EXHIBIT 2.1
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RT TWENTY-SECOND PENSION PROPERTIES LIMITED
LANDLORD
- AND -
E-CRUITER.COM INC.
TENANT
L E A S E
KANATA NORTH TECHNOLOGY PARK - PHASE IV
KANATA, ONTARIO
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS.............................................................................................1
1.1 Definitions....................................................................................1
ARTICLE 2
GENERAL COVENANTS.......................................................................................3
2.1 Tenant's Covenants.............................................................................3
2.2 Landlord's Covenants...........................................................................3
ARTICLE 3
DEMISE AND TERM.........................................................................................4
3.1 Demise of Premises.............................................................................4
3.2 License Over Certain Common Facilities.........................................................4
3.3 Term...........................................................................................4
3.4 Overholding....................................................................................4
3.5 Leasehold Improvements.........................................................................4
ARTICLE 4
RENT....................................................................................................5
4.1 Basic Rent.....................................................................................5
4.2 Additional Rent................................................................................5
4.3 Payment of Additional Rent.....................................................................6
4.4 Adjustment of Additional Rent..................................................................6
4.5 Apportionment of Rent..........................................................................6
4.6 No Right of Set-off............................................................................6
4.7 Additional Rent Deemed Rent....................................................................7
4.8 Interest on Arrears............................................................................7
4.9 Net Lease to Landlord..........................................................................7
4.10 Security Deposit...............................................................................7
ARTICLE 5
TAXES...................................................................................................7
5.1 Taxes..........................................................................................7
5.2 Tenant's Taxes and Sales Taxes.................................................................7
5.3 Tenant's Contribution to Taxes.................................................................8
5.4 Payments.......................................................................................8
ARTICLE 6
SERVICES AND COMMON FACILITIES..........................................................................8
6.1 Tenant's Contribution to Operating Costs.......................................................8
6.2 Operation of Regular HVAC System...............................................................8
6.3 Additional HVAC................................................................................9
6.4 Electricity and Other Utilities................................................................9
6.5 Operation of Common Facilities.................................................................9
6.6 Janitorial Services...........................................................................10
6.7 Security Services.............................................................................10
6.8 Interruption in Services......................................................................11
6.9 Energy Conservation...........................................................................11
6.10 Pest Control by Tenant........................................................................11
ARTICLE 7
USE AND OCCUPANCY OF PREMISES..........................................................................11
7.1 Use of Premises...............................................................................11
7.2 Waste and Nuisance............................................................................11
7.3 No Overloading of Floors or Common Use Equipment..............................................11
7.4 Insurance Cancellation or Increase............................................................12
7.5 Observance of Law by Landlord and Tenant......................................................12
7.6 Rules and Regulations.........................................................................12
7.7 Signage.......................................................................................13
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ARTICLE 8
ALTERATIONS............................................................................................13
8.1 Alterations by Tenant:........................................................................13
8.2 No Financing by Tenant of Leasehold Improvements..............................................14
8.3 Liens.........................................................................................14
8.4 Alterations by Landlord.......................................................................15
8.5 Prohibition Re Certain Materials..............................................................15
ARTICLE 9
REPAIRS................................................................................................15
9.1 Landlord's Repairs............................................................................15
9.2 Tenant's Repairs..............................................................................15
9.3 Entry by Landlord to View State of Repair.....................................................15
9.4 Notice of Defects.............................................................................15
9.5 Termination or Abatement after Damage.........................................................16
9.6 No Claim by Tenant............................................................................17
9.7 Tenant to Leave Premises in Good Repair.......................................................17
ARTICLE 10
INSURANCE AND LIABILITY................................................................................17
10.1 Landlord's Insurance..........................................................................17
10.2 Tenant's Insurance............................................................................17
10.3 Form of Tenant's Insurance....................................................................18
10.4 Release of Landlord by Tenant.................................................................18
10.5 Release of Tenant by Landlord.................................................................19
10.6 Indemnity of Landlord by Tenant...............................................................19
10.7 Plate Glass...................................................................................19
10.8 Extended Meaning of "Landlord" and "Tenant"...................................................19
ARTICLE 11
ASSIGNMENTS, ETC.BY TENANT AND TRANSFERS ETC. BY LANDLORD..............................................19
11.1 Assignments, Subleases, Charges by Tenant.....................................................19
11.2 Landlord's Right of Cancellation..............................................................21
11.3 Continuing Obligations of Tenant..............................................................21
11.4 Dealings by Landlord..........................................................................22
11.5 Subordination and Attornment..................................................................22
ARTICLE 12
ESTOPPEL CERTIFICATES, REGISTRATION....................................................................22
12.1 Estoppel Certificates.........................................................................22
12.2 Registration on Title.........................................................................22
ARTICLE 13
UNAVOIDABLE DELAYS.....................................................................................23
13.1 Unavoidable Delays............................................................................23
ARTICLE 14
LANDLORD'S ACCESS TO PREMISES..........................................................................23
14.1 Inspection and Repair.........................................................................23
14.2 Right to Exhibit Premises.....................................................................23
ARTICLE 15
DEFAULT................................................................................................23
15.1 Events of Default.............................................................................23
15.2 Remedies by Landlord..........................................................................24
15.3 Additional Self-help Remedy of Landlord.......................................................25
15.4 Legal Costs...................................................................................25
15.5 Remedies Cumulative...........................................................................25
15.6 Non-Waiver....................................................................................25
15.7 Tenant's Insolvency Proceedings...............................................................26
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ARTICLE 16
GENERAL PROVISIONS.....................................................................................26
16.1 Entire Agreement..............................................................................26
16.2 Interpretation................................................................................26
16.3 Planning Act..................................................................................26
16.4 Obligations as Covenants and Survival of Obligations..........................................26
16.5 Severability of Illegal Provision.............................................................26
16.6 Governing Law.................................................................................26
16.7 No Partnership................................................................................27
16.8 Time of Essence...............................................................................27
16.9 Landlord's Agent..............................................................................27
16.10 Successors and Assigns........................................................................27
16.11 Accounting Principles.........................................................................27
16.12 Notices and Consents, etc.....................................................................27
16.13 No Consent During Default.....................................................................28
16.14 Further Assurances............................................................................28
16.15 Confidentiality...............................................................................28
16.16 Tenant's Review of Lease......................................................................28
16.17 Joint and Several Liability of Tenant.........................................................28
ARTICLE 17
EXTRA TERMS............................................................................................29
17.1 Landlord's Work...............................................................................29
17.2 Tenant's Work.................................................................................29
17.3 Joint Fixturing Period........................................................................29
17.4 License for Parking...........................................................................30
17.5 Tenant Inducement.............................................................................30
17.6 Letter of Credit..............................................................................31
17.7 Generator Space...............................................................................31
17.8 Right of First Offer..........................................................................31
17.9 Right to Extend...............................................................................32
17.10 Tenant's Termination Right....................................................................33
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SCHEDULE "A" DEFINITION OF OPERATING COSTS
SCHEDULE "B" rules and regulations
SCHEDULE "C" [Intentionally deleted]
SCHEDULE "D" Building Specifications
SCHEDULE "E" Tenant's Work
SCHEDULE "F" lands
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THIS LEASE made as of the 21st day of March, 2000
IN PURSUANCE of the Short Forms of Leases Act
B E T W E E N:
RT TWENTY-SECOND PENSION PROPERTIES LIMITED
(hereinafter called the "Landlord")
OF THE FIRST PART
- AND -
E-CRUITER.COM INC.
(hereinafter called the "Tenant")
OF THE SECOND PART
IN CONSIDERATION OF the premises and the mutual covenants, agreements and
conditions herein contained, it is hereby covenanted, agreed and declared
between the parties as follows:
ARTICLE 1
DEFINITIONS
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1.1 DEFINITIONS
The terms defined herein shall have, for all purposes of this Lease and all
instruments supplemental hereto, the following meanings unless the context
expressly or by necessary implication otherwise requires:
"ADDITIONAL RENT" means all sums of money, other than Basic Rent, which are
required to be paid by the Tenant pursuant to any provision of this Lease.
"ADDITIONAL SERVICE" means any service identified as such in this Lease or which
is requested by the Tenant in addition to those supplied by the Landlord as part
of the normal service and which the Landlord is prepared to supply at an
additional cost to the Tenant.
"ADDITIONAL SERVICE COST" means the additional amount identified as such in this
Lease or payable by the Tenant to the Landlord for any Additional Service.
"BASIC RENT" means the rent payable by the Tenant pursuant to Section 4.1.
"BUILDING" means the building and all other fixed improvements situate at any
time on the Lands, as the same may from time to time be altered, expanded or
reconstructed, all of which are commonly known as Kanata North Technology Park -
Phase IV, Kanata, Ontario.
"BUSINESS DAY" means any day which is not a Saturday, Sunday or a statutory
holiday in the City of Ottawa.
"BUSINESS HOURS" means the period from 8:00 a.m. to 6:00 p.m. on any Business
Day.
"CAPITAL TAX" means any tax or taxes imposed upon the Landlord and/or the owners
of the Development under the Corporations Tax Act (Ontario) and/or under Part
I.3 of the Income Tax Act (Canada) (Tax on Large Corporations), based upon or
computed by reference to the actual or deemed capital, taxable capital, taxable
capital employed in Canada, paid-up capital, taxable paid-up capital, taxable
paid-up capital employed in Canada, capital stock, members' contributions,
retained earnings, contributed capital or other surplus, reserves, indebtedness
or other similar amounts, as such amounts may be determined for purposes
thereof, or any tax or levy imposed by any federal, provincial, municipal or
local authority that is similar to, in lieu of, in substitution for or in
addition to any such tax or taxes.
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"COMMON FACILITIES" means those areas and facilities of the Development which
serve the Building including, without limitation, the landscaped areas, public
entrance doors, halls, public lobbies, passageways, sidewalks, service
corridors, exit mezzanines, stairways, freight elevators, service ramps and
common loading and receiving facilities and Common Use Equipment, and which are
designated from time to time by the Landlord for the common use and enjoyment of
the tenants in the Development, including the Tenant, and their agents,
invitees, servants, employees and licensees, or for use by the public, but
excluding rentable premises in the Development.
"COMMON USE EQUIPMENT" means all mechanical, plumbing, electrical and HVAC
equipment, pipes, ducts, wiring, machinery and equipment and other integral
services, utility connections and the like providing services for the use and
enjoyment of the tenants in the Building.
"DEVELOPMENT" means the Lands and the Building.
"INSURED DAMAGE" means that part of any damage occurring to the Development,
including the Premises, of which the entire cost of repair (except as to any
deductible amount provided for in the applicable policy or policies of
insurance) is actually recovered by the Landlord under a policy or policies of
insurance from time to time effected by the Landlord pursuant hereto.
"LANDLORD'S WORK" means the work to be performed by the Landlord, as described
in Section 17.1.
"LANDS" means those lands shown hatched on Schedule "F", being a part of the
lands described as Block 3, Plan 4M-417, save and except Parts 26, 27, 28 and
29, Plan 4R-11340, City of Kanata, as the boundaries thereof may be varied from
time to time by additions functionally integrated therewith or by deletions for
road widening or other public purposes.
"LEASE" means this Lease including any Schedules, as amended from time to time
pursuant hereto.
"LEASEHOLD IMPROVEMENTS" means all items generally considered as leasehold
improvements, including, without limitation, all fixtures, equipment,
improvements, installations, alterations and additions from time to time made,
erected or installed by or on behalf of the Tenant in the Premises and by or on
behalf of other tenants in other premises in the Building, including all
partitions, however affixed and whether or not moveable, and all wall-to-wall
carpeting other than carpeting laid over finished floors and affixed so as to be
readily removable without damage; but excluding trade fixtures, furniture,
unattached or free standing partitions and equipment not of the nature of
fixtures.
"OPERATING COSTS" means operating costs as defined in Schedule "A" attached
hereto.
"PREMISES" means the premises demised to the Tenant under this Lease consisting
of approximately 17, 085 square feet of Gross Rentable Area, being an entire
floor of the Building, not to be the ground floor of the Building, but otherwise
as determined by the Landlord by notice to the Tenant on or before the
commencement of the Joint Fixturing Period set out in Section 17.3, determined
in accordance with the provisions hereof.
"PRESENT VALUE" means the value determined by using an annual discount rate
equal to the annual rate of interest, in effect as of such date of default,
announced by Royal Bank of Canada as its prime rate, being the reference rate
used by it to determine interest for loans in Canadian dollars to Canadian
customers.
"PROPORTIONATE SHARE" means a fraction having as its numerator the Gross
Rentable Area of the Premises and as its denominator the Total Rentable Area of
the Building.
"RATE OF INTEREST" means the annual rate of interest announced from time to time
by Royal Bank of Canada as its prime rate, being the reference rate used by it
to determine interest for loans in Canadian dollars to Canadian customers, plus
3%, adjusted from time to time to reflect changes in such rate.
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"RENT" means Basic Rent and Additional Rent.
"RENTABLE AREA", "GROSS RENTABLE AREA" and "NET RENTABLE AREA" mean the number
of square feet of floor area determined in accordance with the Standard Method
for Measuring Floor Area in Office Buildings (ANSI/BOMA Z65.1-1996), published
in 1996 by the Building Owners and Managers Association (BOMA) International. A
letter of the Landlord's arm's length space planner or land surveyor shall be
conclusive and binding on the parties.
"SALES TAXES" means all business transfer, multi-stage sales, sales, use,
consumption, value-added or other similar taxes imposed by the Government of
Canada or any provincial or local government upon the Landlord, or the Tenant or
in respect of this Lease, or the payments made by the Tenant hereunder or the
goods and services provided by the Landlord hereunder including, without
limitation, the rental of the Premises and the provision of administrative
services to the Tenant hereunder.
"TAXES" means all taxes, rates, duties, levies, fees, charges, sewer levies,
local improvement rates, and assessments whatsoever, imposed, assessed, levied
or charged now or in the future by any school, municipal, regional, provincial,
federal, parliamentary or other governmental body, corporate authority, agency
or commission (including, without limitation, school boards and utility
commissions), against the Development and/or the Landlord and/or the owners of
the Development in connection therewith, but excluding (unless specifically
referred to above): (a) income or profit taxes upon the income of the Landlord
to the extent such taxes are not levied in substitution or in lieu of any of the
foregoing; (b) business or similar taxes or licence fees in respect of the
business of the Landlord which pertains to the management, operation and
maintenance of the Development (which are included in Operating Costs); and (c)
business or similar taxes or licence fees in respect of any business carried on
by tenants and occupants (including the Tenant) of the Development); and (d)
Capital Tax (which is included in Operating Costs).
"TENANT'S TAXES" means the aggregate of: (a) all taxes imposed upon the Tenant
which are attributable to the personal property, furnishings, fixtures and
Leasehold Improvements installed in the Premises; and (b) all taxes imposed upon
the Tenant which are attributable to the business, income or occupancy of the
Tenant or any other occupant of the Premises and to the use of any of the Common
Facilities by the Tenant or other occupant of the Premises.
"TENANT'S WORK" means the work to be performed by the Tenant, as described in
Section 17.2.
"TERM" means the term of this Lease as specified in Section 3.3.
"TOTAL RENTABLE AREA OF THE BUILDING" means the aggregate of all Gross Rentable
Area (including the Premises) of the Building.
"WORK" has the meaning ascribed thereto in Section 8.1.
ARTICLE 2
GENERAL COVENANTS
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2.1 TENANT'S COVENANTS
The Tenant covenants with the Landlord: (a) to pay Rent; and (b) to observe and
perform all the covenants and obligations of the Tenant herein.
2.2 LANDLORD'S COVENANTS
The Landlord covenants with the Tenant: (a) for quiet enjoyment; and (b) to
observe and perform all the covenants and obligations of the Landlord herein.
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ARTICLE 3
DEMISE AND TERM
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3.1 DEMISE OF PREMISES
The Landlord hereby demises and leases unto the Tenant, and the Tenant hereby
leases from the Landlord, the Premises for the Term and subject to the
provisions of this Lease.
3.2 LICENSE OVER CERTAIN COMMON FACILITIES
The Landlord hereby grants to the Tenant, its agents, employees, invitees and
other persons transacting business with it, in common with all others entitled
thereto, a license to have the use of certain of the Common Facilities as
designated from time to time by the Landlord; provided, however, that such use
shall be subject to all other provisions contained in this Lease and to the
Landlord's rules and regulations referred to in Section 7.8.
