be removed from the Demised Premises at anytime either
during or after the Term except as hereinafter provided. The Tenant may at its
own expense during the Term in the usual and normal course of its business
remove its trade fixtures, provided such trade fixtures have become excess for
the Tenant's purposes or the Tenant is substituting new and similar trade
fixtures of equal or greater value, provided the Tenant is not then in default
under this Lease and provided the Tenant shall make good any damage caused by
such removal. All installations, alterations, additions, partitions, built-in
cabinet work and fixtures (other than trade fixtures) in or upon the Demised
Premises, whether placed there by the Tenant or the Landlord, shall immediately
become the Landlord's property without compensation therefor to the Tenant and
shall not be removed from the Demised Premises at any time either during or
after the Term without the prior written consent of the Landlord; provided that
if the Landlord so directs by written notice to the Tenant, the Tenant shall
upon the termination of the Term, promptly remove any or all of the
installations, alterations, additions, partitions, built-in cabinet work and
fixtures placed in the Demised Premises by, or at the request of, the Tenant and
the Tenant shall make good any damage caused by such removal or the Landlord may
make good such damage and the Tenant shall pay the cost thereof on demand.
Notwithstanding anything herein contained the Landlord shall be under no
obligations to repair or maintain the Tenant's installations, alterations,
additions, partitions, built-in cabinet work, wall to wall carpeting and
fixtures or anything in the nature of a leasehold improvement made or installed
by the Tenant.
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SECTION 10.02 - ASSIGNMENT BY LANDLORD
If the Landlord sells or assigns the whole or any part of its interest in this
Lease, to the extent that the purchaser or assignee is responsible for
compliance with the covenants and obligations of the Landlord hereunder, the
Landlord without further written agreement will be relieved of liability under
such covenants and obligations.
SECTION 10.03 - IMPOSSIBILITY OF PERFORMANCE
It is understood and agreed that whenever and to the extent that the Landlord
shall be unable to fulfil or shall be delayed or restricted in the fulfilment of
any obligation hereunder in respect of the supply or provision of any service or
utility or the doing of any work or the making of any repairs by reason of being
unable to obtain the material, goods, equipment, service or labour required to
enable it to fulfil such obligation or by reason of any statute, law or
order-in-council or any regulation or order passed or made pursuant thereto or
by reason of the order or direction of any administrator, controller, board,
governmental department or officer or other authority, or by reason of not being
able to obtain any permission or authority required thereby, or by reason of any
other cause beyond its control whether of the foregoing character or otherwise,
the Landlord shall be relieved from the fulfilment of such obligation and the
Tenant shall not be entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned.
SECTION 10.04 - NON-WAIVER
Any condoning, waiving, excusing or overlooking by the Landlord of any default,
breach or non observance by the Tenant at any time or times of or in respect of
any covenant, proviso or condition herein contained shall not operate as a
waiver of the Landlord's rights hereunder in respect of any subsequent default,
breach or non-observance, nor so as to defeat or affect in any way the rights of
the Landlord herein in respect of any such default or breach, and no waiver
shall be inferred from or implied by anything done or omitted by the Landlord
save only express waiver in writing. All rights and remedies of the Landlord in
this Lease contained shall be cumulative and not alternative. The subsequent
acceptance of rent hereunder by the Landlord shall not be deemed a waiver of any
preceding breach of any obligation hereunder by the Tenant other than the
failure to pay the particular rent so accepted, and the acceptance by the
Landlord of any rent from any person other than the Tenant shall not be
construed as a recognition of any rights not herein expressly granted, or as a
waiver of any of the Landlord's rights, or as an admission that such person is,
or as a consent that such person shall be deemed to be, a sub-tenant or assignee
of this Lease. Nevertheless the Landlord may accept rent from any person
occupying the Demised Premises at any time without in any way waiving any right
under this Lease.
SECTION 10.05 - NO COLLATERAL AGREEMENTS
It is understood and agreed that this Lease (which includes the Schedules
annexed hereto) contains the entire agreement and understanding made between the
parties hereto and that there is no representation, warranty, collateral
agreement or condition, expressed or implied, affecting this Lease or supported
hereby other than such as may be expressly contained in or implied from the
provisions hereof and that this Lease may not be modified except as herein
expressly provided or except by subsequent agreement in writing of equal
formality hereto executed by the Landlord and the Tenant.
