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EXHIBIT 10.3
OFFICE LEASE
BETWEEN
20 ADELAIDE ST. EAST, A CO-OWNERSHIP
- AND -
PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
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LEASE
ADELAIDE STREET EAST, SUITE 800, TORONTO, ONTARIO
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OFFICE LEASE
TABLE OF CONTENTS
PAGE
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SPECIAL PROVISIONS.............................................................1
ARTICLE 1 Leased Premises, Term and Acceptance of Leased Premises...........5
Section 1.1 Leased Premises..............................................5
Section 1.2 Use of Additional Areas......................................5
Section 1.3 Storage Area - INTENTIONALLY DELETED.........................6
Section 1.4 Grant and Term...............................................6
Section 1.5 Construction of the Leased Premises - INTENTIONALLY DELETED..6
ARTICLE 2 Rent..............................................................6
Section 2.1 Covenant to Pay..............................................6
Section 2.2 Basic Rent...................................................6
Section 2.3 Advance Rent.................................................7
Section 2.4 Security Deposit - INTENTIONALLY DELETED.....................7
Section 2.5 Rent Past Due................................................7
ARTICLE 3 Taxes and Operating Costs.........................................7
Section 3.1 Taxes Payable by the Landlord................................7
Section 3.2 Taxes Payable by the Tenant..................................7
Section 3.3 Business Taxes and Other Taxes of the Tenant.................8
Section 3.4 Tenant's Responsibility......................................8
Section 3.5 Tenant's Proportionate Share of Operating Costs..............9
Section 3.6 Payment of Taxes and Operating Costs.........................9
ARTICLE 4 Building - Control and Services..................................10
Section 4.1 Control of the Building by the Landlord.....................10
Section 4.2 Landlord's Services.........................................11
ARTICLE 5 Utilities........................................................13
Section 5.1 Charges for Utilities.......................................13
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ARTICLE 6 Use of the Leased Premises.......................................14
Section 6.1 Use of the Leased Premises..................................14
Section 6.2 Conduct of Business.........................................14
Section 6.3 Observance of Law...........................................15
ARTICLE 7 Insurance and Indemnity..........................................16
Section 7.1 Tenant's Insurance..........................................16
Section 7.2 Increase in Insurance Premiums..............................18
Section 7.3 Cancellation of Insurance...................................18
Section 7.4 Loss or Damage..............................................19
Section 7.5 Landlord's Insurance........................................19
Section 7.6 Indemnification of the Landlord.............................19
ARTICLE 8 Maintenance, Repairs and Alterations.............................20
Section 8.1 Maintenance and Repairs by the Tenant.......................20
Section 8.2 Landlord's Approval of the Tenant's Repairs.................20
Section 8.3 Maintenance by the Landlord.................................21
Section 8.4 Repair on Notice............................................22
Section 8.5 Surrender of the Leased Premises............................22
Section 8.6 Repair Where the Tenant is at Fault.........................22
Section 8.7 Tenant Not To Overload Facilities...........................23
Section 8.8 Tenant Not To Overload Floors...............................23
Section 8.9 Removal and Restoration by the Tenant.......................23
Section 8.10 Notice by the Tenant........................................24
Section 8.11 Tenant to Discharge all Liens...............................24
Section 8.12 Signs and Advertising.......................................25
ARTICLE 9 Damage and Destruction...........................................25
Section 9.1 Destruction of the Leased Premises..........................25
Section 9.2 Destruction of the Building.................................26
Section 9.3 Expropriation...............................................26
Section 9.4 Architect's Certificate.....................................27
ARTICLE 10 Transfer and Sale................................................27
Section 10.1 Assignment and Subletting...................................27
Section 10.2 No Advertising of the Leased Premises.......................28
Section 10.3 Corporate Ownership.........................................28
Section 10.4 Assignment by the Landlord..................................29
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ARTICLE 11 Access and Alterations...........................................29
Section 11.1 Right of Entry..............................................29
ARTICLE 12 Status Statement, Attornment and Subordination...................30
Section 12.1 Status Statement............................................30
Section 12.2 Subordination and Attornment................................30
Section 12.3 Attorney....................................................31
Section 12.4 Financial Information.......................................31
ARTICLE 13 Default..........................................................31
Section 13.1 Right to Re-enter...........................................31
Section 13.2 Right to Relet..............................................32
Section 13.3 Expenses....................................................33
Section 13.4 Waiver of Exemption from Distress...........................33
Section 13.5 Landlord May Cure the Tenant's Default or Perform the
Tenant's Covenants........................................33
Section 13.6 Additional Rent.............................................34
ARTICLE 14 Miscellaneous....................................................34
Section 14.1 Rules and Regulations.......................................34
Section 14.2 Intent and Interpretation...................................35
Section 14.3 Overholding - No Tacit Renewal..............................36
Section 14.4 Successors..................................................36
Section 14.5 Tenant Partnership..........................................37
Section 14.6 Waiver......................................................37
Section 14.7 Accord and Satisfaction.....................................37
Section 14.8 No Partnership or Agency....................................37
Section 14.9 Force Majeure...............................................37
Section 14.10 Notices.....................................................38
Section 14.11 No Option...................................................38
Section 14.12 Registration................................................38
Section 14.13 Directory Board.............................................39
Section 14.14 Accrual of Basic Rent and Additional Rent...................39
Section 14.15 Compliance with the Planning Act............................39
Section 14.16 Survival of Covenants.......................................39
Section 14.17 Quiet Enjoyment.............................................39
SCHEDULES
SCHEDULE "A" LEGAL DESCRIPTION OF THE LANDS
SCHEDULE "B" FLOOR PLAN
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SCHEDULE "C" CONSTRUCTION OF THE BUILDING AND THE LEASED
PREMISES
SCHEDULE "D" INTENTIONALLY DELETED
SCHEDULE "E" RULES AND REGULATIONS
SCHEDULE "F" DEFINITIONS
SCHEDULE "G" INTENTIONALLY DELETED
SCHEDULE "H" INTENTIONALY DELETED
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THIS LEASE is dated the 30th day of August, 1999.
B E T W E E N:
20 ADELAIDE ST. EAST, A CO-OWNERSHIP
(the "Landlord")
OF THE FIRST PART;
- AND -
PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
(THE "TENANT")
OF THE SECOND PART.
SPECIAL PROVISIONS
The following are certain special provisions, which are part of, and are
referred to in subsequent provisions of this Lease. Any conflict or
inconsistency between these special provisions and the provisions contained
elsewhere in this Lease will be resolved in favour of such other provisions:
(a) Leased Containing a Rentable Area of approximately
Premises: 11,700 square feet located on the 8th floor
of the Building as shown outlined in yellow
on the plan(s) attached as Schedule "B" and
designated as Suite No. 800 (Section 1.1).