3.3 TERM
TO HAVE AND TO HOLD the Premises for and during the Term commencing on the date
(the "Commencement Date") which is the earlier of: (a) the day on which the
Tenant commences business in the Premises; and (b) the 1st day of October, 2000,
and shall end on the 30th day of September, 2010, provided that if the Landlord
cannot deliver the Premises to the Tenant by the Commencement in accordance with
section 13.1 hereof, the Commencement Date and the last day of the Term shall be
extended by the amount of delay.
3.4 OVERHOLDING
If the Tenant occupies any part of the Premises after the expiration or sooner
termination of the Term without the written agreement of the Landlord, the
Tenant shall be deemed to be only a monthly tenant at a monthly basic rent
payable in advance and equal to two times the monthly Basic Rent payable
immediately prior to the overholding plus additional rent equivalent to
Additional Rent hereunder and otherwise on the same terms as herein contained,
except for any right of renewal and/or extension; and such tenancy may be
terminated by the Landlord on 30 days' notice to the Tenant or by the Tenant on
30 days' notice to the Landlord. Nothing herein shall limit the liability of the
Tenant in damages or otherwise.
3.5 LEASEHOLD IMPROVEMENTS
(a) All Leasehold Improvements shall immediately upon installation become
the absolute property of the Landlord, free and clear of any liens or
encumbrances. Subject to subsections (b) and (c), upon the expiry or
earlier termination of this Lease, all Leasehold Improvements in the
Premises, including all fixed partitions (including floor to ceiling
partitions which, although demountable, involve attachment to any
floor, ceiling or permanent wall such that they cannot be removed
without damage to the Premises but excluding the Tenant's movable
partitions such as free-standing partitions or partial height
partitions which can be removed without damage to the Premises and
which shall be deemed to be removable trade fixtures) shall remain upon
and be surrendered with the Premises as a part thereof without
disturbance, molestation or injury and the same and any trade fixtures
not removed by the Tenant are the property of the Landlord absolutely,
free of any liens or encumbrances and without payment therefor to the
Tenant.
(b) The Landlord may, by notice to the Tenant prior to or promptly after
the expiry or earlier termination of this Lease, require the removal
forthwith, at the expense of the Tenant, of any or all Leasehold
Improvements (which are not in the nature of standard office
improvements, as determined by the Landlord, acting reasonably), trade
fixtures, equipment, inventory and/or other personal property and the
repair forthwith of any damage to the Premises or the Development
caused by such removal, such work to be done forthwith by or at the
direction of the Landlord and at the expense of the Tenant. If such
notice is given prior to the determination of this Lease, such removal
and repair shall be completed by such determination.
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(c) Notwithstanding anything herein contained, provided the Tenant has paid
the Rent hereby reserved and performed and observed all the covenants
and conditions herein contained, the Tenant shall have, at the expiry
or earlier termination of this Lease, the right to remove its trade
fixtures, provided that the Tenant repairs by the expiration or other
termination of this Lease, at its own expense, any damage to the
Premises or the Development caused by such removal, such work to be
done by or at the direction of the Landlord and at the expense of the
Tenant.
(d) The Tenant acknowledges and agrees that in the event that any
furniture, trade fixtures, equipment, inventory or other personal
property remains in the Premises after the expiration or other
termination of this Lease, any such items may, at the option of the
Landlord, become the property of the Landlord and the Landlord may, in
its sole discretion and without notice to the Tenant, arrange for the
removal and/or sale of such items and the proceeds of such sale after
deducting all costs in connection therewith shall be applied towards
any arrears of Rent owing by the Tenant. All costs in connection
therewith, not recovered from such sale shall be borne by the Tenant in
their entirety. The Tenant acknowledges and agrees that such removal
and/or sale shall not constitute distraint of such items.
ARTICLE 4
RENT
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4.1 BASIC RENT
The Tenant shall pay to the Landlord, yearly and every year during the Term,
without any set-off, compensation or deduction whatsoever, a Basic Rent in
Canadian dollars as follows:
(a) during the first three (3) years of the Term - $264,817.50 annually
payable in advance in equal consecutive monthly instalments of
$22,068.13 on the first day of each and every month during such period,
the first of such payments to be made on the Commencement Date;
(b) during the fourth, fifth and sixth years of the Term - $281,902.50
annually payable in advance in equal consecutive monthly instalments of
$23,491.88 on the first day of each and every month during such period;
and
(c) during the balance of the Term - $298,987.50 annually payable in
advance in equal consecutive monthly instalments of $24,915.63 on the
first day of each and every month during such period.
Basic Rent has been calculated on the basis that the rental rate per square foot
of Gross Rentable Area for the Premises is $15.50 per annum during the first
three (3) years of the Term, $16.50 per annum during the fourth, fifth and sixth
years of the Term, and $17.50 per annum during the balance of the Term, and that
the Gross Rentable Area of the Premises is 17,085 square feet. Basic Rent may be
adjusted from time to time, if necessary, to conform with changes in the Gross
Rentable Area of the Premises.
4.2 ADDITIONAL RENT
The Tenant shall pay to the Landlord, during the Term, when due, as Additional
Rent:
(a) all Tenant's Taxes;
(b) that portion of Taxes payable by the Tenant pursuant to Section 5.3;
(c) the Tenant's Proportionate Share of Operating Costs pursuant to Section
6.1;
(d) all Additional Service Costs payable by the Tenant; and
(e) all other amounts payable by the Tenant pursuant to this Lease.
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4.3 PAYMENT OF ADDITIONAL RENT
The Additional Rent specified in subsections 4.2(b) and (c) shall be paid and
adjusted with reference to a fiscal period of 12 calendar months, which shall be
the 12 month period ending on December 31st in each year during the Term unless
the Landlord, by notice to the Tenant, shall from time to time have selected a
fiscal period which ends on a different date (but which shall be a 12 month
period except where a shorter broken fiscal period occurs at the commencement or
end of the Term or is necessary to accommodate a change in the fiscal period
made during the Term). From time to time throughout the Term, the Landlord shall
give notice to the Tenant of the Landlord's estimate of such Additional Rent to
be paid by the Tenant during the next ensuing fiscal period. Such Additional
Rent payable by the Tenant shall be paid in equal monthly instalments in advance
at the same time as payment of Basic Rent is due hereunder and shall be based on
the Landlord's estimate as aforesaid. From time to time the Landlord may
re-estimate, on a reasonable basis, the amount of such Additional Rent for any
fiscal period in which case the Landlord shall give notice to the Tenant of such
re-estimate and fix new equal monthly instalments for the remaining balance of
such fiscal period so that, after giving credit for the instalments paid by the
Tenant on the basis of the previous estimate or estimates, all the Additional
Rent as estimated or re-estimated will have been paid during such fiscal period.
All Additional Service Costs shall be paid by the Tenant within five days after
receipt by it from time to time of invoices from the Landlord specifying the
amounts thereof.
4.4 ADJUSTMENT OF ADDITIONAL RENT
After the end of each fiscal period referred to in Section 4.3, the Landlord
shall deliver to the Tenant a statement of the Landlord as to the actual
Additional Rent payable to the Landlord pursuant to subsections 4.2(b) and (c)
in respect of such fiscal period and a calculation of the amount by which such
Additional Rent payable by the Tenant varies from the aggregate instalments paid
by the Tenant on account of such Additional Rent for such fiscal period. Within
30 days after the receipt of such statement, either the Tenant shall pay to the
Landlord any amount by which the amount found payable by the Tenant with respect
to such fiscal period exceeds the aggregate of the monthly payments made by it
on account thereof or the Landlord shall pay to the Tenant any amount by which
the amount found payable as aforesaid is less than the aggregate of such monthly
payments.
The Tenant shall have the right, exercisable by notice to the Landlord given
within 30 days after receipt of any statement of such Additional Rent submitted
by the Landlord as aforesaid, to verify the accuracy of any amount shown on any
statement by requiring the Landlord to give to the Tenant appropriate
explanations related to such statement, together with copies of relevant
invoices.
In the event of a dispute by the Tenant as to the amount of such Additional Rent
payable, a letter of the Landlord's auditors shall be conclusive.
4.5 APPORTIONMENT OF RENT
Rent shall be considered as accruing from day to day hereunder. If it is
necessary to calculate Rent for a period of less than one year or less than one
calendar month, an appropriate apportionment and adjustment on a pro rata daily
basis shall be made. Where the calculation of Additional Rent cannot be made
until after the expiration or earlier termination of this Lease, the obligation
of the Tenant to pay such Additional Rent shall survive the expiration or
earlier termination hereof, and such amount shall be paid by the Tenant to the
Landlord forthwith upon demand. If the Term commences on any day other than the
first day of the month, Rent for such fraction of a month shall be adjusted, as
aforesaid, and paid by the Tenant on the commencement date of the Term.
4.6 NO RIGHT OF SET-OFF
The Tenant expressly waives the benefits of Section 35 of the Landlord and
Tenant Act, R.S.O 1990, Chapter L-7 and any amendments thereto and any present
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or future enactment of the Province of Ontario permitting the Tenant to claim a
set-off against Rent for any cause whatsoever.
4.7 ADDITIONAL RENT DEEMED RENT
All Additional Rent shall be deemed to be rent and the Landlord shall have all
rights against the Tenant for default in payment of Additional Rent as for
default in the payment of Basic Rent.
4.8 INTEREST ON ARREARS
If the Tenant fails to pay Rent when due, the Tenant shall pay interest on the
unpaid amount at the Rate of Interest from the date due until the date paid,
without prejudice to and in addition to any other remedy available to the
Landlord under this Lease or at law.
4.9 NET LEASE TO LANDLORD
This Lease and the Rent payable hereunder shall be absolutely net to the
Landlord. Any obligation which is not stated to be that of the Landlord shall be
deemed to be that of the Tenant.
4.10 SECURITY DEPOSIT
(a) The Tenant has deposited with the Landlord the sum of $44, 136.25 (the
"Deposit"). The Deposit shall be held by the Landlord, in an
interest-bearing account (with all interest accruing to the account of
the Tenant), and applied against the Basic Rent first due hereunder.
(b) The Landlord shall deliver the Deposit or the remainder thereof, if
any, to any purchaser of the Landlord's interest in the Premises and
the Development if such interest is sold and thereafter the Landlord
shall be discharged from any further liability with respect to the
Deposit.
ARTICLE 5
TAXES
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5.1 TAXES
The Landlord shall pay when due to the taxing authority or authorities having
jurisdiction all Taxes.
5.2 TENANT'S TAXES AND SALES TAXES
(a) The Tenant shall pay all Tenant's Taxes when due to the taxing
authority or authorities having jurisdiction, or to the Landlord, if
the Landlord directs.
(b) The Tenant shall pay all Sales Taxes to the Landlord at the same time
as the amounts to which such Sales Taxes apply are payable to the
Landlord under the terms of this Lease. If the Tenant fails to pay such
Sales Taxes when due, the Landlord shall have the right, but not the
obligation, to make such payments to the relevant authorities and to
collect the Sales Taxes together with any penalties and interest costs
imposed by such relevant authorities from the Tenant upon demand.
Notwithstanding any other provision of this Lease, Sales Taxes payable
by the Tenant under this subsection shall be deemed not to be Rent, but
in addition to the Landlord's statutory rights and remedies, the
Landlord shall have all of the same remedies for and rights of recovery
of such amounts as it has for recovery of Rent under this Lease
including, without limitation, the right to collect interest thereon at
the Rate of Interest from the date the relevant amount was due to the
date of payment.
To the extent that any Additional Rent includes Sales Taxes payable by the
Landlord on the purchase of goods and services included in such Additional Rent,
such Additional Rent shall exclude any such Sales Taxes as are available to the
Landlord as a credit in determining the Landlord's net tax liability on account
of such Sales Taxes.
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5.3 TENANT'S CONTRIBUTION TO TAXES
(a) The Tenant shall, in respect of each calendar year included in whole or
in part within the Term, pay to the Landlord an amount to cover the
Taxes that are fairly attributable to the Premises for such calendar
year, such amount to be determined by the Landlord acting reasonably.
The Landlord and the Tenant shall make reasonable efforts to obtain
separate assessments for the Premises for tax purposes and, if there
are such separate assessments (or, in lieu thereof, calculations made
by authorities having jurisdiction from which separate assessments may,
in the Landlord's opinion, be readily determined), the Landlord shall
determine the amount payable by the Tenant pursuant to this subsection
(a) based on such assessments or calculations, as the case may be. The
Tenant shall provide the Landlord with a copy of any separate notices
of assessment for the Premises which the Tenant has received.
(b) The Tenant shall, in respect of each calendar year included in whole or
in part within the Term, pay to the Landlord an amount to cover any
taxes imposed on the Landlord which are attributable to personal
property, furnishings, fixtures or Leasehold Improvements installed
within the Premises.
(c) The Tenant shall, in respect of each calendar year included in whole or
in part within the Term, pay to the Landlord the amount by which Taxes
are increased above the Taxes which would have otherwise been payable
as a result of the Premises or the Tenant or any other occupant of the
Premises being taxed or assessed in support of separate schools.
(d) Payment by the Tenant of all amounts on account of Taxes shall be
governed by Sections 4.3 and 4.4.
5.4 PAYMENTS
(a) The Landlord may postpone any payment payable by it pursuant to Section
5.1, and the Tenant may postpone any payment payable by it directly to
a taxing authority (but not to the Landlord) pursuant to this Article
in each case to the extent permitted by law and if prosecuting in good
faith any appeal against the imposition thereof, but provided that in
the case of a postponement by the Tenant which involves any risk of the
Development or any part thereof or the Landlord becoming liable to
assessment, prosecution, fine or other liability, the Tenant shall have
given security in a form and of an amount satisfactory to the Landlord
in respect of such liability and such undertakings as the Landlord may
reasonably require to ensure payment thereof.
(b) Whenever requested by the Landlord, the Tenant shall deliver to the
Landlord receipts for payment of all amounts owing by the Tenant
pursuant to Section 5.2 and furnish such other information in
connection therewith as the Landlord may reasonably require.
ARTICLE 6
SERVICES AND COMMON FACILITIES
------------------------------
6.1 TENANT'S CONTRIBUTION TO OPERATING COSTS
(a) The Tenant shall, throughout the term, pay to the Landlord the Tenant's
Proportionate Share of Operating Costs.
(b) Payment by the Tenant of all amounts on account of the Tenant's
Proportionate Share of Operating Costs shall be governed by Sections
4.3 and 4.4.
6.2 OPERATION OF REGULAR HVAC SYSTEM
The Landlord shall operate the heating, ventilating and air-conditioning
equipment and systems serving the Premises so as to provide conditions of
adequate comfort in the Premises during Business Hours, except during the making
of repairs, inspections, overhauling or replacement.
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If such equipment or systems are damaged or destroyed, or, in the opinion of the
Landlord, require repair, inspection, overhauling or replacement, the Landlord
shall carry out such work with all reasonable diligence. The Landlord shall not
be responsible for any loss, damages or costs arising from the failure of such
equipment or systems to perform their function. In addition, the Landlord shall
not be responsible for the failure of such equipment and systems to perform
their function if the number of persons in the Premises at any one time exceeds
a reasonable number or if the electrical load from lights and power in the
Premises is excessive or if such failure results from any arrangement of
partitioning in the Premises or change or alteration thereto or if the window
covering on exterior windows is not kept fully closed while the windows are
exposed to direct sunlight or if any use of mechanical or electrical equipment
installed in the Premises generates heat in excess of normal amounts. The
Landlord shall not be liable for direct, indirect or consequential damage or
damages for personal discomfort or illness of the Tenant or its employees,
invitees or other persons transacting business with it by reason of the
operation or non-operation of such systems and equipment. In no event shall Rent
abate during any non-operation.
6.3 ADDITIONAL HVAC
(a) The Tenant may, upon two days' written notice to the Landlord, request
the Landlord to provide any service mentioned in section 6.2 to the
Premises or any portion or portions thereof during such non Business
Hours that the Tenant specifies. The Landlord may provide such service
and the costs thereof shall be included in Operating Costs hereunder.
(b) The Tenant may, upon two days' written notice to the Landlord, request
the Landlord to provide heating, ventilating and air-conditioning
service in excess of that mentioned in section 6.2 to the Premises or
any portion or portions thereof. If the equipment and systems providing
such service is capable of meeting the Tenant's request, the Landlord
may provide such service and charge the Tenant, as an Additional
Service Cost, the reasonably hourly rate for each hour or part thereof
that such service is provided, such hourly rate to be determined by the
Landlord and to comprise all additional costs incurred in providing
such service.
