EXHIBIT 10.5
REAL PROPERTY LEASE - CALGARY, ALBERTA
STANDARD FORM OF INDUSTRIAL LEASE
from
THE STANDARD LIFE ASSURANCE COMPANY
and
THE MANUFACTURERS LIFE ASSURANCE COMPANY
to
TRIPLE-C-INC.
for the SPAETH Building
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THIS LEASE dated as of this 18th day of March, 1997
BETWEEN:
THE STANDARD LIFE ASSURANCE COMPANY, having Its principal office in
Montreal, Quebec, and having an office at:
#200, 640 - 6th Avenue S. W.
Calgary, Alberta, T2P OS4
AND:
THE MANUFACTURERS LIFE INSURANCE COMPANY, having its principal office
in Toronto, Canada, and having an office at:
#1475, 550 - 6th Avenue S.W.
Calgary, Alberta, T2P OS2
(hereinafter jointly referred to as the "Landlord")
AND:
TRIPLE-C-INC., having Its principal office In Hamilton, Canada and
having an office at:
3815 - 29th Street N.E.
Calgary, Alberta, T1Y 6135
(hereinafter referred to as the "Tenant")
WITNESSES that the Landlord leases the Premises to the Tenant and the
Tenant accepts that lease, for the Term, on the following terms and conditions
to which the Landlord and Tenant agree:
PART 1 - INTERPRETATION
1.1 Performance
In exercising its rights and carrying out its obligations, each of the
Landlord and Tenant will act reasonably, prudently, promptly and
fairly.
1.2 Rights and Obligations
All the Landlord's and Tenant's rights and obligations in this lease
will apply throughout the Term, and longer If the Lease so states.
1.3 Consents
If either the Tenant or the Landlord needs the others consent, it will
obtain that consent in writing before proceeding. Neither party will
unreasonably withhold or delay its consent.
1.4 Dispute Resolution
Where the Landlord is obliged to refer any dispute or question to an
auditor, real estate appraiser or other expert experienced in
assessment appeals, surveyor, engineer, architect, insurance
consultant, or other professional: (I) the Landlord will select a
person who is at arm's length from the Landlord, except that the
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Landlord may use its external auditor and other arm's length persons
with whom the Landlord has dealings; (ii) that person's decision or
determination will be conclusive and binding on the Landlord and
Tenant; and (iii) each of the Landlord and Tenant will pay fifty (50%)
percent of that person's fees and disbursements.
1.5 Fully Net Lease
This Lease will be a carefree fully net Lease for the Landlord, except
if an item is expressly stated to be for the Landlord's account.
Otherwise, the Tenant will pay ail outgoings with respect to the
Premises, their use, occupancy, and contents including its Share of
Operating Costs and Taxes, and the Cost of Additional Services. The
Tenant will also pay its costs of carrying out its obligations under
this Lease.
1.6 Entire Agreement
No verbal, written, express or implied representations, warranties,
guarantees, covenants or agreements of either the Landlord or the
Tenant will survive the signing of this Lease except if they are set
out in this Lease. This Lease constitutes the entire agreement between
the Landlord and Tenant. This Lease may only be modified by an express
written agreement, made after the Lease has been executed, which both
the Landlord and Tenant have signed.
1.7 Definitions
In this Lease:
1.7(a) "Additional Rent" means all money the Tenant must pay under
this Lease, including indemnities, but excluding Basic Rent.
1.7(b) "Additional Services" mean the services and supervision the
Landlord supplies to the Tenant over and above what the
Landlord supplies as the standard level of services included
in Operating Costs and available to Building occupants
generally.
1.7(c) "Basic Rent" means the annual rent the Tenant is to pay under
Paragraph 3.3 herein.
1.7(d) "Building" means the building, and the common areas,
improvements, and amenities located from time to time on the
Land or in the building.
1.7(e) "Commencement Date" means the 1 at day of July 1997.
1.7(f) "Cost of Additional Services" means the Landlord's cost
Additional Services, together with a supervisory fee equal to
fifteen (15%) percent of those costs.
1.7(g) "Day" or "days" means a calendar day or calendar days.
1.7(h) "End of the Term" means the expiry or earlier termination of
the Term.
1.7(I) "Event of Delay" means an event or cause beyond the reasonable
control of the Landlord or the Tenant, as the case may be,
including acts of God, labor or industrial disturbances, civil
disturbances, wars, interruptions by Government Body or court
orders, transportation disruptions, or shortages of materials.
1.7(j) "Government Body" means any municipal, provincial, federal,
school or other statutory authority, or department or agency
thereof.
1.7(k) "Hazardous Substance" means any contaminant, pollutant,
dangerous or potentially dangerous or noxious or toxic
substance, hazardous waste, flammable or explosive or
radioactive material, urea formaldehyde foam insulation,
asbestos, PCB's and substances or any other materials declared
or defined to be hazardous, toxic, contaminants or pollutants
in, or which at any time during the
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Term are regulated as a threat or are capable or posing a
threat to public health or the environment under or pursuant
to, any applicable laws, regulations, requirements or
guidelines in the Province of Alberta, including any
applicable laws, regulations, requirements or guidelines of
the Federal Government of Canada or of the Government of the
Province of Alberta or of the Municipality or of any other
lawful governmental authority having jurisdiction thereto.
1.7(l) "Inherent Structural Defects" mean material defects in the
structure of the Building which an architect or engineer,
appointed by the Landlord, certifies, in his opinion, to be
the result of an ascertainable error in design or workmanship
or of the use of substandard building materials.
1.7(m) "Insured Damage" means damage by fire or other peril to the
Building or to the Premises which the Landlord is responsible
for repairing and for which the Landlord may actually recover
the entire cost of repair under the Landlord's insurance
policies.
1.7(n) "Land" means the land described in Schedule "D".
1.7(o) "Lease" means this document and the attached schedules.
1.7(p) "Leasehold Improvements" mean all improvements, alterations,
partitions, or fixtures from time to time installed for or by
the Tenant in the Premises, except for furniture and readily
removable trade fixtures and equipment which are not hard
wired or plumbed.
1.7(q) "Operating Costs" mean the total, without duplication, of all
costs, calculated according to Canadian generally accepted
accounting principles consistently applied, which the Landlord
Incurs directly or indirectly to manage, operate, maintain,
repair, replace or preserve the Land and the rentable and
non-rentable areas of the Building including, without
limitation, the costs of (I) complete landscaping, gardening,
exterior cleaning, window cleaning (if any), snow removal,
supervisory and maintenance services; (ii) operating elevators
(if any); (iii) costs of maintaining heating, cooling and
ventilating units if such costs are the responsibility of the
Landlord; (iv) electricity and power including lighting and
other utilities and services (excluding the Premises if the
Premises are separately metered in which case the Tenant shall
be directly responsible for such metered charges); (v)
cleaning, maintaining and servicing all electric lighting
fixtures, and replacing light bulbs, tubes, relays, starters,
and ballasts in any common areas; (vi) repairing and servicing
elevators (if any); (vii) painting, and sanitary control;
(viii) security; (tic) insurance premiums for fire, liability,
loss of rent, elevator liability, and other risks for which
the Landlord considers insurance to be necessary, (x) Capital
Tax, being the tax or excise imposed by a Government Body on
the Landlord measured by or based in whole or in part upon the
capital employed by the Landlord, calculated as if the amount
of such tax or excise were the amount due If the Building were
the Landlord's only real property, and includes the amount, if
any, of any capital or place of business tax imposed by a
Government Body on the Landlord with respect to the Building;
(xi) accounting and audit charges for calculating Operating
Costs, Taxes, and other costs; (xii) salaries, wages, and
fringe benefits paid to Building employees, and amounts paid
to independent contractors, and bona fide expenses of such
persons; (xiii) a management fee equal to five (5%) percent of
the aggregate, for each calendar year during the Term, of all
rents and other charges payable to the Landlord by tenants of
the Building, including Operating Costs and Taxes; (xiv)
renting or buying signs, equipment, and supplies, and sales
and excise taxes on goods and services; (xv) interest on
expenses which the Landlord incurs and then amortizes for a
reasonable period, which interest will be calculated yearly
and will be equal to the Bank of Canada prime rate of interest
in effect on the date the Landlord incurred the expense; (xvi)
managing, operating, maintaining, repairing, replacing, or
preserving the roof, lobbies, hallways, ceilings, washrooms,
elevators, and amenity areas (if any); and (xvii) any
additions or modifications to the Building that are required
by any Government Body or that are incurred to reduce (or to
slow the rate of increase of) an Operating Cost; but excluding
the costs of: (1) Taxes; (ii) Landlord's debt service; (iii)
correcting inherent Structural Defects or initial
maladjustments to operating equipment; and (iv) leasing
commissions and rental advertising.