SECTION 10.06 - NOTICE
Any notice or request herein provided for or given hereunder if given by the
Landlord to the Tenant shall be sufficiently given if delivered or mailed by
prepaid registered post addressed to the Tenant at the address specified in
Section 1.01 (v) or the Demised Premises. Any notice or request herein provided
for or given hereunder if given by the Tenant to the Landlord shall be
sufficiently given if delivered or mailed by prepaid registered post addressed
to the Landlord at the address specified in Section 1.01(iii). Any notice or
request shall be conclusively deemed to have been given on the second business
day following the day on which it was so mailed, as the case may be. If in this
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Lease two (2) or more persons are named as Tenant, such notice shall also be
sufficiently given if and when the same shall be delivered personally or mailed
as aforesaid to any one of such persons. Either party may at any time give
notice in writing to the other of any change of address in Canada of the party
giving such notice and from and after the giving of such notice the address
therein specified shall be deemed to be the address of such party for the
purpose of giving such notices or requests thereafter.
SECTION 10.07 - CERTIFICATES
The Tenant agrees that it will at any time and from time to time upon not less
than ten (10) days prior notice execute and deliver to the Landlord or to
whomsoever the Landlord directs a statement in writing certifying that the
Tenant is in possession of the Demised Premises and commenced to pay rent on a
specified date; this Lease is unmodified and in full force and effect or, if
modified, stating the modifications and that the same is in full force and
effect as so modified; the amount of the annual rental then being paid hereunder
and of any prepaid rent or security deposit held by the Landlord; the dates to
which the rentals, by installments or otherwise, and other charges hereunder
have been paid; whether or not there is any existing default on the part of the
Landlord of which the Tenant has notice; and any additional information or
acknowledgment reasonably requested by the Landlord.
SECTION 10.08 - SUBORDINATION
This Lease is subject and subordinate to all mortgages (including any deed of
trust and mortgage securing bonds and all indentures supplemental thereto) which
may now or hereafter affect either the Lands or the Building or any interest
therein (and whether or not such mortgages affect only the Demised Premises or
the Building or affect other premises as well) and to all renewals,
modifications, consolidations, replacements and extensions thereof, and the
Tenant whenever requested by any such mortgagee (including any Trustee under a
deed of trust and mortgage) shall attorn to such mortgagee upon all the terms of
this Lease. The Tenant agrees to execute promptly any certificate in
confirmation of such subordination as the Landlord may request and hereby
constitutes the Landlord the agent or attorney in fact of the Tenant for the
purpose of executing any such certificate and of making application at any time
and from time to time to register postponements of this Lease in favour of any
such mortgage in order to give effect to the provisions of this section. Subject
to the foregoing, in the event the Landlord requires this Lease to be registered
in priority to any mortgage (including any deed of trust and mortgage securing
bonds and all indentures supplemental thereto) which may now or any time
hereafter affect in whole or in part the Demised Premises, the Lands or the
Building and whether or not any such mortgage shall affect only the Demised
Premises, the Lands or the Building or shall be a blanket mortgage affecting
other premises as well, the Tenant covenants and agrees with the Landlord that
the Tenant shall execute promptly upon request by the Landlord any certificate,
priority agreement, or other instrument which may from time to time be requested
by the Landlord, acting reasonably, to give effect thereto.
SECTION 10.09 - RELOCATION
The Landlord reserves the right at any time, and from time to time, to change
the location of the Demised Premises, provided that the Rentable Area of the new
premises shall not be more than five percent (5%) larger than the Rentable Area
of the Demised Premises unless consented to by the Tenant. If the Landlord
exercises such right to relocate Tenant:
(a) the Landlord shall endeavour to relocate the Tenant in
premises of comparable size, quality and exposure;
(b) during the period of such relocation, all rent and other
charges provided for hereunder shall abate for that period of
time during which the Tenant is unable to carry on business in
the Building;
(c) the Landlord will pay the moving costs of the Tenant, if any;
<PAGE>
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(d) should the Rentable Area of the premises to which the Tenant
is relocated be larger or smaller than the Rentable Area of
the Demised Premises, then the Basic Rent and Tenants
Proportionate Share shall be proportionately adjusted to
reflect such greater or lesser area by the ratio which such
increase or decrease in area bears to the original Rentable
Area of the Demised Premises;
(e) the exercise of such rights shall be without recourse by the
Tenant;
(f) should the Landlord give the Tenant written notice of such
relocation after the Tenant has commenced or completed the
installation of partitioning or other improvements to the
Demised Premises, the Landlord will furnish the Tenant with
similar partitioning and other improvements of equal quality
or compensate the Tenant therefor; and
(g) at the request of the Landlord, the Tenant shall execute and
deliver a lease of the premises to which the Tenant is
relocated for the remainder of the Term, which lease shall
contain the same terms and conditions as this Lease subject
only to changes necessitated by Section 10.09(d) and an
appropriate description of such premises, after which the
parties shall release one another from any further obligation
under this Lease.