6.4 ELECTRICITY AND OTHER UTILITIES
The Landlord shall furnish to the Premises electricity for lighting and for
office equipment capable of operating from the circuits available and standard
to the Building. The Landlord shall also replace, maintain and repair as and
when required all electric light bulbs, fluorescent tubes and ballasts initially
supplied in the Premises and provide the necessary maintenance and repair of
fluorescent and other standard Building lighting fixtures located in the
Premises.
The Tenant shall pay, as an Additional Service Cost, all charges for electricity
and other utilities provided to the Premises together with the costs of the
aforesaid replacement, maintenance and repair. The charges for electricity and
other utilities used in the Premises and all costs as aforesaid shall be
determined by the Landlord or its agent using a reasonable method of calculation
which has been communicated to the Tenant.
If requested by the Landlord, the Tenant shall install, at the Tenant's sole
expense, separate meters specified by the Landlord for measuring consumption of
energy in the Premises.
The costs of replacement, maintenance and repair of each of the items in this
section 6.4 shall, as determined by the Landlord from time to time and applied
on a uniform basis in the Development, either be charged to the Tenant as an
Additional Service Cost or included in Operating Costs.
6.5 OPERATION OF COMMON FACILITIES
Except as otherwise provided in this Article, the Landlord shall operate,
maintain, clean, light, heat, ventilate and air-condition and supervise and
regulate the Common Facilities as a reasonably prudent owner would do having
regard to the type and age of the Development.
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All Common Facilities shall be subject at all times to the exclusive control and
management of the Landlord. The Landlord shall be entitled to operate and police
the same, to change the area and location thereof, to employ all personnel and
to make all rules and regulations necessary for the proper operation and
maintenance thereof, and to do such other acts with respect thereto as the
Landlord, acting reasonably, shall determine to be advisable; provided, however,
that the Tenant, unless deprived by reasons beyond the Landlord's control, shall
always have the use of such of the Common Facilities as are reasonably necessary
for the use and enjoyment of the Premises.
6.6 JANITORIAL SERVICES
(a) The Landlord shall provide to the Premises normal office cleaning
services of a standard (both as to extent and frequency) as a
reasonably prudent owner would do having regard to the type and age of
the Development, the cost of which is to form a part of Operating
Costs. Such services shall include, but not be limited to, causing
periodically as may be appropriate of necessary in keeping with such
standard the floors of the Premises to be swept, the interior surface
of the exterior windows of the Premises to be cleaned, the desks,
tables, other furniture and venetian blinds, if any, in the Premises to
be dusted and any broadloom in the Premises to be vacuumed. Cleaning in
addition to the foregoing standard (such as, for example, the washing
of carpets and the dry-cleaning of drapes) shall be the responsibility
of the Tenant, although the Landlord shall have the right to elect to
provide such additional cleaning, as provided in subsection (c).
(b) The Tenant acknowledges that the Landlord will be relieved from its
cleaning obligation as provided in subsection (a) in respect of any
part of the Premises to which access is not granted to the person or
persons retained to perform such work.
(c) If the Tenant desires any janitor or cleaning services for the Premises
in addition to those contemplated by subsection (a) and if the Landlord
from time to time elects, acting reasonably, to provide exclusively
(either directly or through agents or contractors designated by it)
such additional services or if the Landlord supervises the moving of
furniture or equipment of the Tenant or the making of deliveries to or
from the Premises, such additional services referred to in this
subsection shall be treated as Additional Services and all reasonable
Additional Service Costs shall be paid by the Tenant to the Landlord
forthwith after demand.
(d) The Tenant acknowledges that the Landlord shall not be responsible for
any omission or act of commission on the part of the person or persons
employed or retained to perform the cleaning services referred to in
this section or for any loss thereby sustained by the Tenant, the
Tenant's employees, agents, invitees or others.
(e) Subject to the Landlord's reasonable requirements, including the
provision by the Tenant of satisfactory insurance and bonds and
compliance with security measures, and the Landlord's right to control
and manage the Building, the Tenant shall have the right to perform the
janitorial and cleaning services for the Premises contemplated by
subsection (a).
6.7 SECURITY SERVICES
(a) The Landlord may provide security services for the Building so as to
use reasonable efforts to ensure that access to the Building during
other than Business Hours shall be restricted to those persons entitled
to be allowed entry to the Building, provided they comply with the
requirements established by the Landlord.
(b) It is understood and agreed that, unless specifically required by the
Landlord, the Landlord shall not hold or be obliged to hold any keys to
the Premises or to otherwise accept any items on behalf of the Tenant
including, without limitation, any keys, boxes, goods or other items.
In addition, it is understood and agreed that the Tenant shall be
responsible for the security and protection of the Premises and any
security staff employed by the Landlord shall only be responsible for
assisting in the security of the common areas of the Development. The
Landlord and its security staff and other employees shall not be
<PAGE>
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responsible for the detention or apprehension of any individuals in the
Premises or suspected of any criminal activity taking place in the
Premises.
(c) The Tenant acknowledges that the Landlord shall not be responsible for
any omission or act of commission on the part of any person employed or
retained to provide security service pursuant to this section or for
any loss thereby sustained by the Tenant, the Tenant's employees,
agents, invitees or others.
6.8 INTERRUPTION IN SERVICES
The Landlord has the right to stop the use of any facilities and the supply of
any services when necessary by reason of accident or during the making of
repairs, replacements, alterations or improvements, in the judgment of the
Landlord necessary or desirable to be made, until the repairs, replacements,
alterations or improvements have been completed to the satisfaction of the
Landlord provided that all reasonable steps shall be taken to minimize any
interference with the Tenant's use and enjoyment of the Premises, both as to the
extent and duration of such interference. The Landlord shall have no
responsibility or liability for failure to operate any facilities or supply any
services when the use of the facility is stopped as aforesaid or when the
Landlord is prevented from using the facility or supplying the service by
strike, or by orders or regulations of any governmental authority or agency or
by failure of the electric current, gas, steam or water supply necessary to the
operation of any facility or by the failure to obtain such a supply or by any
other cause beyond the Landlord's reasonable control.
6.9 ENERGY CONSERVATION
The Tenant shall comply with any measures the Landlord or any legislative
authority may from time to time introduce to conserve or to reduce consumption
of energy or to reduce or control other Operating Costs or pay as Additional
Rent the cost, to be estimated by the Landlord acting reasonably, of the
additional energy consumed by reason of such non-compliance. The Tenant shall
also convert to whatever system or units of measurement of energy consumption
the Landlord may from time to time adopt.
6.10 PEST CONTROL BY TENANT
The Tenant agrees to institute and carry out and maintain, at its own expense,
such pest control measures in the Premises as the Landlord reasonably requires.
ARTICLE 7
USE AND OCCUPANCY OF PREMISES
-----------------------------
7.1 USE OF PREMISES
The Tenant shall use the Premises solely for the purpose of general offices and
administrative uses. The Tenant will not use or permit, or suffer the use of,
the Premises or any part thereof for any other business or purpose.
7.2 WASTE AND NUISANCE
The Tenant shall not carry on any business or do or suffer any act or thing
which may constitute or result in a nuisance to the Landlord or to other tenants
of the Development, or do or suffer any waste or damage to the Premises or the
Development.
7.3 NO OVERLOADING OF FLOORS OR COMMON USE EQUIPMENT
The Tenant shall not permit or allow any overloading of the floors of the
Premises or the bringing into any part of the Premises of any articles or
fixtures that by reason of their weight or size might damage or endanger the
structure of the Premises or the Building. The Tenant shall not permit or allow
anything that might result in any overloading of any of the Common Facilities.
<PAGE>
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7.4 INSURANCE CANCELLATION OR INCREASE
The Tenant shall not do or omit to do or permit to be done or omitted to be done
in the Premises anything which would cause any policy of insurance on the
Development to be subject to cancellation or non-renewal or which would cause an
increase in the cost of any insurance which the Landlord is obligated by this
Lease to maintain. Upon any default by the Tenant which would result in
cancellation or non-renewal or an increased cost, the Landlord may, at its
option, terminate this Lease if such default is not cured by the Tenant within
10 days' notice to the Tenant. Without limiting the foregoing, the Tenant shall
pay to the Landlord, forthwith upon demand, the amount of any such increase in
cost.
If any insurance policy is cancelled or threatened by the insurer to be
cancelled or the coverage thereunder is altered in any way because of the use or
occupation of the Premises by the Tenant or by any person for whom the Tenant is
in law responsible, and if the Tenant fails to remedy the condition giving rise
to the cancellation, threatened cancellation or alteration in coverage within 2
Business Days (or such lesser period as the Landlord acting reasonably may
determine, having regard to the urgency of the situation)after notice to the
Tenant of such cancellation or proposed cancellation or alteration, the Landlord
may, (but shall not be obligated to), without further notice or any liability to
the Tenant or any other occupant of the Premises, enter the Premises and attempt
to remedy such condition or obtain or attempt to obtain insurance coverage in
replacement of the coverage cancelled, threatened to be cancelled or altered in
coverage; and the Tenant shall pay to the Landlord, forthwith upon demand, the
cost thereof.
7.5 OBSERVANCE OF LAW BY LANDLORD AND TENANT
(a) The Landlord shall, at its expense (which expense shall be included in
Operating Costs, unless it is expressly hereby excluded therefrom),
promptly comply with and conform to the requirements of every
applicable statute, law, by-law, regulation, ordinance and order at any
time or from time to time in force during the Term affecting the
Development other than to those matters which are the obligation of the
Tenant as provided in subsection (b).
(b) The Tenant shall, at its expense, promptly comply with and conform to
the requirements of every applicable statute, law, by-law, regulation,
ordinance and order at any time or from time to time in force during
the Term affecting the Tenant's use of the Premises or any part thereof
and/or the business carried on therein and/or the Leasehold
Improvements, trade fixtures, furniture, machinery, equipment and other
facilities located in the Premises and/or any other part of the
Development affected by the Tenant's actions in the Premises.
7.6 RULES AND REGULATIONS
The Tenant shall observe and perform, and shall cause its employees, agents,
invitees and others over whom the Tenant can reasonably be expected to exercise
control to observe and perform, the Rules and Regulations attached hereto as
Schedule "B" and such other rules and regulations or amendments as may be made
from time to time by the Landlord acting reasonably and of which notice has been
given by the Landlord to the Tenant.
The Tenant acknowledges that the Rules and Regulations, as from time to time
amended or replaced, are not necessarily of uniform application but may be
waived in whole or in part in respect of other tenants without affecting their
enforceability with respect to the Tenant and the Premises, and may be waived in
whole or in part with respect to the Premises without waiving them as to future
application to the Premises, and the imposition of such Rules and Regulations
shall not create or imply any obligation of the Landlord to enforce them.
In any conflict between a provision of this Lease and any of the Rules and
Regulations, the provision of this Lease shall govern.
<PAGE>
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7.7 SIGNAGE
(a) Provided that the Tenant in occupation of all or substantially all of
the Premises is E-Cruiter.com Inc. (the Tenant acknowledging that the
rights under this Section 7.7 are personal to E-Cruiter.com Inc.), the
Tenant shall have the following rights in respect of signage:
(i) if the Landlord obtains the requisite approvals for the
installation thereof, the Tenant shall have the right in
common with other tenants of the Building to install, at its
expense, its corporate identification signage on a pylon sign
located at the entrance to the Lands (for greater certainty,
the Tenant acknowledges that there shall be only one such
pylon sign for all tenants of the Building); and
(ii) the Tenant shall have the right to install, at its expense,
its corporate identification signage on the exterior facade
over the main entrance to the Building fronting Solandt
Street. The size, design, location and installation of any
such signage shall be subject to the prior written approval of
the Landlord, acting reasonably, and the receipt by the Tenant
of all requisite municipal and/or regulatory approvals.
All signage installed by the Tenant shall be subject to the further
condition that the Tenant shall have the obligation, at its expense, to
remove such signage and make good any damage caused thereby, at the
expiry or earlier termination of the Term. Such rights shall also be
subject to termination by the Landlord, upon the occurrence of any
default under this Lease by the Tenant.
(b) Subject to paragraph (a), the Tenant shall not install any signage or
advertising material or inscribe anything upon any part of the exterior
of the Building or on the exterior or interior surfaces of any exterior
window or door of the Premises or upon the exterior of any demising
walls, or upon any Common Facilities, except the usual tenant
identification on a directory board as designated by the Landlord and
except for a sign on the door leading to the Premises, which sign shall
be consented to by the Landlord, acting reasonably. At the expiry or
earlier termination of this Lease, the Tenant shall remove any such
signage which it may have installed, and shall repair forthwith any
damage caused by such removal.
ARTICLE 8
ALTERATIONS
-----------
8.1 ALTERATIONS BY TENANT:
(a) The Tenant shall not, without the prior consent of the Landlord, make,
erect, alter or install any Leasehold Improvements or other alterations
or installations to the Premises (the "Work").
(b) If the Tenant wishes to do any Work, the Tenant shall apply for the
Landlord's consent and furnish such plans, specifications and designs
as shall be necessary to fully describe the Work. The Landlord's
consent thereto shall not be unreasonably withheld or delayed; provided
that, without limitation, any refusal to grant consent based on grounds
that such Work is not in compliance with the Landlord's standard for
the Building or that the Tenant has not posted security with the
Landlord shall be conclusively deemed not to be an unreasonable
withholding of consent.
(c) Subject to the Landlord's consent having been obtained and the
Landlord's reasonable requirements (including the posting of reasonable
security, if requested) being met, the Landlord recognizes the right of
the Tenant to install such interior partitions and other Leasehold
Improvements as are necessary or appropriate to its use and occupancy
of the Premises.
(d) Any Work shall, if the Landlord so elects, be performed by employees or
contractors who have been designated by the Landlord and who have
contracted directly with the Tenant and agreed to carry out such Work
<PAGE>
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in a good and workmanlike manner and at a cost to the Tenant which is
not unreasonable when compared with the amounts which would be charged
by reputable contractors performing the same work. In the absence of
any such election by the Landlord, such Work may be performed by
contractors retained by the Tenant pursuant to written contracts which
have been approved by the Landlord (such approval not to be
unreasonably withheld) and are subject to all reasonable conditions
which the Landlord imposes. In either event, the Landlord shall have
the right to inspect such Work and require any Work not being properly
done to be corrected, and to approve on a reasonable basis (which may
include considerations involving trade union affiliations or the lack
of them and work jurisdiction, where in the opinion of the Landlord
there is a risk of labour disputes which might adversely affect the
Landlord) the contractors, tradesmen or the Tenant's own employees (as
the case may be) employed by the Tenant in connection therewith.
(e) The Tenant shall pay to the Landlord, within 10 days after the receipt
of the Landlord's invoice, the Landlord's reasonable out-of-pocket
costs incurred in examining and approving the Tenant's plans,
specifications and designs and in inspecting the Work and any
additional expenses actually incurred by the Landlord in connection
with such Work together with a coordination and supervision fee equal
to 10% of the total cost to the Tenant of such Work (provided that the
Landlord agrees that such fee shall not be payable in respect of the
initial Tenant's Work to be conducted prior to the Commencement Date,
the parties acknowledging, however, that in respect of such Work the
Tenant shall be required to pay the fee referred to in subsection 6(b)
of Schedule "E").
(f) The Tenant agrees that it will, periodically throughout the Term
including, without limitation, whenever any alterations are made to the
Premises, balance the air movement in the Premises at the Tenant's
expense and for this purpose use the air-balancer designated by the
Landlord. The Landlord acknowledges that it will, as part of the
Landlord's work contemplated by section 17.4, balance the air movement
in the Premises at the commencement of the Term.
8.2 NO FINANCING BY TENANT OF LEASEHOLD IMPROVEMENTS
The Tenant shall not create any lien, mortgage, charge, conditional sale
agreement or other encumbrance in respect of its Leasehold Improvements, nor
shall the Tenant take any action as a consequence of which any such prohibited
lien, mortgage, charge, conditional sale agreement or other encumbrance would
attach to the Premises or to the Development.
8.3 LIENS
(a) In connection with the making, erection, installation or alteration of
Leasehold Improvements and trade fixtures and all other work or
installations or alterations made by or for the Tenant in the Premises,
the Tenant shall comply with every applicable statute, law, by-law,
regulation, ordinance and order affecting the same and affecting the
Development as a result of the actions of the Tenant including, without
limitation, the Construction Lien Act of Ontario, and any other
statutes from time to time applicable thereto (including any provision
requiring or enabling the retention by way of holdback of portions of
any sums payable) and, except as to any such holdback, shall promptly
pay all accounts relating thereto.