(b) Commencement The period of Three (3) years commencing on
of Date and Term: the 1st day November, 1999 (the
"Commencement Date") and expiring on the
31st day of October, 2002;
(c) Net Rent: It is understood and agreed by both the
Landlord and the Tenant that the Net
Rental Rate shall be charged per
Rentable Square Foot of the Premises,
per annum (the "Net Rent") plus GST for
the Term of the Lease, payable to the
Landlord in advance on the first day of
each month in twelve (12) equal
consecutive monthly installments. The
Net Rent shall be Twelve Dollars
($12.00) per square foot per year.
(Section 2.2).
(d) Additional Rent: The Tenant and the Landlord agree that rent
payable herein shall be net in all
respects and carefree to the Landlord
and that the Tenant shall pay its
proportionate
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share of Additional Rent as outlined
below. The Additional Rent shall be paid
to the Landlord in advance on the first
day of each month in Twelve (12)
consecutive monthly installments. The
Tenant shall be responsible for its
proportionate share of realty taxes,
utilities and operating costs, which
together are estimated to be Seventeen
Dollars and Thirty-Nine Cents ($17.39)
per square foot of rentable area.
Additional rent shall be payable in
advance in monthly installments on the
first day of each month based on the
Landlord's estimate from time to time.
The Landlord will provide to the Tenant
on an annual basis a detailed breakdown
of the Additional Rent costs.
(e) Advance Rent: The Tenant acknowledges that it will
provide the Landlord with a deposit
equal to four (4) months Basic Rent,
Additional Rent in the amount of One
Hundred and Fourteen Thousand Six
Hundred and Twenty-One dollars
($114,621.00), said deposit to be
payable in two (2) installments, the
first ($57,310.50) being due upon
unconditional acceptance of the Offer to
Lease and the second (57,310.50) due on
the 15th day of September, 1999, to be
applied to the first renewal payments
due hereunder.
(f) Removal of Leaseholds: At the end of the Term, the Tenant shall
not be required to remove leasehold
improvements which have been approved by
the Landlord; however, it may remove its
equipment and trade fixtures, provided
it shall repair any damage caused by
said removal.
(g) Signs: The Tenant, at the Landlord's cost, shall
have the right to erect building
standard signage on the outside of the
Premises and on the Building Directory
in the main lobby and in the elevator
lobby located on the 8th Floor. All
signage must be in a building standard
design, size, location, and in all other
respects satisfactory to the Landlord
and all municipal and governmental
authorities.
(h) Access: Apart from "Normal Building Business
Hours", the Tenant shall have access to
the Premises twenty-four (24) hours a
day each and every day of the year
throughout the Term, except for
unforeseen Building emergencies. The
Tenant shall have the right to have
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heating, ventilation, air conditioning,
hydro and elevatoring as it may require
upon reasonable request.
(i) Address of 20 Adelaide Street East
Landlord: Suite 1103
Toronto, Ontario
M5C 2T6
(Section 14.10);
(j) Address of 20 Adelaide Street East
Tenant: Suite 800
Toronto, Ontario
M5C 2T6
(Section 14.10);
(k) Leasehold Improvement The Landlord will pay to the Tenant, as a
Allowance: contribution towards the cost of the
Tenant's Work and the disposition of the
Tenant's existing Lease, the sum of
$5.00 per square foot of Rentable Area
plus applicable Goods and Services Tax.
Such contribution shall be payable to
the Tenant on the Commencement Date.
Tenant's Work is defined strictly as
leasehold improvements to the Leased
Premises. All Tenant's Work and all
related plans and specifications, as
well as all trades to be approved by the
Landlord in advance, such approval not
to be unreasonably withheld.
(1) As Is: The Tenant agrees to accept the Premises
on an "as is" basis and in its present
condition. Any and all costs of any
other alteration and construction which
may be required to make the Premises
suitable for the Tenant's occupation and
use shall be paid for entirely by the
Tenant but shall, however, be subject to
the Landlord's prior written approval of
the work and supervision of same at
Tenant's cost as required by the Lease.
(m) Option to Renew: Provided the Tenant is not in breach of
the Lease, the Tenant shall have one (1)
option to renew the Lease with respect
to the Leased Premises and any
additional space leased for additional
terms of three (3) years on the same
terms and conditions, save only for the
Basic Rent and Additional Rent, Tenant
Allowances, any other allowances of any
nature, Rent-Free Period, and any
further option(s) to renew. The Basic
Rent during the renew period will be the
fair market rent, all economic
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factors considered for comparable
premises in comparable buildings agreed
between the parties, and failing such
agreement, as determined by arbitration
pursuant to the Arbitrations Act,
Ontario. To exercise an Option to Renew,
the Tenant shall give written notice to
the Landlord no later than six (6)
months prior to the date of expiry of
the current Term, failing which this
option is null and void and of no
further effect. This Option to Renew is
personal to the Tenant, and cannot be
exercised by any assignee or sub-tenant
of the Tenant.
(n) Assignment/Sublet: The Tenant shall not assign this Lease or
sublet or part with possession of all or
part of the Leased Premises or mortgage
or encumber the Lease without the prior
written consent of the Landlord, which
consent shall not be unreasonably
withheld or delayed.
(o) H.V.A.C. System: The Landlord warrants that the H.V.A.C.
system in the Building and the Leased
Premises is in good working order and
not in need imminent rep or upgrade.
(o)(i) The Landlord represents to the Tenant that
it has formally investigated the
Building systems and to the best of its
knowledge based upon representations by
Building service providers, that all the
Building systems (including, but not
limited to, elevators, power,
communication, telephone) have been
investigated and are Y2K compatible and
that third party service providers to
the Building have indicated that they
are Y2K compatible.
(p) Additional H.V.A.C.
Costs: The Tenant shall not be responsible for
any additional H.V.A.C. costs from 6:30
p.m. until 8:30 p.m. from Monday to
Friday. An after hour charge for
H.V.A.C. of $15.00 per hour of use will
apply to those hours outside of 4:30
a.m. and 8:30 p.m.
(q) Early Access: The Tenant shall have access to the
Leased Premises provided the Lease is
executed by all parties for the purpose
of the installation of telephone and
communication systems, computer
equipment, leasehold improvements,
furniture and commencement of business
as of September 1, 1999. All terms and
conditions of the Lease will apply to
the term of occupation prior to the
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Commencement Date of the Lease except that
no basic rent, additional rent or
utilities will be payable.
(r) Basic Rent and The Tenant shall have a Basic Rent and
Additional Rent Free Additional Rent Free Period for One (1)
Period: month from the commencement Date. During
this period, the Tenant shall not be
responsible to pay the Landlord its
proportionate share of realty taxes,
operating expenses, utilities and Basic
Rent.
(s) Parking: The Landlord shall provide to the Tenant
four (4) reserved parking stalls in the
Building. Rental for such stalls shall
be $220.00 per stall per month payable
in advance on the first day of each and
every month during the term of the Lease
and any renewal thereof and shall be
subject to change from time to time.