SECTION 10.10 - OVERHOLDING
If, without objection by the Landlord, but without any further written
agreement, the Tenant shall continue to occupy the Demised Premises and pay rent
after the expiration of the Term, the Tenant shall be a monthly tenant, and
otherwise a tenant at sufferance only, at a monthly Basic Rent equal to one
hundred fifty percent (150%) of the monthly installments of Basic Rent payable
on the last monthly payment date during the Term and on the terms and conditions
herein set out, in so far as the same are applicable, except as to length of
tenancy.
SECTION 10.11 - EXPROPRIATION
If during the Term, title is taken to the whole or any part of the Lands and/or
the Building (whether or not such part includes the Demised Premises) by any
competent authority under the power of eminent domain or by expropriation, and
the Land Lease is terminated as a result of such expropriation pursuant to the
provisions of the Land Lease, then in such event this Lease shall terminate as
of the date the Land Lease is terminated. Upon such termination, the Tenant
shall immediately deliver up possession of the Demised Premises to the Landlord,
rent shall be apportioned and payable up to the date of such termination and the
Landlord may re-enter and take possession of the Demised Premises. In the event
of any such taking, the parties shall each be entitled to separately advance
their claims for compensation for the loss of their respective interests and to
receive and retain such compensation as may be awarded to each respectively.
SECTION 10.12 - RENOVATION OR DEMOLITION
The Tenant covenants with the Landlord that in the event of the Landlord at any
time desiring to remodel, renovate or demolish the Building, or any part
thereof, the Tenant will on being given at least six (6) months' notice in
writing from the Landlord surrender this Lease and all the remainder of the Term
and deliver up possession of the Demised Premises to the Landlord on the date
set forth in such notice, rent shall be apportioned and payable up to such date,
and the Landlord may re-enter and take possession of the Demised Premises.
SECTION 10.13 - CHANGES AND ADDITIONS TO BUILDING
The Landlord reserves the right to make alterations or additions to or build
additional stories on the Building, or make additions or reductions to the
Lands.
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SECTION 10.14 - TIME OF ESSENCE
Time is of the essence of this Lease.
SECTION 10.15 - FORM OF LEASE
Notwithstanding anything contained in this Lease or any rule of law, it is
understood and agreed that the Landlord shall not be required to deliver this
Lease to the Tenant in registrable form. The Tenant shall register this Lease at
its own expense if requested to do so by the Landlord.
SECTION 10.16 - GUARANTEE
SECTION 10.17 - SUCCESSORS AND ASSIGNS
This Indenture and everything herein contained shall extend to and bind and may
be taken advantage of by the respective heirs, executors, administrators,
successors and assigns, as the case may be, of each and every of the parties
hereto subject to the granting of any required consent by the Landlord to an
assignment or sublease.
SECTION 10.18 - SPECIAL PROVISIONS
1. Free Rent
The Tenant shall not be required to pay Basic Rent to the Landlord
during the first month of the Term of the Lease but, during such
period, shall abide by all other terms of this Lease, including the
obligation to pay Additional Rent.
<PAGE>
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2. Parking
The Landlord shall provide, at the Tenant's cost, three (3) random or
reserved parking stalls in the Building at the prevailing market rental
rates. The rental rates for such stalls shall be subject to adjustment
from time to time to reflect market rental rates for comparable parking
stalls in downtown Vancouver.