(b) Whenever any construction or other lien for work, labour, services or
materials supplied to or for the Tenant or for the cost of which the
Tenant may be in any way liable or claims therefor shall arise or be
filed or any prohibited mortgage, charge, conditional sale agreement or
other encumbrance shall attach, the Tenant shall within five days after
receipt of notice thereof procure and register the discharge thereof,
including any certificate of action registered in respect of any lien,
by payment or in such other manner as may be required or permitted by
law, and failing which the Landlord may make any payments required to
procure and register the discharge of any such liens or encumbrances,
including any certificate of action registered in respect of any lien,
<PAGE>
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and shall be entitled to be reimbursed by the Tenant as provided in
Section 15.3, and its right to reimbursement shall not be affected or
impaired if the Tenant shall then or subsequently establish or claim
that any lien or encumbrance so discharged was without merit or
excessive or subject to any abatement, set-off or defence.
(c) The Landlord and the Tenant agree that any work done in the Premises
during the Term by or on behalf of the Tenant shall not be done and
shall be deemed not to have been done at the request of the Landlord.
If any contractor with respect to any Work gives notice to the Landlord
pursuant to Section 19 of the Construction Lien Act of Ontario, the
Landlord shall have the right to refuse to assume responsibility.
8.4 ALTERATIONS BY LANDLORD
The Landlord may from time to time at its own expense make alterations to the
Building or any part thereof including the Premises and alterations to or
relocations of the Common Facilities provided that: (a) the Premises shall not
be altered or interfered with in any material way; (b) the Common Facilities
shall not be altered or relocated to such an extent as to materially reduce
their convenience to the Tenant; (c) access and services to or benefiting the
Premises shall not be reduced or interrupted (except to the minimum extent which
is temporary, reasonable and unavoidable during the making of repairs or
renovations); and (d) any alteration shall be such that a reasonably prudent
owner of the Development would make having regard to the type and age of the
Development.
8.5 PROHIBITION RE CERTAIN MATERIALS
Notwithstanding any other provision of this Lease, the Tenant agrees that it
will not use or permit the use of any hazardous substances including, without
limitation, any asbestos, propane, polychlorinated biphenyl, propane or radon in
any construction of the Leasehold Improvements in the Premises or in any use of
the Premises.
ARTICLE 9
REPAIRS
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9.1 LANDLORD'S REPAIRS
Subject to Section 9.5 and except as provided in Section 9.2, the Landlord shall
repair and maintain and may, if it so elects, replace: (a) the Building
including all the external and structural parts of the Building but excluding
any parts thereof (except as specified in subsection (b) of this Section) which
comprise the whole or a part of the Premises or premises leased to others; (b)
Insured Damage; and (c) the Common Facilities; all with reasonable dispatch and
in a good and workmanlike manner, and so as to keep the same in good condition
and repair.
9.2 TENANT'S REPAIRS
Subject to Section 9.5, the Tenant shall at the Tenant's expense and throughout
the Term, keep the Premises and the Leasehold Improvements and trade fixtures
therein and all electrical and telephone outlets and conduits and all mechanical
and electrical equipment within the Premises in good condition and repair to the
standards of a first class building. The Tenant shall also make good any damage
to the Development caused by the Tenant and which is not Insured Damage. All
repairs by the Tenant shall be subject to Section 8.1.
9.3 ENTRY BY LANDLORD TO VIEW STATE OF REPAIR
The Landlord shall be entitled to enter and view the state of repair of the
Premises provided that nothing herein shall be construed so as to require
repairs to be made by the Landlord except as expressly provided in this Lease.
The Tenant will repair, according to notice, as specified in Section 9.2.
<PAGE>
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9.4 NOTICE OF DEFECTS
The Tenant shall give to the Landlord prompt notice of any defect in the
plumbing or utility systems and equipment or any damage to the Premises or any
part thereof howsoever caused; provided that nothing herein shall be construed
so as to require repairs to be made by the Landlord except as expressly provided
in this Lease.
9.5 TERMINATION OR ABATEMENT AFTER DAMAGE
(a) If and whenever the Premises are destroyed or damaged by any cause to
the extent that, in the Landlord's reasonable opinion to be given in
writing to the Tenant within 60 days after the occurrence of such
damage or destruction, they are unable to be repaired or rebuilt within
180 days after such destruction or damage, then the Landlord may
terminate this Lease by notice to the Tenant, to be given within 30
days after the giving of the Landlord's written opinion above referred
to, and the Tenant shall immediately thereupon surrender the Premises
and this Lease to the Landlord and Rent shall be apportioned to the
date of such destruction or damage (subject to the payment of Rent from
the date of such destruction or damage to the date of surrender in the
same proportion that the part of the Net Rentable Area of the Premises
fit for occupancy by the Tenant until such surrender is of the total
Net Rentable Area of the Premises).
(b) If and whenever all or any portion of the Building is destroyed or
damaged by reason of any cause (whether or not such portion includes
all or any part of the Premises) to such extent that:
(i) in the Landlord's reasonable opinion to be given to the Tenant
in writing within 60 days after the occurrence of such damage
or destruction, it is unable to be repaired or rebuilt within
180 days after such destruction or damage; or
(ii) the estimated cost (as estimated by the Landlord) of repairing
or rebuilding the Development exceeds the proceeds of
insurance available to the Landlord for such purpose (or which
would have been available if the Landlord had insured in
compliance with Section 10.1);
the Landlord may terminate this Lease upon not less than 30 days' prior
written notice to the Tenant, given within 60 days after the happening
of such destruction or damage, and the Tenant shall immediately
thereupon surrender the Premises and this Lease to the Landlord; and
(iii) if and to the extent that such destruction or damage has
rendered the Premises in whole or in part unfit for occupancy
by the Tenant, Rent shall abate from the date of such
destruction or damage to the date of surrender in the same
proportion that the part of the Net Rentable Area of the
Premises unfit for occupancy is of the total Net Rentable Area
of the Premises; and
(iv) otherwise Rent shall be apportioned to the date of surrender.
(c) If and whenever the Premises are destroyed or damaged by reason of any
cause and this Lease shall not have been terminated, the Landlord
shall, with all reasonable diligence, make the repairs specified in
Section 9.1 and the Tenant shall, with all reasonable diligence and in
compliance with Section 8.1, make all repairs to the Premises specified
in Section 9.2 and complete the Premises for occupancy for the purpose
described in Section 7.1 and in compliance with subsection 7.5(b). If
as a result of any destruction or damage to the Premises which the
Landlord is obligated to repair pursuant to Section 9.1, and which is
not the fault of the Tenant or those for whom it is in law responsible
and which does not consist of merely a temporary interruption of or
interference with any utility, service or access, the Premises are
rendered in whole or in part unfit for occupancy by the Tenant, then
during the period commencing two Business Days immediately following
the occurrence of such destruction or damage and ending upon the
earlier of:
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(i) the date when both the repairs to the Premises which the
Landlord is obligated to make as aforesaid are completed
sufficiently to enable the Tenant to commence its repairs, and
the Tenant has been allowed a reasonable period of time which
is sufficient for the completion by it of the repairs it is
obligated to make as aforesaid with due diligence; and
(ii) the date upon which no insurance proceeds are available to the
Landlord under its loss of rental income insurance coverage in
respect of the Premises (other than by reason of the Landlord
not carrying the insurance as set out in Section 10.1);
Rent shall from time to time abate in the same proportion that the part
of the Net Rentable Area of the Premises from time to time rendered
unfit for such occupancy by reason of such destruction or damage is of
the total Net Rentable Area of the Premises.
9.6 NO CLAIM BY TENANT
Except in respect of abatement of Rent as provided for in this Article, no claim
for compensation or damages, direct or indirect shall be made by the Tenant by
reason of the loss of use, inconvenience or otherwise arising from the necessity
of repairing any portion of the Development however the necessity may arise.
9.7 TENANT TO LEAVE PREMISES IN GOOD REPAIR
The Tenant shall leave the Premises and (subject to Section 3.5) the Leasehold
Improvements, at the expiration or other termination of the Term, in the
condition and repair required of the Tenant under Section 9.2.
ARTICLE 10
INSURANCE AND LIABILITY
-----------------------
10.1 LANDLORD'S INSURANCE
Subject to its general availability, the Landlord shall effect and maintain
during the Term:
(a) "all risks" insurance which shall insure the Development (other than
any Leasehold Improvements) on a full replacement cost basis against
loss or damage by perils now or hereafter from time to time embraced by
or defined in a standard all risks insurance policy;
(b) boiler and machinery insurance on objects defined in a standard
comprehensive boiler and machinery policy against accidents as defined
therein;
(c) loss of rental income insurance in an amount sufficient to replace all
Basic Rent and Additional Rent payable under the provisions of this
Lease for an indemnity period of a reasonable period of time;
(d) comprehensive general liability insurance covering claims for personal
injury and property damage arising out of all operations in connection
with the management and administration of the Development; and
(e) such other coverage, or increases in the amount of coverage, as the
Landlord may determine, (i) acting as a prudent landlord, or (ii) in
accordance with changes in industry standards, or (iii) in accordance
with the requirements of any mortgagee.
For greater certainty, the Tenant acknowledges that the Landlord is not
obligated to insure Leasehold Improvements in the Premises. The insurance to be
maintained by the Landlord shall be that which would be carried by reasonably
prudent owners of properties similar to the Development, all as from time to
time determined by insurance advisers selected by the Landlord, and whose
written opinion shall be conclusive.
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10.2 TENANT'S INSURANCE
The Tenant shall, at its own expense, take out and keep in force during the Term
and such other times as the Tenant is in occupation or possession of the
Premises or any part thereof:
(a) comprehensive insurance of the type commonly called general public
liability, which shall include coverage for personal injury, broad
blanket contractual liability, employer's liability, owner's protective
liability, all risks tenant's legal liability, non-owned automobile
liability, bodily injury, death and property damage, all on an
occurrence basis with respect to the business carried on in the
Premises and the Tenant's use and occupancy of the Premises and its use
of the Common Facilities or of any other part of the Building, with
coverage for any one occurrence or claim of not less than $5,000,000 or
such other amount as the Landlord may from time to time reasonably
require upon not less than 30 days' notice at any time during the Term,
which insurance shall contain a severability of interest clause and a
cross-liability clause;
(b) "all-risks" property insurance covering the Leasehold Improvements,
trade fixtures, and the furniture and equipment in the Premises on a
full replacement basis, with an agreed amount co-insurance clause and
by-law endorsement and which insurance shall provide that any proceeds
recoverable with respect to Leasehold Improvements shall be payable to
the Landlord (but the Landlord agrees to make available such proceeds
toward the repair or replacement of the insured property if this Lease
is not terminated pursuant to any other provisions hereof); and
(c) insurance against such other perils and in such amounts as the Landlord
or any mortgagee of the Landlord or the Tenant may from time to time
reasonably require upon not less than 60 days' notice, such requirement
to be made on the basis that the required insurance is customary at the
time in the City of Ottawa for tenants of buildings similar to the
Building.
10.3 FORM OF TENANT'S INSURANCE
All insurance required to be maintained by the Tenant hereunder shall be on
terms and with insurers to which the Landlord has no reasonable objection. Each
policy shall (a) contain a waiver by the insurer of any rights of subrogation or
indemnity or any other claim to which the insurer might otherwise be entitled
against the Landlord or the directors, officers, agents or employees of the
Landlord, (b) name the Landlord and its directors, officers, agents and
employees as additional named insureds, (c) be primary, noncontributory with and
not excess of any insurance available to the Landlord and (d) contain an
undertaking by the insurer that no material change adverse to the Landlord or
the Tenant will be made and the policy will not lapse or be cancelled or not be
renewed, except after not less than 30 days' prior written notice to the
Landlord of the intended change, lapse, cancellation or non-renewal. The Tenant
shall furnish to the Landlord certified copies of the policies of insurance from
time to time effected by the Tenant and its renewal or continuation in force,
together with evidence as to the method of determination of full replacement
cost of the Leasehold Improvements and other items excluded from the definition
of Leasehold Improvements, trade fixtures, furniture and equipment. If the
Landlord reasonably concludes that the full replacement cost has been
underestimated, the Tenant shall forthwith arrange for any consequent increase
in coverage required under Section 10.2. If the Tenant fails to take out, renew
or keep in force such insurance, or if the policies submitted to the Landlord
pursuant to the preceding sentence are unacceptable to the Landlord (or no such
policies are submitted within a reasonable period after request therefor by the
Landlord), then the Landlord may give to the Tenant notice requiring compliance
with this Section and specifying the respects in which the Tenant is not then in
compliance with this Section. If the Tenant does not, within 72 hours (or such
lesser period as the Landlord may reasonably require having regard to the
urgency of the situation), provide appropriate evidence of compliance with this
Section, the Landlord may (but shall not be obligated to) obtain some or all of
the additional coverage or other insurance which the Tenant shall have failed to
obtain, without prejudice to any other rights of the Landlord under this Lease
or otherwise, and the Tenant shall pay all premiums and other costs incurred by
the Landlord forthwith upon demand.
<PAGE>
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10.4 RELEASE OF LANDLORD BY TENANT
The Tenant agrees that neither the Landlord nor its directors, officers, agents,
employees or any others for whom the Landlord is at law responsible shall be
liable to any extent for any personal injury or death of, or loss or damage to
any property belonging to the Tenant or its employees, invitees or licensees or
any other person in, on or about the Development unless resulting from the
actual gross negligence of the Landlord (but only to the extent of such actual
gross negligence) or unless resulting from a breach of the obligations of the
Landlord under this Lease. In no event shall the Landlord or its directors,
officers, agents, employees or any others for whom the Landlord is at law
responsible be liable for: (a) any damage (other than Insured Damage) which is
caused by steam, water, rain or snow which may leak into, issue or flow from any
part of the Development or from the pipes or plumbing works, including the
sprinkler system, thereof, 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 of sprinkler heads, or for any damage caused by anything done or
omitted by any other tenant; (b) any act or omission (including theft,
malfeasance or negligence) on the part of any agent, contractor or person from
time to time employed by it to perform janitorial services, security services,
supervision or any other work in or about the Premises or the Development; (c)
loss or damage, however caused, to money, securities, negotiable instruments,
papers or other valuables of the Tenant; or (d) loss or damage for which the
Tenant is required to carry insurance.
In addition, the Tenant releases the Landlord and its directors, officers,
agents, employees and any others for whom the Landlord is at law responsible
from all claims or liabilities in respect of damage required to be insured
against by the Tenant.
10.5 RELEASE OF TENANT BY LANDLORD
The Landlord hereby releases the Tenant and those for whom the Tenant is at law
responsible from all claims or liabilities in respect of any damage which is
Insured Damage to the extent of the insurance proceeds actually received by the
Landlord.
10.6 INDEMNITY OF LANDLORD BY TENANT
Except as provided in Section 10.5, the Tenant shall indemnify and save harmless
the Landlord and its directors, officers, agents and employees against and from
any and all expenses, costs, damages, suits, actions or liabilities arising or
growing out of any default by the Tenant hereunder, and from all claims and
demands of every kind and nature made by any person or persons to or against the
Landlord and/or its directors, officers, agents and employees, for all and every
manner of costs, damages or expenses incurred by or injury or damage to such
person or persons or his, her or their property, which claims or demands may
arise howsoever out of the use and occupation of the Premises by the Tenant or
any subtenant or occupant authorized by the Tenant or by any assignee or
sublessee thereof or any of the above-mentioned or his, her or their servants,
agents, assistants, employees, invitees or other persons entering into the
Building to go to the Premises or any part thereof, and from all costs, counsel
fees, expenses and liabilities incurred in or about any such claim or any action
or proceeding brought thereon.
10.7 PLATE GLASS
The Tenant shall be responsible for the cost of the replacement of any and all
glass, damaged or broken, from any cause whatsoever, in or about the Premises.
10.8 EXTENDED MEANING OF "LANDLORD" AND "TENANT"
For the purposes of every provision of this Lease which includes a release or
indemnity, "Tenant" shall mean the Tenant, its servants, agents, assistants,
employees, invitees and contractors, and "Landlord" shall mean the Landlord, its
servants, agents, assistants, employees, invitees and contractors.