(t) Right of Fast Offer to Provided the Tenant has not been in breach
Lease Adjoining Space: of its covenants and obligations under the
Lease, the Landlord hereby grants to the
Tenant the right of first offer to
lease, during the Term or any renewal
thereof, any adjoining space that may
become available to be leased on the
terms and conditions of fair market
rent, both parties acting reasonably.
The Landlord agrees to notify the Tenant
of any available space as it becomes
available. If the Tenant does not
exercise this right of first offer to
lease the said premises, the said
premises may thereafter be freely leased
by the Landlord.
ARTICLE 1
Leased Premises, Term and Acceptance of Leased Premises
Section 1.1 Leased Premises
In consideration of the rents, covenants and agreements herein contained on
the part of the Tenant to be paid, observed and performed, the Landlord leases
to the Tenant, and the Tenant leases from the Landlord, the Leased Premises. The
Leased Premises shall be measured and calculated by the Landlord in accordance
with Schedule "D".
Section 1.2 Use of Additional Areas
The use and occupation by the Tenant of the Leased Premises includes the
non-exclusive right of the Tenant, the Tenant's employees, agents, invitees,
suppliers (subject to
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Section 14.1 hereof), and Persons having business with the Tenant, in common
with the Landlord, its other tenants, subtenants and all others entitled or
permitted to the use of the following:
(a) the entrance, foyer, lobby elevators and escalators of the Building;
(b) the corridors on the floor of the Building on which the Leased Premises
are situate, together with the public entrance doors, halls, stairways,
passages, elevators, escalators and lavatories on the floor of the Building on
which the Leased Premises are situate; and
(c) the Common Areas and Facilities.
Section 1.3 Storage Area - INTENTIONALLY DELETED.
Section 1.4 Grant and Term
The Tenant will have and hold the Leased Premises for and during the Term
(being the period of time referred to in Paragraph (c) of the Special
Provisions) subject to the payment of Basic Rent and Additional Rent and the
observance and performance of the terms, covenants and conditions contained in
this Lease.
Section 1.5 Construction of the Leased Premises - INTENTIONALLY DELETED
ARTICLE 2
Rent
Section 2.1 Covenant to Pay
The Tenant shall pay Basic Rent and Additional Rent.
Section 2.2 Basic Rent
The Tenant will pay from and after the Commencement Date to the Landlord at
the office of the Landlord, or at such other place designated by the Landlord or
to such other Person as the Landlord designates from time to time, in lawful
money of Canada, without any prior demand therefor as Basic Rent, the annual sum
specified in Paragraph (d) of the Special Provisions, payable in equal
consecutive monthly installments each in advance on the first day of each
calendar month of each Rental Year. When the Full Floor Rentable Area of the
Leased Premises is calculated, by the Landlord, the Basic Rent will, if
necessary, be adjusted accordingly.
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Section 2.3 Advance Rent
The Landlord acknowledges receipt of the sum specified in Paragraph (e) of
the Special Provisions as Advance Rent, to be held without interest by the
Landlord and to be applied on account of the Basic Rent in accordance with
Paragraph (e) of the Special Provisions.
Section 2.4 Security Deposit - INTENTIONALLY DELETED
Section 2.5 Rent Past Due
If the Tenant fails to pay, when the same is due and payable, any Basic
Rent, Additional Rent or other amount payable by the Tenant under this Lease,
such unpaid amounts bear interest from the due date thereof to the date of
payment at a rate per annum which is five (5) percentage points in excess of the
minimum lending rate to prime commercial borrowers current at such time charged
by any Canadian chartered bank designated by the Landlord from time to time.
ARTICLE 3
Taxes and Operating Costs
Section 3.1 Taxes Payable by the Landlord
The Landlord will, subject to Sections 3.2 and 3.3, pay directly to the
appropriate taxing authority all Taxes in respect of the Building and the Lands,
or any part thereof. However, the Landlord may defer payment of any such Taxes,
to the fullest extent permitted by law, so long as it diligently prosecutes any
contest or appeal of any such Taxes.
Section 3.2 Taxes Payable by the Tenant
(a) If there are separate tax bills and separate assessment notices in
respect of Taxes for the Leased Premises and the non-leasable areas of the
Building and the Lands, subject to subparagraph (b) below, the Tenant will (i)
pay as Additional Rent to the Landlord or to the taxing authorities if the
Landlord so directs, and discharge during the Term within the times provided for
by the taxing authorities, all Taxes that are levied, rated, charged or assessed
from time to time, respectively, against the Leased Premises or any part
thereof, on the basis of such separate tax bill and separate assessment notice
rendered by any lawful taxing authority; and (ii) pay as Additional Rent in
accordance with Section 3.6, its Proportionate Share of all Taxes in respect of
the Building and the Lands, excluding all portions thereof designated or
intended by the Landlord to be leased to tenants.
(b) If there are not separate tax bills and separate assessment notices for
the Leased Premises and the non-leasable areas of the Building and the Lands or,
in any event, if the Landlord so elects, the Tenant will pay monthly in advance
or otherwise as the Landlord directs, in accordance with Section 3.6, its
Proportionate Share of all Taxes levied, rated, charged or
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assessed by any lawful authority against, or in relation to, the Building and
the Lands, including the Common Areas and Facilities.
(c) If the Landlord, acting equitably, determines that as a result of the
construction or installation of any improvements in the Leased Premises, the use
of the Leased Premises or the particular location of the Leased Premises within
the Building, the Tenant's Proportionate Share of Taxes payable in accordance
with subparagraph (b) above does not accurately reflect the proper share of the
Taxes which should in the Landlord's opinion be payable by the Tenant, the
Landlord may increase or decrease the Tenant's Proportionate Share of Taxes and
the Tenant will pay such adjusted amount rather than the Tenant's Proportionate
Share as set out in subparagraph (b) above.
(d) In addition to the foregoing, but without duplication, the Tenant will
reimburse the Landlord for each Rental Year and at the times and in the manner
specified by the Landlord, the full amount of any Taxes in the nature of a
business transfer tax, value-added tax, sales tax or any other taxes levied,
rated, charged or assessed in respect of the Rent payable by the Tenant under
this Lease or in respect of the rental of space by the Tenant under this Lease.
It is agreed and understood that the Tenant shall reimburse the Landlord for
such Taxes at the full tax rate applicable from time to time in respect of the
Rent or the rental of space, without reference to any tax credits or exemptions
available to the Landlord.