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In calculating Operating Costs there will be a credit for
insurance proceeds for Insured Damage which the Landlord
actually recovers, and for recovery from Building occupants of
electricity and light bulbs, and tube and ballast replacement,
to the extent that such items were included in Operating
Costs.
1.7(r) "Premises" mean the space identified as Unit 3815 consisting
of 14,011 rentable square feet more or less, and outlined in
red on the floor plan attached is Schedule "B".
1.7(s) "Rent" means Basic Rent and all Additional Rent.
1.7(t) "Share" means 14.6989%, being the Tenant's portion of
Operating Costs and Taxes, and being the proportion that the
rentable area of the Premises bears to the rentable area of
the Building.
1.7(u) "Taxes" mean all taxes, duties, rates, levies, assessments, or
charges including those for local improvements, education, and
schools levied, imposed, or assessed from time to time by any
Government Body against the Land, the Building, or the
Landlord in respect thereof, including all taxes which the
Landlord Is obliged to pay to any Government Body with respect
to goods and services which are supplied or provided to or for
the benefit of the Land or Building, or the tenants, together
with legal and other professional fees and interest and
penalties on deferred payments which the Landlord incurs in
good faith to contest or appeal the amount or validity of
various charges. 'Taxes' will not include tax or license fees
on businesses carried on by Building occupants, or corporate
income, profits, or excess profits tax upon the Landlord's
income to the extent tax is not levied in lieu of the various
charges.
1.7(v) "Term" means the term of five (5) years and zero (0) months
starting on the Commencement Date and ending on June 30, 2002,
and any renewal of the Term and any period of permitted
overholding.
1.8 Determining Areas
The Landlord shall determine the rentable area of the Premises and the
rentable area of the Building.
1.9 Currency
All references to money are to lawful currency of Canada.
1.10 Severability
If any provision of this Lease is unenforceable, it will be severed.
1.11 Governing Law
This lease will be governed by the laws of the Province of Alberta.
1.12 Construction
Singulars will include plurals and masculines will include feminines
and neuters, and vice-versa. If the word "including" is used, the words
"without limiting the generality of the foregoing" will be deemed to
follow. Headings are for convenience of reference only.
PART 2 - EARLY OCCUPANCY AND DELAYS
2.1 Early Possession
If the Tenant uses or occupies the Premises before the Commencement
Date, the provisions of this Lease and any further provisions in
Schedule "C" will apply.
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2.2 Delay in Delivering Premises
If the Premises are not ready for occupancy by the Tenant on the
Commencement Date because a prior overholding occupant has unlawfully
refused to leave or because of an Event of Delay, the Landlord will not
be liable for loss or damage resulting from the delay, and the Term
will start on the Commencement Date, but the Tenant need not pay Rent
until the Landlord gives it occupancy. In any such case, the Landlord
will provide occupancy to the Tenant as quickly as possible.
PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT
3.2 Paying Rent
The Tenant will pay Rent duly and punctually to Bayview Property &
Asset Management Inc., 510 Parkside Place, 602 -12 Avenue, S.W.,
Calgary, Alberta T2R 1J3, or to such other person or place of which the
Landlord gives notice to the Tenant. The Tenant will pay Rent without
deduction, abatement, or set-off, except as permitted by Paragraphs 3.4
and 3.6 herein. The Tenants obligation to pay Rent due during the Term
will survive the End of the Term.
3.3 Basic Rent
The Tenant will pay basic rent
3.3(a) the total sum of $_____ for the Term, in advance in equal
consecutive monthly installments of $_____, starting on the
Commencement Date and continuing on the first day of each
month during the Term;
or
3.3(b) in advance in equal monthly payments on the first day of each
month during the Term, as follows:
<TABLE>
<CAPTION>
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$ Per Rentable
Square Foot Per
Year(s) From To Annum $ Per Month $ Per Annum
<S> <C> <C> <C> <C> <C>
1-3 July 1, 1997 June 30, 2000 $4.75 $5546.02 $66,552.25
4-5 July 1, 2000 June 30, 2002 $5.00 $5837.92 $70,055.00
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</TABLE>
3.4 Operating Costs
The Term will consist of fiscal periods of twelve (12) consecutive
months, each ending on December 31st, except that the first and last
fiscal periods may be shorter. The Landlord may change the date on
which the fiscal periods end by giving the Tenant at least 60 days'
advance notice. In any such case, the then current fiscal period will
be extended or shortened so that it ends on the new date. Before the
Term starts and before each fiscal period starts, the Landlord may give
the Tenant an estimate of its monthly Share of Operating Costs for the
then existing fiscal period or the coming fiscal period. The Tenant
will pay that estimated Share or, if no estimate is given, the same
Share it was paying for the previous fiscal period, monthly on the same
dates and in the same manner that it pays Basic Rent.
After the Landlord has completed its accounting for each fiscal period,
the Landlord will give the Tenant a statement of the Operating Costs
for that fiscal period. If the statement shows a shortfall between the
estimated Share of Operating Costs the Tenant has paid for that fiscal
period and its actual Share, the Tenant will pay that shortfall within
thirty (30) days after it receives the statement. If the statement
shows
<PAGE>
that the Tenant has paid too much, the Tenant will receive a credit for
the difference. If the Tenant questions any Operating Cost, it may
examine the Landlord's books and records with regard to the Building.
3.5 Cost of Additional Services
The Tenant will pay to the Landlord, in the same manner it pays its
Share of Operating Costs or in such other manner as the Landlord may
request, the Landlord's extra costs in respect of any extra services or
materials which result from the Tenant's activities, or requests, over
and above those normally provided to Building occupants. Paragraph 3.4
above will apply to those extra costs so far as applicable.
3.6 Taxes
The Term will consist of tax periods of twelve (12) consecutive months,
each ending on December 31st, except that the first and last tax
periods may be shorter. The Landlord may change the date on which the
tax periods end by giving the Tenant at least 60 days' advance notice.
In any such case, the then current tax period will be extended or
shortened so that it ends on the new date. If the Premises or any
property or rights specific to the Tenant are assessed separately in
respect of any tax period by the relevant Government Body, the Landlord
will calculate the Tenant's share of Taxes on that separate basis. If
Taxes are greater than they would normally be because of the Tenant's
constitution, ownership, or use of the Premises, school support,
assessment by the relevant Government Body using an income approach, or
other reason specific to the Tenant, the Landlord may determine that
greater amount and include it in the estimate of the Tenant's Share of
Taxes. The Tenant may contest or appeal the amount or validity of any
separate or higher assessment if the Tenant pays such assessment as
required, gives the Landlord a copy of the appeal, and pays all appeal
costs. Before the Term starts and before each tax period starts, the
Landlord may give the Tenant an estimate of its monthly Share of Taxes
and any further share of Taxes payable under this Paragraph 3.6 for the
then existing tax period or the coming tax period. The Tenant will pay
that estimated Share or, if no estimate is given, the same Share it was
paying for the previous fiscal period, monthly on the same dates and in
the same manner that it pays Basic Rent. After each tax period ends,
the Landlord will give the Tenant a statement of the actual Taxes due
from that Tenant for that tax period which will include any separate or
higher Taxes due. If the statement shows a shortfall between the
estimated Share of Taxes and any further share of Taxes payable under
this Paragraph 3.6 which the Tenant has paid for that tax period and
its actual Share and any further share, the Tenant will pay that
shortfall within thirty (30) days after it receives the statement. If
the statement shows that the Tenant has paid too much, the Tenant will
receive a credit for the difference. Either the Landlord or the Tenant
may give notice to the other, within ninety (90) days after a tax
period ends, correcting or disputing the calculation, or allocation of
any Taxes. If the Landlord and Tenant cannot agree on the correction or
resolve the dispute within ten (10) days after the notice is given, the
Landlord will give such notice to a real estate appraiser or other
expert experienced in assessment appeals who will determine the
correction or dispute. If the decision of such appraiser or other
expert requires an adjustment in what the Tenant has paid, it will be
made in the same manner as adjustments of actual Taxes. Subject to the
Tenant's obligation to pay its Share of Taxes, the Landlord will pay
the Taxes, except that the Landlord may defer payment if deferment is
lawful. Except as set out in this Paragraph 3.6, the Tenant may not
contest or appeal the amount or validity of Taxes. The Landlord may
contest or appeal the amount or validity of Taxes but will not be
obliged to do so. If the Landlord has so contested or appealed, the
Landlord may compromise, waive, or settle without reference to the
Tenant. If the Landlord receives a reduction in the Taxes and if the
Tenant has paid its Share of the Taxes which are reduced, the Tenant
will receive a credit for its Share of the reduction. The Tenant will
pay its Share of any increase in Taxes as a result of such contest or
appeal. If the Landlord cannot obtain from the appropriate Government
Body or public or private utility an allocation of Taxes or of any
other taxes, duties, rates, levies, assessments, or charges which the
Tenant is obliged to pay, which is sufficient to calculate the Tenant's
Share or portion, the Landlord will make that allocation.