<PAGE>
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ARTICLE 11
ASSIGNMENTS, ETC. BY TENANT
---------------------------
AND TRANSFERS ETC. BY LANDLORD
------------------------------
11.1 ASSIGNMENTS, SUBLEASES, CHARGES BY TENANT
(a) The Tenant shall not assign this Lease or sublet all or any part of the
Premises or in any way charge, encumber or pledge this Lease or its
interest therein without the prior consent of the Landlord which shall
not be unreasonably withheld. Without limitation, it shall constitute
reasonable grounds for any withholding of consent by the Landlord that,
in the Landlord's reasonable judgment, (i) the proposed assignee or
subtenant does not have a satisfactory financial condition having
regard to the obligations which it will assume as assignee or
subtenant, or (ii) the proposed assignee or subtenant is a tenant or
subtenant of other space in the Development, or (iii) the proposed
assignee or subtenant does not have an established good reputation in
the business community, or (iv) it is intended or likely that it will
use any part of the Premises for purposes which are not permitted by
this Lease or which are not acceptable to the Landlord, acting
reasonably, or which are not compatible with the other businesses or
activities which are being carried on in the Development or (v) the
proposed assignment or sublet is contrary to any covenants or
restrictions granted by the Landlord to other existing or prospective
tenants or occupants of the Building or (vi) the return to the Tenant
on any proposed assignment or subletting is greater than the amounts
payable by the Tenant hereunder and the Tenant has not agreed to pay
such excess to the Landlord. The Landlord shall be entitled to withhold
consent to assign or sublet arbitrarily where it exercises its right to
termination pursuant to section 11.2.
(b) Without limitation, the Tenant shall for purposes of this Section be
deemed to have assigned or sublet in any case where it permits the
Premises or any portion thereof to be occupied by a person or persons
other than the Tenant, its employees and others engaged in carrying on
the business of the Tenant, whether pursuant to assignment, subletting,
license or other right, and shall also include any case where any of
the foregoing occurs by operation of law and, so often as same shall
occur, the Tenant shall give notice to the Landlord and the provisions
of this Section and section 11.2 shall apply, mutatis mutandis.
(c) (i) The Tenant shall be deemed to have assigned or sublet in any case
where such number of shares of the Tenant or of any parent or affiliate
of such corporation are issued or transferred, whether by operation of
law or otherwise, so as to result in a change in the effective control
of such corporation then, and so often as such a change of control
shall occur, the Tenant shall give notice to the Landlord and the
provisions of this Section and Section 11.2 shall apply, mutatis
mutandis. The entity becoming the effective controlling shareholder
(the "Controlling Shareholder") and the Tenant shall each enter into
the Landlord's form of indemnity agreement wherein the Tenant and the
Controlling Shareholder shall each covenant in favour of the Landlord
to jointly and severally perform, observe and keep each and every
covenant, proviso, condition and agreement in this Lease on the part of
the Tenant to be performed, observed and kept, including payment of
Rent and to indemnify and save harmless the Landlord from any breaches
of this Lease by the Tenant;
(ii) The Landlord agrees that the provisions of subparagraph (c) (i)
shall not apply if (1) the shares of the Tenant are traded on a
publicly regulated stock exchange in Canada or the United States of
America, or (2) the shares of the Tenant are being made available as
part of a public offering of securities.
(d) The Landlord shall also have the right of approval of any marketing of
space by the Tenant.
(e) If the Landlord's consent is given, the Tenant shall assign or sublet,
as the case may be, but only upon the terms set out in the offer
submitted to the Landlord pursuant to Section 11.2 and not otherwise.
Such assignment or subletting shall occur within 90 days after the
<PAGE>
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Tenant's request for consent and only upon the Tenant as well as any
assignee or subtenant entering into the Landlord's form of agreement
directly with the Landlord to perform, observe and keep each and every
covenant, proviso, condition and agreement in this Lease on the part of
the Tenant to be performed, observed and kept, including payment of
Rent.
(f) So long as the Tenant is not in default herein and subject to Section
11.3 herein, the Tenant may assign or sublet to a corporation
affiliated (as that term is defined in the Ontario Business
Corporations Act) with the Tenant without the consent of the Landlord,
provided that the Tenant has first given notice to the Landlord and
further provided that the Tenant and its affiliate have first entered
into an agreement directly with the Landlord in a form satisfactory to
the Landlord, whereby the affiliate agrees to perform, observe and keep
each and every covenant, proviso, condition and agreement in this Lease
on the part of the Tenant to be performed, observed and kept, including
payment of Rent and whereby the Tenant and the affiliate agree to
remain affiliated to one another, a breach of which agreement would
constitute a breach of this Lease.
(g) All reasonable costs of the Landlord incurred with respect to any
assignment or sublease by the Tenant shall be paid by the Tenant
forthwith after demand.
(h) The Tenant acknowledges and agrees that in respect of any subletting to
which the Landlord gives its consent in accordance with the provisions
of this Section 11.1, the Tenant shall be required to pay to the
Landlord fifty (50%) percent of all amounts payable to the Tenant
pursuant to such subletting which are in excess of the amounts payable
by the Tenant hereunder, provided however that Tenant acknowledges and
agrees that it shall be solely responsible for the payment of any and
all costs associated with any such subletting.
11.2 LANDLORD'S RIGHT OF CANCELLATION
(a) The Tenant shall not assign this Lease or sublet the whole or any part
of the Premises unless: (i) it shall have received or procured a bona
fide written offer therefor to take an assignment or sublease which is
not inconsistent with, and the acceptance of which would not breach,
any provisions of this Lease if this Section is complied with and which
the Tenant has determined to accept subject to this Section being
complied with, and (ii) it shall have requested and obtained the
consent in writing of the Landlord thereto.
Any request for such consent shall be in writing and accompanied by a
true copy of such offer, and the Tenant shall furnish to the Landlord
all information available to the Tenant or any additional information
requested by the Landlord, as to the responsibility, reputation,
financial standing and business of the proposed assignee or sublessee.
(b) Within 15 days after the receipt by the Landlord of such request for
consent and of all information which the Landlord shall have requested
hereunder (and if no such information has been requested, within 15
days after receipt of such request for consent), the Landlord shall
have the right upon notice to the Tenant, if the request is to assign
this Lease or sublet the whole of the Premises, to terminate this Lease
or, if the request is to sublet a part of the Premises only, to delete
from the Lease such part of the Premises as are requested to be sublet,
in each case as of a date of the proposed assigning or subletting, as
the case may be. In such event, the Tenant shall surrender the whole or
part, as the case may be, of the Premises in accordance with such
notice and Rent shall be apportioned and paid to the date of surrender
and, if a part only of the Premises is surrendered, Rent shall
thereafter abate proportionately. If the Landlord shall not exercise
the foregoing right of termination or deletion, then the provisions of
section 11.1 shall apply.
(c) If the Landlord elects to terminate or delete, as the case may be, the
Tenant may withdraw its request for consent by notice to the Landlord
within five days after the Landlord's notice of election, in which
event the Landlord's notice of election shall be null and void and the
Tenant shall not proceed with the assignment or subletting for which
such consent was requested.
<PAGE>
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11.3 CONTINUING OBLIGATIONS OF TENANT
Notwithstanding anything else contained herein: (a) whether or not the
Landlord's consent is required, no assignment or subletting by the Tenant shall
release or relieve the Tenant from any of its obligations hereunder; (b) no
consent by the Landlord to any assignment or subletting shall be construed to
mean that the Landlord has consented or will consent to any further assignment
or subletting which shall remain subject to the provisions of this Article.
11.4 DEALINGS BY LANDLORD
The Landlord may sell, transfer, mortgage, encumber or otherwise deal with the
Development or any portion thereof or any interest of the Landlord therein, in
every case without the consent of the Tenant, and without restriction. To the
extent that any purchaser or transferee from the Landlord has become bound by
the covenants and obligations of the Landlord under this Lease, the Landlord
shall, without further written agreement, be freed and relieved of liability
with respect to such covenants and obligations.
11.5 SUBORDINATION AND ATTORNMENT
The Tenant acknowledges that this Lease is, at the option of any ground lessor
or mortgagee or chargee, subject and subordinate to any and all ground leases,
mortgages or charges (including deeds of trust and mortgage securing bonds, all
indentures supplemental thereto or any other instruments of financing,
refinancing or collateral financing) which may now or hereafter affect the
Development, or any part thereof, and to all renewals, modifications,
consolidations, replacements and extensions thereof. The Tenant agrees to
execute promptly any certificate or instrument in confirmation of such
subordination and will, if requested, attorn to such mortgagee or chargee and
the Tenant hereby constitutes the Landlord its agent and attorney for the
purpose of executing any such certificate or instrument.
ARTICLE 12
ESTOPPEL CERTIFICATES, REGISTRATION
-----------------------------------
12.1 ESTOPPEL CERTIFICATES
Each of the Landlord and the Tenant agrees that it will at any time and from
time to time upon not less than 10 days' notice, execute and deliver to the
other (and, if required, to any prospective purchaser or mortgagee of the
Development) a certificate in writing as to the status at that time of this
Lease, including as to whether this Lease is unmodified and in full force and
effect (or, if modified, stating the modification and that the same is in full
force and effect as modified), the amount of the Rent then being paid hereunder,
the dates on which the same, by instalments or otherwise, and other charges
hereunder, have been paid, whether or not there is any existing default on the
part of the other of which it has notice, and any other matters pertaining to
this Lease as to which the other shall request a statement.
If any such certificate requested by the Landlord is not returned to the
Landlord within ten days after its request therefor, the Landlord shall have the
right and is hereby appointed by the Tenant as its agent and attorney to prepare
and execute such certificate.
12.2 REGISTRATION ON TITLE
The Tenant shall not register this Lease in full on the title to the
Development. If the Tenant wishes to register a notice of this Lease, the Tenant
may do so provided that the Landlord has first approved such notice.
In the event of any conflict between the terms of this Lease and the terms of
such notice or short form, the terms of this Lease shall prevail.
The Tenant agrees that it will, at its sole expense, discharge and withdraw from
title any such registration within 30 days after the expiration or sooner
termination of this Lease. If such registration is not discharged and withdrawn
during the aforesaid time, the Landlord shall have the right and is hereby
<PAGE>
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appointed by the Tenant as its agent and attorney to prepare, execute and
register such documentation as is required to discharge and withdraw any such
registration.
ARTICLE 13
UNAVOIDABLE DELAYS
------------------
13.1 UNAVOIDABLE DELAYS
Whenever and to the extent that either the Landlord or the Tenant is unable to
fulfil, or is 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 any permits or other governmental approvals required in respect of any of
the work contemplated hereby, or the material, goods, equipment, service,
utility or labour required to enable it to fulfil such obligation, or by reason
of any statute, law, by-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
legislative, administrative or judicial body, controller or board, or any
governmental department or any governmental officer or other authority having
jurisdiction, or by reason of its inability to procure any licence or permit
required therefor, or by reason of not being able to obtain any permission or
authority required therefor, or by reason of any strikes, lockouts, slow-downs
or other combined action of workmen, or shortages of material, or any other
cause beyond its control, other than any insolvency, lack of funds or other
financial cause of delay, the Landlord or the Tenant, as the case may be, shall
be relieved from the fulfilment of such obligation so long as such cause
continues provided always that (except as may be expressly provided in this
Lease) the Tenant shall not be entitled to any compensation for any
inconvenience, or nuisance or discomfort thereby occasioned, or to cancel or
terminate this Lease or to any abatement of Rent.
ARTICLE 14
LANDLORD'S ACCESS TO PREMISES
-----------------------------
14.1 INSPECTION AND REPAIR
The Landlord and its authorized agents and employees shall have the right, at
any time and from time to time, to enter the Premises for the purpose of
inspection, providing janitor services, maintenance, making repairs, alterations
or improvements to the Premises or the Development or to have access to
utilities and services, and the Tenant shall provide free and unhampered access
for such purpose and shall not be entitled to compensation for any
inconvenience, nuisance or discomfort caused thereby. The Landlord in exercising
its rights hereunder shall proceed to the extent reasonably possible so as to
minimize interference with the Tenant's use and enjoyment of the Premises.
14.2 RIGHT TO EXHIBIT PREMISES
The Landlord and its authorized agents and employees shall have the right to
exhibit the Premises to prospective tenants at all reasonable hours during the
last 24 months of the Term. The Landlord and its authorized agents and employees
shall also have the right to enter upon the Premises at all reasonable hours
during the Term for the purpose of exhibiting the Development to any prospective
purchaser or mortgagee thereof.
ARTICLE 15
DEFAULT
-------
15.1 EVENTS OF DEFAULT
Each of the following shall be an event of default of the Tenant:
(a) whenever the Tenant defaults in the payment of any Rent; or
(b) whenever the Tenant defaults in the performance of any of its other
obligations hereunder and such default can be remedied by the Tenant
but is not remedied within a period next after notice and which period
shall be:
<PAGE>
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(i) if the default could reasonably be remedied within 30 days
after notice and provided the Tenant has commenced to remedy
such failure within 10 days after notice and proceeds
thereafter diligently and continuously to remedy it, 30 days;
and
(ii) if the default could not reasonably be remedied within 30 days
after notice and provided the Tenant has commenced to remedy
such failure not later than 10 days after notice and proceeds
thereafter diligently and continuously to remedy it, that
number of days after notice which would reasonably suffice for
the remedying of such default if the Tenant had commenced to
remedy such default within 10 days after notice and proceeded
thereafter diligently and continuously to remedy it; and
(iii) in any case where the Tenant does not commence to remedy such
default within 10 days after notice, 10 days; or
(c) whenever the Tenant defaults in the performance of any of its other
obligations hereunder and such default cannot be remedied by the
Tenant; or
(d) if the Tenant is adjudicated to be insolvent or makes an assignment for
the benefit of creditors or in bankruptcy, or is declared bankrupt, or
takes the benefit of any legislation that may be in force for bankrupt
or insolvent debtors or if any proceedings are taken by or against the
Tenant under any winding-up or dissolution legislation, and such
adjudication, assignment, declaration or proceedings are not set aside
or revoked within 30 days after the making or taking of the same, or if
the Tenant makes any sale of its assets under the Bulk Sales Act of
Ontario, except to a successor in conjunction with a permitted
assignment of this Lease; or
(e) if the Premises or a substantial part thereof are abandoned or become
vacant or not used or occupied while capable of use and occupancy, and
remain so for a period of 15 days (which does not include temporary
vacancy or non-use for a longer period when necessary to accommodate
the carrying out of renovations in the Premises or a change in use of
the Premises); or
(f) if the Premises are used by any other person or persons other than the
Tenant or for any other purpose than that for which the same were let,
in each case without the prior written consent of the Landlord; or
(g) if any seizure, attachment or similar process is issued against the
Tenant or any encumbrancer takes any action or proceeding whereby any
of the improvements, fixtures, furniture, equipment or inventory in or
relating to the Premises or any portion thereof or the interest of the
Tenant therein or in this Lease or any business conducted in or from
the Premises shall be taken or attempted to be taken; or
(h) if a receiver, receiver and manager, custodian or any party having
similar powers in appointed for any portion of the property or business
of the Tenant.
15.2 REMEDIES BY LANDLORD
Upon any event of default of the Tenant, then the current month's Rent and Rent
for the next ensuing 3 months shall thereupon become immediately due and payable
and, in addition, all cash allowances, tenant inducement payments and the value
of any other benefit paid to or conferred on the Tenant by or on behalf of the
Landlord in connection with this Lease shall thereupon become immediately due
and repayable to the Landlord on demand and, in addition to any remedy which the
Landlord may have by this Lease or at law or in equity, the Landlord may, at its
option:
(a) terminate this Lease and re-enter and take possession of the Premises;
and/or
(b) enter the Premises as agent of the Tenant, either by force or
otherwise, without being liable for any prosecution therefor, and
without being deemed to have terminated this Lease, and relet the
<PAGE>
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Premises or any part thereof as the agent of the Tenant, and receive
the rent therefor to be applied on account of the Rent; and/or
(c) exercise its right of distress and the Tenant hereby waives any present
or future limitation on the Landlord's right of distress; and/or
(d) terminate this Lease and re-enter and take possession of the Premises
and provide, by notice to the Tenant, for an immediate payment by the
Tenant of an amount equal to the Present Value, as of the date of an
event of default by the Tenant, of Rent due under this Lease from such
date to the last day of the Term of this Lease. If any part of such
Rent cannot be absolutely determined as of such date, the Landlord
shall estimate same on a reasonable basis. After receipt by the
Landlord of such payment and after the Landlord relets the Premises,
the Landlord shall remit to the Tenant, as and when rent is received
therefor, an amount equal to (i) the lesser of (1) the amount received
by the Landlord for any period and (2) the amount that would have been
payable by the Tenant under this Lease for the same period, less (ii)
10% of such sum in (i) as an administration fee to the Landlord; and/or
(e) without terminating this Lease, demand immediate payment from the
Tenant of an amount equal to the Present Value, as of the date of an
event of default by the Tenant, of Rent due under this Lease from such
date to the last day of the Term of the Lease. If any part of such Rent
cannot be absolutely determined, as of such date, the Landlord shall
estimate same on a reasonable basis. Upon payment of such amount by the
Tenant to the Landlord, the Tenant shall be entitled to occupancy of
the Premises for the remainder of the Term in accordance with this
Lease; and/or
(f) apply to the courts for an order of specific performance or mandamus or
an injunction compelling the Tenant to perform its obligations under
this Lease, the Tenant acknowledging that damages are not a sufficient
remedy; and/or
(g) suspend the supply to the Premises of any benefit, service, utility or
Additional Service furnished by the Landlord until the default is
cured.