Section 3.3 Business Taxes and Other Taxes of the Tenant
The Tenant will pay as Additional Rent to the lawful taxing authorities, or
to the Landlord, as the Landlord directs, and shall discharge when the same
become due and payable (i) all taxes, rates, duties, assessments and other
charges that are levied, rated, charged or assessed against or in respect of all
improvements, equipment and facilities of the Tenant in the Leased Premises or
the Building or the Lands or any part thereof, or the Landlord on account of its
interest in the Building; and (ii) every tax and license fee which is levied,
rated, charged or assessed against or in respect of any and every business
carried on in the Leased Premises or in respect of the use or occupancy thereof
or any other part of the Building and the Lands by the Tenant and every
subtenant or licensee of the Tenant, or against the Landlord on account of its
interest in the Building; all of the foregoing being collectively referred to as
"Business Taxes" and whether in any case, any such taxes, rates, duties,
assessments or license fees are rated, charged or assessed by any federal,
provincial, municipal, school or other body during the Term. If there are not
separate tax bills provided for Business Taxes, the Tenant will pay in
accordance with Section 3.6 the Tenant's Proportionate Share of the total
Business Taxes for the Building.
Section 3.4 Tenant's Responsibility
The Tenant will (a) upon request of the Landlord: (i) promptly deliver to
the Landlord for inspection, receipts evidencing the payment of all Taxes and
Business Taxes payable by the Tenant pursuant to Sections 3.2 and 3.3,
respectively; (ii) promptly deliver to the Landlord copies of all bills and any
notices of assessment in respect of any Taxes or Business Taxes received by the
Tenant which relate to the Leased Premises; and (iii) furnish such other
information in connection with any such Taxes or Business Taxes or other
assessments payable
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by the Tenant in respect of the Leased Premises as the Landlord reasonably
determines from time to time; and (b) deliver to the Landlord at least ten (10)
days prior to the last day permitted for filing an appeal, a notice of any
appeal or contestation which the Tenant intends to institute with respect to
Taxes or Business Taxes and consult with the Landlord in advance and obtain the
prior written approval of the Landlord to any such appeal or contestation. If
the Tenant obtains such approval, the Tenant will deliver to the Landlord such
security for the payment of Taxes and Business Taxes as the Landlord deems
advisable and the Tenant will diligently prosecute any such appeal or
contestation to a speedy resolution and will keep the Landlord informed of its
progress in that regard, from time to time.
The Tenant will indemnify and hold harmless the Landlord from and against
payment for all loss, costs, charges and expenses occasioned by or arising from
all Taxes and Business Taxes and any taxes which may in future be levied in lieu
of such Taxes or Business Taxes or which may be assessed against any rentals
payable pursuant to this Lease in lieu of such Taxes or Business Taxes, whether
against tile Landlord or the Tenant, including, without limitation, any increase
whensoever occurring in Taxes or Business Taxes arising directly or indirectly
out of any appeal or contestation by the Tenant of the Taxes or Business Taxes.
The Tenant will deliver to the Landlord such security for any increase in Taxes
and Business Taxes as the Landlord deems advisable.
Section 3.5 Tenant's Proportionate Share of Operating Costs
The Tenant will pay, in accordance with Section 3.6, the Tenant's
Proportionate Share of Operating Costs.
Section 3.6 Payment of Taxes and Operating Costs
(a) The amounts payable by the Tenant pursuant to Sections 3.2 and 3.5 (and
Section 3.3. if applicable) 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 Tenant's Proportionate Share as so estimated, of such amounts in
monthly installments in advance during such period as Additional Rent.
Notwithstanding the foregoing, the Landlord's estimates may be revised from time
to time and as soon as bills for all or any portion of the amounts so estimated
are received, the Landlord may bill tile Tenant for the Tenant's Proportionate
Share thereof and the Tenant will pay the Landlord the amounts billed (less all
amounts previously paid by the Tenant on the basis of the Landlord's estimate)
as Additional Rent within five (5) days after demand.
(b) Within a reasonable period of time after the end of the period for
which the estimated payments have been made, the Landlord will determine and
advise the Tenant of (i) the amounts and costs referred to in Section 3.2 and
Section 3.3 (if applicable) for such period, together with the calculation the
Tenant's Proportionate Share of such amounts and costs pursuant to Section 3.2
and Section 3.3 (if applicable); and (ii) the Operating Costs referred to in
Section 3.5 for such period, together with a calculation of the Tenant's
Proportionate Share of such Operating Costs payable pursuant to Section 3.5; and
if necessary, an adjustment shall be made between the parties in the following
manner. If the Tenant has paid in excess of the
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amounts due, the excess will be refunded by the Landlord within a reasonable
period of time after the Landlord's determination, or, at the option of the
Landlord, the excess will be credited to amounts payable pursuant to Sections
3.2, 3.5 (and 3.3. if applicable) in the immediately following Rental Year. If
the amount the Tenant has paid is less than the amounts due, the Tenant will pay
such additional amounts due within five (5) days after demand. If any Rental
Year during the Term is greater or less than any such period determined by the
Landlord, the Tenant's Proportionate Share pursuant to Sections 3.2 and 3.5 (and
Section 3.3, if applicable) will be subject to a per diem, pro rata adjustment
based upon a period of three hundred and sixty-five (365) days and will be made
on or before the last day of the Term. If the Term expires or this Lease is
terminated prior to a final determination of the Tenant's Proportionate Share of
the costs and expenses set out in Sections 3.2 and 3.5 (and Section 3.3, if
applicable), an amount payable for the last Rental Year of the Term will be
estimated by the Landlord, acting reasonably. As soon as the amount payable by
the Tenant for the last Rental Year of the Term has been determined, the amount
will be adjusted between the Landlord and the Tenant.
Section 3.7 The Tenant's proportionate share of all taxes, operating expenses
and hydro are estimated at $17.39 per sq. ft. for the calendar year 1999.
ARTICLE 4
Building - Control and Services
Section 4.1 Control of the Building by the Landlord
(a) The Landlord will operate and maintain the Building in such manner as
the Landlord determines from time to time, and in a first-class and reputable
manner as would a prudent landlord of a similar office building having regard to
size, age and location.
(b) The Building and the Lands are at all times subject to the exclusive
control, management and operation of the Landlord. The Landlord has the right,
in its control, management and operation of the Building and by the
establishment of Rules and Regulations and general policies with respect to the
operation of the Building or any part thereof, at all times throughout the Term,
to:
(i) obstruct or close off all or any part of the Building for
the purpose of maintenance, repair or construction;
(ii) employ all personnel necessary for the operation and
management of the Building. The Tenant acknowledges that the Building may be
managed by any Person designated by the Landlord;
(iii) construct improvements in or to the Building and make
alterations thereof, additions thereto, subtractions therefrom, rearrangements
thereof (including all entrances and exits thereto), build additional stories on
the Building and construct additional facilities adjoining or proximate to the
Building;
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(iv) relocate or rearrange the various facilities and
improvements comprising the Building or erected on the Lands from those existing
at the Commencement Date excluding the Leased Premises;
(v) do and perform such other acts in and to the Building as, in
the use of good business judgment, the Landlord determines to be advisable for
the more efficient and proper operation of the Building;
(vi) control, supervise and regulate any parking facilities which
may be used in conjunction with the Building in such manner as the Landlord
determines from time to time, including, without limitation, imposing charges or
rates as may from time to time be determined by the Landlord for the use of any
such parking facilities.
