SUBLEASE
BETWEEN
AT&T CANADA ENTERPRISES COMPANY
SUBLANDLORD
and
HAEMACURE CORPORATION
SUBTENANT
2001 University Street
Montreal, Quebec
March 22, 1999
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TABLE OF CONTENTS
Page
1. SUBLEASE ..................................................................1
2. PARKING ...................................................................1
3. PRIME LEASE ...............................................................1
4. DEFINITIONS ...............................................................2
5. PRIME LANDLORD ............................................................2
6. TERM ......................................................................2
7. RENT ......................................................................2
8. REFUNDS ...................................................................3
9. SECURITY DEPOSIT ..........................................................3
10. SUBTENANT FIT-UP ..........................................................3
11. ALTERATIONS ...............................................................3
12. REPAIRS AND MAINTENANCE ...................................................3
13. UTILITIES AND SERVICES ....................................................4
14. ASSIGNMENT AND SUBLEASING..................................................4
15. INSURANCE .........................................................4
16. NON-BINDING MEDIATION......................................................4
17. COMPLIANCE WITH LAWS.......................................................4
18. LIMITATIONS ON SUBLANDLORD'S LIABILITY.....................................5
19. ESTOPPEL CERTIFICATES......................................................5
20. SUBORDINATION .............................................................5
21. CASUALTY AND CONDEMNATION .................................................5
22. CONSENT OR APPROVAL OF PRIME LANDLORD .....................................6
23. NOTICES ...................................................................6
24. MOVABLE HYPOTHEC ..........................................................7
25. INDEMNITY .................................................................7
26. BROKERS ...................................................................7
27. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE ............................7
28. TABLE OF CONTENTS - CAPTIONS ..............................................7
29. CONSENT TO SUBLEASE BY PRIME LANDLORD .....................................7
30. ENTIRE AGREEMENT ..........................................................7
31. ENGLISH LANGUAGE ..........................................................8
EXHIBIT A PRIME LEASE
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* * *
The mailing, delivery or negotiation of this Sublease shall not be deemed an
offer to enter into any transaction or to enter into any other relationship,
whether on the terms contained herein or on any other terms. This Sublease shall
not be binding nor shall either party have any obligations or liabilities or any
rights with respect thereto, or with respect to the premises, unless and until
both parties have executed and delivered this Sublease and the Prime Landlord
has consented in writing to this Sublease. Until such execution and delivery of,
and consent to this Sublease, either party may terminate all negotiation and
discussion of the subject matter hereof, without cause and for any reason,
without recourse or liability.
* * *
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SUBLEASE
This Sublease is entered into as of this twenty second (22nd) day of March,
1999, by and between AT&T CANADA ENTERPRISES COMPANY (a successor company of
AT&T Communications Services Canada Inc.), a corporation with offices at 320
Front St., 17th Floor, Toronto, Ontario, M5V 3L3 (hereinafter "Sublandlord") and
HAEMACURE CORPORATION, a corporation with offices at 16771 Chemin Ste-Marie,
Kirkland, Quebec, H9H 5H3, (hereinafter Subtenant").
INTRODUCTORY STATEMENTS
A. By lease dated January 24, 1997, (the "Prime Lease", which is attached as
exhibit A) London Life Insurance Company/London Life Compagnie D'Assurance
Vie (the "Prime Landlord") leased to Sublandlord certain space in the
building located at 2001 University Street, Montreal, Quebec, (hereinafter
called the "Building").
B. Subtenant has agreed to sublet from Sublandlord certain portions of the
Building.
C. The parties desire to enter into this Sublease defining their respective
right, duties and liabilities relating to the Subleased Premises (defined
below).
NOW THEREFORE, Sublandlord and Subtenant, in consideration of the mutual
promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
each with intent to be legally bound, for themselves and their respective
successors and assigns, agree as follows:
1. SUBLEASE
Sublandlord, for and in consideration of the Subtenant's payment of the
rent and performance of the covenants contained in this Sublease, does hereby
demise and lease to Subtenant the following portions of the Building:
approximately 4,045 square feet situated on the fourth(4th) floor of the
Building as more specifically shown on the floor plan which is attached to the
Prime Lease (the "Subleased Premises").
2. PARKING
Subtenant shall be entitled to park one (1) automobile in the Building
garage throughout the Term of this Sublease. The subtenant shall pay for the
parking space in accordance with the terms and conditions set forth in section
15.01 of Prime Lease.
3. PRIME LEASE
A true copy of the Prime Lease is attached hereto as Exhibit A. Where not
expressly inconsistent with the terms hereof and except as otherwise stated
herein to the contrary, this Sublease shall be subject and subordinate to all of
the terms and conditions contained in the Prime Lease as said terms and
conditions affect the Subleased Premises, and all of the terms and conditions of
the Prime Lease, except as otherwise set forth herein, are hereby incorporated
into this Sublease and shall be binding upon Subtenant with respect to the
Subleased Premises to the same extent as if Subtenant were named as tenant and
sublandlord as landlord under the Prime Lease. For purposes of this Sublease,
references in the Prime Lease to the ["Term"] shall mean the Term of this
Sublease and references to the ["Premises"] in the Prime Lease shall mean the
Subleased Premises. Each party agrees that it shall not do or omit to do
anything which would result in a default under the Prime Lease, and each party
agrees to indemnify and hold the other harmless from and against all claims,
demands or liabilities resulting from such party's breach, violation or
nonperformance of any of its obligations under the Prime Lease, as incorporated
herein, provided, however, that Sublandlord shall not indemnify Subtenant for
nor hold Subtenant harmless from any consequential or indirect damages resulting
from or arising out of Sublandlord's breach, violation or nonperformance of any
of its obligations under the Prime Lease as incorporated herein or Sublandlord's
obligations under this Sublease. In addition to those provisions of this
Sublease which are expressly different than those contained in the Prime Lease,
the following
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provisions of the Prime Lease shall not be incorporated into this Sublease:
Subtenant shall not be entitled to any free rent periods mentioned in Article
3.2; option to renew mentioned Article 15.05; cancellation privilege mentioned
in Article 18.03; holdover terms and conditions under Article 12.02.
4. DEFINITIONS
All terms not expressly defined in this Sublease shall have the meanings
given to them in the Prime Lease.
5. PRIME LANDLORD
Subtenant agrees to look solely to the Prime Landlord, and not to
Sublandlord, for the performance of all services and obligations of the Prime
Landlord under the Prime Lease with respect to the Subleased Premises. At
Subtenant's expense and request, Sublandlord will take all reasonable actions
necessary and will fully cooperate with the Subtenant to enable Subtenant to
enforce the Sublandlord's rights as tenant under the Prime Lease with respect to
the Subleased Premises. Nothing contained in this sublease will affect the
rights of the Subtenant in virtue of Article 1876 of the Civil Code of Quebec.
6. TERM
The term of this Sublease (the "Original Term") shall be three (3) years
and two (2) months, commencing on April 1, 1999 (the "Commencement Date") and
ending on May 31, 2002. The Original Term plus any extensions or renewals are
sometimes referred to herein as the "Term".
The Subtenant will have access to the Subleased Premises upon the approval
of this Sublease by the Prime Landlord and the signing of this sublease by the
Subtenant and the Sublandlord, in order to undertake improvements in the
Premises. All terms and conditions of this Sublease and the Prime Lease will
apply to the term of occupation prior to the Commencement Date except that no
Rent will be payable during this occupancy period.
7. RENT
a. The basic rent during the Original Term hereunder shall be in the amount
of Sixty Four Thousand Forty-Five Dollars and Eighty-Three Cents ($64,045.83)
payable in lawful money of Canada, and shall be payable in advance on the first
day of each calendar month during the Original Term in installments of One
Thousand Six Hundred Eighty-Five Dollars and Forty-Two Cents ($1,685.42) each,
except that a proportionately lesser sum may be paid for the first and last
months of the Term of this Sublease if the Term commences on a date other than
the first day of the month or ends on other than the last day of a month.
b. In addition to the basic rent set forth in section 7.a, above, Subtenant
shall pay Sublandlord (as and when due under the terms of the Prime Lease), as
additional rent, its proportionate share of all operating expenses, taxes,
surtaxes, electricity and all other charges in respect to the Subleased
Premises, which Sublandlord is obligated to pay to Prime Landlord under the
terms of the Prime Lease. The Subtenant will be responsible for the payment of
its own business and water taxes. Subtenant's "Proportionate Share" shall be
100% of charges due under the Prime Lease.
c. The terms "basic rent" and "additional rent" are sometimes referred to
herein as `Rent' or "rent" and shall include all sums due from Subtenant to
Sublandlord under the terms of this Sublease. All Rent shall be payable at the
office of the Sublandlord at the following address:
AT&T Canada Enterprises Company
320 Front Street, 17th Floor
Toronto, Ontario
M5V 3L3
Attention: Maurice Provencher
or at such other address as directed by notice from Sublandlord to Subtenant.
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d. The Subtenant shall pay interest compounded monthly on all Rent and/or
amounts collectible under the terms of this Sublease and not paid when due at a
rate per annum of five (5) percentage points above the prime lending rate of The
Royal Bank of Canada on the due dates of such rents or amounts.
e. The Subtenant shall pay, as and when due, all Business Taxes as that
expression is defined in the Prime Lease.
f. The Subtenant shall pay to Sublandlord when the Rent under this sublease
is payable, the applicable sales taxes and taxes on goods and services imposed
by the government of Canada and Quebec upon the Subtenant on/or in respect to
this Sublease or the rentals payable hereunder.
8. REFUNDS
Not Applicable.
9. SECURITY DEPOSIT
Not Applicable.
10. SUBTENANT FIT-UP
The Subleased Premises are being provided by the Sublandlord on an "as is,
where is" basis. The Subtenant shall not call upon the Sublandlord and Prime
Landlord to perform any leasehold improvements to the Premises. All built in,
excluding the reception desk, shall remain in the Subleased Premises for the
Subtenant's use as well as four (4) workstations.
All installation and improvements in and to the Subleased Premises shall be
the responsibility of the Subtenant (the "Subtenant's Work") and shall be
performed by the Subtenant at its sole cost and expense, the whole subject to
the prior written approval of the Sublandlord and the Prime Landlord as provided
in the Prime Lease before the commencement of the Subtenant's Work, such consent
not to be unreasonably withheld. All of the Subtenant's Work shall be done by
qualified licensed contractors and subcontractors who shall be subject to the
reasonable approval of the Sublandlord and the Prime Landlord. All such
Subtenant's Work shall be performed in a first class manner in accordance with
the provisions of the Prime Lease.
The Subtenant shall be responsible for obtaining all necessary building
permits and approvals as required by the relevant regulatory authorities for the
Subtenant's Work. Such permits and approvals must be secured before the
Subtenant commence its Subtenant's Work. If required by the municipal
authorities, the Subtenant shall also make application for an occupancy
certificate for the Subleased Premises upon completion of the Subtenant's Work.
11. ALTERATIONS
Subtenant shall not make any alterations, improvements or installations in
or to the Subleased Premises without the prior written consent of Sublandlord.
All alterations and improvements shall be subject to the terms and conditions of
the Prime Lease, and in those instances, if required, shall be subject to the
Prime Landlord's approval as provided in the Prime Lease. Any alterations,
improvements or installations consented to by Sublandlord shall be made in
accordance with the terms and conditions of Prime Lease.
12. REPAIRS AND MAINTENANCE
Any repair and maintenance obligations with respect to the Subleased
Premises, which are the responsibility of the Sublandlord, as tenant under the
Prime Lease, shall be performed by Subtenant at Subtenant's sole cost and
expense. Subtenant agrees that it will notify Sublandlord promptly of the need
for any repair to the Subleased Premises, even if Sublandlord is not responsible
for any such repair. Notwithstanding anything contained herein to the contrary,
in the event that a condition exists in the Subleased Premises that Prime
Landlord is obligated to repair under the terms of the Prime Lease, Subtenant
shall so advise
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Sublandlord and the Prime Landlord. Sublandlord shall have no liability to
Subtenant for Prime Landlord's failure to make any such repair.
13. UTILITIES AND SERVICES
Subtenant shall be entitled to all those services and utilities which Prime
Landlord is required to provide under the terms of the Prime Lease. Subtenant
shall look solely to the Prime Landlord for the provision of such services and
utilities, and Sublandlord shall not be responsible for Prime Landlord's failure
to provide the same nor shall any such failure constitute an abrogation of any
other terms or conditions of this Sublease. In addition to Subtenant's
obligation to pay the cost of such utilities and services, to the extent that
Prime Landlord charges Sublandlord for any services or utilities or increases
the cost of such services or utilities and such charge or increase is due to
Subtenant's use of the Subleased Premises or such utilities or services,
Subtenant agrees to pay the charges therefore promptly upon receipt of
Sublandlord's bill.
14. ASSIGNMENT AND SUBLEASING
Subtenant shall not have the right to assign this Sublease or sublet the
Subleased Premises, in whole or in part, without the prior written consent of
Sublandlord.
Notwithstanding any such assignment or Sublease, the Subtenant shall remain
solidarily liable with any assignee or sublessee of all the terms and conditions
set out herein.
15. INSURANCE
Subtenant agrees to comply with all of the insurance requirements and
obligations of Sublandlord as set forth in the Prime Lease and to name both
Sublandlord and Prime Landlord as additional insureds on any required insurance
policies.