3.7 Tenant's Taxes and Other Charges
The Tenant will pay, as and when due, to the appropriate Government
Body or public or private utility all license fees, taxes, rates,
duties, levies, assessments, or other charges imposed, assessed, or
levied by any
<PAGE>
Government Body or public or private utility from time to time, whether
imposed on the Landlord or the Tenant, in respect of: (I) the personal
property, fixtures, business, franchise, income, occupancy, use, or
sales of the Tenant or other occupant of the Premises; (ii) Leasehold
Improvements, fixtures, or machinery installed in the Premises by or
for the Tenant; (iii) other space used by the Tenant in the Building;
(iv) utilities and services used in or supplied to the Premises, to the
extent that the Landlord has not included them in Operating Costs. In
this regard, the Landlord may, at its option, install meters, at the
Tenant's cost, in which case, the Tenant shall be directly responsible
to the supplier of such utilities for all charges incurred by the
Tenant, and (v) tax on goods and services which the Landlord provides
or causes to be provided to or for the benefit of the Tenant or the
Premises. If any such charges are not allocated separately for the
Premises, the Landlord will make that allocation and if utilities or
services are not sub-metered, the allocation will be on a connected
load and usage or other equitable basis. Upon request by the Landlord,
the Tenant will give the Landlord evidence that the Tenant has paid
those charges as required.
3.8 Additional Rent
The Tenant will pay all Additional Rent upon demand by the Landlord
unless other times for its payment are expressly set out in this Lease.
If the Tenant fails to pay any Additional Rent, as and when due, the
Landlord will have the same remedies for its collection as it has for
recovering Basic Rent in arrears. If the Tenant fails to pay any sum
which the Tenant is obliged to pay, then subject to Paragraph 7.7, the
Landlord may pay it and it will then be a debt owing by the Tenant to
the Landlord.
3.9 Interest on Arrears
When any Rent, or any interest accrued thereon, is in arrears, it will
bear interest at 1.5% per month compounded monthly, from the date such
Rent became due to and including the date of payment. The Landlord will
have all remedies for its collection as it has for recovering Basic
Rent in arrears.
3.10 Irregular Periods
If the Term begins or ends other than on the first or last day of a
month or if the first or last fiscal period or tax period is less than
months, Rent for any broken month or broken period will be pro rated at
a rate per day equal to 1/365 of the Rent applicable in that calendar
year.
PART 4 - THE PREMISES
4.1 Examination of Premises
The Tenant will inspect the Premises before taking possession and will
give the Landlord notice of any problems. If the Tenant does not give
notice, the Premises will be deemed to be satisfactory, except for
inherent Structural Defects.
4.2 Possession and Use of Premises
The Tenant will: (i) take possession of the Premises on the
Commencement date; (ii) not allow anyone except for its employees,
customers, other persons lawfully having business with the Tenant, or
permitted sub-tenants, to use or occupy the Premises; (iii) use the
Premises only for business office and warehousing unless the Landlord
consents to another use; (iv) not let the Premises remain vacant for
more than 5 consecutive days; (v) not do anything in the Premises which
is noxious, dangerous or offensive in any manner or which would be a
nuisance or disturb other Building occupants; (vi) not overload the
Premises floor without the Landlord's consent beyond a capacity of
three hundred pounds per square foot; (vii) not cause any waste or
damage to the Premises; (viii) not let the Premises become untidy or
unsightly, and at the end of each business day leave them in such a
condition that they are clean; and (&) not store any dangerous,
environmentally hazardous or flammable substances in the Premises.
<PAGE>
4.3 Insurance Increases
The Tenant will not do or omit to do anything in the Premises which
would result in any increase in the Landlord's insurance premiums but,
if the Landlord's premiums are increased, the Tenant will pay the
increase to the Landlord. The Landlord, by its representatives, may at
any time enter the Premises to remove any article or remedy any
condition which, in the Landlord's opinion, would be likely to lead to
cancellation of any insurance policy. Such entry by the Landlord will
not be deemed a re-entry or a trespass. If any insurance policy of the
Landlord is subject to cancellation or is canceled by reason of the
Tenant's use of the Premises, the Landlord may terminate this Lease by
giving 10 days' notice to the Tenant, except if the Tenant has cured
the problem within that 10 day period. In such case, Paragraph 12.1
will not apply.
4.4 Complying with Laws
The Tenant will comply with all lawful requirements of Government
Bodies and insurance companies who hold policies which affect the Land
or Building, with respect to its operation and use of the Premises, the
condition of the Tenant's Leasehold Improvements, trade fixtures,
furniture and equipment, and any repairs or renovations the Tenant
makes or is obliged to make to the Premises.
4.5 Quiet Enjoyment
If the Tenant duly and punctually pays the Rent and complies with its
obligations, the Tenant will be entitled to peaceably possess and enjoy
the Premises during the Term.
4.6 Regulations
The Tenant will comply with the regulations attached as Schedule "C"
and with any amendments to them or any new regulations which the
Landlord makes in connection with the use, occupancy, repair,
maintenance, or operation of the Land or the Building. The regulations
will form part of this Lease.
4.7 Tenant's Signs
The Tenant will not place or affix any signs, symbols, or lettering
outside the Premises, inside the Premises if visible from outside, or
inside out outside the Building, except for an identification sign at
or near the Premises entrance, which will be subject to the Landlord's
consent as to design, color, size, and location. The Landlord reserves
the right to install such signs as an Additional Service.
PART 5 - LANDLORD'S SERVICES AND ADDITIONAL SERVICES
5.1 Access
The Tenant and its invites, in common with others, may use the common
entrances, lobbies, stairways, and corridors of the Land and Building
to gain access to the Premises, subject to the regulations.
5.2 Washrooms
The Tenant and its invites, in common with others, may use the
washrooms on the floors) on which the Premises are located.
5.3 Water, Telephone and Light
The Landlord will provide building standard ducts to bring telephone
services to the Premises, hot and cold water to building standard
washrooms, and reasonable lighting to the Building common areas.
<PAGE>
5.4 Energy and Security
The Tenant will co-operate with the Landlord to conserve energy and to
maintain security.
5.5 Light Fixtures
The Landlord will have the exclusive right to install, repair,
maintain, clean, revamp, and destaticize fluorescent fixtures within
all common areas at reasonable rates.
PART 6 - DISPOSITIONS
6.1 Assignments and Subletting
The Tenant will not assign this Lease or sub-let or part with
possession of the whole or any part of the Premises for the whole or
any part of the Term, without a bona fide written offer and without the
Landlord's consent. If the Tenant wants the Landlord's consent, it will
give the Landlord a true copy of the offer and any information the
Landlord may require with regard to the reputation, financial standing,
and business of the proposed assignee, sub-tenant, or occupant. Within
ten (10) days after the Landlord receives the last of that information,
or within ten (10) days after it receives the request for consent if it
has not asked for any information, the Landlord will advise the Tenant
that the Landlord: (I) consents; (ii) refuses to consent (with the
reasons for such refusal); or r)) wishes, if the request is to assign
this Lease or to sub-let or part with possession of the whole Premises,
to terminate this Lease or wishes, if the request is to sub-let or part
with possession of part of the Premises, to terminate this Lease with
respect to such part If the Landlord consents, then the Tenant may
complete its transaction only on the terms set out in the offer and
only if it does so within sixty (60) days after it receives the
Landlord's consent. If the Landlord wishes to terminate this Lease, in
whole or in part, the Tenant may withdraw its request within ten (10)
days after it receives the Landlord's advice. If the Tenant does not
withdraw its request then this Lease will be terminated, in whole or in
part, on a date required by the Landlord which will be not less than
thirty (30) nor more than sixty (60) days after the later of the date
the Landlord receives the Tenant's request for consent or the date the
Landlord receives the last of the requested information from the
Tenant. If the Tenant surrenders only part of the Premises, Rent will
abate thereafter proportionately. Despite any such assigning,
sub-letting, or parting with possession, the Tenant will remain liable
for the Tenant's obligations. If the Landlord gives its consent to an
assignment, the Landlord may require the Tenant to obtain the
assignee's direct covenant with the Landlord to comply with the
Tenant's obligations, as a condition of the consent. The Tenant will
not advertise the Premises for assignment or sub-letting except if the
Landlord has approved the proposed text. In no event will the rental
rate appear in any advertisement.