(c) Notwithstanding anything contained in this Lease, it is understood and
agreed that if as a result of the exercise by the Landlord of its rights set out
in tins Section 4.1, the facilities in or improvements to the Building are
diminished or altered in any manner whatsoever, the Landlord is not subject to
any liability; nor is the Tenant entitled to any compensation, diminution or
abatement of Basic Rent or Additional Rent; nor is any alteration or diminution
of the facilities or improvements in or to the Building (including, the Leased
Premises) deemed a breach of any covenant for quiet enjoyment contained in this
Lease, or implied by law.
Section 4.2 Landlord's Services
(a) The Landlord will provide climate control to the Leased Premises during
Normal Business Hours to maintain a temperature adequate for occupancy, except
during the making of repairs, alterations or improvements to the climate control
apparatus and provided that the Landlord shall have no responsibility or
liability for failure to supply climate control service when stopped as
aforesaid or when prevented from so doing by strikes or causes beyond the
Landlord's reasonable control. The Tenant acknowledges that the Landlord has
installed a system for the purpose of climate control, which system is designed
to heat and cool during normal occupancy of the Leased Premises as general
offices on the basis of one (1) person to every one hundred (100) square feet of
space on an open floor basis and based on the window shading being fully closed
in those offices having exterior windows exposed to the sun, without having
regard to the Tenant's specific use thereof or the installation in the Leased
Premises by the Tenant or by anyone on behalf of the Tenant of any excessive
heat generating equipment. Any use of the Leased Premises not in accordance with
the design standards or any arrangement of partitions which interferes with the
normal operation of such system may require changes or alterations in the system
or the ducts. Any changes or alterations so occasioned, if such changes can be
accommodated by the Landlord's equipment, shall be made (i) by the Tenant (or,
at the Landlord's option, by the Landlord), (ii) in either case, at the Tenant's
expense and only with the Landlord's prior written consent, and (iii) in
accordance with drawings and specifications and by a contractor first approved
in writing by the Landlord. If installation of partitions, equipment or fixtures
by or on behalf of the Tenant (other than the partitions installed pursuant to
the Landlord's Work as set out in Schedule "C") necessitates the rebalancing of
the portion of the
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climate control equipment installed in the Leased Premises, such work will be
performed by the Landlord at the Tenant's expense, together with an amount equal
to fifteen percent (15%) of the total expense thereof representing the
Landlord's overhead, payable by the Tenant within five (5) days after written
demand as Additional Rent. The Tenant acknowledges that one (1) year may be
required after the Tenant has fully occupied the Leased Premises in order to
adjust and balance the climate control systems.
(b) Subject to the Rules and Regulations, the Landlord will furnish, except
when repairs to the elevator(s) are being made, elevator service during Normal
Business Hours, in common with others, provided that the Tenant and its
employees and all other Persons using the elevator service will do so at their
own risk. At least one (1) elevator will be operated at all times after Normal
Business Hours.
There will be no liability on the Landlord for any claim in respect of any
failure by the Landlord to provide elevator service during any power failure or
other cause beyond the control of the Landlord or by reason of the carrying out
of any repairs, maintenance or replacement of the elevators, nor shall there be,
consequent upon the foregoing, any abatement or reduction in the Rent.
If the Tenant requests the provision of climate control services to the
Leased Premises after Normal Business Hours, the Landlord will provide such
services to the Tenant at the Tenant's expense at the rate of $15.00 per hour,
payable by the Tenant within five (5) days after written demand, i.e. those
hours outside of 4:30 a.m. to 8:30 p.m.
(c) The Landlord will provide a card-coded security system to control
access to the Building after Normal Business Hours and on weekends and all
employees of the Tenant shall comply with all regulations and rules promulgated
by the Landlord for such system. Employees of the Tenant holding a security pass
issued by the Landlord will be provided access to the Building for the whole
year.
(d) The Landlord will when reasonably necessary from time to time cause the
floors to be swept, the windows to be cleaned and the desks, tables and other
furniture of the Tenant to be dusted, all in keeping with a first-class office
building and in accordance with the Landlord's cleaning schedule attached as
Schedule "H". However, with the exception of the obligation to cause such work
to be done, the Landlord will not be responsible for any act or omission or
commission on the part of the Persons employed to perform such work and such
work shall be done at the Landlord's direction without interference by the
Tenant and its servants or employees.
(e) The Landlord will make available water and electricity in adequate
quantities, provided that if the Tenant's equipment requires utilities in excess
of adequate quantities facilities to supply such excess quantities may be
provided by the Landlord at the sole expense of the Tenant, subject to the
following conditions and provided that:
(i) the Landlord's electrical engineer or other consultants
determines that such excess facilities are so required by the Tenant's
equipment;
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(ii) it is within the capabilities of the Landlord and the
existing structure of the Building to provide such excess utilities;
(iii) the Landlord will have the right of refusal to supply such
excess utilities if the supplying of additional facilities or utilities shall in
any way affect the operation, the aesthetics or the structure of the Building,
or in any way reduce the efficiency of existing electricity, water or other
utilities supplied to the Building; and
(iv) the supplying of such additional facilities will be subject
to compliance with all provisions of law including, without limitation, federal
and provincial legislative enactments, building by-laws and other governmental
or municipal regulations.
ARTICLE 5
Utilities
Section 5.1 Charges for Utilities
(a) The Tenant will promptly pay to the Landlord, or as the Landlord
otherwise directs, in the manner hereinafter provided, as Additional Rent, the
aggregate, without duplication, of (i) all electricity, water, steam charges and
other utility charges applicable to the Leased Premises (the "Utilities") on the
basis of the Full Floor Rentable Area of the Leased Premises; (ii) the costs of
any other charges levied or assessed in lieu of, or in addition to, such
Utilities as determined by the Landlord; and (iii) all costs incurred by the
Landlord in determining or allocating the charge for Utilities, including
without limitation, professional engineering and consulting fees and an
administration fee of five percent (5%) of the total cost of such Utilities. The
Landlord will be entitled, acting equitably, to allocate to the Leased Premises
an additional charge, as determined by the Landlord's engineer, for the excess
supply to, and usage of, water, electricity, steam and other Utilities in the
Leased Premises in excess of the standard usage of general office premises in
the Building. Charges for Utilities will be payable in equal monthly
installments in advance on the basis of an initial rate determined by the
Landlord's engineers. If the public utility rate and other taxes or charges in
connection therewith for the supply of any Utility is increased or decreased
during the Term, the charges in respect thereof will be equitably adjusted and
the decision of the Landlord, acting reasonably, will be final, and the Tenant
agrees to pay such increased charges on demand as Additional Rent. The Tenant
will in addition, pay for all costs of supplying Utilities to the Leased
Premises after Normal Business Hours as determined by the Landlord's engineers.