16. NON-BINDING MEDIATION
a. If a dispute arises out of or relates to this Sublease, or its breach,
and the parties have not been successful in resolving such dispute through
negotiation, the parties agree to attempt to resolve the dispute through
non-binding mediation by submitting the dispute for mediation in the English
language to a sole mediator selected by the parties or, at the option of a
party, to mediation by Centre d'arbitrage commercial national et international
du Quebec (the "Centre"). If such dispute is not resolved by such non-binding
mediation, the parties shall have the right to result to any remedies permitted
by law. All defences based on passage of time shall be tolled during the
mediation.
b. The direct expenses of the mediation, including the compensation and
expenses of the mediator and the fees of the Centre, shall be borne equally by
the parties. All other costs incurred by the parties' legal expenses and their
witnesses' expenses, shall be borne by the party incurring the expenses. The
parties, their representatives, other participants and the mediator shall hold
the existence, content and result of the mediation in confidence.
17. COMPLIANCE WITH LAWS
The Subtenant covenants that the Subleased Premises shall be used solely
for the purpose permitted in the Prime Lease. Subtenant shall conduct its
business in the Premises in a reputable and first class manner.
In addition to any obligations under the Prime Lease, Subtenant shall
promptly comply with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, Provincial and municipal Governments and of any and
all their Departments and Bureaus applicable to the use and occupancy of the
Subleased Premises by Subtenant or any subtenant or assignee of Subtenant, for
the correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with the Subleased Premises during the Term,
or any renewal thereof, including without limitation all laws relating to
environmental matters and shall also promptly comply with, and execute all
rules, orders and regulations applicable for the prevention of fires
(collectively referred to as "Legal Requirements") at its own cost and expenses.
Nothing in this paragraph shall be deemed a consent to the alteration,
subletting
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or assignment of all or any portion of the Subleased Premises or of all or any
of Subtenant's interests in this Sublease.
If Subtenant shall fail or neglect to comply with the aforesaid Legal
Requirements, of if Subtenant shall fail or neglect to make any repairs required
by the terms of this sublease, and if such breach continues for a period of
fifteen (15) days after notice from Prime Landlord or Sublandlord regarding
same, or, if the breach cannot be cured within fifteen (15) days, if Subtenant
has not begun to cure the breach within such period and does not thereafter
diligently prosecute the cure to completion, then Sublandlord or its agents may
(but shall not be obligated to) enter the Subleased Premises and take such
actions as necessary to cure the breach and comply with any and all of the said
Legal Requirements, at the cost and expense of Subtenant; and, in case of
Subtenant's failure to pay therefor, the said cost and expense shall be added to
the next month's Rent and be due and payable as such.
18. LIMITATIONS ON SUBLANDLORD'S LIABILITY
a. Subtenant acknowledges that Sublandlord has made no representations or
warranties with respect to the Building or the Subleased Premises except as
provided in this sublease and Subtenant accepts the Subleased Premises in their
"as is, where is" condition.
b. If Sublandlord assigns its leasehold estate in the Building, Sublandlord
shall have no obligation to Subtenant that arises after that assignment provided
such assignee assumes all of the obligation herein towards the Subtenant.
Subtenant shall then recognize sublandlord's assignee as Sublandlord of this
Sublease.
c. Notwithstanding any provisions of law to the contrary, Sublandlord shall
not be required to perform any of the covenants and obligations of the Prime
Landlord under the Prime Lease, and insofar as any of the obligations of the
Sublandlord hereunder are required to be performed under the Prime Lease by the
Prime Landlord thereunder, Subtenant shall rely on and look solely to the Prime
Landlord for the performance thereof. If the Prime Landlord shall default in the
performance of any of its obligations under the Prime Lease or breach any
provision of the Prime Lease pertaining to the Subleased Premises, Subtenant
shall have the right, at Subtenant's expense and upon prior notice to
Sublandlord, and in the name of the Sublandlord to make any demand or institute
any action or proceeding, in accordance with and not contrary to any provision
of the Prime Lease, against the Prime Landlord under the Prime Lease for the
enforcement of the Prime Landlord's obligations thereunder. Subtenant shall
defend, indemnify and hold Sublandlord harmless from and against any suit,
action, cost, expense, damage or liability which arises out of or results from
or is alleged to arise out of or result from Subtenant's exercise of its rights
under this paragraph.
19. ESTOPPEL CERTIFICATES
Either party hereto (the requested party) agrees that from time to time
upon not less than fifteen (15) days prior notice by the other party (requesting
party), the requested party or its duly authorized representative having
knowledge of the following facts will deliver to the requesting party, or to
such person or persons as the requesting party may designate, a statement in
writing certifying (a) that this Sublease is unmodified and in full force and
effect (or if there have been modifications, that the Sublease as modified is in
full force and effect); (b)the date to which the Rent and other charges have
been paid; (c) that to the best of the requested party's knowledge, the
requesting party is not in default under any provision of this Sublease or if in
default, the nature thereof in detail.
20. SUBORDINATION
This Sublease shall be subject and subordinate to the Prime Lease, any
emphyteutic, ground, operating, overriding or underlying leases and to any
mortgage from time to time in existence against the Building or the land on
which the Building is located.
21. CASUALTY AND CONDEMNATION
If the Prime Lease is terminated with respect to the Subleased Premises
upon the occurrence of damage, destruction or expropriation pursuant to the
provisions of the Prime
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Lease, this Sublease shall automatically terminate at the same time and
Subtenant shall have no claim against Sublandlord or Prime Landlord for the loss
of its subleasehold interest or any of Subtenant's property. If the Prime Lease
is not terminated with respect to the Subleased Premises upon the occurrence of
damage, destruction or expropriation, the provisions of the Prime Lease with
respect to damages, destruction or expropriation shall apply to this Sublease
and the Subleased Premises.
22. CONSENT OR APPROVAL OF PRIME LANDLORD
If the consent or approval of Prime Landlord is required under the Prime
Lease with respect to any matter relating to the Subleased Premises, Subtenant
shall be required first to obtain the consent or approval of Sublandlord with
respect thereto and, if Sublandlord grants such consent or approval, Sublandlord
or Subtenant may forward a request for consent or approval to the Prime
Landlord, but Sublandlord shall not be responsible for obtaining such consent or
approval. Sublandlord shall have no liability to Subtenant for the failure of
Prime Landlord to give its consent.
23. NOTICES
All notices given pursuant to the provisions of this Sublease shall be in
writing, addressed to the party to whom notice is given and sent registered or
certified mail, return receipt requested, in a postpaid envelope or by
nationally recognized overnight delivery service as follows:
To Subtenant prior to the Commencement Date:
Haemacure Corporation
16771 Chemin Ste-Marie
Kirkland, Quebec
H9H 5H3
Attention: Mtre. Gilles Lemieux
Telecopier No.: (514) 630-7756
To Subtenant after the Commencement Date:
in the Subleased Premises
Telecopier No.: (514) 282-3358
To Sublandlord:
AT&T CANADA ENTERPRISES COMPANY 320 Front Street,
17th Floor Toronto, Ontario M5V 3L3
Attention: V.P. Legal Affairs and General Counsel
Telecopier No.: (416) 204-2954
With a copy to:
AT&T GLOBAL REAL ESTATE
2333 Ponce de Leon Blvd. #938
Coral Gables, Florida, U.S.A., 33134
Attention: Real Estate Manager
Telecopier No.: (305) 774-2101
It is understood and agreed that unless specifically modified by this
Sublease, Sublandlord shall be entitled to the length of notice required to be
given Prime Landlord under the Prime Lease plus five (5) days and shall be
entitled to give Subtenant the amount of notice required to be given tenant
under the Prime Lease less five (5) days. All notices shall be deemed given upon
receipt or rejection.
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Either party by notice to the other may change or add persons and places
where notices are to be sent or delivered. In no event shall notice have to be
sent on behalf of either party to more than three (3) persons.
24. MOVABLE HYPOTHEC
For the purpose of securing the performance by the Subtenant of all its
obligations hereunder including, without limiting the generality of the
foregoing, the payment of the Rent, the Tenant hypothecates to and in favour of
the Sublandlord the universality of furniture, fixtures and other movable
effects, present and fixture, garnishing the Subleased Premises at any time and
from time to time, to the extent of the sum of sixty-five thousand Dollars
($65,000).
25. INDEMNITY
In the event that the Sub landlord is required to retain the services of a
solicitor or enforce the fulfillment by the Subtenant of any of the obligations
undertaken by it under the terms hereof, then, and in each such event, the
Sublandlord shall be entitled to demand from the Subtenant and the Subtenant
shall pay to the Sublandlord all reasonable expenses incurred therefor,
including reasonable attorney fees incurred by the Sublandlord, and whether or
not judicial proceedings are in fact instituted, an indemnity in the amount of
fifteen percent (15%) of the amount otherwise owing to the Sublandlord by the
Subtenant, such sum to indemnity the Sublandlord for additional administrative
expenses in connection with the enforced fulfillment by the Subtenant of its
obligations hereunder. Any sum due by the Subtenant hereunder when not paid on
the due date and any sums expended by the Sublandlord for and on behalf of the
Subtenant shall bear interest at the rate of interest stipulated in Section 7(d)
hereof from the due date or the date of expenditure, as the case may be, to the
date of payment.
26. BROKERS
The parties warrant that they have had no dealings with any real estate
broker or agent in connection with this Sublease, except Royal LePage (the
"Broker"). Each party covenants to pay, hold harmless and indemnify the other
from and against any and all costs, expenses or liabilities for any
compensation, commissions and charges claimed by any other broker or agent with
respect to this Sublease or the negotiation thereof, based upon alleged dealings
with the indemnifying party. Sublandlord agrees to pay the commissions of the
Broker in accordance with a separate agreement.
27. SUBLANDLORD'S AND SUBTENANT'S POWER TO EXECUTE
Sublandlord (subject to Prime Landlord's consent) and Subtenant covenant,
warrant and represent that they have full power and proper authority to execute
this Sublease.
28. TABLE OF CONTENTS - CAPTIONS
The Table of Contents and the Captions appearing in this Sublease are
inserted only as a matter of convenience and do not define, limit, construe or
describe scope or intent of the sections of this Sublease nor in any way affect
this Sublease.
29. CONSENT TO SUBLEASE BY PRIME LANDLORD
This Sublease shall not become operative until and unless the Prime
Landlord has given to Sublandlord its consent hereto. Sublandlord shall not be
responsible for Prime Landlord's failure to consent to this Sublease. Should
Prime Landlord not consent to this Sublease, each party shall be released from
all obligations with respect hereto and neither party shall have any further
rights in law or in equity with respect to this Sublease.
30. ENTIRE AGREEMENT
This Sublease (which includes each of the exhibits attached hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged into this Sublease. This Sublease may not be changed,
modified, terminated or discharged, in whole or in part, nor any of its
provisions waived except by a written instrument which (a) shall
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expressly refer to this Sublease and (b) shall be executed by the party against
whom enforcement of the change, modification, termination, discharge or waiver
shall be sought.
31. ENGLISH LANGUAGE
The parties specifically declare that they have requested the present
sublease and all writing relating thereto to be drawn up in the English
language. Les parties declarent qu'elles ont demande que le present sous-bail et
toute correspondance s'y relatant soient rediges en anglais.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be
property executed as of the day and year first above written.