15.3 ADDITIONAL SELF-HELP REMEDY OF LANDLORD
In addition to all other remedies the Landlord may have by this Lease, at law or
in equity, if the Tenant does not perform any of its obligations hereunder, the
Landlord, may at its option, perform any of such obligations, after 5 days
notice to the Tenant or in the event of an emergency without notice, and in such
event the cost of performing any of such obligations plus an administrative
charge of 15% of such cost shall be payable by the Tenant to the Landlord
forthwith on demand together with interest at the Rate of Interest from the date
of the performance of any of such obligations by the Landlord to the date of
payment by the Tenant.
15.4 LEGAL COSTS
The Tenant agrees to pay to the Landlord, within 5 days after demand, all legal
fees, on a solicitor and his own client basis, incurred by the Landlord for the
enforcement of any rights of the Landlord under this Lease or in the enforcement
of any of the provisions of this Lease or in the obtaining of possession of the
Premises or for the collection of any monies from the Tenant or for any advice
with respect to any other matter related to this Lease;
15.5 REMEDIES CUMULATIVE
The Landlord may from time to time resort to any or all of the rights and
remedies available to it in the event of any default hereunder by the Tenant,
either by any provision of this Lease, or by statute, or at law or in equity,
all of which rights and remedies are intended to be cumulative and not
alternative, and the express provisions hereunder as to certain rights and
remedies are not to be interpreted as excluding any other or additional rights
and remedies available to the Landlord at law or in equity.
<PAGE>
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15.6 NON-WAIVER
Any condoning, excusing or overlooking by either the Landlord or the Tenant of
any default by the other at any time or times in respect of any obligation of
the other herein shall not operate as a waiver of the non-defaulting party's
rights hereunder in respect of such default or so as to defeat or affect in any
way the rights of the non-defaulting party in respect of any such continuing or
subsequent default by the defaulting party. No waiver shall be implied by
anything done or omitted by a party. Any waiver of a particular default shall
not operate as a waiver of any subsequent or continuing default.
15.7 TENANT'S INSOLVENCY PROCEEDINGS
By reason of (a) the Landlord's interest in this Lease, (b) the importance to
the Landlord of the Tenant continuing to carry on business in the Premises at
all times in accordance with this Lease, and (c) the Landlord's entitlement to
damages where this Lease is terminated by reason of an event of default, the
Landlord does and will constitute a separate class or category of creditor in
any plan of arrangement or proposal submitted by or on behalf of the Tenant
under the Companies Creditors' Arrangement Act or the Bankruptcy and Insolvency
Act, despite any changes in circumstances of the Tenant or its business.
ARTICLE 16
GENERAL PROVISIONS
------------------
16.1 ENTIRE AGREEMENT
This Lease contains all of the terms and conditions of the agreement between the
Landlord and the Tenant relating to the matters herein provided and supersedes
all previous agreements or representations of any kind, written or verbal, made
by anyone in reference thereto. There shall be no amendment hereto unless in
writing and signed by the party to be bound.
16.2 INTERPRETATION
The Schedules to this Lease form a part of this Lease.
The word "Tenant", the word "assignee" and the word "sublessee" and personal
pronouns relating thereto and used in conjunction therewith shall be read and
construed as "Tenant" or "Tenants", "assignee" or "assignees" and "sublessee" or
"sublessees" respectively and "his", "her", "it", "its" and "their" as the
number and gender of the party or parties referred to in each case require and
the number of the verb agreeing therewith shall be considered as agreeing with
the said word or pronoun so substituted. If at any time there is more than one
Tenant together or in succession, they shall be jointly and severally liable for
all of the obligations of the Tenant hereunder.
The captions for Articles and Sections of this Lease are for convenience only
and are not to be considered a part of this Lease and do not in any way limit or
amplify the terms and provisions of this Lease.
16.3 PLANNING ACT
This Lease is subject to compliance, if necessary, with the Planning Act
(Ontario).
16.4 OBLIGATIONS AS COVENANTS AND SURVIVAL OF OBLIGATIONS
Any obligation of a party in this Lease is deemed to be a covenant by that
party. Any obligation of a party which is unfulfilled on the termination of this
Lease shall survive until fulfilled.
16.5 SEVERABILITY OF ILLEGAL PROVISION
If any immaterial provision of this Lease is or becomes illegal or
unenforceable, it shall during such period that it is illegal or unenforceable
be considered separate and severable from the remaining provisions of this Lease
<PAGE>
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which shall remain in force and be binding as though the said provision had
never been included.
16.6 GOVERNING LAW
This Lease shall be governed by the laws applicable in the Province of Ontario.
16.7 NO PARTNERSHIP
Nothing contained herein shall be deemed to create any relationship between the
parties hereto other than the relationship of landlord and tenant.
16.8 TIME OF ESSENCE
Time shall be of the essence of this Lease.
16.9 LANDLORD'S AGENT
The Landlord may perform any of its obligations or exercise any of its rights
hereunder through such agency as it may from time to time determine and the
Tenant shall, as from time to time directed by the Landlord, pay to any such
agent any moneys payable hereunder to the Landlord.
16.10 SUCCESSORS AND ASSIGNS
Except as otherwise specifically provided, the covenants, terms and conditions
contained in this Lease shall apply to and bind the parties hereto and their
respective successors and assigns.
16.11 ACCOUNTING PRINCIPLES
All calculations referred to herein shall be made in accordance with generally
accepted accounting principles and practices applicable to the real estate
development industry and applied on a consistent basis.
16.12 NOTICES AND CONSENTS, ETC.
Any notice or consent including any invoice, statement or request or other
communication (a "Notice") herein required or permitted to be given by either
party to the other shall be in writing and shall be delivered by hand or sent by
registered mail (except during a postal disruption or threatened postal
disruption) or by telecopier to the applicable address (and telecopier number,
if applicable) set forth below:
<PAGE>
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(a) in the case of the Landlord, to:
RT Twenty-Second Pension Properties Limited
c/o RT Realty Advisors Inc.
Suite 3700, Royal Trust Tower
77 King Street West
P.O. Box 49
Toronto-Dominion Centre
Toronto, ON M5K lE7
Attention: Asset Management
Telecopier No.: (416) 955-7117
with a copy to:
Colonnade Development Inc.
1 Antares Drive
Suite 510
Nepean, Ontario
K2E 8C4
Telecopier No.: (613) 225-3898
(b) in the case of the Tenant, to the Premises:
Telecopier No.:
--------------------
with a copy (only for Notices given up to the Commencement
Date) to:
E-Cruiter.com Inc.
360 Albert Street
Suite 1510
Ottawa, ON
K1R 7X7
Attention: Jeff Potts
Telecopier No.: (613) 236-1541
Any Notice delivered by hand shall be deemed to have been validly and
effectively given on the day of such delivery if delivered before 4:00 p.m. on a
Business Day or on the next Business Day if delivered on a non-Business Day or
after 4:00 p.m. on the previous Business Day. Any Notice sent by registered mail
(except during a postal disruption or threatened postal disruption) shall be
deemed to have been validly and effectively given on the third Business Day
following the date of mailing. Any Notice sent by telecopier shall be deemed to
have been validly and effectively given on the day it was sent if sent before
4:00 p.m. on a Business Day or on the next Business Day if sent on a
non-Business Day or after 4:00 p.m. on the previous Business Day.
Either party may from time to time by Notice to the other party change its
address for service hereunder provided that such address shall be in the
Province of Ontario.
16.13 NO CONSENT DURING DEFAULT
It shall not be unreasonable for the Landlord to withhold its consent at any
time when the Tenant is in default hereunder.
16.14 FURTHER ASSURANCES
Each party agrees to make such further assurances as may be reasonably required
from time to time by the other to more fully implement the true intent of this
Lease.
<PAGE>
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16.15 CONFIDENTIALITY
The Tenant agrees to use best efforts to keep confidential, and to use best
efforts to ensure that those for whom it is at law responsible and its advisors
keep confidential, the provisions of this Lease.
16.16 TENANT'S REVIEW OF LEASE
The Tenant acknowledges and agrees that this Lease has been negotiated and
approved by each of the Landlord and the Tenant and, notwithstanding any rule or
maxim of law or construction to the contrary, any ambiguity or uncertainty will
not be construed against either the Landlord or the Tenant by reason of the
authorship of any provision contained in this Lease. Furthermore, the Tenant
acknowledges and agrees that the Landlord has advised the Tenant to obtain legal
advice to review this Lease prior to executing it.
16.17 JOINT AND SEVERAL LIABILITY OF TENANT
If two or more entities, corporations, partnerships or other business
associations (or any combination of two or more thereof) constitute the Tenant
in this Lease, the liability of each such entity, corporation, partnership or
other business association hereunder is joint and several. In the event of
default by the Tenant under this Lease, the Landlord shall have the right to
proceed against any one or more of such entities, corporations, partnerships or
other business associations in respect of the full amount of the default as the
Landlord in its sole discretion determines.
ARTICLE 17
EXTRA TERMS
-----------
17.1 LANDLORD'S WORK
The Landlord agrees, at its expense, to construct the Building substantially in
accordance with the specifications contained in Schedule "D" attached hereto, as
the same may be modified by the Landlord, in its reasonable discretion, and
subject to receipt by the Landlord of all requisite governmental authorizations
and approvals.
The Tenant acknowledges and agrees that, on the Commencement Date, (i)
construction of the Building may not be complete and that construction
activities may be ongoing, and (ii) while occupancy of the Premises will be
available, and an occupancy permit may have been received, some construction in
the Premises (which construction is permitted after the delivery of an occupancy
permit) may not be complete.
All work performed by the Landlord pursuant to this section 17.1 shall be
carried out promptly and with due diligence and in a good and workmanlike manner
and in compliance with all applicable laws.
If the Landlord is unable to deliver possession of the Premises within the time
periods in accordance with the preceding paragraphs of this section 17.1 and as
contemplated by section 17.3 herein, the Landlord shall diligently take all
steps in respect of the construction of the Building as may be required in order
to permit the Tenant to take possession for such purposes and, save and except
if such inability to deliver possession of the Premises is caused by the actions
of the Tenant, the rent payable by the Tenant hereunder shall abate until such
time as such construction has reached the stage where the Tenant can take
possession for such purposes, and the Commencement Date and the expiry date of
the Term shall be extended by the period of such delay, and the Landlord shall
not be liable to the Tenant for damages of any nature whatsoever and this Lease
shall continue in full force and effect, subject only to the amendments as
aforesaid; provided however that if, for any reason other than those set out in
section 13.1 hereof or the actions of the Tenant, the Landlord is unable to
deliver possession of the Premises to the Tenant by January 1, 2001, the
Landlord shall provide to the Tenant one (1) day free from Basic Rent for each
day past January 1, 2001 that the Landlord is delayed in delivering possession
of the Premises to the Tenant, such Basic Rent free period, if any, to begin on
the Commencement Date.
<PAGE>
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17.2 TENANT'S WORK
The Tenant agrees to complete, at its own expense, the Tenant's Work set forth
in Schedule "E" attached hereto and to carry out all of the obligations of the
Tenant set forth in said Schedule "E".
The Tenant agrees to retain Colonnade Development Inc. ("Colonnade") to perform
the Tenant's Work, provided that Colonnade's proposed costs for performing the
Tenant's Work are at fair market rates.
17.3 JOINT FIXTURING PERIOD
During the period of 60 days prior to the Commencement Date (the "Joint
Fixturing Period"), the Tenant may enter the Premises in common with the
Landlord and its contractors and employees, for the purpose of completing the
Tenant's Work. During the Joint Fixturing Period, the Tenant shall perform the
Tenant's Work and shall cause its employees and contractors to do their work in
a manner so as not to interfere with the Landlord's contractors and employees in
the performance and completion of the Landlord's Work. During the Joint
Fixturing Period, the Tenant shall be bound by all the provisions of this Lease
except the payment of Basic Rent and Additional Rent provided that once the
Tenant commences business in any part of the Premises, all of the provisions of
this Lease, including the payment of Basic Rent and Additional Rent, shall
apply.
At least 90 days prior to the Commencement Date, the Landlord agrees to deliver
to the Tenant a set of base building CAD drawings.
17.4 LICENSE FOR PARKING
(a) The Landlord grants to the Tenant a license to park automobiles in the
parking area of the Development, in common with all others entitled to
the use of such parking area, during the Term at no additional charge
or cost to the Tenant, and on the basis that the Tenant shall be
entitled to the use of the Tenant's Proportionate Share of the
unreserved spaces in the said parking area; provided, however, that the
number of spaces available for use by the Tenant will not be less than
3.2 spaces per 1,000 square feet of the Gross Rentable Area of the
Premises. The Landlord also agrees that such spaces will include 8
reserved (but not policed) spaces, in a location to be determined by
the Landlord, acting reasonably.
(b) The Tenant agrees to comply with the parking rules governing the use of
the parking area as may be established from time to time by the
Landlord (the "Parking Rules") and of which notice has been given to
the Tenant.
(c) The Tenant agrees to indemnify the Landlord against all liability,
claims, damages or expenses due to or arising out of any act, omission
or neglect by the Tenant or those for whom it is at law responsible in
or about the parking area or due to or arising out of any breach by the
Tenant of the provisions of the Parking Rules.
(d) The Landlord shall not be liable for any loss, injury or damage caused
to persons using the parking area or to automobiles or their contents
or any other property thereon, however caused, and the Tenant agrees
that such vehicles, contents and property shall be in the parking area
at the sole risk of the Tenant and agrees to indemnify the Landlord
against all claims, damages or expenses due to or arising out of the
foregoing. The Tenant acknowledges that the said parking area is not
policed or otherwise supervised.
(e) If the Landlord elects to construct a below-grade parking facility for
the Building, the Tenant shall be required to license 8 reserved (but
not policed) spaces in such facility, throughout the Term and any
extension thereof, at a monthly charge for each such space determined
by the Landlord, from time to time, acting reasonably, and which the
Landlord estimates would be approximately $65.00 per month per space as
of the Commencement Date. The Tenant further agrees that, if the Tenant
expands the Premises (whether pursuant to section 17.8 or otherwise),
<PAGE>
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the Tenant shall be required to license its Proportionate Share of
spaces in the said parking facility, at the said monthly parking
charge.
17.5 TENANT INDUCEMENT
As an inducement to the Tenant to enter into this Lease, the Landlord shall pay
to the Tenant an amount equal to $14.00 per square foot of the Gross Rentable
Area of the Premises, which amount shall be payable by the Landlord no later
than 3 Business Days following the date the date upon which the Landlord, acting
reasonably, determines that all of the following have occurred
(a) the Tenant is not in default under this Lease;
(b) the Tenant has provided evidence satisfactory to the Landlord that the
Tenant has completed all of the Tenant's Work in accordance with
Schedule "E" to this Lease and that all material and labour with
respect to the Tenant's Work has been paid for in full and that all
rights to liens which could arise in respect of the Tenant's Work have
expired without any such liens having been registered against the title
to the Lands; and
(c) the Commencement Date has occurred and the Tenant has occupied the
Premises and opened for business.
The Tenant agrees that, if the Tenant defaults in the performance of its
material obligations under this Lease throughout the Term, the Landlord shall be
entitled to a rebate of an amount equal to the product obtained by multiplying
such inducement by a fraction the denominator of which is the total number of
months in the Term and the numerator of which is the number of months in the
Term following such default.