6.2 Change in Control
If the Tenant is a private company, any sale or other disposition of
its shares or securities resulting in a change of control or beneficial
ownership will be deemed to be an assignment under Paragraph 6.1.
6.3 Landlord's Conveyance
If the Landlord sells the Land and Building, it will have no further
obligation to the Tenant except for then existing defaults by the
Landlord.
6.4 Mortgaging
The Tenant will not mortgage or charge its leasehold interest in the
Premises, fixtures, chattels, furniture, or equipment, without the
Landlord's consent.
PART 7 - REPAIRS, RENOVATIONS, DAMAGE AND EXPROPRIATION
<PAGE>
7.1 Landlord's Repairs
The Landlord will keep the Building in a good and reasonable state of
repair and maintenance, consistent with the standards for comparable
buildings in the vicinity, except for the non-structural elements of
the Premises and other premises and reasonable wear and tear, and will
repair Insured Damage except if the Lease is terminated under Paragraph
7.9.
7.2 Tenant's Repairs
The Tenant will keep the Premises, its Leasehold Improvements, its
trade fixtures, all heating, ventilation and air conditioning units,
lighting futures and any plate or other glass in the Premises or in the
exterior walls of the Premises in a good and reasonable state of repair
and maintenance, consistent with the standards for comparable premises
in the vicinity, except for the structural elements of the Premises,
reasonable wear and tear, and Insured Damage, and except if the Lease
is terminated under Paragraph ?.9. Paragraph 7.4 will apply to Tenant
repairs. The Tenant will repair according to notice from the Landlord.
7.3 Inspection and Access
The Landlord, by its representatives, may enter the Premises at all
reasonable times and during any emergency to: (I) inspect or supervise
repair, maintenance, or renovation; (ii) do its own repairs,
maintenance, or renovations; (iii) gain access to utilities and
services (including underfloor or overhead duds and access panels); and
(iv) determine electric light, power and water consumption by the
Tenant in the Premises. In doing its repairs or renovations, the
Landlord may bring equipment and material into the Premises. The Tenant
will not be entitled to compensation for any inconvenience, nuisance,
or discomfort caused by the Landlord's work in the Premises, but the
Landlord will disturb the Tenant's use and enjoyment of the Premises as
little as reasonably possible.
7.4 Tenant's Renovations
The Tenant will not construct, install or alter anything in the
Premises without the Landlord's consent. When requesting that consent,
the Tenant will give the Landlord a copy of reasonably detailed
drawings and specifications for the proposed work. The Tenant will do
such work in a good and workmanlike manner, in accordance with the
drawings and specifications the Landlord has approved, and in
accordance with the Landlord's reasonable requirements. The Tenant will
use contractors and subcontractors to whom the Landlord has consented,
except that the Landlord may designate the contractors and
subcontractors to be used for mechanical, structural, or electrical
design and work and except that the labor union affiliations of workers
must be compatible with those of workers employed by the Landlord or
its contractors. The Landlord's consent, inspection, and supervision
with respect to any such work will be Additional Services. Upon
completing any work, the Tenant will deliver to the Landlord a full set
of as-built drawings which the Landlord may keep.
7.5 Landlord's Renovations
The Landlord may alter the Building from time to time including
constructing additional floors, altering the Building's size or
altering the location, dimensions or specifications of utilities,
common areas or mechanical systems so long as the physical dimensions
of the Premises are not materially altered as a result. The Tenant
waives and renounces all claims which may result from any such
alteration. If such alteration results in additional land being added
to the Land or being used to service the Building, such additional land
will be deemed to form part of the Land. If such alteration results in
a change in the rentable area of the Building, the Landlord may modify
the Tenant's Share accordingly.
7.6 Payment for Work
The Tenant will pay all accounts for its renovations and repairs as and
when due, except as set out in Paragraph 7.7.
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7.7 Liens
The Tenant will discharge any builder's or other lien filed against the
Tenant's leasehold interest or against the Land, by reason of work,
labor, services, or materials provided or alleged to have been provided
to the Tenant, as soon as it comes to the Tenant's notice. If the
Tenant gives the Landlord notice that it wants to contest in good faith
any lien and if the Tenant deposits with the Landlord or pays into
Court the amount of the lien claim plus an amount for costs
satisfactory to the Landlord or the Court, as the case may be, then the
Tenant may defer paying the lien claim while it contests the claim with
due diligence, except that if the Tenant's leasehold interest or the
Land thereby becomes liable, in the Landlord's judgment, to forfeiture
or sale, the Landlord may discharge any such lien. In that case, the
Tenant will reimburse the Landlord for the amount of the lien and its
costs of so discharging.
7.8 Tenant's Negligence and Liability
If any part of the Building, including the interior climate control and
utilities systems, needs repair or replacement by reason of the fault
or negligence of the Tenant or its invites or licensees, the Tenant
will be liable therefore and for resulting or consequential injury,
loss or damage.
7.9 Damage or Destruction
If the Premises or the Building are materially damaged by any cause,
the Landlord, within ten (10) days after the damage occurs, will
appoint an architect or engineer to determine, within thirty (30) days,
the extent of the damage and how long he estimates the damage will take
to repair. The Landlord will give the Tenant a copy of the architect's
or engineer's report. If the report indicates that the Premises or
Building will take more than 180 days from the date of the report to
repair, then either the Landlord or the Tenant may give notice to the
other, within ten (10) days after receipt of the report, terminating
this Lease. If the Lease is so terminated, the termination date will be
the tenth (10th) day after the date the Landlord or the Tenant receives
such notice from the other, and in such case neither the Landlord nor
the Tenant will be obliged to repair. If the Lease is not so
terminated, each of the Landlord and Tenant will repair the damage to
the extent it is obliged to do so under Paragraph 7.1 or Paragraph 7.2
above.
7.10 Abatement
If the Premises are not reasonably capable of use and occupancy by the
Tenant for its business for more than ten (10) days as a result of any
damage, Rent will abate, from the date of the damage, in proportion to
the part or parts of the Premises not reasonably capable of use and
occupancy until the Premises are again reasonably capable of such use
and occupancy or, with respect to the Tenant's repairs after such
damage, until such time as, in the Landlord's opinion, those repairs
ought to have been completed. If the Landlord, and Tenant disagree on
the extent or time of the abatement, the Landlord will ask an architect
or engineer to determine the dispute.
7.11 Expropriation
If a Government Body expropriates all or part of the Land or Building,
the Landlord, within sixty (60) days after it receives the notice of
expropriation, may give the Tenant not less than thirty (30) days
notice terminating the Lease. If a Government Body expropriates all or
part of the Premises such that any remainder is not reasonably capable
of use and occupancy, the Tenant, within sixty (60) days after it
receives the notice of expropriation, may give the Landlord not less
than thirty (30) days notice terminating the Lease. If the Lease is so
terminated, neither the Landlord nor Tenant will have any claim against
the other with respect to the expropriation. Each of the Landlord and
Tenant may claim against the Government Body for compensation for loss
of its interest and may retain any compensation awarded to it. Each of
the Landlord and Tenant will coordinate with the other in pursuing its
respective claim. If the Landlord receives a compensation award which
specifically includes an award to the Tenant, the Landlord will remit
the Tenant's portion to it. If the Lease is not so terminated then
Paragraph 7.9 will apply to any repairs which are necessary as a result
of the expropriation and Paragraph 7.10 will apply to abatement of Rent
during any repair period. After the later of the date of expropriation
or the repair period, if any, Rent
<PAGE>
will be adjusted so that it will bear the same proportion to the
original Rent as the area of the remaining Premises bears to the area
of the Premises immediately before the expropriation, and the Tenant's
Share will be adjusted in the same manner.
PART 8 - SURRENDERING PREMISES AND REMOVING FIXTURES
8.1 Surrender
At the End of the Term, the Tenant will surrender possession of the
Premises and the Tenants Leasehold Improvements to the Landlord,
without compensation, in the condition in which the Tenant was obliged
to keep them during the Term. The Tenant's Leasehold Improvements will
remain the Landlord's property, except for those the Tenant is obliged
to remove under Paragraph 8.2. At the End of the Teen, the Tenant will
give the Landlord a surrender of this Lease, which will be in form
acceptable for registration if applicable.