ATTEST/WITNESS: AT&T CANADA ENTERPRISES
COMPANY (SUBLANDLORD)
/s/ Teresa Tetley By: /s/ M.J. Provencher (SEAL)
----------------------------------- ----------------------------
Teresa Tetley M.J. Provencher
Law Group Administrator Director Finance
----------------------------------- --------------------------------
Name and Title Name and Title
ATTEST/WITNESS: HAEMACURE CORPORATION (SUBTENANT)
/s/ Lyne Pare By: /s/ Gilles Lemieux (SEAL)
----------------------------------- ----------------------------
Lyne Pare Gilles Lemieux
Controller Secretary
----------------------------------- --------------------------------
Name and Title Name and Title
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EXHIBIT A
Prime Lease
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LEASE
TABLE OF CONTENTS
PAGE
ARTICLE 1 - DEFINITIONS .......................................................1
1.01 "Additional Rent".................................................1
1.02 "Building"........................................................1
1.03 "Business Tax"....................................................2
1.04 "Leasehold Improvements"..........................................2
1.05 "Mortgage"........................................................2
1.06 "Mortgagee".......................................................2
1.07 "Normal Business Hours"...........................................2
1.08 "Office Tower"....................................................2
1.09 "Operating Costs".................................................2
1.10 "Person"..........................................................3
1.11 "Proportionate Share".............................................3
1.12 "Rentable Area"...................................................3
1.13 "Taxes"...........................................................4
1.14 "Trade Fixtures"..................................................4
ARTICLE 2 - PREMISES - TERM AND USE ...........................................4
2.01 Rentable Area ....................................................4
2.02 "Term"............................................................4
2.03 Use and Conduct of Business ......................................4
2.04 Right of Landlord to Relocate ....................................4
ARTICLE 3 - RENT AND ADDITIONAL RENT ..........................................5
3.01 Additional Rent ..................................................5
3.02 Rent .............................................................5
3.03 Net Lease.........................................................5
3.04 Estimated Taxes and Operating Costs...............................5
3.05 Business Taxes....................................................6
3.06 Taxes.............................................................6
3.07 Adjustment of Taxes...............................................6
3.08 Contesting Taxes..................................................6
3.09 Assessment Notices................................................6
3.10 Time for Payment of Additional Rent...............................6
3.11 Interest..........................................................6
3.12 Utilities.........................................................6
3.13 Tubes and Ballasts................................................7
3.14 Meters............................................................7
3.15 Recalculating Rentable Area.......................................7
ARTICLE 4 - CONTROL OF THE OFFICE TOWER .......................................7
4.01 Landlord's Services...............................................7
4.02 Alterations by Landlord...........................................7
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ARTICLE 5 - ACCESS AND ENTRY ..................................................8
5.01 Right to Examine..................................................8
5.02 Not to Obstruct...................................................8
5.03 Right to Show Premises............................................8
5.04 Entry Not Forfeiture..............................................8
ARTICLE 6 - MAINTENANCE, REPAIRS AND ALTERATIONS...............................8
6.01 Maintenance by Landlord...........................................8
6.02 Exclusion of Liability............................................8
6.03 Landlord Performing Tenant's Obligations..........................9
6.04 Maintenance by Tenant.............................................9
6.05 Compliance with Laws..............................................9
6.06 Tenant's Alterations..............................................9
6.07 Tenant's Alterations Performed by Landlord........................9
6.08 Repair Where Tenant at Fault......................................9
6.09 Removal of Improvements and Fixtures..............................9
6.10 Unremoved Trade Fixtures.........................................10
6.11 Privileges.......................................................10
6.12 Notice by Tenant.................................................10
ARTICLE 7 - INSURANCE AND INDEMNITY...........................................10
7.01 Tenant's Insurance...............................................10
7.02 Policy Requirements..............................................11
7.03 Failure of Tenant to Insure......................................11
7.04 Increase in Insurance Premiums...................................11
7.05 Cancellation of Insurance........................................11
7.06 Loss or Damage...................................................12
7.07 Indemnification of the Landlord..................................12
7.08 Landlord's Insurance.............................................12
7.09 No Benefits to Tenant............................................12
ARTICLE 8 - DAMAGE AND DESTRUCTION ...........................................13
8.01 No Abatement.....................................................13
8.02 Damage to Premises...............................................13
8.03 Right of Termination.............................................13
8.04 Destruction of Office Tower......................................14
8.05 Architect's Certificate..........................................14
ARTICLE 9 - ASSIGNMENT, SUBLETTING AND TRANSFERS..............................14
9.01 Assignment, Subletting and Transfers.............................14
9.02 Landlord's Right to Terminate....................................15
9.03 Conditions of Landlord's Consent.................................15
9.04 Conditions of Transfer...........................................15
9.05 Tenant Not Released..............................................15
9.06 No Partial Payments of Rent......................................15
9.07 Documentation....................................................16
9.08 Change of Control................................................16
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ARTICLE 10 - DEFAULT..........................................................16
10.01 Events of Default................................................16
10.02 Remedies.........................................................17
10.03 Costs............................................................17
10.04 Imputation of Payments...........................................17
10.05 Survival of Obligations..........................................17
ARTICLE 11 - ATTORNEMNT AND SUBORDINATION ....................................18
11.01 Status Statement.................................................18
11.02 Subordination....................................................18
11.03 Attornment.......................................................18
11.04 Execution of Documents...........................................18
ARTICLE 12 - GENERAL PROVISIONS...............................................18
12.01 Rules and Regulations............................................18
12.02 Overholding......................................................18
12.03 Waiver...........................................................18
12.04 Registration.....................................................18
12.05 Notices..........................................................18
12.06 Successors.......................................................19
12.07 Joint and Several Liability......................................19
12.08 Captions and Section Numbers.....................................19
12.09 Extended Meanings................................................19
12.10 Partial Invalidity...............................................19
12.11 Entire Agreement.................................................20
12.12 Governing Law....................................................20
12.13 Force Majeure....................................................20
12.14 Accord and Satisfaction..........................................20
12.15 No Partnership or Mandate........................................20
12.16 No Option........................................................20
ARTICLE 13 - MOVEABLE HYPOTHEC................................................20
ARTICLE 14 - SPECIAL PROVISIONS...............................................20
14.01 Parking..........................................................20
14.02 Landlord's Improvements..........................................21
14.03 Cancellation Privilege...........................................21
14.04 Early Occupancy..................................................21
14.05 Option to Renew..................................................21
14.06 First Opportunity to Lease Additional Premises...................21
ARTICLE 15 - LANGUAGE.........................................................21
SIGNATURES ...................................................................22
SCHEDULE A - FLOOR PLAN
SCHEDULE B - RULES AND REGULATIONS
SCHEDULE D - LANDLORD'S IMPROVEMENTS
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THIS LEASE made as of the 24th day of January, 1997.
BETWEEN:
LONDON ( LIFE INSURANCE COMPANY/LONDON LIFE COMPAGNIE D'ASSURANCE VIE, a
corporation duly incorporated under the laws of Canada with a place of
business in the province of Quebec situated at 2001 University Street,
Montreal, Quebec, H3A 2A6
(hereinafter called the "Landlord")
AND:
AT&T COMMUNICATIONS SERVICES CANADA INC., a corporation duly incorporated
under the laws of Canada with the place of business in the province of
Quebec situated at 1675 Trans Canada Highway, suite 200, Dorval, Quebec,
H9P 1J2
(hereinafter called the Tenant")
WHEREAS:
A. The Landlord is the registered emphyteutic lessee (under the emphyteutic
lease registered on February 19, 1973 under number 2406875 in the Registration
Division of Montreal, together with the amendments, assignments and
continuations thereto) of those lands hereinafter called the "Lands") and the
owner of the building thereon erected bearing civic number 2001 University
Street, in the City of Montreal (hereinafter called the "Building").
B. The Tenant has offered to lease an approximately 4,045 square foot portion of
the fourth (4th) floor of the Building as shown outlined in red on the floor
plan attached hereto as Schedule "A" (hereinafter called the "Premises").
NOW THEREFORE THIS LEASE WITNESSES that in consideration of the rents, covenants
and agreements hereinafter reserved and contained on the part of the Tenant to
be paid, observed and performed, the Landlord hereby Leases the Premises to the
Tenant on the terms, conditions and covenants hereinafter set forth:
ARTICLE 1 - DEFINITIONS
-----------------------
In this Lease:
1.01 "Additional Rent" means all sums of money required to be paid or
reimbursed by the Tenant to the Landlord under this Lease and, more
particularly but without restriction to the generality of the
foregoing, under Article 3 hereof, other than Rent and whether or not
the same are specifically designated "Additional Rent" elsewhere in
this Lease.
1.02 "Building" means the Building as described in recital A above and
including all premises rented or intended to be rented therein,
whether for office, restaurant, retail, banking or other purposes;
and facilities serving the Building or having utility in connection
therewith, as determined by the Landlord, whether or not located
directly under the Building, which areas and facilities may include,
without limitation, internal malls, sidewalks and plazas, exhibit
areas, storage and mechanical areas, janitor rooms, mailrooms,
telephone, mechanical and electrical rooms, stairways, escalators,
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elevators, truck and receiving areas, driveways, parking facilities,
loading docks and corridors.
1.03 "Business Tax" means all taxes, other than the Taxes, (whether
imposed on the Landlord or Tenant) attributable to the personal
property, Trade Fixtures, business, income, occupancy or sales of the
Tenant or any other occupancy of the Premises or arising or imposed
as a result of the entering into of this lease or arising or based
upon payment of Rent or Additional Rent and to any Leasehold
Improvements installed in the Premises by the Tenant and to the use
of the Building or Lands by the Tenant.
1.04 "Leasehold Improvements" shall include, without limitation, all
fixtures, improvements, installations, alterations and additions from
time to time made, erected or installed in the Premises by or on
behalf of the Tenant or any previous occupant of the Premises,
including signs and lettering, partitions, doors and hardware however
affixed and whether or not movable, all mechanical, electrical and
utility installations and all carpeting and drapes with the exception
only of furniture and equipment not in the nature of fixtures.
1.05 "Mortgage" means any and all mortgages, charges, debentures, security
agreements, trust deeds, hypothecs or like instruments resulting from
financing, refinancing or collateral financing (including renewals or
extensions, thereof) made or arranged by the Landlord of its interest
in all or any part of the Lands and Building.
1.06 "Mortgagee" means the holder of, or secured party under, any Mortgage
and includes any trustee for bondholders.
1.07 "Normal Business Hours" means the hours from 8:00 a.m. to 6.00 p.m.
on Mondays to Fridays, excluding holidays.
1.08 "Office Tower" means this part of the Building composed of 16 floors
immediately above the parking level and excluding the two (2) floors
of mechanical plant located in the Building.
Notwithstanding, for the purposes of Sections 1.09 and 1.13, "Office Tower"
means that part of the Building composed of the 16 office floors
immediately above the parking level and the 2 floors of the mechanical
plant located in the Building.
1.09 "Operating Costs" means (without duplication) any amounts paid or
payable whether by the Landlord or by others on behalf of the
Landlord, for the maintenance, operation, repair, replacement to and
administration of the Lands and Office Tower or allocated by the
Landlord to the Lands and Office Tower and for services provided
generally to tenants, calculated as it the Office Tower was 100%
occupied by tenants, including without limitation:
(a) the cost of insurance which the Landlord obtains with respect to
the Building;
(b) the cost of security, janitorial, landscaping, window cleaning,
garbage removal and snow removal services;
(c) the cost of heating, ventilating and air conditioning;
(d) the cost of fuel, steam, water, electricity, telephone and other
utilities used in the maintenance, operation or administration
of the Office Tower, including charges and imposts related to
such utilities to the extent such costs, charges and imposts are
not recoverable from other tenants;
(e) salaries, wages and other amounts paid or payable for all
personnel involved in the administration, leasing, repair,
maintenance, operation, security, supervision or cleaning of the
Lands and Office Tower, including fringe benefits, unemployment
and workmen' s compensation insurance premiums, pension plan
contributions and other employment costs;
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(f) auditing, accounting, legal and other professional and
consulting fees and disbursements charged by consultants and
professionals including architects, engineers and other experts;
(g) the costs of repairing, operating and maintaining the Lands and
Office Tower and the equipment serving the Lands and Office
Tower and of all equipment, including those incurred by the
Landlord in order to comply with laws or regulations affecting
the Office Tower;
(h) the costs incurred by the Landlord in providing and installing
energy conservation equipment or systems and life safety
systems;
(i) the costs incurred by the Landlord to make alterations,
replacements or additions to the Office Tower intended to reduce
operating costs, improve the operations of the Office Tower or
maintain its operation as a first-class office building;
(j) the costs incurred to replace machinery or equipment which by
its nature requires periodic replacement provided that such
costs are fully chargeable in the fiscal year in which they are
incurred in accordance with sound accounting principles;
(k) the cost of the leasing of all equipment, supplies, tools,
materials and signs;
(l) all costs including legal, appraisal and other professional
fees, and administration and overhead costs incurred by the
Landlord in contesting Taxes or appealing related assessments;
(m) depreciation or amortization of the costs referred to in
subparagraph (h) and (i) above as determined by the Landlord in
accordance with sound accounting principles, if such costs have
not been charged fully in the fiscal year in which they are
incurred;
(n) the property management fee paid by the Landlord for the
administration and management of the Office Tower including the
leasing thereof and, in the event the Landlord manages the
Office Tower on its own behalf, a reasonable amount equal to
what such fee would be if the Landlord had hired a property
management company to manage the Office Tower.
Providing that Operating Costs shall not include or will have
deducted therefrom as the case may be:
(o) all amounts which otherwise would be included in Operating Costs
which are to be recovered by the Landlord from tenants as a
result of any act, omission, default or negligence of such
tenants rather than as Operating Costs;
(p) all amounts which otherwise would be included in Operating Costs
which are recovered from insurance proceeds;
(q) interest on capital debt.
1.10 "Person" means any individual, partnership, company, corporation,
board or authority or any group or combination of individuals,
partnerships, companies, corporations, boards or authorities.
1.11 "Proportionate Share" means a fraction which has as its numerator the
Rentable Area of the Premises and as its denominator the total
Rentable Area of the Office Tower as adjusted by the Landlord from
time to time to take account of any structural, functional or other
changes and calculated as if each floor were occupied by one tenant
but excluding the parking, storage spaces and retail areas.
1.12 "Rentable Area" means approximately 4,045 square feet as stipulated
in the preamble of the Lease, measured in accordance with American
National Standard, as provided by the Building Owners and Managers
Association ("BOMA"), year 1980 (reaffirmed in 1989). The Rentable
Area is subject to adjustment if the actual physical measurements as
determined by the Landlord or its designer or architect differ from
the
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approximate measurements and, in such event, the Rent and Proportion
Share calculated in whole or in part with reference to the Rentable
Area will be adjusted accordingly.
The actual ratio of the total floor area of the whole floor on which the
Premises are located is approximately 1.172% to the aggregate floor area of
all premises on such floor. The Landlord may change the factor referred to
herein if the measurement method set out in the previous paragraph reveals
a change in the size of the Rentable Area.
1.13 "Taxes" means all taxes, levies, charges, local improvement rates and
assessments whatsoever assessed, charged or levied against the Lands
or the Office Tower or any part thereof by any lawful taxing
authority and including any amounts assessed or charged in
substitution for or in lieu of any such taxes and including the Goods
and Services Tax (G.S.T.) and the Provincial Sales Tax (P.S.T.) also
including Landlord's tax on capital and on its place of business in
the Building, but excluding such taxes as capital gains, income,
profit or excess profit taxes to the extent such taxes are not
assessed, shared or levied in lieu of any of the foregoing against
the Lands, the Office Tower or the Landlord.
The amount of Taxes which shall be deemed to have been assessed, charged or
levied in respect of the Office Tower and Lands shall be such amount as the
legal authority imposing Taxes shall have attributed to the Office Tower
and Lands respectively, or in the absence of such attribution or, if such
legal authority shall include the retail area of the Building in levying or
imposing such taxes, such amount as the Landlord in the exercise of
reasonable judgment shall establish.
1.14 "Trade Fixtures" means trade fixtures, provided that it shall not
include:
(a) heating, ventilating or air conditioning systems, facilities and
equipment in or serving the Premises;
(b) floor covering affixed to the floor of the Premises;
(c) light fixtures;
(d) internal stairways and doors; and
(e) any fixtures, facilities, equipment or installations installed
by or at the expense of the Landlord.