17.6 LETTER OF CREDIT
Prior to the commencement of the construction of the Building, the Tenant shall
deliver to the Landlord an irrevocable and unconditional letter of credit issued
by a Schedule 1 Canadian chartered bank, on terms and conditions satisfactory to
the Landlord, acting reasonably (the "Letter of Credit") in the amount of
$300,000. The Tenant shall maintain the Letter of Credit throughout the initial
ten (10) year Term of this Lease, subject to the following:
(a) the Letter of Credit shall be held by the Landlord as security for
performance by the Tenant of its material obligations under this Lease,
and shall provide that the Landlord shall be entitled, at any time or
times, to draw down amounts thereunder for the purposes of rectifying
any default by the Tenant in said obligations; provided however that
the Landlord shall not draw-down under the Letter of Credit unless it
first gives the Tenant three days prior notice thereof, and the
opportunity within such three-day period to rectify such default;
(b) at the end of each year of the Term, the Tenant shall have a one-time
right to reduce the principal amount of the Letter of Credit by
$30,000, subject to the condition that no default in the Tenant's
material obligations under this Lease has occurred during such year;
and
(c) for greater certainty, it is acknowledged and agreed that, should any
event contemplated by paragraph (b) above take place, the Tenant shall
not be entitled to reduce the principal amount of the Letter of Credit
at the end of the subject year, and such right shall not be carried
forward to the next year.
17.7 GENERATOR SPACE
For the sole purpose of installing a generator and fuel storage tank, the Tenant
shall lease approximately 200 square feet of space in the Building. The location
of such space shall be determined by the Landlord by notice to the Tenant and is
subject to the following terms and conditions
<PAGE>
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(a) such space shall be subject to all terms and conditions of this Lease,
including without limitation the payment of Basic Rent and Additional
Rent;
(b) the Tenant shall construct at its own expense an enclosed, secure room
designed to contain the said generator and fuel storage tank, subject
to the terms and conditions contained in this Lease; and
(c) such secure room shall be for the sole use of the Tenant and may not be
used by the Landlord for any other purpose. Access to such secure room
shall be restricted to the Tenant and/or its agents, subject to the
Landlord's life safety and security requirements.
17.8 RIGHT OF FIRST OFFER
The Tenant shall have the right during the initial Term only, to lease
additional vacant space on the immediately adjacent floor(s) of the Building
(the "Additional Space"), upon the following terms and conditions:
(a) the Tenant's rights under this provision arise only following the
expiry or termination of the initial lease of any Additional Space and
are subject to the prior rights (including without limitation renewal
or extension rights) available to the tenant of any such Additional
Space pursuant to such initial leasing;
(b) the Tenant shall not have any such right if, at the time the Landlord
is obligated to give notice to the Tenant as hereafter provided, the
Tenant is in material default under this Lease or has been in default
under this Lease on a consistent basis;
(c) the Tenant's rights under this provision are personal to the Tenant,
while in occupation of all or substantially all of the Premises;
(d) if any such Additional Space becomes available, the Landlord shall give
notice to the Tenant offering such Additional Space for lease on the
terms and conditions contained in such notice;
(e) such offer from the Landlord to the Tenant shall be open for acceptance
by the Tenant by notice given to the Landlord within ten (10) Business
Days after receipt of such offer by the Tenant;
(f) if the Tenant accepts the offer as aforesaid, the Landlord and the
Tenant shall amend this Lease so as to incorporate therein the
Additional Space on the terms and conditions contained in the
Landlord's offer; and
(g) if the Tenant fails to accept the offer as aforesaid as to any
Additional Space in respect of which it has received the Landlord's
notice under paragraph (d), the Tenant's rights under this section in
respect of such Additional Space shall cease and this section shall
cease to have any further force or effect whatsoever with respect to
such Additional Space, but this section shall continue to apply in
respect of other Additional Space.
17.9 RIGHT TO EXTEND
The Tenant shall have the right to extend this Lease for one (1) extension term
of five (5) years (the "Extension Term") commencing on the day following the
last day of the Term, subject to the following terms and conditions:
(a) the Tenant's right to extend is personal to the original Tenant and
does not extend to any assignee or subtenant so that the right to
extend terminates upon any assignment of this Lease or upon any
subletting of all or any part of the Premises
(b) the Tenant shall not be entitled to any right of extension if, at the
time of the giving of the notice of exercise thereof, the Tenant is in
default hereunder or if prior thereto the Tenant has been in default
hereunder on a consistent basis;
<PAGE>
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(c) the right of extension shall be exercisable by notice by the Tenant to
the Landlord not later than nine (9) months prior to the expiration of
the Term, failing which notice such right shall be terminated;
(d) if the Tenant has properly exercised its right of extension, this Lease
shall be extended for the Extension Term on the same terms and
conditions as are contained in this Lease supplemented as follows: (i)
all references to the Term shall be deemed to include the Extension
Term, (ii) the Basic Rent during the Extension Term will be as
stipulated in subsection (e), (iii) there shall be no further right to
extend and (iv) there shall be no tenant inducements, rent-free periods
or Landlord's Work;
(e) the annual Basic Rent during the Extension Term shall be the greater of
(i) the annual Basic Rent payable during the last year of the Term and
(ii) the market rent for the Premises as of the commencement of the
Extension Term and on the basis of all relevant circumstances
applicable to lease extensions except that the Landlord shall not be
responsible for paying any inducements whatsoever to the Tenant and the
Basic Rent shall not be adjusted to reflect this fact and shall be
negotiated in good faith by the Landlord and the Tenant and, failing
agreement by three months before the commencement of the Extension
Term, shall be determined by arbitration in accordance with the
Arbitrations Act (Ontario); and
(f) if the Basic Rent during the Extension Term has not been settled by the
commencement of the Extension Term, the Tenant shall pay, as Basic
Rent, the amount suggested by the Landlord and when a final
determination has been made the parties shall promptly make the
appropriate adjustments.
17.10 TENANT'S TERMINATION RIGHT
Provided that (a) the Tenant in occupation of all or substantially all of the
Premises is E-Cruiter.com Inc. and (b) the Tenant is not in default under this
Lease, the Tenant shall have the right to terminate this Lease effective as of
the last day of the seventh year of the Term. In order to exercise such right,
the Tenant must provide the Landlord with at least twelve (12) months written
notice prior to the said effective date of termination.
Subject to the foregoing, if the Tenant validly exercises such right of
termination, this Lease shall be terminated effective as of the last day of the
seventh year of the Term, subject to the following:
(a) the Tenant shall perform all obligations under this Lease up to the
date of termination; and
(b) at the time of delivery of the said notice of termination, the Tenant
shall pay to the Landlord an amount equal to $25.00 per square foot of
Gross Rentable Area of the Premises (plus applicable GST).
IN WITNESS WHEREOF the parties hereto have duly executed this Lease as of the
date first above written.
RT TWENTY-SECOND PENSION PROPERTIES LIMITED
Per:
--------------------------------------------------
Name:
Title:
Per:
--------------------------------------------------
Name:
Title:
I/We have authority to bind the Corporation.
<PAGE>
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E-CRUITER.COM INC.
Per:
--------------------------------------------------
Name:
Title:
Per:
--------------------------------------------------
Name:
Title:
I/We have authority to bind the Corporation.
<PAGE>
SCHEDULE "A"
DEFINITION OF OPERATING COSTS
-----------------------------
1. INCLUSIONS
----------
"Operating Costs" mean the aggregate of all of the expenses, costs and charges
of every kind and nature which are incurred by or on behalf of the Landlord in
respect of the operation, maintenance, repair, administration, management and
supervision of the Development, including the Common Facilities and the Common
Use Equipment. Such expenses, costs and charges include, without limitation or
duplication:
(a) the cost of providing the operation, maintenance, repair,
administration, management and supervision of the Development,
including, without limitation, wages, salaries or other
compensation for employees, agents or contractors of the
Landlord or the building manager performing services rendered
in connection therewith and other supervisory personnel, in
each case whether on or off site, porters, cleaners and other
janitorial staff, watchmen and other security personnel,
carpenters, engineers and all other maintenance personnel;
(b) the cost of repairs to, and maintenance and replacement of,
the Development, (excluding repairs to the roof structure,
foundations and other structural components of the Building or
reconstructions properly chargeable to capital account in
accordance with paragraph (c) below) and the cost of supplies
and equipment used in connection therewith;
(c) the annual amortization including interest at the Rate of
Interest on the unamortized amount on a straight-line basis
over the shorter of ten (10) years and the useful life of the
capital cost of any modifications, replacements or additions
to the Development and/or the machinery and equipment therein
and thereon:
(i) where in the reasonable opinion of the Landlord, such
modifications, replacements or additions may reduce
Operating Costs or are required by legal requirements
not in effect at the date of construction of the
Development and not to remedy any construction
inadequacy or non-compliance with legal requirements
in effect at the time of construction; or
(ii) where such costs have not been charged fully in the
fiscal period in which they are incurred pursuant to
paragraph (b) above;
(d) the annual amortization including interest at the Rate of
Interest on the unamortized amount on a straight-line basis
over the manufacturers' recommended life of capitalized
machinery and equipment used by the Landlord in the
Development;
(e) premiums and other charges incurred by the Landlord with
respect to insurance on the Development, including, without
limitation, fire and "All Risk" perils insurance, public
liability and property damage insurance, boiler and machinery
insurance, and loss of rental income insurance, elevator
liability insurance, workmen's compensation insurance for the
employees specified in subsection (a) above and other
casualties against which the Landlord may reasonably insure;
(f) costs incurred in connection with inspection and servicing of
elevators, electrical distribution and mechanical equipment
and the costs of supplies and equipment used in connection
therewith;
(g) costs incurred for fuel or other energy for heating,
ventilating and air-conditioning the Development and operating
the heating, ventilating and air-conditioning systems thereof,
for electricity, steam or other power required in connection
with the lighting, use and operation of the Development but
excluding costs for power for lighting and office equipment
that are Additional Service Costs and excluding costs for
items which are separately metered and billed directly to the
Tenant;
<PAGE>
-2-
(h) water, sewer and service charges, garbage and waste collection
and removal costs, but excluding costs for items which are
separately metered and billed directly to the Tenant;
(i) unemployment insurance expenses, pension plan and any other
payments payable in connection with the employment of any of
the employees specified in subsection (a) above;
(j) sales and excise taxes on goods and services provided by the
Landlord to manage, operate or maintain the Development and
its equipment;
(k) fees and expenses of accountants, lawyers, auditors and other
professionals pertaining to services performed by them
relating to the Development;
(l) all costs and expenses (including legal and other professional
fees) incurred in good faith in verifying the reasonableness
of, or in contesting, resisting or appealing, assessments and
levies for Taxes or taxes charged against the business of the
Landlord which pertains to the management, operation and
maintenance of the Development;
(m) costs of telephone, stationery, office supplies and other
materials required for routine on-site operation of the
Development;
(n) business or similar taxes or licence fees in respect of the
business of the Landlord which pertains to the management,
operation and maintenance of the Development;
(o) Sales Taxes payable by the Landlord on the purchase of goods
and services included in Operating Costs (excluding any such
Sales Taxes as are available to and claimed by the Landlord as
a credit in determining the Landlord's net tax liability on
account of Sales Taxes but only to the extent that such Sales
Taxes are included in Operating Costs);
(p) that part of Taxes which is attributable to space in the
Development which would otherwise be rentable if it were not
utilized and reasonably needed by the Landlord in connection
with the management, operation and maintenance of the
Development;
(q) Taxes to the extent attributable to the Lands and/or the
Common Facilities that are separately assessed and not
included as part of the assessed value of premises occupied or
to be occupied by tenants (including the Tenant) of the
Development (but only if and to the extent that such Taxes
have not been taken into account by the Landlord in making any
attribution or calculation for the purpose of determining the
Tenant's contribution to Taxes);
(r) such other direct operating costs, charges and expenditures of
a like nature as may be incurred in respect of the proper
preservation, protection, maintenance and operation of the
Development, including without limitation lawn maintenance,
snow removal, window cleaning, pest control, and security and
janitorial service;
(s) Capital Tax fairly attributable to the Development;
(t) all costs of compliance with and conforming to the
requirements of applicable statute, law, by-law, regulation,
ordinance and order, which is the responsibility of the
Landlord under this Lease;
(u) a management fee as determined by the Landlord, from time to
time, but not to exceed 10% of all Additional Rent payable
hereunder.
<PAGE>
-3-
2. ADJUSTMENT TO COSTS
-------------------
Those items of Operating Costs which vary with the use and occupancy of rentable
premises in the Building shall be adjusted and calculated as if the Building
were 100% occupied and operational for the entire operating year so that those
items of Operating Costs (which shall include, without limitation, items such as
cleaning costs, garbage removal and utility costs) shall be adjusted to what
they would have been in the Landlord's reasonable estimation if the Building
were 100% occupied and operational for the entire operating year, and such
adjusted amount shall be included in the Operating Costs.
3. EXCLUSIONS
----------
Operating Costs shall exclude:
(a) all costs normally attributed to capital account under
generally accepted accounting principles except for expressly
included herein;
(b) costs which are unreasonably or imprudently incurred (to the
extent of the excess of such costs over the amount thereof if
reasonably and prudently incurred);
(c) costs incurred in leasing premises in the Building to other
tenants;
(d) the costs of remedying construction inadequacies; and
(e) debt service including interest.
4. REDUCTIONS
----------
Costs which are recovered from tenants or others (such as Additional Service
Costs, insurance recoveries and recoveries pursuant to damage or indemnity
claims), otherwise than by a general contribution by tenants of shares of
Operating Costs, shall, to the extent the expenses pertaining thereto are
included in Operating Costs, be applied in reduction of Operating Costs.
<PAGE>
SCHEDULE "B"
RULES AND REGULATIONS
---------------------
1. The sidewalk, entry passages, elevators, fire escapes, common
stairways and Common Facilities shall not be obstructed by any of the tenants or
used by them for any other purpose other than for ingress and egress to and from
their respective premises. Tenants will not place or allow to be placed in the
Building corridors or public stairways any waste paper, dust, garbage, refuse or
anything whatever that would tend to make them unclean or untidy.
2. The skylights and windows that reflect or admit light into
passageways and Common Facilities of the Development shall not be covered or
obstructed by any of the tenants, and no awnings shall be put up, without the
written consent of the Landlord.
3. 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 by whom or by whose agents,
servants or employees the same is caused (save in respect of Insured Damage).
Tenants shall not let the water run unless in actual use, nor shall they deface
any part of the Common Facilities or the Development.
4. Tenants shall not do or permit anything to be done in their premises
or bring or keep anything therein which will in any way increase the risk of
fire, or obstruct or interfere with the rights of other tenants, or violate or
act at variance with the laws relating to fires or with the regulations of the
Fire Department or the Board of Health.
5. Each tenant, its clerks or servants, shall not make or commit any
improper noises in the Building, lounge about doors or corridors or interfere in
any way with other tenants or those having business with them.
6. Nothing shall be thrown by any tenant, its clerks or servants, out
of windows or doors, or down the passages, elevator shafts or skylights of the
Building.
7. No birds or animals shall be kept in or about the premises of any
tenant nor shall any tenant operate, or permit to be operated any musical or
sound producing instrument or device inside or outside the premises of any
tenant which may be heard outside such premises.
8. No one shall use the premises of any tenant for sleeping apartments
or residential purposes, or for the storage of personal effects or articles
other than those required for business purposes, nor shall the tenant permit any
cooking on the premises.
9. The Landlord shall have the right:
(a) to require all persons entering or leaving the Building during
such hours as the Landlord may reasonably determine, to
identify themselves to a watchperson or security officer by
registration or otherwise to establish their right to enter or
leave; and
(b) to exclude or expel any peddlar or beggar at any time from any
premises or the Building.
10. Any injury or damage caused to the Common Facilities or other areas
of the Building or heating and other appliances, or to any other tenant or to
the premises occupied by any other tenant, by, interference with or neglect of
the heating appliances, or any other person or servant subject to it, shall be
made good by the tenant in whose premises the neglect, interference or
misconduct arose (save in respect of Insured Damage).
11. It shall be the duty of each tenant to assist and co-operate with
the Landlord in preventing injury to such tenant's premises, and premises
demised to other tenants.
12. No inflammable oils or other inflammable, dangerous or explosive
materials shall be kept or permitted to be kept in any premises. Nothing shall
be placed on the outside of window sills or projections.
<PAGE>
-2-
13. Furniture, effects and supplies shall not be taken into or removed
from any premises, except at such time and in such manner as may be previously
approved by the Landlord.
14. No bicycles or other vehicles shall be brought within the Building
except in the Parking Areas, and then only in accordance with the Landlord's or
Parking Areas operator's direction.