(b) The Landlord will have the exclusive right to attend to any replacement
of electric light bulbs, tubes and ballasts in the Leased Premises. The Landlord
may adopt a system of relamping and reballasting periodically on a group basis
in accordance with good commercial practice. The Tenant will pay to the Landlord
as Additional Rent, on the first day of each month during the Term, a
competitive monthly charge per bulb, tube and ballast on account of the cost of
replacement. If the cost of such replacement increases or decreases during the
Term, the Landlord will adjust the Additional Rent payable for such replacement
on an equitable basis and the Tenant will pay such Additional Rent, as adjusted
on demand. The decision of the Landlord,
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acting reasonably, with respect to any such adjustment, and the Additional Rent
based thereon, will be final and binding on the parties hereto. If the Landlord
does not adopt the system of relamping and reballasting, as aforesaid, then the
replacement of electric light bulbs, tubes and ballasts in the Leased Premises
will be undertaken by the Landlord at such time as they actually burn out and
after notice from the Tenant that replacement is required. In such event, the
cost of replacement and installation will be paid by the Tenant to the Landlord
within five (5) days after demand as Additional Rent.
(c) The Tenant will pay as Additional Rent any charges resulting from the
use of equipment necessitating a dedicated circuitry or specialized power
equipment. At the Landlord's reasonable discretion, such charges may be metered
separately from general power consumption.
(d) The Tenant will pay for the cost of any metering which the Tenant
requests the Landlord to install in the Leased Premises or the Building, or
which the Landlord wishes to install in the Building for the purpose of
assisting in determining the consumption of any Utility (including electricity
and water) in the Leased Premises or which may be required by the Landlord to
measure or estimate any excess usage of electricity, water or other Utility.
ARTICLE 6
Use of the Leased Premises
Section 6.1 Use of the Leased Premises
The Leased Premises will be used solely for general office purposes,
provided such purposes comply with the terms, covenants and conditions of this
Lease and with all applicable laws, bylaws, regulations or other governmental
ordinances from time to time in existence. The Tenant shall have the right to
use the Premises for any use permitted by the applicable zoning by-laws and
other legislation, and approved by the Landlord. The Landlord represents and
warrants that the Tenant's proposed use, namely as business offices, is
permitted by the applicable zoning by-laws and other legislation for the
Premises.
Section 6.2 Conduct of Business
The Tenant acknowledges and agrees that it is only one of many tenants in
the Building and accordingly, the Tenant will conduct its business in the Leased
Premises in a reputable manner. The Tenant will occupy the Leased Premises and
commence its business operations in the Leased Premises from and after the
Commencement Date and will thereafter throughout the Term conduct the business
set out in Section 6.1 in the whole of the Leased Premises in a reputable and
first-class manner.
Any business, conduct or practice promulgated, carried on or maintained by
the Tenant, whether through advertising or selling procedures or otherwise,
which in the opinion of the Landlord, acting reasonably, may harm or tend to
harm the business or reputation of the Landlord or reflect unfavorably on the
whole or any part of the Building, the Landlord or other
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tenants in the Building, will be immediately discontinued by the Tenant at the
request of the Landlord and the Landlord shall use reasonable efforts to enforce
compliance with this Section by all Tenants in the Building.
The Tenant agrees not to refer to the Building by any name other than that
designated from time to time by the Landlord and the Tenant will use the name of
the Building for the business address of the Tenant but for no other purpose.
Section 6.3 Observance of Law
The Tenant will, at its expense and subject to Section 8.2, promptly:
(a) comply with all provisions of law including, without limitation, all
requirements of all governmental authorities, including federal, provincial and
municipal legislative enactments, by-laws, police, fire and sanitary regulations
(whether imposed by governmental authorities or fire insurance underwriters),
and other regulations now or hereafter in force which pertain to or affect the
Leased Premises, the Tenant's use of the Leased Premises or the conduct of any
business in the Leased Premises, or the making of any repairs, replacements,
alterations, or other changes to the Leased Premises;
(b) obtain all necessary permits, licenses and approvals relating to the
use and occupancy of the Leased Premises and the conduct of business therein,
including without limitation, those required under the Business Corporations Act
(Ontario) and the Investment Canada Act (Canada);
(c) carry out all modifications, alterations or changes of or to the Leased
Premises and the Tenant's conduct of business in or use of the Leased Premises
which are required by any such authorities, as set out herein.
Without limiting the generality of the foregoing, the Tenant will:
(i) co-operate with the Landlord in, and comply with all laws,
by-laws, regulations and orders relating to, the conservation of all forms of
energy in and serving the Building and the Leased Premises; and
(ii) at its own cost and expense comply with all reasonable
requests and demands of the Landlord made with a view to such energy
conservation.
It is understood and agreed that:
(1) any and all costs and expenses paid or incurred by the
Landlord in installing energy conservation equipment and physical safety systems
will be included in Operating Costs for the purposes of Section 3.5; and
(2) the Landlord will not be liable to the Tenant in any
way for any loss, costs, damages or expenses whether direct or consequential,
paid, suffered or incurred by the Tenant due to any reduction in the services
provided by the Landlord to the Tenant or to
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the Building, or any part thereof, as a result of the Landlord's compliance with
such laws, by-laws, regulations or orders.