ARTICLE 2 - PREMISES - TERM AND USE
-----------------------------------
RENTABLE AREA
2.01 The Rentable Area of the Premises is approximately 4,045 square feet.
TERM
2.02 The Tenant to have and to hold the Premises for a term of 5 years and
5 months (herein called the "Term") commencing on the 1st day of
January 1997 (herein called the "Commencement Date") and expiring on
the 31st day of May 2002 unless sooner terminated pursuant to any
provision hereof.
USE AND CONDUCT OF BUSINESS
2.03 The Tenant shall use the Premises only as business offices and for no
other purpose whatsoever and the Tenant shall conduct its business in
the Premises in a reputable and first-class manner.
RIGHT OF LANDLORD RELOCATE
2.04 The Landlord shall have the right at any time during the Term or
during any extension or renewal thereof to make minor alterations to
the Premises within the Office Tower. The Landlord agrees to consult
with the Tenant with a view to obtaining agreement regarding such
alteration and failing such agreement, the Landlord may terminate
this Lease, upon written notice to the Tenant of not less than 90
days. In the event of any such minor alterations to the Premises, the
Landlord agrees to cause as little disruption to the Tenant as
reasonably possible in the circumstances and to bear all costs
reasonably incurred by the Tenant and resulting directly from such
alteration to the
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Premises. However, the Landlord shall not be liable for any other
expenses or damages whatsoever resulting from such minor alterations.
ARTICLE 3 - RENT AND ADDITIONAL RENT
------------------------------------
ADDITIONAL RENT
3.01 The Tenant shall pay Additional Rent from the Commencement Date
without prior demand and without any deduction, abatement, setoff or
compensation and if the Commencement Date is not on the first day of
a calendar month, or if this Lease does not commence or terminate on
the date or dates that each item of Additional Rent that is a monthly
or an annual amount is due then the Additional Rent for such
proportion of a month or year will be prorated on a per diem basis.
RENT
3.02 This Lease is made for and in consideration of a total Rent of one
hundred and fifty one thousand six hundred and eighty seven dollars
and fifty cents, ($151,687.50), lawful money of Canada which Rent the
Tenant binds and obliges itself to pay to the Landlord, its
successors and assigns, at its office in Montreal or at such other
place or to such other person as may be specified from time to time
by the Landlord, as follows:
In equal consecutive monthly installments, in advance on the first
day of each and every calendar month during the Term in an amount
equal to the product obtained by multiplying the Rentable Area of the
Premises by seven dollars and fifty cents ($7.50).
Provided the Tenant is not in default of Its obligations stipulated
in the Lease it shall be entitled to five free months of rent during
the Term of the Lease. The first two months of free rent will arise
during the first two months of the first year of the Lease; the
second two months of free rent will occur on the first two months of
the second year of the Lease; the last month of free rent will take
place on the first month of the third year of the Lease.
NET LEASE
3.03 This Lease is intended to be a completely net lease to the Landlord
except as otherwise expressly herein set out and the Landlord will
not be responsible for any expenses, costs, charges or outlays of any
nature arising from or relating to the Premises, or the use or
occupancy thereof, or the contents thereof or the business carried on
therein and the Tenant shall pay all charges, impositions, costs,
expenses and outlays of every nature and kind relating to the
Premises except as otherwise expressly herein set out, including such
as may be incurred by or paid by the Landlord on Tenant's behalf.
ESTIMATED TAXES AND OPERATING COSTS
3.04 The Tenant shall pay its Proportionate Share of Taxes and Operating
Costs and covenants and agrees with the Landlord that:
(a) the amount of Taxes and Operating Costs may be estimated by the
Landlord for such period as the Landlord determines from time to
time, and the Tenant agrees to pay to the Landlord the amounts
so estimated in equal monthly installments, in advance, on the
first day of each month during such period and, notwithstanding
the foregoing, when bills for all or any portion of the amounts
so estimated are received, the Landlord may bill the Tenant for
the Tenant's Proportionate Share thereof (or in the case of
Taxes the amount determined under Section 3.07 below, if
applicable) after crediting against such amounts any monthly
payments of estimated Taxes and Operating Costs previously made
by the Tenant and the Tenant shall forthwith pay the Landlord
the amounts so billed;
(b) within a reasonable time after the end of the period for which
such estimated amounts have been paid, the Landlord shall submit
to the Tenant a statement showing the calculation of the
Tenant's Proportionate Share of Taxes or Operating Costs, as the
case may be, together with a report from the Landlord as to the
total amount of Operating Costs which report shall be final and
binding upon the Landlord the Tenant and the Guarantor, if any,
and:
(i) if the amount the Tenant has paid is less than the amounts
due, the
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Tenant shall pay such deficiency to the Landlord; or
(ii) if the amount the Tenant has paid is greater than the
amounts due, the Landlord shall repay such excess to the
Tenant.
Failure of the Landlord to render any statement of Taxes or Operating
Costs shall not prejudice the Landlord's right to render such
statement thereafter or with respect to any such statement the
Landlord shall have the right to subsequently render an amended or
corrected statement.
BUSINESS TAXES
3.05 The Tenant shall pay when due all Business Tax and if the Business
Tax is payable by the Landlord to the relevant taxing authority, the
Tenant shall pay the amount thereof to the Landlord or as it directs
provided that if no separate tax bills for Business Tax are issued
with respect to the tenant or the Premises, the Landlord may
reasonably allocate Business Tax charged, assessed or levied against
the Office Tower or the Lands to the Tenant and other tenants of the
Office Tower.
TAXES
3.06 The Tenant shall promptly pay to the Landlord or the relevant taxing
authority, as the Landlord may direct, not later than the due date
thereof, its Proportionate Share of the Taxes.
ADJUSTMENT OF TAXES
3.07 If the Landlord obtains a written statement from the assessment or
taxing authorities indicating that as a result of any construction or
installation of improvements in the Premises by the Tenant or on its
behalf, or any act or election of the Tenant, the Taxes payable by
the Tenant calculated using its Proportionate Share does not
accurately reflect the Tenant's proper share of Taxes, the Landlord
may require the Tenant to pay such greater or lesser amount as is
determined by the Landlord, acting reasonably.
CONTESTING TAXES
3.08 The Landlord may: contest any Taxes and appeal any assessments with
respect thereto; withdraw any such contestation or appeal; and agree
with the taxing authorities on any settlement or compromise with
respect to Taxes and the Tenant will cooperate with the Landlord in
respect of any such contestation or appeal and will provide the
Landlord with all relevant information, documents and consents
required by the Landlord in connection with any such contestation or
appeal and the Tenant will not contest any Taxes or appeal any
assessments related thereto without the Landlord's prior written
consent.
ASSESSMENT NOTICES
3.09 The Tenant shall promptly deliver to the Landlord on request, copies
of assessment notices, tax bills and other documents received by the
Tenant relating to Taxes and Business Tax and receipts for payment of
Taxes and Business Tax payable by the Tenant.
TIME FOR PAYMENT OF ADDITIONAL RENT
3.10 If for a particular item of Additional Rent no specific time for
payment is given elsewhere in this Lease then such Additional Rent
shall be payable by the Tenant to the Landlord within 5 business days
after demand.
INTEREST
3.11 All Rent or Additional Rent not paid when due shall bear interest
from the date on which the same became due until the date of payment
at a rate of interest that is 5% per annum greater than the rate of
interest for commercial demand loans to its most creditworthy
customers charged by The Toronto Dominion Bank, from time to time, at
its offices located at 2001 University Street in Montreal, Quebec.
UTILITIES
3.12 The Tenant shall pay to the Landlord as Additional Rent or as the
Landlord directs, for all gas, electricity, steam, sewage and other
utilities used or consumed on or in respect of the Premises and if
not separately metered or charged to the Tenant such utilities will
be allocated to the Tenant in the discretion of the Landlord
reasonably exercised. Charges for utilities shall be payable in
advance on the first day of each month at a basic rate determined by
the Landlord and the Landlord shall be entitled to allocate to the
Premises an additional charge for any supply of utilities to the
Premises in excess of those covered by such basic charge. If any
utility rates or related taxes or charges are increased or decreased
during the Term, such charges shall be equitably adjusted and the
decision of the Landlord, acting reasonably, shall be final and
binding
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with respect to any such adjustment.
TUBES AND BALLASTS
3.13 The Landlord shall have the exclusive right to replace bulbs, tubes
at ballasts in the lighting system in the Premises, on either an
individual or a group basis and the Tenant shall pay the cost of such
replacement on the first day of each month or, if so required by the
Landlord, upon demand.
METERS
3.14 The Landlord shall pay the cost of installing and maintaining any
separate meters reasonably required to measure the usage of utilities
in the Premises.
RECALCULATING RENTABLE AREA
3.15 The Landlord may from time to time remeasure the area of the Premises
and recalculate the Rentable Area in accordance with the American
National Standard, as provided by the BOMA and shall adjust the
Tenant's Proportionate Share accordingly and the effective date of
any such adjustment shall be:
(a) in the case of an adjustment to the Rentable Area resulting from
a change in the aggregate area of all office premises on the
floor on which the Premises are situated, the date on which such
change occurred; and,
(b) in the case of a correction to any measurement or calculation
error, the date as of which such error was introduced in the
calculation of Proportionate Share.
ARTICLE 4 - CONTROL OF THE OFFICE TOWER
---------------------------------------
LANDLORD'S SERVICES
4.01 The Landlord covenants that it will:
(a) provide climate control to the Premises during normal Business
Hours to maintain a temperature adequate for normal occupancy
except during the making of repairs, alterations or improvements
and provided that the Landlord shall have no liability for
failure to supply climate control service when stopped as
aforesaid or when prevented from doing so by the carrying out of
repairs, alterations or improvements, or causes beyond the
Landlord's reasonable control and provided further that any
rebalancing of the climate control system in the Premises
necessitated by the installation of partitions, equipment or
fixtures by the Tenant or by any use of the Premises not in
accordance with the design standards of such system will be
performed by the Landlord at the Tenant's expense;
(b) subject to the rules and regulations set out in Schedule "B"
hereto as amended from time to time, provide elevator service in
the Building during Normal Business Hours for use by the Tenant
in common with others, except when prevented by repairs,
alterations, improvements or other causes beyond Landlord's
reasonable control and operate at least one passenger elevator
in the Building for use by tenants at all times;
(c) provide cleaning services in the Office Tower consistent with
the standards of a first-class office building and the whole as
set out in Schedule "C" hereto;
(d) subject to Sections 3.12 to 3.14, make available to the Premises
electricity for normal lighting and miscellaneous power
requirements and in normal quantities, gas, water, and other
public utilities generally made available by the Landlord to
other premises in the Office Tower.
ALTERATIONS BY LANDLORD
4.01 The Landlord nay:
(a) alter, add to, subtract from, construct improvements to,
rearrange, and build additions to or additional storeys on the
Building and construct additional buildings on the Lands;
(b) relocate the facilities and improvements of the Building;
(c) do such things on or in the Building as required to comply with
any laws, bylaws, regulations, orders or directives affecting
the Building; and
(d) do such other things on or in the Building as the Landlord, in
the use of good business judgment determines to be advisable;
provided that, notwithstanding anything contained
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in this Section, access to the Premises shall at all times be
available from the elevator lobbies of the Building and provided
that the Landlord will not be liable for any loss, costs or
damages, whether direct or indirect, incurred by the Tenant due
to any of the foregoing.
ARTICLE 5 - ACCESS AND ENTRY
----------------------------
RIGHT TO EXAMINE
5.01 The Landlord shall be entitled at all reasonable times (and at any
time in case of emergency) to enter the Premises to examine them, to
make such repairs, alterations or improvements in the Premises as the
Landlord considers necessary or desirable, to have access to
underfloor and aboveceiling ducts and access panels to check,
calibrate, adjust and balance controls and other parts of the heating
systems, and for any other purpose necessary to enable the Landlord
to perform its obligations or exercise its rights under this Lease.
NOT TO OBSTRUCT
5.02 The Tenant will not obstruct any pipes, conduits or mechanical or
electrical equipment so as to prevent reasonable access thereto and
the Landlord shall exercise its rights under this Article, to the
extent possible in the circumstances, in such manner so as to
minimize interference with the Tenant's use and enjoyment of the
Premises.
RIGHT TO SHOW PREMISES
5.03 The Landlord and its agents have the right to enter the Premises upon
reasonable notice at all reasonable times during Normal Business
Hours to show them to prospective purchasers, or Mortgagees or
prospective Mortgagees, and, during the last nine months of the Term
or any renewal thereof, to prospective tenants.
ENTRY NOT FORFEITURE
5.04 No entry into the Premises or anything done thereto or therein by the
Landlord pursuant to a right granted by this Lease shall constitute a
breach of any covenant for quiet enjoyment, or (except where
expressed by the Landlord in writing) shall constitute a re-entry or
forfeiture, or an actual or constructive eviction and the Tenant
shall have no claim for injury, damages or loss suffered as a result
of any such entry or thing except in the case of willful misconduct
by the Landlord in the course of such entry, but the Landlord shall
in no event be responsible for the acts or negligence of any Persons
providing cleaning services in the Building.
ARTICLE 6 - MAINTENANCE, REPAIRS AND ALTERATIONS
------------------------------------------------
MAINTENANCE BY LANDLORD
6.01 The Landlord covenants to keep in good repair as would a prudent
owner:
(a) the structure of the Building including exterior walls and
roofs;
(b) the mechanical, electrical and other base Building systems; and
(c) the entrance, lobbies, plazas, stairways, corridors, parking
areas and other facilities from time to time provided for use in
common by the Tenant and other tenants of the Building,
provided that, if such maintenance or repairs are required by law due
to the business carried on by the Tenant, then the full cost of such
maintenance and repairs plus a sum equal to 15% of such cost shall be
paid by the Tenant to the Landlord as Additional Rent.