15. 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 it 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 ways, means and times and routes for
moving them into or out of the Building; the cost of repairing any damage done
to the Building by such moving or by keeping any such articles on any premises
shall be paid by the tenant causing such damage (save in respect of Insured
Damage).
16. Tenants shall not place any additional lock upon any door of the
Building without the written consent of the Landlord (except in the case of
vaults or other security areas which the Tenant may reasonably designate).
17. Tenants shall give the Landlord prompt notice of any accident to or
any defect in the plumbing, heating, air-conditioning, mechanical or electrical
apparatus or any other part of the Building.
18. Only persons authorized by the Landlord acting reasonably shall be
permitted to deliver or to use the elevators in the Building for the purpose of
delivering food or beverages to any premises.
19. The parking of cars or bicycles in the Parking Areas shall be
subject to the reasonable regulations of the Landlord or of those operating the
same.
20. The lining of all window drapes facing the interior surface of
exterior windows shall be subject to the prior approval of the Landlord as to
colour and material and a tenant shall not hang and will remove any draperies
which in the Landlord's opinion do not conform to any uniform scheme of window
coverings established for the Building.
21. In order to maintain the high character and uniqueness of the
Development, the Landlord shall have the absolute right to designate the kind,
type and colour of any interior drapes or wall coverings or hangings which the
tenants desire to place on any wall or window and to designate the location,
kind and colour of any partitions which are visible from outside the premises.
22. Each Tenant shall take all steps as reasonably required by the
Landlord from time to time to ensure that no employees of the Tenant or others
on the Premises from time to time use any Common Facilities for the purpose of
smoking.
23. The Landlord shall have the right to make such other and further
reasonable rules and regulations, not inconsistent with the provisions of this
Lease, as in its reasonable judgment may from time to time be necessary for the
safety, care, cleanliness and appearance of any premises and the Development in
keeping with the existing standards in and of the Development, and for the
preservation of good order therein, and the same shall be kept and observed by
all tenants, their clerks and servants.
<PAGE>
SCHEDULE "C"
[INTENTIONALLY DELETED]
<PAGE>
SCHEDULE "D"
BUILDING SPECIFICATIONS
-----------------------
1. GENERAL CONDITIONS
SITE WORK
---------
o All site excavation and backfill shall be conducted under the supervision
of a site engineer and the compaction testing performed by a local
geotechnical engineering firm such that all earthwork complies with a
standard office design specification.
o The existing site shall be graded to the underside of pavement areas and
the asphalt surfaces shall be generally built as follows:
o Parking areas: 50 mm HL3 wear course
150 mm Granular "A"
300 mm Granular "B"
o Heavy traffic areas: 40 mm HL3 wear course
40 mm HL8 base course
150 mm Granular "A"
450 mm Granular "B"
o Concrete sidewalks and curbing shall be constructed in accordance with the
property site plan agreement and municipal regulations.
o The underground site services shall be constructed in accordance with The
City of Kanata and R.M.O.C. regulations and approvals, as designed by a
local site services engineer.
STRUCTURE
---------
o Most of the perimeter of the proposed structure shall comprise a mix of
curtain wall and load bearing reinforced concrete site cast precast panels.
The interior structure shall consist of reinforced concrete columns and
floor slabs.
o The exterior wall shall be designed and constructed in conformity with the
applicable provisions of ACI 551R-92 "Tilt-Up Concrete Structures" and CSA
23.3-94 "Design of Concrete Structures"., Chapter 23, TiltUp wall panels.
Clear height from the finished floor to the underside of the structure is
approximately 11' 4".
WINDOWS
-------
o The window and glazing system will be comprised of sealed double glazed
units with thermally broken aluminum frames. The building envelope and the
windows will be designed to eliminate the possibility of condensation at
industry standard relative humidity levels for office environments.
Performance shall conform to CAN./CSA-A440. Minimum classified ratings
shall be as follows:
- Air tightness: Fixed classification
- Water tightness: Classification B3
- Wind load resistance: Classification C3
- Condensation resistance: Temperature Index 65
FLOORS
------
o The floor of the structure will consist of reinforced concrete slabs
comprised of 25 mpa concrete. A minimum of a 6" granular "A" sub layer
compacted to a minimum of 95% proctor density for the slab on grade. The
floor slab shall have a flatness tolerance of +/- 3/16" in 10'0".
<PAGE>
-2-
EXTERIOR DOORS
--------------
o Exterior doors shall be installed in hollow steel or aluminum frames,
detailed and installed to maintain the continuity of the vapor barrier at
the perimeter of the frames. All voids at the frame perimeter shall be
filled with suitable thermal insulation.
o Doors shall be fully weather-stripped with durable products to provide a
tight air and weather seal when closed. Exterior doors shall be fully
equipped with durable finish hardware in compliance with the fire safety
and barrier free access requirements of the Ontario Building Code. The
design and finish of door hardware shall be aesthetically appropriate to
the architectural character and overall quality of the building.
ROOF
----
o The Roof shall be an inverted four (4) ply Bituminous built up roof system
with an R20 insulation value.
o To ensure quality control, the roofing operation will be inspected by a
local roofing consulting firm who will provide a complete report and
maintenance recommendations. The roof shall carry a standard CRCA roofing
warranty.
ELEVATOR
--------
o Two elevators complete with full handicap accessibility to serve all floors
has been included. The car speed will be as per industry standards, one car
could be used for "Freight Operation".
FINISHES
--------
o A 20" x 60" suspended acoustical tile ceiling is provided with minimum
clear height of 8' 6". Washrooms shall be sized as per Ontario Building
Code requirements.
2. MECHANICAL DESIGN BRIEF
GENERAL
All ductwork is distributed on each floor to an open office environment, ready
for redistribution in accordance with the final tenant space plans.
The following is a general description of the mechanical systems proposed for
this project:
o For the purpose of these comfort standards, the occupied zone is defined as
the space volume being between 50 mm and 1800 mm from the floor and more
than 600 mm from wall or fixed air conditioning equipment.
o The mechanical systems shall be in compliance with all applicable codes and
ASHRAE Standards.
o Systems selections shall be based upon cost benefit and life cycle cost
analysis to ensure the optimum of owning, operating and service costs over
their life expectancy.
o Equipment selections and layout shall provide performance, reliability and
accessibility for required servicing.
o The ventilation systems shall be capable of providing 10 L/s/person of
outside air at the design cooling and design heating weather conditions.
The ventilation rates are applicable for normal office occupancy and
density. The building ventilation systems will have the option to upgrade
to provide for limited makeup air for additional exhaust systems for
special areas such as conference rooms.
<PAGE>
-3-
o Supply air will be uniformly distributed throughout the occupied zone to
maintain required temperature and ventilation rates.
o Building systems shall maintain the following indoor environment
conditions:
Winter: 210 C +/- 10 C
20 to 30% RH
Summer: 24 0 C +/- 10 C
50% RH +/- 5%
o Building systems shall be sized to accommodate tenant occupancy loads of:
People : 1 per 14m2
Lights : 14W per m2
Equipment : 22W per m2
PLUMBING
--------
o Complete system of sanitary and storm drainage will be provided.
o A complete system of domestic hot and cold water shall be provided to
accommodate the occupancy including washrooms and janitor rooms.
o Washrooms are included as part of the base building specifications.
3. ELECTRICAL DESIGN BRIEF
GENERAL
The base building includes a full electrical distribution on each floor based on
an open office environment, ready for redistribution in accordance with final
tenant space plans.
o All electrical fixtures, fittings, wiring, wiring devices and installations
will comply with all applicable requirements of the Canadian Electrical
Code, Canadian Standards Association, municipal bylaws and provincial laws.
o Lighting at desk top level (750 mm above floor level) in office areas and
at floor level in all areas will not be less than the following levels of
illumination:
Lux Area
550 Office space
325 Entrance foyers, elevator lobbies, storage space
300 Hallways, corridors, stairways, washrooms, elevators, escalators
20 Parking entrances
10 Parking traffic lanes, parking spaces.
LIGHTING FIXTURES
-----------------
o The placement of base building lighting fixtures will spread illumination
evenly over the work area, be symmetrical in arrangement and provide
maximum flexibility in rearrangement of the space.
o Lighting controls to consist of line voltage switches.
o Lighting fixtures shall generally be the fluorescent type with virgin
acrylic plastic lenses, and utilize T8 32 watt lamps.
o Exit lighting to be provided if required by code.
<PAGE>
-4-
ELECTRICAL SERVICE
------------------
o The incoming electrical service will be a 347/600V, 3 phase, 4 wire,
service, complete with main breaker and disconnects. The 347/600V
distribution shall feed the mechanical loads, elevators, and lighting.
o The 120/208V distribution shall be obtained from the 600V distribution
using dry type transformers. All transformers shall meet CSA standards.
Transformation shall provide 2 watts per square foot of power for tenant
use.
o Security systems can be provided, as part of tenant fit-up, to the tenants
requirements.
o Telephone/data wiring through the building will be carried out as part of
tenant fit-up.
o A fire alarm system will be provided if required by code.
4. ACKNOWLEDGEMENT
The Tenant acknowledges that the above specifications are preliminary and that
all such specifications shall be subject to such changes as the Landlord
determines are appropriate, acting reasonably, and having regard to the
intention of the Landlord that the Building is to be designed and constructed
such that the Building is comparable to the existing buildings comprising the
Kanata North Technology Park - Phase I and II.
<PAGE>
SCHEDULE "E"
TENANT'S WORK
-------------
1. GENERAL
-------
The Tenant shall comply with all provisions contained in this Schedule and in
the information provided by the Landlord and shall ensure that all of its
contractors comply with all of the provisions contained in this Schedule and in
such information.
2. CO-ORDINATION OF TENANT'S WORK
------------------------------
The Tenant's contractors, tradesmen and suppliers will be subject to all
necessary restrictions which may be imposed by the Landlord's general contractor
(while on the site) and/or the Landlord in regard to:
(a) time and place of deliveries;
(b) hours of work and scheduling and co-ordination of work;
(c) material handling, in particular, hoisting facilities;
(d) material and equipment storage;
(e) power, heat and water supply;
(f) clean-up;
(g) washroom facilities; and
(h) insurance requirements.
The Tenant and all of its contractors, tradesmen and/or suppliers shall be
responsible for arranging with the Landlord's general contractor (while on the
site) or the Landlord (after the Landlord's general contractor has completed its
work and left the site) for the co-ordination and/or provision of the
above-noted services or facilities. The Tenant and/or its contractors and
suppliers shall reimburse the Landlord's general contractor (while on the site)
or the Landlord, as the case may be, for their respective costs in providing
such services or facilities.
3. TENANT'S CONTRACTORS AND CONSULTANTS
------------------------------------
Prior to the commencement of the Tenant's Work, the Tenant shall submit to the
Landlord the names of the Tenant's proposed consultants, contractors and
subcontractors and the Tenant shall obtain the approval of the Landlord thereto,
which approval will not be unreasonably withheld. The Tenant's consultants,
contractors and subcontractors must not have labour union affiliations and work
jurisdictions which are incompatible with those of the workmen employed by the
Landlord, the Landlord's general contractor, or its subcontractors.
The Tenant's Work shall be performed pursuant to written contracts which have
been approved by the Landlord and which shall be subject to reasonable
conditions which the Landlord may impose.
The Tenant shall submit to the Landlord, at least 15 days prior to the
commencement of the Tenant's Work, one set of sepias and three sets of prints of
the design and working drawings in sufficient detail so as to fully describe and
accurately specify all aspects of the Tenant's Work and of any changes to the
Landlord's Work requested as a result thereof.
The Landlord shall have the right to inspect the Tenant's Work from time to time
and to require any work not being properly done to be corrected.
4. NON-INTERFERENCE WITH LANDLORD'S WORK
-------------------------------------
In the conduct of the Tenant's Work, the Tenant shall comply with the following:
<PAGE>
-2-
(a) the Tenant will conduct all Tenant's Work in the Premises so
as to avoid jeopardizing any of the Landlord's insurance or
contractor's warranties, and to minimize, to the extent
reasonably possible, any interference with the conduct and
completion of all Landlord's Work proceeding at the same time,
both within and without the Premises, and to this end shall
extend its full co-operation to comply with all reasonable
direction of the Landlord and Landlord's consultants and
general contractors pertaining to the conduct of the Tenant's
Work;
(b) the Tenant shall not, without the prior written approval of
the Landlord, be permitted to make changes or additions to or
in any way interfere with any Landlord's Work including any
utility or sprinkler systems and systems for heating,
ventilating and air-conditioning within the Premises, and
under no circumstances shall the Tenant permit any drilling or
cutting of any conduit, pipe, duct, equipment, floors,
columns, walls, ceilings or roofs of the Premises (except for
the attaching of facing materials in a manner which has been
approved by the Landlord); and
(c) the Tenant will not enter, nor will it suffer or permit those
for whom it is in law responsible (including the Tenant's
contractors and such contractor's agents) to enter, onto any
roof of the Premises. Roof openings requested by the Tenant
must have the Landlord's consent in writing and must be done
by the Landlord's general contractor.
5. INSURANCE
---------
Prior to the commencement of the Tenant's Work, the Tenant shall furnish to the
Landlord proof that liability, fire, general workers compensation and such other
insurance as the Landlord may reasonably require have been effected by the
Tenant with such insurance company, to such limits and on such terms as the
Landlord may reasonably approve. The Landlord and its agents and employees shall
be named and protected as co-insureds in the Tenant's insurance.
6. PAYMENTS
--------
The Tenant shall pay to the Landlord all of the following forthwith after demand
by the Landlord:
(a) all of the Landlord's out-of-pocket expenses connected with
the Tenant's Work; and
(b) a fee of $0.30 per square foot of the Gross Rentable Area of
the Premises to cover supervision of the Tenant's Work by the
Landlord.
Any failure by the Tenant to pay an amount payable by it pursuant to this
Schedule shall constitute a default under this Lease.
7. LIENS
-----
If any lien or encumbrance arising out of the Tenant's Work is filed or attached
against the Premises, the Tenant shall, within five days after notice thereof,
procure the discharge thereof, failing which the Landlord may, at its option and
in addition to any other remedies it may have under this Lease arising out of
defaults by the Tenant, make any payments required to procure such discharge and
be reimbursed by the Tenant for any payment, cost or expense incurred in so
doing, whether or not such lien or encumbrance was without merit or excessive.
8. TENANT'S WORK
-------------
The Tenant will at its own expense complete the work (the "Tenant's Work")
described in this Section.
The Tenant shall, as part of the Tenant's Work, obtain all permits and approvals
required from any governmental authority, and fully complete the Premises and do
<PAGE>
-3-
all work (including all necessary electrical, mechanical, plumbing and other
installations and all interior finishing, decorating, furnishing and fixturing)
necessary for that purpose over and above Landlord's Work as may be required so
that the Premises are fully completed and finished, fully fixtured and ready for
the conduct of the Tenant's business. All Tenant's Work shall be performed
diligently and in a good and workmanlike manner at the expense of the Tenant and
in accordance with this Schedule.
The specific items of Tenant's Work shall include, without limitation, the
following:
(a) Wall Finishes: interior wall finishes including painting and
decorating;
(b) Partitions: all interior partitions;
(c) Electrical: all electrical wiring and fixtures in the Premises
beyond that shown on the Landlord's electrical plans;
(d) Telephone: the Tenant shall arrange for wiring and
installation of the Tenant's telephone system with Bell Canada
and equipment within the Premises from the terminal board
provided in a closet on each floor. Any space required for
telephone equipment shall be provided within the Premises;
(e) Heating, Ventilation and Air-Conditioning: all alterations to
the air-conditioning air distribution system to suit the
Tenant's partitioning, extra equipment, lighting or unusually
high occupancy conditions;
(f) Exhaust System: extension of washrooms exhaust systems from
the core wall to the Tenant's washroom facilities, if any, and
any other exhaust system as permitted by the Landlord and
required for the Tenant's general or equipment installation;
(g) Plumbing: any washrooms or plumbing fixtures, pipes and
equipment required in the Premises;
(h) Communications: such intercom, burglar and fire protection
systems as the Tenant may require;
(i) Tenant's Fixtures: all built-ins, counters, shelving and other
trade fixtures as may be required by the Tenant to properly
conduct its business in the Premises; and
(j) Ceiling: the Tenant shall install, at its expense, the ceiling
tile and electrical fixtures at the appropriate time during
the construction of the Tenant's Work.
<PAGE>
SCHEDULE "F"
LANDS
-----