8.2 Removal of Fixtures
During the Term, the Tenant will not remove from the Premises its
Leasehold Improvements, trade fixtures, furniture or equipment, except
for furniture and equipment which, in the normal course of. its
business, is no longer needed or is being replaced by furniture or
equipment of equal or better quality and except as set out in this
paragraph. At the End of the Term, the Tenant will remove from the
Premises: (I) its trade fixtures; (ii) its furniture and equipment; and
(iii) those Leasehold improvements which the Landlord requires it to
remove, except that, if the Tenant is then in default under the Lease,
the Tenant will not remove any of those items unless the Landlord
expressly requires it to do so. The Tenant will repair any damage to
the Premises caused by the removal of those items. If the Tenant does
not remove any such items, the Landlord may do so and the Tenant will
pay the Landlord's removal and storage charges.
8.3 Survival
The Tenant's obligations in this Part 8 will survive the End of the
Term.
PART 9 - LIABILITY, INDEMNIFICATION AND INSURANCE
9.1 Limitation of Landlord's Liability
The Landlord will not be liable for any bodily injury or death of, or
loss or damage to any property belonging to, the Tenant or its
employees, invites or licensees or any other person in or about the
Land or Building unless resulting from the Landlord's gross negligence,
but in no event will the Landlord be liable for. (I) any damage, except
for Insured Damage, caused by smoke, steam, water, Ice, rain, snow, or
fumes which may leak into, issue or flow from any part of the Building
or from the plumbing works, or from any other place, or caused by the
condition or arrangement of any wiring; (1) any damage caused by any
other Building occupant; (iii) any act or omission (including theft,
malfeasance, or negligence) of any person the Landlord has employed or
contracted with to perform security or other work in the Building; (iv)
any loss or damage, however caused, to money, securities, negotiable
instruments, papers, or other valuables of the Tenant or its employees,
invites, or licensees; or (v) failure to supply or maintain interior
climate control or elevator services, or indirect or consequential
damages for personal discomfort or illness resulting from failure to
supply or maintain such services.
9.2 Indemnification
The Tenant will indemnify and save the Landlord harmless from all
claims, actions, liabilities, judgments, damage, costs, or expense
which the Landlord may suffer or incur in connection with or arising
from: (i) bodily injury or death, or property or other loss or damage,
in or about the Land or Building, as a result of any act or omission of
the Tenant; or (ii) any breach by the Tenant of its obligations under
this Lease. This indemnity will survive the End of the Term.
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9.3 Tenant's Insurance
The Tenant will obtain and maintain in good standing:
9.3(a) Liability insurance against claims for personal injury, death
or property damage occurring upon, in or about the Premises
and the Building, including personal liability, liability
assumed by contract, Tenant's legal liability, and non-owned
automobile liability. Such insurance will: (I) have a limit of
not less than $3,000,000.00 in respect of any one occurrence
or injury or death to a single person or property damage; (ii)
be primary insurance and will not call into contribution any
other insurance available to the Landlord or its mortgagee,
which means that the Tenant's Insurance will cover any loss
before the Landlord's or other insurance; and (iii) provide
for cross-liability and severability of insurance, which means
that each named insured on the policy can sue each other named
insured under the terms of the policy.
9.3(b) Insurance upon the Tenant's property normally located within
the Building, and any property which is repaired at the
Tenant's expense under this Lease.
9.3(c) Insurance against all explosion, rupture or failure of
boilers, pressure vessels or equipment within or serving the
Premises exclusively; and
9.3(d) Such other types of insurance as a prudent tenant would obtain
from time to time.
The Tenant will obtain all such insurance in at least those amounts set
out in Paragraph 9.3(a) and otherwise in those amounts a prudent tenant
of comparable space in a comparable building in the vicinity would
obtain and maintain from time to time. All such insurance policies
will: (I) include the Tenant, any mortgagee of the Tenant if
applicable, the Landlord, and any mortgagee of the Landlord if
applicable, as named insured, which means a person, firm, or
corporation which is specifically designated by name as an insured
under a policy; (ii) contain a waiver of any right of subrogation or
recourse by the Tenant's insurer against the Landlord or its employees,
agents, contractors, or mortgagees, whether or not any loss is caused
by the act, omission or negligence of the Landlord or its employees,
agents, contractors, or mortgagees (Subrogation means the legal process
by which an insurance company seeks recovery of the amount it pays to a
policy holder from a third party who may have caused the loss); (iii)
provide that the insurer will give the Landlord (and any of the
Landlord's mortgagees of which it has received notice) 30 days' prior
written notice of cancellation of, material alteration in, or lapse of,
any policy, and (iv) provide that such policies will not be invalidated
as respects the interest of the Landlord or the Landlord's mortgagees
by reason of any breach or violation of any warranties,
representations, declarations, or conditions contained in the policies.
The Tenant will effect all such policies with insurers and upon terms
satisfactory to the Landlord. The Tenant will give the Landlord copies
of certificates of insurance evidencing all such insurance and its
renewal. The Tenant will pay the premium for each policy. If the Tenant
fails to obtain or maintain any such insurance, the Landlord may do so
as the Tenant's agent and at the Tenant's cost. The Tenant will review
all its policies annually to ensure that they are up to date.
9.4 Landlord's Insurance
The Landlord will obtain and maintain fire and extended coverage
insurance on the Building and other insurance it considers necessary in
amounts and on terms and conditions which a prudent owner of a
comparable building in the vicinity would obtain and maintain from time
to time.
PART 10 - PERFORMANCE OF TENANTS COVENANTS, DEFAULT, BANKRUPTCY AND TERMINATION
10.1 Landlord May Perform Covenants
If the Tenant defaults in complying with any of its obligations, the
Landlord, in addition to its other rights and remedies under this Lease
or at law or at equity, may remedy or attempt to remedy any such
default and for such purpose may enter the Premises. No such entry will
be deemed to be a re-entry or trespass. The Tenant will reimburse the
Landlord for the Landlord's costs of so remedying or attempting to
remedy.
<PAGE>
The Landlord will not be liable to the Tenant for any act or omission
in so remedying or attempting to remedy unless such act or omission
amounts to intentional misconduct or gross negligence.
10.2 Right of Re-entry on Default or Termination
If and whenever: (I) the Tenant fails to pay any Rent after it is due;
or (ii) the Tenant defaults in observing or performing any of its other
obligations and fails to cure that default within 30 days after the
landlord gives the Tenant notice specifying the nature of the default;
or (iii) this Lease is terminated under any provision hereof; or (iv)
the Landlord has become entitled to terminate this Lease then, in any
such case, the Landlord thereafter may enter into the Premises or any
part thereof in the name of the whole to repossess the premises and
enjoy as of its former estate, despite anything in this Lease to the
contrary.
10.3 Termination and Re-entry
If the Landlord is entitled to re-enter the Premises under this Lease
or at law or at equity, the Landlord, in addition to its other rights
and remedies, may terminate this Lease forthwith by leaving notice of
such termination in the Premises.
10.4 Payment of Rent on Termination
If the Landlord gives the Tenant, or leaves in the Premises, notice of
termination, this Lease and the Term will end, Rent will be apportioned
on a daily basis to the End of the Term (except if it has abated, in
whole or in part, under Paragraph 7.10), the Tenant will pay that
apportioned Rent on demand by the Landlord, the Tenant will immediately
give possession of the Premises to the Landlord, and the Landlord may
re-enter and take possession of the Premises if it has not then done
so.
10.5 Re-letting
If the Landlord is entitled to re-enter the Premises under this Lease
or at law or at equity, the Landlord, in addition to its other rights
and remedies, may enter the Premises, as the Tenant's agent, and re-let
them and receive the basic rent and additional rent from that
re-letting, and, as the Tenant's agent, take possession of any personal
property in the Premises, or any place to which it has been removed,
and sell it at public or private sale without notice to the Tenant, and
apply the proceeds and any basic rent or additional rent received from
the re-letting on account of the Rent due or to become due, and the
Tenant will be liable to the Landlord for any deficiency.
10.6 Method and Waiver on Re-entry
If the Landlord re-enters the Premises then, in addition to its other
rights and remedies, it may expel the Tenant and those claiming through
or under the Tenant, remove any property in the Premises, and force or
change the locks, without being guilty of trespass. The Tenant waives
and renounces the benefit of any present or future law requiring the
Landlord to serve notice or begin legal action in order to re-enter.
10.7 Bankruptcy or Insolvency
If the Tenant becomes bankrupt or insolvent or takes steps, or allows
an order to be made to end its corporate existence then, in any such
case, the Landlord, at its option, may terminate this Lease by leaving
notice of termination in the Premises and, in that case, all arrears of
Rent, the current month's Rent and the next ensuing 3 months Rent will
immediately become due and be paid by the Tenant.