EXCLUSION OF LIABILITY
6.02 The Landlord shall not be responsible for any damages suffered by the
Tenant by reason of failure of any equipment or facilities serving
the Building or delays in the performance of any work for which the
Landlord is responsible under this Lease. The Landlord shall have the
right to stop, interrupt or reduce any services, systems or utilities
provided to, or serving the Building or Premises to perform repairs,
alterations or maintenance or to comply with laws or regulations, or
the requirements or directives of its insurers, or for causes beyond
the Landlord's reasonable control or as a result of the Landlord
exercising its rights under Section 4.02. The Landlord shall not be
in breach of its covenant for quiet enjoyment or liable for any loss,
costs or damages, whether direct or indirect, incurred by the Tenant
due to any of the foregoing, but the Landlord shall make reasonable
efforts to restore the services, utilities or systems so
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stopped, interrupted or reduced.
LANDLORD PERFORMING TENANT'S OBLIGATIONS
6.03 If the Tenant fails to carry out any maintenance, repairs or work
required to be carried out by it under this Lease to the reasonable
satisfaction of the Landlord, the Landlord may carry out such
maintenance or repairs without any liability for any resulting damage
to the Tenant's property or business and the cost of such work, plus
a sum equal to 15% of such cost shall be paid by the Tenant to the
Landlord as Additional Rent.
MAINTENANCE BY TENANT
6.04 The Tenant, shall, at its sole cost and expense, repair and maintain
the Premises (exclusive of base building mechanical and electrical
systems), all to a standard consistent with a first-class office
building, with the exception only of those repairs which are the
obligation of the Landlord under the Lease and subject to the
provisions on damage and destruction in Article 8. The Landlord may
enter the Premises at all reasonable times to view their condition
and the Tenant shall maintain and keep the Premises in good and
substantial repair according to notice in writing. At the expiration
or earliest termination of this Lease, the Tenant shall surrender the
Premises to the Landlord in as good condition and repair as the
Tenant is required to maintain the Premises throughout the Term
subject to normal wear and tear.
COMPLIANCE WITH LAWS
6.05 The Tenant shall, at its own expense, promptly comply with all city,
municipal, provincial, federal or other governmental laws, bylaws,
and orders and with all reasonable requirements or directives of the
Landlord's insurers affecting the Premises or their use, repair or
alteration.
TENANT'S ALTERATIONS
6.06 No replacements, improvements or alterations shall be made to the
Premises by the Tenant without the Landlord's prior written approval.
The Tenant shall submit to the Landlord details of the proposed work
including, if required by the Landlord, drawings and specifications
prepared by qualified architects or engineers conforming to good
architectural or engineering practice and all such replacements,
improvements or alterations shall be performed:
(a) in a good and workmanlike manner at the sole cost of the Tenant
by contractors and workmen approved by the Landlord;
(b) in accordance with drawings and specifications approved by the
Landlord if such drawings and specifications were required and,
in any event, in accordance with all applicable legal and
insurance requirements;
(c) subject to the reasonable regulations, supervision,
control and inspection of the Landlord; and
(d) subject to such waiver, renunciation of and/or indemnification
against liens, lien claims, privileges and expenses as the
Landlord reasonably requires.
The Landlord will bill the Tenant for the Landlord's reasonable cost
of any consultants or supervision required by the Landlord as result
of the Tenant's work.
TENANT'S ALTERATIONS PERFORMED BY LANDLORD
6.07 If any replacements, improvements or alterations by the Tenant would
affect the structure of the Building or any of the electrical,
plumbing, mechanical, heating, ventilating or air conditioning
systems or other base BY building systems, then such work shall, at
the option of the Landlord, be performed by the Landlord at LAND-LORD
the Tenant's expense and on completion of such work, the cost of the
work plus a sum equal to 15% of said cost shall be paid by the Tenant
to the Landlord as Additional Rent.
REPAIR WHERE TENANT AT FAULT
6.08 Notwithstanding any other provisions of this Lease, if the Building
or any part thereof is damaged or destroyed or requires repair,
replacement or alteration as a result of any act or omission of the
Tenant, its employees, agents, invitees, licensees, contractors a sum
or those for whom it is in law responsible, the cost of the resulting
repairs, replacements or alterations plus equal to 15% of such cost,
shall be paid by the Tenant to the Landlord as Additional Rent.
REMOVAL IMPROVEMENTS AND FIXTURES
6.09 All Leasehold Improvements (other than Trade Fixtures) shall
immediately upon their
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placement become the Landlord's property without compensation to the
Tenant. Except as otherwise agreed by the Landlord in FIXTURES
writing, no Leasehold Improvements shall be removed from the Premises
by the Tenant either during or at the expiry or sooner termination of
this Lease except that the Tenant may, with the prior consent of
Landlord, in the usual course of its business, remove its Trade
Fixtures provided that the Tenant is not then in default under this
Lease and provided that such Trade Fixtures have become excess to the
Tenant's needs or the Tenant is substituting new and similar Trade
Fixtures therefore.
(a) the Tenant may with the prior consent of Landlord, in the usual
course of its business, remove its Trade Fixtures provided that
the Tenant is not then in default under this Lease and provided
that such Trade Fixtures have become excess to the Tenant's
needs or the Tenant is substituting new and similar Trade
Fixtures therefore; and
UNREMOVED TRADE FIXTURES
6.10 If the Tenant does not remove its Trade Fixtures at the expiry or
earlier termination of this Lease, the Trade Fixtures shall, at the
option of the Landlord, become the property of the Landlord and may
be removed from the Premises and sold or disposed of by the Landlord
in such manner as it deems advisable. If the Tenant fails to complete
any work referred to in Section 6.09 within 30 days following the
expiry or earlier termination of this Lease, the Tenant shall pay
compensation to the Landlord for each day following such 30th day
until the completion of such work at a rate equal to double the per
diem Rent and Additional Rent payable during the last month preceding
the expiry or earlier termination of this Lease, which sum is agreed
by the parties to be a reasonable estimate of the damages suffered by
the Landlord for loss of use of the Premises.
HYPOTHEC
6.11 The Tenant shall promptly pay for all materials supplied and work
done in respect of the Premises so as to ensure that no lien or
hypothec is registered against the lands or Building or against the
Landlord's or Tenant's interest therein. If a lien or hypothec is
registered or filed, the Tenant shall discharge it at its expense
forthwith, failing which the Landlord may, at its option, discharge
the lien or hypothec by paying the amount claimed to be due into
Court or directly to the lien or hypothec any claimant and the amount
so paid and all expenses of the Landlord including legal fees (on a
solicitor and client basis) shall be paid by the Tenant to the
Landlord as Additional Rent.
NOTICE BY TENANT
6.12 The Tenant shall notify the Landlord of any accident, defect, damage
or deficiency in any part of the Premises or the Building which comes
to the attention of the Tenant, its employees or contractors
notwithstanding that the Landlord may have no obligation in respect
thereof.
ARTICLE 7 - INSURANCE AND INDEMNITY
-----------------------------------
TENANT'S INSURANCE
7.01 The Tenant, at its sole cost and expense, shall place and maintain
the following insurance until the expiration or earlier termination
of this Lease:
(a) "All Risks" (including flood and earthquake) property insurance
with deductibles not exceeding 3% of the amount insured, naming
the Tenant, the Landlord, and any Mortgagee as insured parties,
containing a waiver of any subrogation rights which the Tenant's
insurers may have against the Landlord and against those for
whom the Landlord is in law responsible, and (except with
respect to the Tenant's moveables and moveable effects)
incorporating the Mortgagee's standard mortgage clause and such
insurance shall include:
(i) insurance upon property of every description and kind
owned by the Tenant or for which the Tenant is legally
liable located on or in the Building including, without
limitation, Leasehold Improvements, in an amount not less
than the full replacement cost thereof, subject to a
stated amount co-insurance clause; and
(ii) business interruption insurance in such amount as will
reimburse the Tenant for loss attributable to all perils
referred to in this paragraph
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7.01(a) or resulting from prevention of access to the
Premises;
(b) comprehensive general liability insurance which includes the
following coverages: owner's protective, personal injury,
occurrence property damages; employers liability; blanket
contractual liability and non-owned automobile liability and
such policies shall contain inclusive limits less than
$5,000,000 per occurrence, provide for cross liability, and name
the Landlord insured;
(c) all risks Tenant's legal liability insurance for the actual cash
value of the Premises;
(d) automobile liability insurance on an owner's form covering all
license vehicles operated by or on behalf of the Tenant; which
insurance shall have inclusive limits of not less than
$2,000,000; and
(e) any other form of insurance which the Landlord, acting
reasonably, or the Mortgagee requires from time to time in form,
in amounts and for risks against which a prudent tenant would
insure.
POLICY REQUIRE-MENTS
7.02 All policies referred to in Section 7.01 shall:
(a) be taken out with insurers acceptable to the Landlord;
(b) be in a form satisfactory to the Landlord;
(c) be non-contributing with, and shall apply only as primary and
not as excess to, any other insurance available to the Landlord;
(d) not be invalidated as respects the interests of the Landlord or
Mortgagee by reason of any breach of or violation of any
warranty, representation, declaration or condition by the
Tenant; and
(e) contain an undertaking by the insurers to notify the Landlord by
registered mail not less than 30 days prior to any material
change, cancellation or termination.
FAILURE OF TENANT INSURE
7.03 (a) The Tenant shall deliver to the Landlord, at its request,
certificates of insurance or, if required by the TO Landlord,
certified copies of such insurance policies. If the Tenant fails to
place or to maintain in force any insurance referred to in Section
7.01 or should any such insurance not be approved by either the
Landlord or Mortgagee and should the Tenant not commence to
diligently rectify (and thereafter proceed to diligently rectify) the
situation within 48 hours after written notice by the Landlord to the
Tenant (stating the reason the Landlord or Mortgagee does not approve
of the insurance), the Landlord may, without assuming any obligation
in connection therewith, effect such insurance at the sole expense of
the Tenant and all outlays by the Landlord shall be paid by the
Tenant to the Landlord as Additional Rent without prejudice to any
other rights or remedies of the Landlord under this Lease.
INCREASE IN INSURANCE PREMIUMS
7.04 The Tenant shall not keep or use in the Premises any article or
material which may be prohibited by any fire insurance policy in
force from time to time covering the Premises or the Building. If the
conduct of business in, or the use of, the Premises, or any acts or
omissions of the Tenant in the Building or any part thereof, cause or
result in any increase in premiums for any insurance carried by the
Landlord with respect to the Building, the Tenant shall pay such
increase in premiums to the Landlord as Additional Rent.
In determining whether increase premiums are caused by or result from
the use of occupancy of the Premises by the Tenant, a schedule issued
by the organization computing the insurance rate on the Building
showing the various components of such rate, shall be conclusive
evidence of the items and charges which make up such rate.
CANCELLATION OF INSURANCE
7.05 If any insurer under any insurance policy covering any part of the
Building or any occupant thereof cancels or threatens to cancel its
insurance policy or reduces or threatens to reduce coverage under
such policy by reason of the use of the Premises by
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the Tenant or any assignee or subtenant of the Tenant, or anyone
permitted by the Tenant to be upon the Premises, the Tenant shall
remedy such condition within 48 hours after notice thereof by the
Landlord.
LOSS OR DAMAGE
7.06 The Landlord shall not be liable for any death or injury arising from
or out of any occurrence in, upon, at, or relating to the Building or
for any damage to property of the Tenant or of others located on the
Premises or elsewhere in the Building, nor shall it be responsible
for any loss of or damage to any property of the Tenant or others
from any cause, whether or not any such death, injury, loss or damage
results from the negligence of the Landlord, its agents, employees,
contractors, or others for whom it may, in law, be responsible.
Without limiting the generality of the foregoing, the Landlord shall
not be liable for any injury or damage to Persons or property
resulting from fire, explosion, falling plaster, falling ceiling
tile, falling fixtures, steam, gas, electricity, water, rain, flood,
snow or leaks from any part of the Building or from the pipes,
sprinklers, appliances, plumbing works, roof, windows or subsurface
of any floor or ceiling of the Building or from the Street or any
other place or by dampness or by any other cause whatsoever. The
Landlord shall not be liable for any such damage caused by other
tenants or Persons in the Building or by occupants of adjacent
property thereto, or the public, or caused by construction or by any
private, public or quasi-public work. All property of the Tenant kept
or stored on the Premises shall be so kept or stored at the risk of
the Tenant only and the Tenant releases and agrees to indemnify the
Landlord and save it harmless from any claims arising out of any
damage to the same including, without limitation, any subrogation
claims by the Tenant's insurers.
INDEMNIFICATION OF THE LANDLORD
7.07 Notwithstanding any other provision of this Lease, the Tenant shall
indemnify the Landlord and save it harmless from all losses
(including loss of Rent and Additional Rent), costs, expenses,
claims, actions, damages and liabilities in connection with loss of
life, personal injury, damage to property or any other loss or injury
whatsoever arising out of this Lease, or any occurrence in, upon or
at the Building, or the occupancy or use by the Tenant of the
Building or any part thereof, occasioned wholly or in part by any act
or omission of the Tenant or by anyone permitted to be in the
Building by the Tenant. If the Landlord shall, be made a party to any
litigation commenced by or against the Tenant, then the Tenant shall
protect, indemnity and hold the Landlord harmless in connection with
such litigation and the Landlord may participate in or conduct any
litigation or settlement discussions relating to the foregoing, or
any other matter for which the Tenant is required to indemnify the
Landlord under this Lease and any settlement reached by the Landlord
will be binding upon the Tenant. Alternatively, the Landlord may
require the Tenant to assume the conduct of and responsibility for
all or any part of such litigation or negotiation discussions.