3. Option to Renew
Provided the Tenant duly and regularly pays the rent provided for
herein, performs each and every one of the covenants herein to be
performed and observed by the Tenant hereunder, and is not then in
default under this Lease, the Tenant shall have one (1) option to renew
this Lease, exercisable by providing the Landlord with not less than
three (3) months and not more than six (6) months prior written notice,
for a renewal term (the "Renewal Term") of three (3) years, upon the
same terms and conditions contained herein except for Basic Rent and
this option to renew. The Basic Rent payable during the Renewal Term
shall be agreed upon between the parties and shall be based on the then
current market rental rates for premises of similar size, quality and
location. In no event shall the Basic Rent payable during the Renewal
Term be less than the Basic Rent payable during the final year of the
initial term of the Lease. If the parties are unable to agree on the
Basic Rent payable during the Renewal Term during the three (3) mouth
period immediately preceding the expiry of the initial term of the
Lease, such Basic Rent shall be determined by a single arbitrator under
the Commercial Arbitration Act British Columbia.
Until the Basic Rent for the Renewal Term has been determined in
accordance with the foregoing, the Tenant shall pay the monthly Basic
Rent paid during the last year of the initial term of the Lease and,
upon such determination, both Landlord and the Tenant shall make the
appropriate adjustments.
IN WITNESS WHEREOF the parties hereto have executed this Indenture.
THE CORPORATE SEAL OF P. SUN'S )
ENTERPRISES (VANCOUVER) LTD. )
was hereunto affixed in the presence of: )
) C/S
)
Per: /s/ )
--------------------------------------------
Authorized Signatory )
)
)
Per: /s/ )
--------------------------------------------
Authorize&Signatory )
THE CORPORATE SEAL OF A SURE )
ECOMMEERCE, INC. was hereunto affixed )
in the presence of: )
) C/S
)
Per: /s/ )
--------------------------------------------
Authorized Signatory )
)
)
Per: )
--------------------------------------------
Authorized Signatory )
<PAGE>
SCHEDULE A
HSBC BUILDING (OFFICE)
PLAN OF DEMISED PREMISES
Initials
Landlord Tenant
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[THIS PAGE CONTAINED AN ILLUSTRATION]
<PAGE>
SCHEDULE B
HSBC BUILDING (OFFICE)
RULES AND REGULATIONS
1. The sidewalks, entrances, elevators, stairways, corridors and fire
escapes of the Building shall not be obstructed by the Tenant or used
by him for any purpose other than for ingress and egress to and from
the Demised Premises. The Tenant shall not place or allow to be placed
in the hallways, corridors or stairways any waste paper, dust, garbage,
refuse or anything else whatsoever that would obstruct them or tend to
make them appear unclean or untidy. Nothing shall be thrown by the
Tenant or his employees out of the windows or doors down the passages
or sky lights of the Building.
2. Business machines, filing cabinets, heavy merchandise or other articles
liable to overload, injure or destroy any part of the Building shall
not be taken into the Building without the written consent of the
Landlord, and the Landlord shall in all cases retain the right to
prescribe the weight and proper position of all such articles and the
times and routes for moving or keeping any such articles on the Demised
Premises, the costs of which shall be paid the Tenant.
3. The Tenant shall not mark, paint, drill into or in any way deface the
walls, ceilings, partitions, floors or other parts of the Demised
Premises and Building except with the prior written consent of the
Landlord as it may direct. Any additional plumbing in the Building will
require core drilling of the slab. Areas that may be core drilled are
restricted and drilling locations must be approved by Landlord's
structural engineer due to the post-tensioning system. An x-ray of the
slab MUST be taken, report produced, and approved by the Landlord.
4. All work in connection with or affecting the heating, ventilating,
air-conditioning, electrical, plumbing or other mechanical systems of
the Building requested by the Tenant shall, if the Landlord so elects,
be performed for the Tenant by the Landlord and, if the Landlord does
not so elect, shall not be performed except with the prior written
consent of the Landlord and in any event the cost of such work shall be
paid by the Tenant.
5. All special connections to the electrical system in the ceiling
required by the Tenant will be supplied and installed by the Landlord
at the Tenant's expense.
6. The Tenant and his employees shall not in any way interfere with or
annoy other occupants of the Building or those having business with
them.
7. The Tenant shall not place any additional lock or other security
devices upon any door of the Demised Premises or the Building without
the written consent of the Landlord.
8. The Tenant shall give the Landlord prompt notice of any accident to or
any defect in the heating, ventilating, air-conditioning, electrical,
plumbing or other mechanical apparatus or any other part of the Demised
Premises or the Building.