10.8 Distress
The Tenant waives and renounces the benefit of any present or future
law taking away or limiting the Landlord's right of distress, and
agrees that none of the Tenant's personal property will be exempt from
levy by distress for Rent in arrears.
<PAGE>
10.9 Cumulative Remedies
The Landlord may use any or all of the rights and remedies available to
it under this Lease or at law or at equity if the Tenant defaults in
observing or performing its obligations or if the Landlord is entitled
to terminate the Lease. Those remedies will be cumulative and not
alternative.
10.10 Waiver and Condoning
Only written waivers of Tenant's defaults will bind the Landlord. No
condoning, excusing, or overlooking by the landlord of any default by
the Tenant will operate as a waiver of the Landlord's rights or
remedies on any subsequent default.
10.11 Legal Fees
If either the Landlord or the Tenant exercises any of its rights or
remedies as a result of the other's default, the defaulting party will
pay the other's reasonable costs and out-of-pocket expenses of so
exercising, including complete legal costs.
PART 11 - HAZARDOUS SUBSTANCES
11.1 Hazardous Substances
The Tenant shall not bring or permit or suffer to be brought into the
Premises, and shall not use in any way, or permit or suffer the use of
the Premises or any part thereof to either directly or indirectly
prepare, produce, use, generate, manufacture, refine, treat, transport,
store, maintain, handle, dispose of, transfer, process, release or
permit any other dealing with, any Hazardous Substances unless it has
received the prior written consent of the Landlord, which may be
arbitrarily withheld. Any substance which the Landlord permits the
Tenant to treat, store, transfer or dispose of must be dealt with in
strict compliance with all applicable laws and environmental permits.
The Tenant shall not release and shall not permit the release of any
Hazardous Substances into any soil, water courses, culverts, drains or
sewers except in accordance with all applicable laws and environmental
permits. At its own cost, risk and expense, the Tenant shall comply
with all applicable laws and environmental permits from time to time in
force regulating the manufacture, use, storage, transportation,
disposal, release or other dealing with Hazardous Substances by the
Tenant to which the Landlord has consented.
11.2 Hazardous Substances Property of Tenant
If any Hazardous Substance is brought onto the Premises or created upon
the Premises during the term of the Lease, such Hazardous Substance
shall be the sole and exclusive property of the Tenant and not of the
Landlord, notwithstanding the degree of affixation of the Hazardous
Substances or the goods containing the Hazardous Substances to the
Premises and notwithstanding the expiry or sooner termination of this
Lease.
11.3 Removal of Hazardous Substances
On or before the expiration or sooner termination of this Lease, the
Tenant will remove all Hazardous Substances which have been brought
onto or created upon the Premises during the Temp of the Lease, whether
by the Tenant or any other person, other than the Landlord, including
without limitation any Hazardous Substances which may have been
released or deposited into the soil.
11.4 Notice of Hazardous Substances
The Tenant will advise the Landlord forthwith of any release of any
Hazardous Substances on the Premises or any other part of the Land and
the Building or any adjacent property and will provide the Landlord
with all information, notices, reports and other documents it has
regarding such release and the remediation steps being undertaken by
the Tenant with respect to the release or as may reasonably be required
by the Landlord of the Tenant.
<PAGE>
11.5 Restoration After Contamination
If the presence of any Hazardous Substance or any other substance on
the Premises results in any contamination of the Premises or the Land
and/or Building, the Tenant shall promptly take all actions at its sole
risk and expense as are necessary to return the Premises and the
Property to the condition existing prior to the introduction of any
such Hazardous Substance or other substance on the Premises or the Land
and the Building.
11.6 Cleanup Costs Indemnity
In addition to any other indemnity found in this Lease, the Tenant will
be completely liable for and will and does hereby indemnify and save
harmless the Landlord from all cleanup costs and remediation charges,
fees, penalties or damages, whether civil or criminal, and any expense
with respect thereto, required by any decree, directive or order from
any Government Body relating to the treatment, storage, disposal or
transportation of Hazardous Substances on or from the Premises by the
Tenant, its employees, agents, contractors or others whom the Tenant
permits to enter onto the Premises or for whom the Tenant is
responsible in law. The Tenant's obligations to observe or perform the
covenants in this Part 11 shall survive the expiration or other
termination of this Lease and any limitation periods prescribed by
applicable law.
11.7 Records
The Landlord may at any time and from time to time on five days prior
written notice to the Tenant have the Premises, any records reasonably
considered to be relevant for the purpose of identifying the existence,
nature and extent of any Hazardous Substance on the Premises and the
Tenant's use, storage and disposal of such Hazardous Substance,
inspected by a duly qualified independent environmental auditor, and
the Tenant agrees to co-operate with the auditor in its performance of
each such inspection. In exercising such right of inspection, neither
the Landlord nor its auditor shall unreasonably interfere with the
Tenant's use and occupation of the Premises. If the auditor, acting
reasonably, determines following any such inspection that further
testing or investigation is required in order to monitor the Tenant's
compliance with all applicable law relating to the use, storage and
disposal of any Hazardous Substance, the Landlord may at its own option
require the Tenant, at the Tenant's expense, to arrange for such
testing or investigation itself, in which case the Landlord's
reasonable costs of any such testing or investigation shall be paid by
the Tenant to the Landlord within thirty (30) days after receipt of any
invoice on account thereof.
11.8 Cleanup Plans
If any Government Body shall require the clean up of any Hazardous
Substance held, released, spilled, abandoned or placed upon the
Premises or the Property or any other lands or released, spilled,
leaked, pumped, poured, emitted, emptied, discharged, injected,
escaped, leached, disposed or dumped into the environment by the Tenant
in the course of the Tenant's business or as a result of the Tenant's
use or occupancy of the Premises, then the Tenant shall, at its own
risk and expense, prepare all necessary studies, plans and proposals
and submit same for approval, shall provide all bonds and other
security required by Government Body and shall carry out the work
required and keep the Landlord fully informed and shall provide to the
Landlord full information with respect to proposed plans and comply
with the Landlord's reasonable requirements with respect to such plans.
The Tenant further agrees that if the Landlord determines, acting
reasonably, that the Building, the Land, the Landlord or the Landlord's
reputation is placed in any jeopardy by the requirements for any such
work, the Landlord may itself undertake such work or any part thereof
at the reasonable cost and expense of the Tenant which cost shall be
paid by the Tenant within thirty (30) days after receipt of an invoice
on account thereof.
11.9 Indemnity to Landlord
The Tenant hereby indemnifies and saves harmless the Landlord, its
directors, officers, employees and agents and the successors and
permitted assigns of the Landlord from and against all loss and expense
and
<PAGE>
from and against all claims, demands, actions, suits or other
proceedings, judgments, damages, penalties, fines, costs and
liabilities, including, without limitation, any reduction in the market
value of the Premises or the Land and the Building, damages for loss or
restriction in use of leasable or useable space or of any amenity of
the Premises or the land and the Building, damages arising from any
adverse impact on marketing of space and sums paid in settlement of
claims, legal fees, consultants' fees and experts' fees which arise
during or after the Term and are in any manner based upon, arise out of
or are connected with the presence or suspected presence of any
Hazardous Substance in, upon, above or under the Land and the Building
and any other contamination which exists on or under the Premises or
which has escaped from the Premises including, without limitation,
costs incurred in connection with any investigation of site conditions
or any clean up, remedial, removal or restoration work required by any
Government Body including that resulting from waste, unhealthful,
hazardous or dangerous conditions caused by, contributed to or
aggravated by the Tenant or any permitted transferees, violation of any
applicable law or environmental permits pertaining to Hazardous
Substances. In addition, without limitation, the Tenant further
expressly agrees to compensate the Landlord for any and all costs
incurred for the removal of any Hazardous Substance from the Premises
even in the absence of an order requiring such removal and
notwithstanding that such Hazardous Substance may be stored on the
Premises in compliance with all applicable law or environmental
permits. The Tenant hereby expressly agrees that this indemnification
shall survive the expiration or earlier termination of this Lease and
that any statutory limitation periods on actions to enforce these
obligations shall not be deemed to commence until the Landlord actually
discovers any such circumstances as may give rise to their enforcement
and the Tenant hereby knowingly and voluntarily waives the benefits of
any shorter limitation period. Upon the default of the Tenant under
this Part 11, the Landlord shall be entitled to terminate this Lease
and/or recover from the Tenant any and all loss and expense associated
with the said default, in addition to any other rights and remedies of
the Landlord.