LANDLORD'S INSURANCE
7.08 The Landlord shall place and maintain the following insurances
throughout the Term:
(a) insurance on the Building (excluding the foundations and
excavations) against damage by fire, including extended perils
coverage, and insurance on the machinery, boilers and equipment
in or servicing the Building and owned by the Landlord
(excluding any property which the Tenant and other tenants are
obliged to insure under Section 7.01 or similar sections of
their respective leases); and
(b) public liability and property damage insurance with respect to
the Landlord's operations in the Building;
Such insurances shall be in such amounts and with such deductibles as
would be carried by a prudent owner of a similar development, having
regard to size, age and location. The Landlord may place and maintain
such other form or forms of insurance as the Landlord or its
Mortgagee reasonably considers advisable.
NO BENEFITS TO TENANT
7.09 Notwithstanding any contribution by the Tenant to the cost of the
Landlord's insurance premiums, the Tenant acknowledges and agrees
that:
(a) The Tenant is not relieved of any liability arising from or
contributed to by its
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negligence or its willful act or omissions;
(b) no insurable interest is conferred upon the Tenant under any
insurance policies carried by the Landlord;
(c) the Tenant has no right to receive any proceeds of any insurance
policies carried by the Landlord; and
(d) the right of any insurer of the Landlord to be subrogated to the
rights of the Landlord is not limited or in any way restricted.
ARTICLE 8 - DAMAGE AND DESTRUCTION
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NO ABATEMENT
8.01 If the Premises or the Building are damaged or destroyed in whole or
in part by fire or any other occurrence, this Lease shall continue in
full force and effect and there shall be no abatement of Rent or
Additional Rent except as provided in this Article 8.
DAMAGE TO PREMISES
8.02 If the Premises are at any time destroyed or damaged as a result of
fire or any other occurrence insured against by the Landlord and not
caused or contributed to by the Tenant and such damage is such that,
in the opinion of the Landlord, the Premises can be rebuilt or
restored and made fit for the purpose of the Tenant within 90 days of
the happening of such damage or destruction then the following
provisions shall apply:
(a) if the Premises are rendered untenantable only in part, the
Landlord shall proceed to diligently repair the premises to the
extent only of its obligations under Section 6.01 and Rent shall
abate proportionately to the portion of the Premises rendered
untenantable from the date of destruction or damage until the
Landlord's repairs have been substantially completed;
(b) if the Premises are rendered wholly untenantable, the Landlord
shall proceed to diligently repair the Premises to the extent
only of its obligations pursuant to Section 6.01 and Rent shall
abate entirely from the date of destruction or damage until the
Landlord's repairs have been substantially completed;
(c) if the Premises are not rendered untenantable in whole or in
part, the Landlord shall diligently perform such repairs to the
Premises to the extent only of its obligations under Section
6.01, but in such circumstances Rent shall not abate;
(d) upon being notified by the Landlord that the Landlord's repairs
have been substantially completed, the Tenant shall diligently
perform all repairs to the Premises which are the Tenant's
responsibility under Section 6.04 and all other work required to
fully restore the Premises for use in the Tenant's business, in
every case at the Tenant's cost and without any contribution to
such cost by the Landlord, whether or not the Landlord has at
any time made any contribution to the cost of supply,
installation or construction of Leasehold Improvements in the
Premises;
(e) nothing in this Section shall require the Landlord to rebuild
the Premises in the condition which existed before any such
damage or destruction occurred so long as the Premises as
rebuilt will have reasonably similar facilities to those in the
Premises prior to such damage or destruction, having regard,
however, to the age of the Building at such time; and
(f) nothing in this Section shall require the Landlord to undertake
any repairs having a cost in excess of the insurance proceeds
actually received by the Landlord with respect to such damage or
destruction.
RIGHT OF TERMINATION
8.03 If the damage or destruction which has occurred in the Premises is
such that in the reasonable opinion of the Landlord the Premises
cannot be rebuilt or made fit for the purposes of the Tenant within
90 days of the happening of the damage or destruction, the Landlord
may, at its option, terminate this Lease on notice to the Tenant
given within 30 days after such damage or destruction. If such notice
of termination is given, Rent and Additional Rent shall be
apportioned and paid to the date of such damage or destruction and
the Tenant shall immediately deliver vacant possession of
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the Premises in accordance with the terms of this Lease.
DESTRUCTION OF OFFICE TOWER
8.04 Notwithstanding any other provision of this Lease, if
(a) 35% or more of the total Rentable Area of the Office Tower is
destroyed or damaged by any cause; or
(b) portions of the Office Tower which affect access or services
essential thereto are damaged or destroyed and, in the
reasonable opinion of the Landlord, cannot be reasonably
repaired within 180 days after the occurrence of the damage or
destruction; then
the Landlord may, by notice to the Tenant given within 30 days of
such damage or destruction, terminate this Lease, in which event
neither the Landlord nor the Tenant shall be bound to repair and the
Tenant shall surrender the Premises to the Landlord within 30 days
after delivery of its notice of termination and Rent and Additional
Rent shall be apportioned and paid to the date on which the Tenant
delivers vacant possession of the Premises, subject to any abatement
to which the Tenant may be entitled under Section 8.02 and all
provided that if the Landlord does not so elect to terminate this
Lease, the Landlord shall proceed to diligently repair that part of
the Office Tower damaged or destroyed, but only to the extent of the
Landlord's obligations under Section 6.01 and exclusive of any
Tenant's responsibilities with respect to such repair. If the
Landlord elects to repair the Office Tower, the Landlord may do so in
accordance with plans and specifications other than those used in the
original construction of the Office Tower.
ARCHITECT'S CERTIFICATE
8.05 For the purposes of Section 8.02 and 8.04 above, the certificate of
the architect appointed by the Landlord shall bind the parties as to:
(a) the percentage of the total Rentable Area of the Office Tower
damaged or destroyed;
(b) whether or not the Premises are rendered untenantable and the
percentage of the Premises rendered untenantable;
(c) the time required to rebuild, restore and make the Premises fit
for the purposes of the Tenant;
(d) the date upon which either the Landlord's or Tenant's work of
reconstruction or repair is substantially completed; and,
(e) the state of completion of any work of the Landlord or the
Tenant.
ARTICLE 9 - ASSIGNMENT, SUBLETTING AND TRANSFERS
------------------------------------------------
ASSIGNMENT, SUBLETTING AND TRANSFERS
9.01 The Tenant shall not assign this Lease or sublet the Premises in
whole or in part or otherwise transfer its rights to all or any part
of the Premises or the occupancy thereof, and will not mortgage,
charge or otherwise encumber this Lease or the Premises (such
assignment, subletting, transfer, mortgage, charge and encumbrance
being herein called a "Transfer") without the prior written consent
of the Landlord in each instance, which consent shall not be
unreasonably withheld but shall be subject to the Landlord's rights
under Section 9.02 and, notwithstanding any statutory provision to
the contrary, it shall not be considered unreasonable for the
Landlord to take into account the following factors in deciding
whether to grant or withhold its consent:
(a) whether such Transfer is in violation or in breach of any
covenants or restrictions made or granted by the Landlord to
other tenants or occupants or prospective tenants or occupants
of the Building;
(b) whether in the Landlord's opinion, the financial background,
business history and capability of the proposed transferee is
satisfactory; and,
the consent by the Landlord to any Transfer if granted shall not
constitute a waiver of the necessity for such consent to any
subsequent Transfer. This prohibition against a Transfer
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shall include a prohibition against any Transfer by operation of law
and no Transfer shall take place by reason of the failure of the
Landlord to give notice to the Tenant within 30 days as required by
Section 9.02.
LANDLORD'S RIGHT TO TERMINATE
9.02 If the Tenant intends to effect a Transfer or if a Transfer occurs by
operation of law, the Tenant shall give prior notice to the Landlord
of such intent or occurrence specifying the identity of the
transferee, the type of Transfer intended or occurring, the portion
of the Premises affected thereby, and the financial and other terms
of the transfer, and shall provide such financial, business or other
information relating to the proposed transferee and its principals as
the Landlord or its Mortgagee requires, together with copies of any
documents which record the particulars of the intended or occurring
Transfer. The Landlord shall, within 30 days after having received
such notice and all requested information, notify the Tenant either
that it;
(a) consents or does not consent to the Transfer in accordance with
the provisions and qualifications of this Article 9; or
(b) elects to terminate this Lease as to the whole or part, as the
case may be, of the Premises affected by the intended or
occurring Transfer.
If the Landlord elects to terminate this Lease in whole or in part it
shall stipulate in its notice the termination date of this Lease,
which date shall be no less than 30 days nor more than 90 days
following the giving of such notice of termination. If the Landlord
gives notice of its election to terminate this Lease, the Tenant
shall notify the Landlord within 10 days thereafter of the Tenant's
intention either to refrain from such Transfer in which even the
Landlord's election become void or to accept termination of this
Lease or the portion thereof in respect of which the Landlord has
exercised its rights. If the Tenant fails to deliver such notice
within such 10 days or notifies the Landlord that it accepts the
Landlord's termination, this Lease will, as to the whole or affected
part of the Premises, as the case may be, be terminated on the date
of termination stipulated by the Landlord in its notice of election.
CONDITIONS OF TRANSFER
9.03 If there is a permitted assignment or subletting, the Landlord may
collect rent from the assignee or sublessee and apply the net amount
collected to the Rent and Additional Rent but no acceptance by the
Landlord of any payments by an assignee or sublessee shall be deemed
a waiver of the Tenant's covenants or an acceptance of the assignee
or sublessee as tenant or a release of the Tenant from the further
performance by the Tenant of its obligations under this Lease. Any
consent by the Landlord shall be subject to the Tenant and the
assignee or sublessee executing an agreement with the Landlord
agreeing:
(a) that the assignee or sublessee will be bound by all of the terms
of this Lease and, in the case of an assignment, that the
assignee will be so bound as if it had originally executed this
Lease as tenant; and
(b) to amend this Lease to incorporate such terms, covenants and
conditions as are necessary so that the Lease will be in
accordance with the Landlord's standard form of office lease in
use for the Office Tower at the time of the assignment or
subletting, and so as to incorporate any condition imposed by
the Landlord in its consent or required by Section 9.04.
TENANT NOT RELEASED
9.04 Notwithstanding any Transfer permitted or consented to by the
Landlord, the Tenant shall remain liable under this Lease and shall
not be released from performing any of the terms of this Lease.
NO PARTIAL PAYMENTS OF RENT
9.05 Notwithstanding the effective date of any permitted subletting or
assignment as between the Tenant and the sublesses or assignee, all
Rent and Additional Rent for the month in which such effective date
occurs shall be paid in advance by the Tenant so that the Landlord
will not be required to accept partial payments of Rent and
Additional Rent for such month from either the Tenant or its
sublessee or assignee.
DOCUMENTATION
9.06 Any document evidencing any Transfer permitted by the Landlord, or
setting out any terms applicable to such Transfer or the rights and
obligation of the Tenant or
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transferee thereunder, shall be prepared by the Landlord or its
solicitors and all associated legal costs shall be paid by the
Tenant.
CHANGE OF CONTROL
9.07 If the Tenant is at any time a company, corporation or partnership,
any actual or propose Change of Control in such company, corporation
or partnership shall be deemed to be a Transfer and subject to all of
the provisions of this Article 9. The Tenant shall make available to
the Landlord or its representatives its corporate or partnership
records, as the case may be, for inspection at all reasonable times,
in order to ascertain whether any Change of Control has occurred. For
the purposes of this Section Change of Control means the transfer, or
issue of any shares, voting rights or interests by sale assignment,
subscription, transmission on death, or by operation of law (and
shall be deemed to include a mortgage, charge or security interest
granted on such shares, voting rights or interests), where such
transfer, issue, mortgage, or charge would result in any change in
the effective control of such company corporation or partnership
unless such change occurs as a result of trading on a recognized
stock exchange in Canada or the United States and then only so long
as the Landlord receives assurance reasonably satisfactory to it that
there will be continuity of management and of the business practices
of such company or corporation notwithstanding such Change of
Control.
ASSIGNMENT BY LANDLORD
9.08 The Landlord shall have the unrestricted right to sell, lease, convey
or otherwise dispose of all or any part of its right in the Lands and
Building or this Lease or any interest of the Landlord therein. To
the extent that the purchaser, lessee or assignee from the Landlord
assumes the obligations of the Landlord under this Lease, the
Landlord shall thereupon and without further agreement be released of
liability under this Lease to the extent of such assumption. The
Landlord shall take reasonable efforts to obtain from the purchaser,
lessee or assignee a non-disturbance agreement to the Tenant if
requested.
ARTICLE 10 - DEFAULT
--------------------
EVENTS OF DEFAULT
10.01 An "Event of Default shall occur whenever:
(a) any Rent or Additional Rent is in arrears and is not paid when
due;
(b) the Tenant has breached any of its obligations in this Lease
(other than the payment of Rent or Additional Rent) and;
(i) fails to remedy such breach within 15 days after written
notice from the Landlord; or,
(ii) if such breach cannot be reasonably remedied within 15
days, fails to commence to remedy such breach within such
15 days or thereafter fails to proceed diligently to
remedy such breach;
(c) the Tenant or any Guarantor becomes bankrupt or insolvent or
takes the benefit of any statute for bankrupt or insolvent
debtors or makes any proposal, assignment or arrangement with
its creditors, or take any steps or proceedings commenced by any
Person for the dissolution, winding up other termination of the
Tenant's existence or the liquidation of its assets;
(d) a trustee, receiver, receiver/manager or like Person is
appointed with respect to the business or assets of the Tenant
or any Guarantor;
(e) the Tenant makes a sale in bulk of all or a substantial portion
of its assets other than in conjunction with a transfer
consented to by the Landlord;
(f) this Lease or any of the Tenant's assets are taken under a writ
of execution;
(g) the Tenant purports to make a Transfer or a Transfer occurs
other than in compliance with the provisions of this Lease;
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(h) DELETED
(i) any insurance policies covering any part of the Building or any
occupancy thereof are actually or threatened to be cancelled or
adversely changed as a result of any use or occupancy of the
Premises; or
(j) if an Event of Default as defined in this paragraph occurs with
respect to any lease or agreement under winch the Tenant
occupies other premises in the Building.