9. No bicycles or other vehicles and no dog or other animal or bird shall
be brought into or kept in the Building.
10. Furniture, effects and supplies shall not be taken into or removed from
the Demised Premises except at such time and in such a manner as may be
previously approved by the Landlord.
11. The Tenant will not make or permit any improper noise in the Building
and will not place any radio or television antennas on the roof or on
or in a part of the inside or outside of the
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SCHEDULE B
HSBC BUILDING (OFFICE)
RULES AND REGULATIONS
Building other than the inside of the Demised Premises, and will not
operate or permit to be operated any musical or sound producing
instrument or device inside or outside the Demised Premises which may
be heard outside the Demised Premises, and will not operate any
electrical device from which may emanate electrical waves which may
interfere with or impair radio or television broadcasting or reception
from or in the Building or elsewhere.
12. No one shall use the Demised Premises for sleeping quarters.
13. All persons entering and leaving the Building at any time other than
during normal business hours shall register in the books kept by the
Landlord at or near the night entrance and the Landlord will have right
to prevent any person from entering or leaving the Building unless
provided with a key to the premises to which such person seeks entrance
or a pass in a form to be approved by the Landlord. Any persons found
in the Building at such times without such keys or passes will be
subject to the surveillance of the employees and agents of the
Landlord. The Landlord may prevent any person from removing any goods
from the Building without written authorization of the Tenant. The
Landlord shall be under no responsibility for failure to enforce this
rule.
14. The Tenant and its employees shall use such water-closets, other water
apparatus and washroom facilities in the Building as shall be from time
to time designated by the Landlord for use in connection with the
Demised Premises. The water-closets and other water apparatus shall not
be used for any purpose other than those for which they were
constructed and no sweepings, rubbish, rags, ashes or other substances
shall be thrown therein. Any damage resulting by misuse shall be borne
by the Tenant if caused by it or its employees. The Tenant shall not
let water run unless in actual use.
15. Any hand trucks, carryalls or similar equipment used in the Building
shall be equipped with rubber tires, side guards and such other
safeguards as the Landlord shall reasonably require.
16. Neither the Landlord nor the Tenant shall perform, patronize or (to the
extent under its control) permit any commissary, soliciting or peddling
in the Building.
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SCHEDULE C
HSBC BUILDING (OFFICE)
LANDLORD'S AND TENANT'S WORK
1. As soon as same are available, the Landlord shall supply to the Tenant
written requirements, including design criteria and guidelines, as well
as rules and regulations (the "Requirements") relating to the design
and construction of the leasable area of the Building.
2. Except as set out in this paragraph 2, the Demised Premises are leased
on an "as is" basis. The Landlord shall at its expense do the following
work (the "Landlord's Work"), and all other work required for the
Demised Premises shall be provided by and at the expense of the Tenant:
(a) Demising
Remove and/or reconfigure the marked demising walls and repair
any remaining walls/doors as required to a professional
finish.
(b) Paint
Paint and repair all interior walls/wall coverings in colour
selected by the Tenant.
(c) Carpeting
Provide and install new commercial grade carpeting in colour
selected by the Tenant, except in "bull pen" area which shall
be finished with anti-static linoleum.
(d) Telecommunications
If required by the Tenant, provide and install TI fibre-optic
direct line to a central access point within the Demised
Premises.
(e) Lighting
Provide and install separate lighting control/dimmer for
"open" work area of Demised Premises and install three halogen
light bars in "bull pen" area. (Not yet completed)
(f) Counter
Repair and refinish the reception counter to original "new"
finish. (Not yet completed)
(g) Miscellaneous
Perform the foregoing work, and any other work, as specified
in the proposed layout attached to this Schedule C.
3. (a) The Tenant shall submit to the Landlord, not more than twenty
(20) days after receiving from the Landlord the Requirements,
preliminary plans, consisting of preliminary sketches and
outline specifications, using the design services of the
Landlord's mechanical and electrical engineers, for the work
to be done by the Tenant to the Demised Premises (the
"Tenant's Work"). The Landlord's Architect or, at the option
of the Landlord, the Landlord, shall review such preliminary
plans and shall within ten (10) days after receipt of same
advise the Tenant in writing of the required changes. The
Tenant shall make the required changes, if any, in such
preliminary
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SCHEDULE C
HSBC BUILDING (OFFICE)
LANDLORD'S AND TENANT'S WORK
plans and shall resubmit them to the Landlord not more than
ten (10) days after being advised by the Landlord of required
changes.