PART 12 - GENERAL PROVISIONS
12.1 Events of Delay
If either the Landlord or the Tenant is unable to provide any service,
utility, work, or repair by reason of an Event of Delay, the time for
performing the obligation will be extended by that period of time which
is equal to the length of the delay, and the Landlord or the Tenant, as
the case may be, will use all reasonable efforts to overcome any such
Event of Delay provided however that nothing herein will relieve the
Tenant from its obligation to pay Rent at the times herein provided.
Neither the Landlord nor the Tenant will be entitled to compensation
for any inconvenience, nuisance or discomfort caused by such an Event
of Delay, or to cancel this Lease.
12.2 Overholding
This Lease will terminate at the End of the Term without notice or
demand. If the Tenant stays in the Premises after the End of the Term
without a further written agreement with the Landlord, such holding
over will not constitute a renewal of this Lease. In such case, the
Landlord, at its option, may elect to treat the Tenant as one who has
not vacated at the End of the Term and to exercise all its remedies in
that situation, or may elect to construe such holding over as a tenancy
from month to month subject to all the terms of this Lease, except: (I)
for Term; (ii) for basic rent which will be equal to two times the
Basic Rent payable in respect of the last year before the End of the
Term, or the last renewal term, as the case may be, payable in advance
in monthly installments on the first day of each month, and (iii) that
there will be no inducements or allowances, renewal rights, rent
abatements, rights of refusal, rights to additional space or other like
concessions or rights.
12.3 Exhibiting Premises
The Landlord may exhibit the Premises to prospective tenants during the
last six (6) months of the Term and, at all reasonable times, to the
Landlord's prospective purchasers and lenders, but, in so doing, will
disturb the Tenant as little as possible.
<PAGE>
12.4 Subordination
This Lease and the Tenant's rights will be subordinated and postponed
to all mortgages and other financial charges which now or hereafter
charge the land or the Building, and to all renewals, modifications,
consolidations, replacements, or extensions of same, notwithstanding
the respective dates of execution or registration. The Tenant, at the
Landlord's cost, will execute any instrument confirming such
subordination and postponement and any instrument confirming that the
Tenant will attorn as tenant to the holder of any such mortgage or
other financial charge on the same terms as are set out in the Lease,
which the Landlord or the Landlord's lender may request, provided that
the lender who receives any such instrument agrees to recognize this
Lease and the Tenant's right to possession of the Premises under the
terms of the Lease.
12.5 Certificates
Either the Landlord or the Tenant, at the others request and cost, will
deliver to the other or to any other person a certificate setting out:
(I) whether the Lease is in full force and effect; (ii) whether it has
been modified or assigned; (iii) confirming the Rent and the state of
accounts between the Landlord and Tenant; (iv) to the best of its
knowledge, the existence of any defaults; and (v) any other reasonable
information which is requested.
12.6 Notices
Any notice, request, or demand required or permitted to be given must
be in writing and will be sufficiently given if personally served or
mailed by prepaid registered post as follows:
12.6(a) to the Landlord:
Bayview Property & Asset Management Inc.
510 Parkside Place
602 -12th Avenue, S.W.
Calgary, Alberta, T2R 1 J3
Attention: Property Administrator
12.6(b) to the Tenant:
TRIPLE-C-INC.
3815 - 29 Street N.E.
Calgary, AB
T1Y 6135
Attention: Mr. Jerry Borst
*
*
*
Any notice, request, or demand will be presumed, if mailed, to have
been received 5 business days after the day on which it is mailed and,
if delivered, upon receipt, except that if, between the time of mailing
and actual receipt, there is an actual or reasonably anticipated mail
strike, slowdown, or labor dispute which might affect delivery, the
notice will be effective only if actually delivered. Either the
Landlord or Tenant will give notice to the other changing its address
for service.
12.7 Time of the Essence
Time will be of the essence of this Lease.
<PAGE>
12.8 Registration
The Tenant shall not register a copy of this Lease but shall be
entitled to register a caveat, at its sole cost and expense, provided
that such caveat does not disclose the Rent due hereunder, and the
Tenant has received prior written approval from the Landlord.
12.9 Liability
If two (2) or more persons, corporations, partnerships, or other
business associations execute this Lease as Tenant or as Guarantor, as
the case may be, the liability of each to observe or perform the
Tenant's obligations will be deemed to be joint and several. If the
Tenant or Guarantor, as the case may be, named in this Lease is a
partnership or other business association, the members of which by law
are subject to personal liability, the liability of each such member
will be deemed to be joint and several. The Tenant will cause the
Tenant's employees, invites, licensees, and other persons over whom the
Tenant may reasonably be expected to exercise control to comply with
the Tenant's obligations under this Lease, and any failure to so comply
will be deemed to be a default by the Tenant. The Tenant will be liable
to the Landlord for the negligent or willful acts or omissions of any
such employees, invites, licensees or other persons over whom the
Tenant may reasonably be expected to exercise control.
12.10 Relocation of Premises
The Landlord may give the Tenant sixty (60) days prior notice that it
will relocate the Tenant to other premises in the Building (the "New
Premises"). The New Premises will contain at . least the same rentable
area as the Premises. The Landlord will provide, at its expense,
Leasehold Improvements in the New Premises equal to the standard of the
Leasehold Improvements in the Premises which have been completed or
which the Landlord is obliged to provide in the Premises. The Landlord
will pay for any reasonable cost of moving the Tenant's trade fixtures
and furnishings from the Premises to the New Premises. As full
compensation for all other costs, expenses, and damages which the
Tenant may incur in connection with the relocation, including
disruption and loss of business, Basic Rent for the New Premises for
the first month of occupancy will abate. Basic Rent and the Tenant's
Share of Operating Costs and Taxes for the New Premises will be no
greater than what they were for the Premises, even if the New Premises
contain a greater rentable area. All other terms and conditions of this
Lease will apply to the New Premises for the balance of the Term except
if they are inconsistent with this Paragraph 12.10.
12.12 Brokerage
The Landlord is responsible for any fees/commissions owing to its
agents/brokers. The Tenant is responsible for any fees/commissions
owing to its agents/brokers.
12.13 Additional Provisions
Those provisions, if any, set out in Schedule "A" will form part of
this Lease.
12.14 Binding Effect
This Lease will snare to the benefit of and be binding upon the
Landlord, the Tenant, and any Guarantor and each of their respective
heirs, executors, administrators, successors, and permitted assigns.
IN WITNESS WHEREOF the Landlord and Tenant and any Guarantor have executed this
Lease as of the day and year first above written.
The Standard Life Assurance Company The Manufacturers Life Insurance Company
Per: /s/ Per: /s/
------------------------------- -------------------------------
Authorized Signature Authorized Signature
Per: /s/ Per: /s/
------------------------------- -------------------------------
Authorized Signature Authorized Signature
<PAGE>
If the Tenant is a corporation: TRIPLE-C-INC.
The corporate seal of the )
Tenant was hereunto effaced )
in the presence of: )
)
Per: /s/ )
----------------------------------
Authorized Signature )
Per: /s/ )
----------------------------------
Authorized Signature )
)
<PAGE>
SCHEDULE A
ADDITIONAL PROVISIONS
1. IMPROVEMENTS TO PREMISES - BY LANDLORD
1. The Landlord will coordinate the design, supervision, and
construction of the improvements (all of which is herein
called the "Improvements") to the Premises.
2. The Landlord will contribute a maximum of $1.16 per rentable
square foot of the Premises toward the Improvements (the
estimated total Landlord contribution being ($16,200.00).
3. If the Landlord's full contribution is not required to
complete the Improvements, the saving will accrue to the
Landlord and the Landlord will not be obliged to pay same to
the Tenant.
4. If the total cost of the Improvements exceeds the Landlord's
maximum contribution, the Tenant will be obliged to pay the
excess directly to the contractors) in a timely manner.
5. The Landlord will carry out the Improvements in accordance to
specifications attached as Schedule "E" and in accordance with
the lawful requirements of all Government Bodies having
jurisdiction.
6. The Landlord will not be obliged to commence the Improvements,
except for any preliminary layout design which the Landlord
has authorized in writing, until the Lease has been fully and
unconditionally executed and delivered by all parties.