REMEDIES
10.02 If and whenever an Event of Default occurs, then, without prejudice
to any other rights which it has pursuant to this Lease or at law,
the Landlord shall have the following rights and remedies, which are
cumulative and not alternative:
(a) to terminate this Lease by notice to the Tenant;
(b) to enter the Premises as agent of the Tenant and to relet the
Premises for whatever term and on such terms as the Landlord in
its discretion may determine and to receive the rent therefor
and, as agent of the Tenant, to take possession of any property
of the Tenant on the Premises, to store such property at the
expense and risk of the Tenant or to sell or otherwise dispose
of such property in such manner as the Landlord may see fit
without notice to the Tenant; to make alterations to the
Premises to facilitate their reletting; and to apply the
proceeds of any such sale or reletting first, to the payment of
any expenses incurred by the Landlord with respect to any such
reletting or sale; second, to the payment of any indebtedness of
the Tenant to the Landlord other than Rent; and third, to the
payment of Additional Rent and Rent in arrears; with the residue
to be held by the Landlord and applied in payment of future Rent
and Additional Rent as it become due and payable and the Tenant
shall remain liable to the Landlord for any deficiency;
(c) to remedy or attempt to remedy any default of the Tenant under
this Lease for the account of the Tenant and to enter upon the
Premises for such purposes and no notice of the Landlord's
intention to remedy any default need be given the Tenant and the
Landlord shall not be liable to the Tenant for any loss, injury
or damage caused by acts of the Landlord in remedying or
attempting to remedy such default and the Tenant shall pay to
the Landlord as Additional Rent all expenses incurred by the
Landlord in connection with remedying or attempting to remedy
such default;
(d) to recover from the Tenant all damages, and expenses incurred by
the Landlord as a result of any Event of Default including, if
the Landlord terminates this Lease, any deficiency between those
amounts of Rent and Additional Rent as would have been payable
by the Tenant for the portion of the Term following such
termination and the net amounts actually received by the
Landlord during such period of time with respect to the
Premises; and
(e) to recover from the Tenant the full amount of the current
month's installment of Rent and Additional Rent together with
the next 3 months' installments of Rent and Additional Rent, all
of which shall accrue on a day-to-day basis and shall
immediately become due and payable as accelerated rent.
COSTS
10.03 The Tenant shall pay to the Landlord as Additional Rent all damages,
costs and expenses (including, without limitation all legal fees on a
solicitor and client basis) suffered or incurred by the Landlord in
enforcing the term of this Lease, or suffered or incurred with
respect to any matter or thing which is the obligation of the Tenant
under this Lease or in respect of which the Tenant has agreed to
insure or to indemnify the Landlord.
IMPUTATION OF PAYMENTS
10.04 The Landlord may impute sums received from the Tenant against any
amounts due and payable by the Tenant under this Lease in such manner
as the Landlord sees fit.
SURVIVAL OBLIGATIONS
10.05 If the Tenant has failed to fulfil its obligations under this Lease
with respect to the maintenance, repair and OF alteration of the
Premises during the Term or at the expiration or earlier termination
of this Lease, such obligations and the Landlord's rights in
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respect thereto shall remain in full force and effect notwithstanding
the expiration or sooner termination of the Lease.
ARTICLE 11 - ATTORNEMNT AND SUBORDINATION
-----------------------------------------
STATUS STATEMENT
11.01 Within 10 days after written request by the Landlord, the Tenant
shall deliver to the Landlord in a form supplied by the Landlord a
statement or tenant's certificate as to the status of this Lease,
including as to whether this Lease is unmodified and in full force
and effect (or, if there have been modifications that this Lease is
in full force and effect as modified and identifying the modification
agreements); the amount of Rent and Additional Rent then being paid
and the dates to which same have been paid; whether or not there is
any existing or alleged default by either party with respect to which
a notice of default has been served and if there is any such default,
specifying the nature and extent thereof; and any other matters
pertaining to this Lease as to which the Landlord shall request such
statement or certificate.
SUBORDINATION
11.02 This Lease and all rights of the Tenant shall be subject and
subordinate to any and all Mortgages and any emphyteutic, ground,
operating, overriding or underlying leases from time to time in
existence against the Lands or Building or any part thereof. On
request, the Tenant shall subordinate this Lease and its rights under
this Lease to any and all such Mortgages and leases and to all
advances made under such Mortgages. The form of such subordination
shall be as required by the Landlord or Mortgagee.
ATTORNMENT
11.03 The Tenant shall promptly, on request, attorn to any Mortgagee or the
purchaser on any foreclosure or sale proceedings taken under any
Mortgage and shall recognize such Mortgagee or purchaser as its
Landlord under this Lease.
EXECUTION OF DOCUMENTS
11.04 The Tenant irrevocably constitutes the Landlord, its agents and
attorney for the purpose of executing any agreement, certificate,
attornment or subordination required by this Lease for registering
postponements in favour or any Mortgagee if the Tenant fails to
execute such proper documents within 10 days after request by the
Landlord.
ARTICLE 12 - GENERAL PROVISIONS
-------------------------------
RULES AND REGULATIONS
12.01 The Tenant shall comply with all rules and regulations, and
amendments thereto, adopted by the Landlord from time to time
including those set out in Schedule "B". Such rules and regulations
may differentiate between different types of businesses in the
Building, and the Landlord shall have no obligation to enforce any
rule or regulation of the provisions of any other lease against any
other tenant, and the Landlord shall have no liability to the Tenant
with respect thereto.
OVERHOLDING
12.02 If the Tenant remains in possession of the Premises after the end of
the Term with the consent of the Landlord but without having executed
and delivered a new lease or an agreement extending the Term, there
shall be no tacit renewal of this Lease, and the Tenant shall be
deemed to be occupying the Premises as a Tenant from month to month
at a monthly Rent payable in advance on the first day of each month
equal to the monthly amount of Rent payable during the last month of
the Term and otherwise upon the same terms as are set forth in this
Lease, so far as these are applicable to a monthly tenancy including
the payment of monthly installments of estimated items of Additional
Rent.
WAIVER
12.03 If either the Landlord or Tenant excuses or condones any default by
the other or any obligation under this Lease, no waiver of such
obligation shall be implied in respect of any continuing or
subsequent default.
REGISTRATION
12.04 Neither the Tenant nor anyone claiming under the Tenant shall
register or attempt to register this Lease of any Transfer at length,
by memorial or otherwise, upon pain of nullity.
NOTICES
12.05 Any notice, consent or other instrument which may be or is required
to be given under this Lease shall be in writing and shall be
delivered in person or sent by registered mail postage prepaid
addressed.
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(a) If to the Landlord:
London Life Insurance Company
c/o D.A. Shaw Realty Inc.
33 Younge Street
Suite 416
Toronto (Ontario)
M5E 1G4
Attention: Mr. Andrew Shaw
and
London Life Insurance Company
255 Dufferin Avenue
London, Ontario
N6A 4K1
Attention Director, Real Estate
(b) If to the Tenant:
Manager International Real Estate
AT&T Real Estate
150 Mt. Airy Road, Room 2S113
Basking Ridge, New Jersey 07920
Any such notice or other instrument shall be deemed to have been
given and received on the day upon which personal delivery is made
or, if mailed, then on the second day following the date of mailing
provided that if between the time of mailing and deemed delivery
there is a disruption in the ordinary delivery of mail then such
instrument will not be deemed given until actually received. Either
party may give notice to the other of any change of address and after
the giving of such notice, the address therein specified is deemed to
be the address of such party for the giving of notices.
SUCCESSORS
12.06 The rights and liabilities created by this Lease extend to and bind
the successors and assigns of the Landlord and the heirs, executors,
administrators and permitted successors and assigns of the Tenant.
JOINT AND SEVERAL LIABILITY
12.07 If there is at any time more than one Tenant or more than one Person
constituting the Tenant, their covenants shall be considered to be
joint and several without the benefit of division and discussion and
shall apply to each and every one of them. If the Tenant is or
becomes a partnership, each Person who is a member, or shall become a
member, of such partnership or its successors shall be and continue
to be jointly and severally liable without the benefit of division
and discussion for the performance of all covenants of the Tenant
pursuant to this Lease, whether or not such Person ceases to be a
member of such partnership or its successor.
CAPTIONS AND SECTION NUMBERS
12.08 The captions, section numbers, article numbers and table of contents
appearing in this lease are inserted only as a matter of convenience
and in no way affect the substance of this Lease.
EXTENDED MEANINGS
12.09 The words "hereof", "hereto" and "hereunder" and similar expressions
used in this Lease relate to the whole of the Lease and not only to
the provision in which such expressions appear. This Lease shall be
read with all changes in numbers and gender as may be appropriate or
required by the context. Any reference to the Tenant includes, where
the context allows, the employees, agents, invitees and licensees of
the Tenant and all others over whom the Tenant might reasonably be
expected to exercise control.
PARTIAL INVALIDITY
12.10 All of the provisions of this Lease are to be construed as covenants
even though not expressed as such. If any such provision is held or
rendered illegal or unenforceable it shall be considered separate and
severable from this Lease and the remaining provision of this Lease
shall remain in force and bind the parties as though the illegal or
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unenforceable provision had never been included in this Lease.
ENTIRE AGREEMENT
12.11 This Lease sets forth the entire agreement between the Landlord and
Tenant concerning the Premises and there are no agreements or
understandings between them other than as are herein set forth. This
Lease is cancelling and superseding any and prior agreements or
representations, written or otherwise, and particularly any offer to
lease and related documents entered into by the Landlord and the
Tenant regarding the Premises. This Lease may not be modified except
by agreement in writing executed by the Landlord and Tenant.
GOVERNING LAW
12.12 This Lease shall be construed in accordance with and governed by the
laws of the Province of Quebec.
FORCE MAJEURE
12.13 Notwithstanding anything to the contrary contained in this Lease, if
either party hereto is bona fide delayed or hindered in or prevented
from the performance of an obligation hereunder by reason of strikes,
labour troubles, inability to procure materials or services, power
failure, restrictive governmental laws or regulations, riots,
insurrection, sabotage, rebellion, war, act of God, or other reason
whether of a like nature or not which is not the fault of the party
delayed in performing the obligation under the terms of this Lease,
then performance of the obligation is excused for the period of the
delay and the party so delayed shall be entitled to perform such
obligation within the appropriate time period after the expiration of
the period of such delay. However, the provisions of this Section do
not operate to excuse the Tenant from the prompt payment of Rent, or
any other payments required by this Lease.
Notwithstanding anything contained to the contrary in this Lease, the
Landlord shall not be responsible for failure to perform any of its
obligations hereunder, nor for any damage resulting from the delays in the
construction and/or finishing of the Premises and/or the interruption or
modification of any service or facility provided by it in the Building,
should such failure or damage be caused by any event or reason hereinabove
mentioned in the immediately preceding paragraph of this Section 12.13 or
by other causes beyond the reasonable control of the Landlord.
ACCORD AND SATISFACTION
12.14 No payment by the Tenant or receipt by the Landlord of a lesser
amount than the Rent or Additional Rent shall be deemed to be other
than on account or the earliest stipulated Rent, nor shall any
endorsement or statement on any cheque or any letter accompanying any
cheque or payment as Rent be deemed an acknowledgement of accord and
satisfaction, and the Landlord may accept such cheque or payment and
without prejudice to its right to recover the balance of the Rent or
pursue any other remedy available to it.
NO PARTNERSHIP OR MANDATE
12.15 Nothing contained in this Lease shall be deemed or construed by the
parties thereto or by any third party as creating the relationship of
mandator and mandatory or of partnership or of joint venture between
the parties hereto, it being understood and agreed that neither the
method of computing rent, nor any other provision contained herein,
nor any acts of the parties hereto shall be deemed to create any
relationship between the parties hereto other than the relationship
of lessee and lessor.
NO OPTION
12.16 The submission of this Lease for examination does not constitute a
reservation of or option for the Premises and this Lease comes
effective as a lease only upon execution and delivery thereof by the
Landlord and the Tenant.
ARTICLE 13 - MOVEABLE HYPOTHEC
------------------------------
The Tenant agrees to grant to the Landlord a moveable hypothec in the form
annexed hereto as Schedule "D".
ARTICLE 14 - SPECIAL PROVISIONS
-------------------------------
PARKING
14.01 The Tenant shall have the right to park one (1) automobile in the
garage located in the Building throughout the Term of the Lease or
any renewal thereof. The Tenant shall pay for the parking space rent
equal to the market rate which the parties agree shall be
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an amount of monthly rental charged by the Lessee and/or operator of
the said garage for parking's space therein.
LANDLORD'S IMPROVEMENTS
14.02 The Landlord shall perform the work specified in Schedule "D". In the
event that possession of the Premises is given to the Tenant later
than the Commencement Date as provided for in Section 2.02 of the
Lease for reasons attributable to the Landlord, the Lease
Commencement Date and the expiration date stipulated in the Lease
will be moved forward by the same number of days as the delay in the
Tenant receiving possession.