ARTICLE 7
Insurance and Indemnity
Section 7.1 Tenant's Insurance
(a) The Tenant will, throughout the Term (and at any other time during
which the Tenant is in possession of the Leased Premises), at its expense, take
out and keep in full force and effect and in the names of the Tenant, the
Landlord and the Mortgagee, as their respective interests may appear, the
following insurance:
(i) fire and standard extended coverage insurance including
sprinkler leakages (where applicable), earthquake, flood and collapse, in an
amount equal to the full replacement cost (new) thereof upon all property of
every description and kind owned by the Tenant, or for which the Tenant is
legally liable, or installed by or on behalf of the Tenant, and which is located
within or on the Building, including, without limitation, fittings,
installations, alterations, additions, partitions, signs (interior and exterior)
fixtures, leasehold improvements, stock-in-trade, furniture and moveable
equipment. If there is a dispute as to the amount which comprises full
replacement cost (new), the decision of the Landlord or the Mortgagee shall be
conclusive;
(ii) if applicable, broad form boiler and machinery insurance on
a blanket repair and replacement basis with limits for each accident in an
amount of not less than the replacement cost (new) of all leasehold improvements
and of all boilers, pressure vessels, air-conditioning equipment and
miscellaneous electrical apparatus owned or operated by the Tenant or by others
(other than the Landlord) on behalf of the Tenant in the Leased Premises, or
relating to or serving the Leased Premises;
(iii) business interruption insurance in such amount as will
reimburse the Tenant for direct or indirect loss of earnings attributable to all
perils insured against in Sections 7.1(a)(i) and 7.1(a)(ii) and other perils
commonly insured against by prudent tenants or attributable to prevention of
access to the Leased Premises or the Building as a result of such perils;
(iv) public liability and property damage insurance, including
personal injury liability, contractual liability, employers' liability,
non-owned automobile liability and owners' and contractors' protective insurance
coverage with respect to the Leased Premises and the Tenant's use of the
Building, coverage to include the activities and operations of the Tenant and
any other Person on the Leased Premises or performing work on behalf of the
Tenant and those for whom the Tenant is in law responsible in any other part of
the Building and the Lands. Such policies will (1) be written on a comprehensive
basis with inclusive limits of not less than $5,000,000 for bodily injury to any
one or more Persons, or property damage, and such higher
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limits as the Landlord, acting reasonably, or the Mortgagee requires from time
to time; and (2) contain a severability of interests clause and a
cross-liability clause;
(v) tenants' legal liability insurance for the actual cash value
of the Leased Premises, including loss of use thereof. Any and all claims in
respect of such insurance shall be adjusted by the Landlord; and
(vi) any other form of insurance as the Tenant or the Landlord,
acting reasonably, or the Mortgagee requires from time to time in form, in
amounts and for insurance risks against which a prudent tenant would insure.
(b) The Tenant's insurance policies will:
(i) where applicable, contain the Mortgagee's standard mortgage
clause and 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, whether any such damage is caused by the act, omission or
negligence of the Landlord or those for whom the Landlord is in law responsible;
(ii) be taken out with insurers acceptable to the Landlord and be
in a form satisfactory from time to time to the Landlord;
(iii) be non-contributing and apply only as primary and not as
excess to, any other insurance available to the Landlord or the Mortgagee;
(iv) not be invalidated with respect to the interests of the
Landlord and the Mortgagee by reason of any breach or violation of any
warranties, representations, declarations or conditions contained in the
policies; and
(v) contain an undertaking by the insurers to notify the
Landlord and the Mortgagee in writing not less than thirty (30) days prior to
any material change, cancellation or termination.
(c) The Tenant agrees that certificates of insurance on the Landlord's
standard form or, if required by the Landlord or the Mortgagee, certified copies
of each such insurance policy, will be delivered to the Landlord as soon as
practicable after the placing of the required insurance. No review or approval
of any such insurance certificate by the Landlord shall derogate from or
diminish the Landlord's rights or the Tenant's obligations contained in this
Lease including, without limitation, those contained in this Article VII.
(d) If the Tenant fails to take out or to keep in force any insurance
referred to in this Section 7.1, or should any insurance not be approved by
either the Landlord or the Mortgagee and should the Tenant not commence to
diligently rectify (and thereafter proceed to diligently rectify) the situation
within forty-eight (48) hours after written notice by the Landlord to the Tenant
(stating, if the Landlord or the Mortgagee does not approve of such insurance,
the reasons therefor) the Landlord has the right, without assuming any
obligation in connection
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therewith, to effect such insurance at the sole cost of the Tenant and all
outlays by the Landlord, together with a sum equal to fifteen percent (15%)
thereof representing the Landlord's overhead, will be paid by the Tenant to the
Landlord as Additional Rent on the first day of the next month following said
payment by the Landlord without prejudice to any other rights and remedies of
the Landlord under this Lease.
(e) If there is damage or destruction to the leasehold improvements in the
Leased Premises, the Tenant will use the proceeds of its insurance for the
purpose of repairing or restoring such leasehold improvements. In the event of
damage to or destruction of the Building entitling the Landlord to terminate the
Lease pursuant to Section 9.2, then, if the Leased Premises have also been
damaged or destroyed, the Tenant will forthwith pay to the Landlord all of its
insurance proceeds relating to the leasehold improvements in the Leased Premises
and if the Leased Premises have not been damaged or destroyed, the Tenant will
upon demand deliver to the Landlord, in accordance with the provisions of this
Lease, the leasehold improvements and the Leased Premises.
Section 7.2 Increase in Insurance Premiums
If (a) the occupancy of the Leased Premises; (b) the conduct of business in
the Leased Premises; or (c) any acts or omissions of the Tenant in the Building
or any part thereof causes or results in any increase in premiums for the
insurance carried from time to time by the Landlord with respect to the
Building, the Tenant will pay any such increase in premiums as Additional Rent
within five (5) days after invoices for such additional premiums are rendered by
the Landlord. In determining whether increased premiums are caused by or result
from the use or occupancy of the Leased Premises, a schedule issued by the
organization computing the insurance rate on the Building showing the various
components of such rate, will be conclusive evidence of the several items and
charges which make up such rate.
Section 7.3 Cancellation of Insurance
If any insurance policy upon the Building or any part thereof is cancelled
or threatened by the insurer to be cancelled, or the coverage thereunder reduced
in any way by the insurer by reason of the use and occupation of the Leased
Premises by the Tenant or by any Person permitted by the Tenant to be upon the
Leased Premises, and if the Tenant fails to remedy the condition giving rise to
cancellation, threatened cancellation or reduction of coverage within
forty-eight (48) hours after notice by the Landlord, the Landlord may, at its
option, either (a) re-enter and take possession of the Leased Premises pursuant
to Article XIII, or (b) at the Tenant's expense, enter upon the Leased Premises
and remedy the condition giving rise to such cancellation, threatened
cancellation or reduction, including the removal of any offending article. The
Landlord shall not be liable for any damage or injury caused to any property of
the Tenant or of others located on the Leased Premises as a result of the
exercise of any of its rights pursuant to this Section 7.3.
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Section 7.4 Loss or Damage
The Landlord is not liable for any death or injury arising from or out of
any occurrence in, upon, at, or relating to the Building or the Lands, or damage
to any of the property of the Tenant or of others wherever located, including
without limitation, the Building, the Leased Premises or the Lands, whether or
not resulting from (a) the negligence of the Landlord or those for whom it may
in law be responsible; (b) the exercise by the Landlord of any of its rights
under this Lease; or (c) the Landlord's failure to supply any services,
facilities or utilities required by this Lease. 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 ceiling fixtures (including part or all of the ceiling T
grid system) and diffuser coverings, steam, gas, electricity, water, rain,
flood, snow or leaks from any part of the Building, including pipes, sprinklers,
appliances, plumbing works, roof, windows or the surface of any floor or ceiling
of the Building or from any lands adjoining the Building. All property of the
Tenant kept or stored on the Leased Premises will be so kept or stored at the
risk of the Tenant only and the Tenant shall indemnify the Landlord and save it
harmless from any claims arising out of any damages to the same including,
without limitation, any subrogation claims by the Tenant's insurers.