2. OPTION TO RENEW
If the Tenant pays its Rent and observes or performs all its
obligations under the Lease, duly, regularly and promptly throughout
the Term, and if the Tenant delivers to the Landlord written notice
exercising its option to renew at least six months prior to the expiry
of the Teen, the Tenant will have the option to renew the Lease for a
further term of five years on the same temps as are contained in the
Lease, except for. (I) Basic Rent; (ii) this option to renew; and (iii)
tenant Inducements or allowances, rent abatements, rights of refusal,
or rights to additional space, or like concessions or rights, except to
the extent that such concessions or rights are specifically stipulated
in the Lease to apply during any renewal term. Annual Basic Rent for
the renewal term will be based upon fair market Basic Rent for
equivalent, developed space at the time of renewal, except that the
annual Basic Rent will not be less than the Basic Rent which the Tenant
was obliged to pay during the last year of the Term. The time for
determining annual Basic Rent for the renewal term will be the four
month period immediately preceding the expiry of the Term.
<PAGE>
SCHEDULE B
SITE PLAN
[NOTE: This section, which cannot be reproduced electronically, is a floor plan
of the Leased Premises]
<PAGE>
SCHEDULE C
REGULATIONS
1. Definitions
Initially capitalized terms In these regulations will have the same
meanings as in the Lease except if otherwise defined herein.
2. Access and Exit
Tenants or occupants in the Building ("Tenants") will not obstruct or
use the sidewalks, driveways, entries, corridors or staircases except
for accessing or exiting to or from their premises. The Landlord
reserves control of parts of the Building used for the common benefit
of Tenants, as it may deem advisable, but will not unduly Impair
accessing or exiting to or from premises. Tenants will shut off lights
when leaving their premises after normal business hours.
3. Fire Exits
Tenants will not use the fire exits except in case of emergency, except
if the Landlord designates same as normal exits.
4. Fire Evacuation Procedures and Fire Doors
Tenants will comply with all fire safety and evacuation procedures the
Landlord imposes from time to time. The Landlord from time to time may
install doors in the exterior walls of premises necessary to comply
with the lawful requirements of any Government Body. The Tenants and
the Landlord may use such doors in case of emergency.
5. Security
Tenants will be responsible for securing their premises and, if
required, for locking Building entrance and exit doors when entering or
leaving the Building.
6. Windows
Windows that reflect or admit light into the premises of Tenants will
not be covered or obstructed, and no awning will be put up over any
window without the Landlord's consent. Tenants will permit window
cleaners to clean windows during or after normal business hours.
Tenants will not place anything on the Building windows or projections,
and will not throw anything out of the windows or doors or down the
passages or skylights of the Building.
7. Washrooms
Tenants will not use washrooms, plumbing or other apparatus for any
purpose except those for which they were constructed, and will not put
any sweepings, rubbish, rags, ashes, or other substances therein. Each
of the Tenants will pay the cost of any damage resulting thereto from
misuse by it. Tenants will not let water run unless in actual use.
8. Directory Board
Tenants, at their cost, may have their names shown upon the Building's
director board, if any, but the Landlord may design the style and
regulate the content of such identification and allocate the space on
the directory board for each of the Tenants.
<PAGE>
9. Use of Premises
Tenants will not permit any person to use their premises for sleeping
apartments, for residential or any immoral or unlawful purpose, or to
store personal effects or articles not required for business purposes.
10. Cooking
Tenants will not permit any cooking in their premises without the
Landlord's consent.
11. Food Services
Tenants will not grant any concession, license, or permission to sell
or to take orders for food, services, or merchandise and will not
install or permit the installation or use of any machine or equipment
for dispensing merchandise, food, or beverages, and will not permit the
preparation, serving, distribution, or delivery of food or beverages in
their premises or the Building without the Landlord's consent, and then
only in accordance with arrangements the Landlord may prescribe. Only
persons approved by the Landlord will be permitted to serve,
distribute, or deliver food and beverages within the Building or to use
any public area for that purpose.
12. Pets
Tenants will not bring into or keep in their premises or the Building
any animals, birds, or other pets.
13. Soliciting
Canvassing, soliciting, and peddling in the Building are prohibited,
and Tenants will co-operate with the Landlord to prevent same.
14. Equipment, Safes, Mechanical Devices and Freight
Tenants will not bring in or take out, position, construct, install, or
move any safe, large business machine, or other heavy office equipment
without the Landlord's consent. In giving such consent, the Landlord
may prescribe the permitted weight and position of such safes, business
machines, or equipment, and the use and design of planks, skids, or
platforms to distribute the weight. Tenants will move heavy equipment
in and out of their premises only after giving notice to the Landlord
and only as required by the Landlord. The Landlord may inspect any
freight. Except for electric typewriters, small adding machines, and
small personal computers, Tenants, without the Landlord's consent, will
not keep or install any machines in their premises which are driven by
electricity or which generate any heat.
15. Furniture and Effects
Tenants will not bring into or remove from their premises any
furniture, effects, or supplies, except at such times, in such manner
and by such routes as the landlord may approve.
16. Hand Trucks
Any hand trucks, carryalls, or similar appliances used in the Building
will be equipped with rubber tires, side guards, and such other
safeguards as the Landlord may require.
17. Electrical Closets and HVAC
Tenants will not obstruct or interfere with access to ducts and
electrical closets in their premises. If Tenants have carpeted over the
ducts, or otherwise obstructed access to same, they will pay the
Landlord's costs of providing access to the ducts. Tenants will not
leave anything on any radiator or induction unit.
<PAGE>
18. Wiring
Tenants will not mark, paint, drill into, or in any way deface the
walls, ceilings, partitions, floors, wood, stone or ironwork. Boring,
cutting, coring, or stringing wires or pipes will not be permitted,
except with the Landlord's consent, and as it may direct. If any of the
Tenants desire telegraphic or telephonic connections, the Landlord
reserves the right to direct electricians as to where and how the wires
are to be introduced, and the type of wires, and without such
directions no borings, cutting or coring for wires will occur. No other
wires or pipes of any kind will be introduced without the Landlord's
consent.
19. Music and Sound
Tenants will not operate any musical or sound-producing instruments or
devices outside their premises or inside their premises which may be
heard outside. Tenants will not install any radio or television
antennae, loud speakers, sound amplifiers, or similar devices on the
roof or exterior walls of the Building.
20. Glass, Locks and Trimmings
Tenants will keep whole all glass, locks, and trimmings in or upon the
doors or windows affording access to or admitting light into their
premises. Whenever any part thereof is broken, Tenants will immediately
cause the same to be replaced or repaired, by some person or persons
approved by the Landlord, to the Landlord's satisfaction, and the
Tenants responsible will pay the cost of such replacement.
21. Locks/Access Cards
Tenants will not plans or keep on any door leading into or inside their
premises any lock or bolt except such locks or bolts which permit all
doors to be on the Landlord's master or sub-master key system. Tenants
will not change locks or their mechanisms without the Landlord's
consent. Tenants will give the Landlord a key to all locks.
22. Caretaking
Tenants will be responsible for all janitorial and cleaning
responsibilities for the Premises and shall maintain the Premises in a
neat and tidy condition.
23. Interior Climate Control Design Criteria
The design criteria for the interior climate control system will be
based on the normal criteria for comparable systems in comparable
buildings, including normal occupancy per square foot and normal
distribution of offices per square foot, the electric power consumed,
the installation of partitions or other separations only in locations
which do not interfere with the proper operation of the climate control
system, and the closing of window coverings on exterior windows while
such windows are exposed to direct sunlight.
24. Additional Services
Any services or supervision the Landlord provides under these
regulations to specific Tenants will be Additional Services. The
Landlord's costs thereof and any costs specific tenants are obliged to
pay under these regulations will be included in the Cost of Additional
Services to those specific Tenants.
25. Name of Building
Tenants will use the Building name which the Landlord designates from
time to time, but not for any purpose except their business address.
<PAGE>
SCHEDULE D
(DESCRIPTION OF LAND)
PLAN 8011265
BLOCK 8
LOTS 7-11
<PAGE>
SCHEDULE E
LEASEHOLD IMPROVEMENTS
The Landlord will carry out the following leasehold improvements in accordance
with the plan provided by the Tenant with such work to be completed prior to the
commencement date.
1. Re-paint entire office premises (colors to be chosen by tenant).
2. Remove existing carpet and rubber cove base In office area and supply
and install new commercial quality 28 oz pile weight carpet and new
rubber cove base. Carpet style and color to be chosen by tenant.
3. Demolish existing wall in manager's office. Remove door and frame and
fill in with new drywall wall.
4. Supply and install new glass wall and new door to create new office.
5. Demolish approximately 8 feet of wall to open up new show room.
Relocate thermostats and alarm bell. Make good for painting.
6. Relocate existing kitchen cupboards and sink to new lunch room
location. Hookup water and drain at new location. Supply new faucet set
to kitchen sink.
7. Supply and Install four (4) new sinks an faucet sets in four (4)
bathroom locations.
8. Landlord to review HVAC system to ensure the system and controls are
working properly.