CANCELLATION PRIVILEGE
14.03 Provided the Tenant is not in default of its obligations pursuant to
the Lease, said Tenant shall have the option to terminate the Lease
at the end of the thirty-six (36) months of the Term, provided it has
given the Landlord a written notice of six (6) months prior to the
expiration of the Term. The Tenant, with its cancellation notice,
will pay to the Landlord an amount equal to fifteen dollars ($15.00)
per rentable square foot.
EARLY OCCUPANCY
14.04 The Tenant shall be allowed early occupancy of the Premises upon
substantial completion of the Landlord's Work. Said early occupation
shall be both Net Rent and Additional Rent free.
OPTION TO RENEW
14.05 The Tenant shall have one (1) option to renew the Lease for a further
period of five (5) years at the then current market rate for
comparable premises in surrounding buildings, provided that the
Tenant gives the Landlord written notice exercising this option no
later that six (6) months prior to the Lease Expiry Date (failing
which this option shall be null and void). The Lease term for the
renewal period shall be the same as for the Term, save and except:
(a) the net rental rate;
(b) the leasehold improvements allowances; and
(c) free rent
FIRST OPPORTUNITY TO LEASE ADDITIONAL PREMISES
14.06 The Lease shall contain a clause giving the Tenant a continuing first
opportunity to lease any space on the fourth (4th) floor (being the
balance of available space on the fourth (4th) and the space
currently occupied by Guardian). Should any of this space become
available for lease am the Landlord receives bona fide interest from
a third party in leasing this space, the Landlord shall, provided the
Tenant has not been in default under the Lease, notify the Tenant in
writing and the Tenant shall have three (3) business days in which to
exercise its right of first opportunity on the terms outlined in the
Landlord's notice to the Tenant. Should the Tenant fail to so
exercise its first opportunity, the Landlord shall be free to lease
all or any part of this space to the said third party. However, in
the event all or any part of this space shall again become available
for lease, the Tenant shall have a further first opportunity as
aforesaid to lease this space.
ARTICLE 15 - LANGUAGE
---------------------
The parties hereto have required and agreed that this Lease and all other
documents in connection therewith be drawn up in English; les parties aux
presentes ont exige que ce bail et tout autre document connexe soient rediges en
anglais.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year first above written.
21
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LONDON LIFE INSURANCE COMPANY
By: /s/ Jonathan Button
Jonathan Button
Manager of Finance, Real Estate
-------------------------------
(name and title)
/s/ Paul A. Scholz
Paul A. Scholz
Manager, Commercial Real
Estate Lending
-------------------------------
(name and title)
AT&T COMMUNICATIONS SERVICES
CANADA INC.
(TENANT)
By:
/s/
----------------------------------
(name and title)
22
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SCHEDULE "A"
FLOOR PLAN
[GRAPHIC OMITTED]
23
<PAGE>
SCHEDULE "B"
RULES AND REGULATIONS
1. Life Safety
(a) The Tenant shall not do or permit anything to be done in the Premises,
or bring or keep anything therein which will in any way increase the
risk of fire or the rate of fire insurance on the Building of other
tenants or in any way injure or annoy them or the Landlord, or violate
or act at variance with the laws relating to fires or with regulations
of the Fire Department, or with any insurance upon the Lands of
Building or in and part thereof, or violate or act in conflict with
any statutes, rules and ordinances governing health standards or with
any other statute or municipal by-law.
(b) No inflammable oils or other inflammable, dangerous or explosive
materials save those approved in writing by the Landlord's insurers
shall be kept or permitted to be kept in the Premises.
2. Security
(a) The Landlord shall permit the Tenant and the Tenant's employees and
all Persons lawfully requiring communication with them to have the
use, during Normal Business Hours and in common with others entitled
thereto, of the main entrance and the stairways, corridors, elevators,
escalators, or other mechanical means of access leading to the
Building and the Premises. At times other than during Normal Business
Hours the Tenant and the employees of the Tenant shall have access to
the Building and to the Premises only in accordance with the Rules and
Regulations end shall be required to satisfactorily identify
themselves and to register in any book which may at the Landlord's
option be kept by the Landlord for such purposes. If identification is
not satisfactory, the Landlord is entitled to prevent the Tenant or
the Tenant's employees or other Persons lawfully requiring
communication with the Tenant from having access to the Building and
to the Premises. In addition, the Landlord is not required to open the
door to the Premises for the purpose of permitting entry therein to
any Person not having a key to the Premises.
(b) The Tenant shall not place or cause to be placed any additional locks
upon any doors of the Premises without the approval of the Landlord.
Two keys shall be supplied to the Tenant for each entrance door to the
Premises and all locks shall be Building standard to permit access by
the Landlord's master key. If additional keys are required, they must
be obtained from the Landlord at the cost of the Tenant. Keys or other
means of access for entrance doors to the Building will not be issued
without the written authority of the Landlord. The Tenant shall be
permitted to incorporate a card access system to the Premises subject
to the approval of the Landlord.
3. Housekeeping
(a) The Tenant shall permit window cleaners to clean the windows of the
Premises during Normal Business Hours or after business hours at the
option of Lessor.
(b) The Tenant shall not place any debris, garbage, trash or refuse or
permit same to be placed or left in or upon any part of the Lands or
Building outside of the Premises, other than in a location provided by
the Landlord specifically for such purposes, and the Tenant shall not
allow any undue accumulation of any debris, garbage, trash or refuse
in or outside of the Premises. If the Tenant uses perishable articles
or generates wet garbage, the Tenant shall provide refrigerated
storage facilities suitable to the Landlord.
(c) The Tenant shall not place or maintain any supplies, or other articles
in any vestibule or entry of the Premises, on the adjacent footwalks
or elsewhere on the exterior of the Premises or elsewhere on the Lands
or Building.
(d) The sidewalks, entrances, passages, escalators, elevators and
staircases shall not be obstructed or used by the Tenant, its agents,
servants, contractors, invitees or employees for any purpose other
than ingress to and engress from the Premises and the Building. The
Landlord reserves
24
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entire control of all parts of the Lands and Building employed for the
common benefit of the tenants and without restricting the generality
of the foregoing, the sidewalks, entrances, corridors and passages not
within the Premises, washrooms, lavatories, air conditioning closets,
fan rooms, janitor's closets, electrical closets and other closets,
stairs, escalators, elevator shafts, flues, stacks, pipe shafts, and
ducts and shall have the right to place such signs and appliances
therein, as it deems advisable, provided that ingress to and egress
from the premises is not unduly impaired thereby.
(e) The Tenant shall not cause or permit: any waste or damage to the
Premises; any overloading of the floors or the utility, electrical or
mechanical facilities of the Premises; or any nuisance in the
Premises; or any use or manner of use causing a hazard or annoyance to
other occupants of that Building or to the Landlord.
4. Receiving, Shipping, Movement of Articles
(a) The Tenant shall not receive or ship articles of any kind except
through facilities and designated doors and at hours designated by the
Landlord and under the supervision of the Landlord.
(b) Hand trucks, carryalls or similar appliances shall only be used in the
Building with the consent of the Landlord and shall be equipped with
rubber tires, slide guards and such other safeguards as the Landlord
requires.
(c) The Tenant, its agents, servants, contractors, invitees or employees,
shall not bring in or take out, position, construct, install or move
any safe, business machinery or other heavy machinery or equipment or
anything liable to injure or destroy any part of the Building,
including the premises, without first obtaining the consent in writing
of the Landlord. In giving such consent, the Landlord shall have the
right in its sole discretion, to prescribe the weight permitted and
the position thereof, the use and design of planks, skids or
platforms, and to distribute the weight thereof. All damage done to
the Building, including the Premises, by moving or using any such
heavy equipment or other office equipment or furniture shall be
repaired at the expense of the Tenant. The moving of all heavy
equipment or other office furniture shall occur only by prior
arrangement with the Landlord. The cost of such moving shall be paid
by the Tenant. Safes and other heavy office equipment and machinery
shall be moved through the halls and corridors only in a manner
expressly approved by the Landlord. No freight or bulky matter of any
description will be received into any part of the Building, including
the Premises, or carried in the elevators except during hours approved
by the Landlord.
5. Prevention of Injury to Premises
(a) It shall be the duty of the Tenant to assist and cooperate with the
Landlord in preventing injury to the Premises.
(b) DELETED
(c) If the Tenant desires telegraphic or telephonic connections, the
Landlord, in its sole discretion acting reasonably, may direct the
electricians as to where and how the wires are to be introduced. No
gas pipe or electric wire will be permitted which has not been ordered
or authorized by the Landlord. No outside radio or television antenna
shall be allowed on any part of the Premises without authorization in
writing by the Landlord.
6. Windows
Except for the proper use of blinds and drapes approved by the Landlord,
the Tenant shall not cover, obstruct or affix any object or material to any
of the skylights and windows that reflect or admit light into any part of
the Building, including, without limiting the generality of the foregoing,
the application of solar films.
7. Washrooms
(a) The Landlord shall permit the Tenant and the employees of the Tenant
in common with others entitled thereto, to use the washrooms on the
floor of the Office Tower on which the Premises
25
<PAGE>
are situated or, in lieu thereof, those washrooms designated by the
Landlord, save and except when the general water supply may be turned
off from the public main or at such other times when repair and
maintenance undertaken by the Landlord shall necessitate the non-use
of the facilities.
(b) The water closets and other apparatus shall not be used for any
purposes other than those for which they were intended, and
no-sweepings, rubbish, rags, ashes or other substances shall be thrown
into them. Any damage resulting from misuse shall be borne by the
Tenant by whom or by whose agents, servants, invitees, or employees
such damage is caused.
8. Use of Premises
(a) No one shall use the Premises for sleeping apartments or residential
purposes, or for the storage of personal effects or articles other
than those required for business purposes.
(b) No cooking or heating of any foods or liquids (other than heating of
water or food or coffee in coffee makers or kettles or microwaves)
shall be permitted in the Premises without the written consent of the
Landlord.
(c) The Tenant shall not install or permit the installation or use of any
machine dispensing goods for sale in the Premises or the Building or
permit the delivery of any food or beverage to the Premises without
the written approval of the Landlord or in contravention of the Rules
and Regulations.
(d) The Tenant shall not permit or allow any odors, vapors, steam, water,
vibrations, noises or other undesirable effects to emanate from the
Premises or any equipment or installation therein which, in the
Landlord's opinion, are objectionable or cause any interference with
the safety, comfort or convenience of the Building to the Landlord or
the occupants and tenants thereof or their agents, servants, invitees
or employees.
9. Canvassing, Soliciting, Peddling
Canvassing, soliciting and peddling in or about the Development are
prohibited.
10. Bicycles
No bicycles or other vehicles shall be brought within any part of the
Building without the consent of the Landlord.
11. Animals and Birds
No animals or birds shall be brought into any part of the Development
without the consent of the Landlord.
12. Signs and Advertising
The Tenant shall not paint, affix, display or cause to be painted, affixed
or displayed, any sign, picture, advertisement, notice, lettering or
decoration on any part of the outside of the Building or in the interior of
the Premises which is visible from the outside of the Building. The
Landlord will prescribe a uniform pattern and location of identification
signs for tenants, to be placed on the outside of the Premises, and the
Tenant shall not print, affix, display or cause to be printed, painted,
affixed or displayed any sign, picture, advertisement, notice, lettering or
decoration on the outside of the Premises for exterior view without the
written consent of the Landlord. Any such signs shall remain the property
of the Tenant and shall be maintained at the Tenant's sole cost and
expense, At the expiration of the Term or earlier termination of this
Lease, the Tenant shall remove any such signs, picture, advertisement,
notice, lettering or decoration from the Premises at the Tenant's expense
and shall promptly repair all damage caused by any such removal. The
Tenant's obligation to observe and perform this covenant shall survive the
expiration of the Term or earlier termination of the Lease.
13. Directory Board
The Tenant shall be entitled at its expense to have its name shown upon the
directory board of the Building and the Landlord shall design the style of
such identification and shall determine the number
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of spaces available on the directory board for each tenant. The directory
board shall be located in an area designated by the Landlord in the main
lobby of the Building.
27
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SCHEDULE "D"
LANDLORD'S IMPROVEMENTS
Prior to the Commencement Date the Landlord at its own expense shall complete
the following work:
1. Construct a demising wall to separate the Leased Premises from the other
premises on the floor. Construct drywall partitions in accordance with the
plan shown as Schedule "D-1".
2. Paint all partitions in a single colour to be chosen by the Tenant from the
Landlord's standard samples.
3. Carpet throughout in 28 oz. commercial grade carpeting including carpet
base. Kitchen to be vinyl composite tile. Carpet and tile to be chosen by
the Tenant from the Landlord's standard samples.
4. Existing lighting, sprinkler and HVAC systems to be modified as necessary
to accommodate the Tenant's layout.
5. Provide interior doors as shown on Schedule "D-1". Doors to be full height,
solid core wood veneer doors in wood frames with building standard
hardware.
6. Two duplex electrical outlets and one and one empty conduit for telephone
wiring in each enclosed area. Electrical and telephone service for
workstations to be fed from the perimeter. Duplex electrical outlets in the
stationary room and kitchen shall be on separate circuits.
7. Landlord to provide kitchen complete with sink, (with hot and cold running
water) plumbing and 6 foot counter top with cupboards above and below.
Cupboards and countertop to be finished in laminate.
8. Storage/copier room to include 10 foot laminate counter top open to below.
9. Existing glass entry doors to remain. Secondary exit door to be provided as
per building standard.
28
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SCHEDULE "D-1"
FLOOR PLAN
[GRAPHIC OMITTED]
29