(b) The Tenant shall submit to the Landlord, not more than thirty
(30) days after approval of the preliminary plan for the
Tenant's Work complete final plans and specifications, using
the design services of the Landlord's mechanical and
electrical engineers, for the Tenant's Work, to be based upon
such preliminary plan as approved. The Landlord's Architect
or, at the option of the Landlord, the Landlord, shall review
such plans and specifications and shall within ten (10) days
after receipt of same advise the Tenant in writing of the
required changes. The Tenant shall make the required changes,
if any, in such plans and specifications and shall resubmit
them to the Landlord not more-than 14 days after being advised
by the Landlord of required changes.
4. (a) For the purpose of this paragraph 4, the Demised Premises
shall be considered to be "ready for occupancy" when the
Landlord's Work (with the exception of minor adjustments and
deficiencies and of those items of the Landlord's Work which
cannot be done until the Tenant has installed certain items of
the Tenant's Work) is completed to the extent that the Tenant
may enter on the Demised Premises to commence the Tenants Work
and may enjoy the use of the Demised Premises commensurate
with the state of completion of the Landlord's Work, without
interference or interruption caused by the Landlord and its
employees, agents and contractors in carrying out the
Landlord's Work.
(b) Provided that, if due to the failure of the Landlord to carry
out the Landlord's Work, the Demised Premises or any part
thereof are not ready for occupancy on the Commencement Date,
no part of the rent or only the proportionate part thereof, in
the event that the Tenant shall occupy only a part of the
Demised Premises, shall be payable for the period prior to the
date when the entire Demised Premises are ready for occupancy,
and the full rent shall accrue only after such last mentioned
date, and the Tenant hereby agrees to accept any such
abatement of rent in full settlement of all claims which the
Tenant might otherwise have by reason thereof. Provided
further, however, that when the Demised Premises are ready for
occupancy, the Tenant shall not be entitled to any abatement
of rent for any delay in occupancy due to the Tenant's failure
or the failure of his contractors or agents to complete the
installations and other work required for its purposes or due
to any other reason. A certificate of the Landlord's architect
as to completion of the Landlord's Work shall be conclusively
binding upon the parties hereto as to the facts so certified.
The Tenant shall not be entitled to exclusive occupation of
the Demised Premises until the Landlord's Work is fully
completed.
5. If the Tenant defaults in submitting or resubmitting its plans and
specifications as required in paragraph 3 of this Schedule C, the
Landlord's Work shall be deemed to have been substantially completed
when such part thereof, which can feasibly be performed independently
of such plans and specifications, is completed.
6. So long as the Tenant and his employees, agents and contractors do not
interfere with the Landlord and its employees, agents and contractors
who may be in or about the Demised Premises for the purpose of carrying
out the Landlord's Work, the Tenant shall be entitled to enter the
Demised Premises prior to the commencement of the Term without
incurring any obligation to pay rent, but the Tenant shall pay for all
utilities and services furnished to the Tenant and its employees,
agents and contractors by the Landlord, promptly upon being billed
therefor, for the purpose and only for the purpose, of doing the
Tenant's Work and the provisions of this lease shall apply mutatis
mutandis. In respect of the rights granted to the
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SCHEDULE C
HSBC BUILDING (OFFICE)
LANDLORD'S AND TENANT'S WORK
Tenant in this paragraph 6, the Tenant hereby agrees to indemnify and
save harmless the Landlord against:
(a) claims for death or injury to persons or damage to property
made by the Tenant or by any employee, agent or contractor of
the Tenant to the extent that same are not caused by the
negligent act or omission of the Landlord or by any employee,
agent or contractor of Landlord; and
(b) claims for death or injury to third parties or damage to
property of third parties to the extent that same are caused
by the negligent act or omission of the Tenant or by any
employee, agent or contractor of the Tenant.
The Tenant will be responsible for any damage to the Landlord's
property to the extent such damage results from the exercise by the
Tenant of the rights granted to it pursuant to this paragraph 6.
7. It is understood by the Tenant that the interior plan of the Demised
Premises may be designed either by the Landlord's Architect or by a
qualified interior designer chosen by the Tenant and satisfactory to
the Landlord, the approval of the Landlord not to be unreasonably
withheld. It is understood, however, by the Tenant that any revisions
to the basic construction of the Building, or the heating, ventilating,
air-conditioning, plumbing, mechanical or electrical systems thereof,
in order to accommodate the requirements of the Tenant must be designed
by the Landlord's Architect and by the structural, mechanical or
electrical engineers appointed by the Landlord for the Building and
such revisions will be at the expense of the Tenant. If any person
other than the Landlord's Architect is retained by the Tenant, the
Tenant agrees to cause such person to include the Landlord's Architect
in the distribution of drawings made by such person for the interior
planning of the Demised Premises and the Landlord's Architect and its
engineering consultants shall provide instructions to the Landlord's
General Contractor or Project Manager with respect to the basic
construction of the Building.
8. The Tenant shall engage the Landlord's General Contractor or Project
Manager for carrying out all revisions to the basic construction of the
Building resulting from the occupancy by the Tenant of space in the
Building. If work other than revisions to the basic construction of the
Building is needed by the Tenant, the Tenant must engage the Landlord's
mechanical and electrical contractors for any mechanical or electrical
work, respectively, and any other building contractor to perform such
other work; provided, however, that in the event any other building
contractor is so engaged, the Tenant shall ensure that the following
conditions have been complied with prior to the commencement of the
work:
(a) any such building contractor must be approved by the Landlord,
such approval not to be unreasonably withheld;
(b) any such building contractor must provide sufficient evidence
to the Landlord that he or it is adequately and properly
covered by insurance including for all risk, fire, public
liability and property damage, and that, if required by the
Landlord, either or both the Landlord and the Landlord's
General Contractor are named insureds in such insurance
policies; and
(c) the union affiliation or affiliations of such building
contractor shall not conflict with any other affiliation then
on site.
9. Prior to the commencement of the Tenant's Work, the Tenant shall
furnish the Landlord or its representative with all necessary approvals
or permits that may be required including,
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SCHEDULE C
HSBC BUILDING (OFFICE)
LANDLORD'S AND TENANT'S WORK
without limitation, building permits, Department of Labour permits and
Fire Prevention Bureau approvals. No work shall be commenced by the
Tenant until:
(a) the Tenant provides the Landlord with reasonable evidence of
satisfactory insurance coverage;
(b) the Tenant provides the Landlord with reasonable evidence that
it has made provision to pay the full cost of the Tenant's
Work, to discharge any liens that may arise therefrom and to
supervise and complete the Tenant's Work; and
(c) the Landlord has given the Tenant written notice that the
Tenant's Work can proceed, subject to such conditions as the
Landlord may impose.
10. The Tenant shall, at his expense, complete the Tenant! s Work in
accordance with approved final plans and specifications and the
Requirements. The Tenant shall use its best efforts to complete the
Tenant's Work and to have the Demised Premises fully completed and
fixtured and ready to open to the public for business as expeditiously
as possible. The Tenant shall ensure that all materials and workmanship
shall be of uniformly high quality, not less than building standard, in
accordance with the very best standards of practices and in compliance
with any governing codes and regulations.
11. Any work or services, other than that stipulated as the Landlord's
Work, which is done or furnished by the Landlord for or at the request
of the Tenant, including without limitation, or any excess or
additional cost in the Landlord's Work occasioned by the Tenant's Work
shall be paid for by the Tenant as Additional Rent as follows:
(a) thirty-five percent (35%) of the amount payable (as estimated
by the Landlord) shall be paid by the Tenant prior to the
doing of the work or furnishing of the services, and
(b) the balance shall be paid by the Tenant within fifteen (15)
days after the receipt of a statement for it.
The cost of the work or services will include (in addition to direct
labour, material, and applicable taxes), architectural, contractor's
and project manager's fees and an additional administration fee of
seven percent (7%) of the aggregate costs of such work and services.
Notwithstanding the doing of such work or the furnishing of such
services, each item of the Tenant's Work shall remain part of the
Tenant's Work and not the Landlord's Work.
NOTE: Any additional plumbing in the Building will require core
drilling of the slab. Areas that may be core drilled are restricted and
drilling locations must be approved by the Landlord's structural
engineer due to the post-tensioning system.
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SCHEDULE C
HSBC BUILDING (OFFICE)
LANDLORD'S AND TENANT'S WORK
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