Section 7.5 Landlord's Insurance
The Landlord will at all times throughout the Term carry (a) insurance on
the Building (excluding the foundations and excavations) and the machinery,
boilers end equipment contained therein or servicing the Building and owned by
the Landlord (specifically excluding any property with respect to which the
Tenant and other tenants are obliged to insure pursuant to Section 7.1 or
similar sections of their respective leases) against damage by fire and extended
perils coverage in such reasonable amounts and with such reasonable deductions
as would be carried by a prudent owner of a reasonably similar office building,
having regard to size, age and location; (b) public liability and property
damage insurance with respect to the Landlord's operations in the Building in
such reasonable amounts and with such reasonable deductions as would be carried
by a prudent owner of a reasonably similar office building, having regard to
size, age and location; and (c) such other form or forms of insurance as the
Landlord or the Mortgagee reasonably considers advisable. Notwithstanding the
Landlord's covenant contained in this Section 7.5 and notwithstanding any
contribution by the Tenant to the cost of the Landlord's insurance premiums, the
Tenant acknowledges and agrees that (i) the Tenant is not relieved of any
liability arising from or contributed to by its negligence or its willful acts
or omissions, and (ii) no insurable interest is conferred upon the Tenant under
any policies of insurance carried by the Landlord and the Tenant has no right to
receive any proceeds of any such insurance policies carried by the Landlord.
Section 7.6 Indemnification of the Landlord
Notwithstanding any other terms, covenants and conditions contained in this
Lease, the Tenant will indemnify the Landlord and save it harmless from and
against any and all loss (including loss of all Basic Rent and Additional Rent
payable by the Tenant pursuant to this
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Lease), claims, actions, damages, liability and expense in connection with loss
of life, personal injury, damage to property (including any part of tge
Building) or any other loss or injury whatsoever arising from or out of this
Lease, or any occurrence in, upon or at the Leased Premises, or the occupancy or
use by the Tenant of the Leased Premises, or occasioned wholly or in part by any
act or omission of the Tenant or by any Person permitted to be on the Leased
Premises by the Tenant. If the Landlord will, without fault on its part, be made
a party to any litigation commenced by or against the Tenant, then the Tenant
will protect, indemnify and hold the Landlord harmless and will pay all costs,
expenses and reasonable legal fees incurred or paid by the Landlord in
connection with such litigation. The Tenant will also pay all costs, expenses
and legal fees (on a solicitor and his client basis) that may be incurred or
paid by the Landlord in enforcing the terms, covenants and conditions in this
Lease.
ARTICLE 8
Maintenance, Repairs and Alterations
Section 8.1 Maintenance and Repairs by the Tenant
(a) The Tenant will at all times at its expense maintain the whole of the
Leased Premises, including without limitation, all interior partitions, signs,
doors, fixtures, shelves, equipment and appurtenances thereof and improvements
thereto (including without limitation, all electrical, lighting, wiring,
plumbing fixtures and equipment and the heating, ventilating and
air-conditioning systems and equipment within or installed by or on behalf of
the Tenant for the Leased Premises), in good order, first-class condition and
repair (which shall include, without limitation, periodic painting and
decoration), as determined by the Landlord, acting reasonably, and the Tenant
shall make all needed repairs and replacements with due diligence and dispatch.
(b) The Tenant will leave the Leased Premises in a reasonably tidy
condition at the end of each Business Day in order that the Landlord's cleaning
services can be performed.
(c) The Tenant will pay within five (5) days after demand, as Additional
Rent, the cost of replacement of any glass broken on the Leased Premises
including outside windows and doors of the perimeter of the Leased Premises
(including perimeter windows in the exterior walls).
Section 8.2 Landlord's Approval of the Tenant's Repairs
The Tenant will not make any substantial repairs, alterations,
replacements, decorations or improvements (the "Alterations") to any part of the
Leased Premises without first obtaining the Landlord's written approval. The
Tenant will submit to the Landlord: (a) details of the proposed work including
professionally prepared drawings and specifications; (b) any indemnification
against liens, costs, damages and expenses as the Landlord requires; and (c)
evidence satisfactory to the Landlord that the Tenant has obtained, at its
expense, all necessary consents, permits, licenses and inspections from all
governmental and regulatory authorities having jurisdiction. All Alterations
will be performed: (i) at the Tenant's expense;
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(ii) by competent workmen; (iii) in a good and workmanlike manner; (iv) in
accordance with the drawings and specifications approved by the Landlord; and
(v) subject to the reasonable regulations, controls and inspection of the
Landlord.
Any Alterations made by the Tenant without the prior written consent of the
Landlord or which are not made in accordance with the drawings and
specifications approved by the Landlord will, if requested by the Landlord, be
promptly removed by the Tenant at the Tenant's expense and the Leased Premises
restored to their previous condition. Failing such removal, the Landlord will be
entitled to remove any Alterations forthwith without notice and at the Tenant's
expense. In any event, no Alterations will be permitted if the Landlord
determines that such Alterations may weaken or endanger the structure of the
Building, adversely affect the condition or operation of the Leased Premises or
the Building or diminish the value thereof, exceed, restrict or reduce the
Landlord's coverage for zoning purposes, or cause the Landlord to buy out or
provide additional parking spaces.
If, however, any Alterations approved by the Landlord affect the structure
of the Leased Premises or any other part of the Building, or any of the
electrical, mechanical or other base building systems, the Alterations (or the
appropriate part thereof) will be performed only by the Landlord, at the
Tenant's expense. Upon completion thereof, the Tenant will pay to the Landlord,
as Additional Rent within five (5) days after demand, both the landlord's costs
relating to any such Alterations, including the fees of any architectural and
engineering consultants, and a sum equal to fifteen percent (15%) of the total
cost thereof representing the Landlord's overhead.
Section 8.3 Maintenance by the Landlord
(a) The Landlord will, subject to Section 8.1 and Article IX, maintain and
repair, or cause to be maintained and repaired, as would a prudent owner of a
reasonably similar office building, the structure of the Building, including,
without limitation, the foundations, exterior wall assemblies including weather
walls, sub-floor, roof, bearing walls, and structural columns and beams of the
Building and the mechanical, electrical and other base building systems of the
Building. The cost of such maintenance and repairs will be included in Operating
Costs in accordance with Paragraph 18 of Schedule "F". Notwithstanding the
foregoing, if the Landlord is required, due to the business carried on by the
Tenant, to make such repairs or replacements by reason of the application of
laws, ordinances or other regulations of any governmental body, or by reason of
any act, omission to act, neglect or default of the Tenant or those from whom
the Tenant is in law responsible, then, in any such event, the Tenant will be
liable for the total cost of any such repairs or replacements plus a sum equal
to fifteen percent (15%) of the total cost of such repairs or replacements
representing the Landlord's overhead, which shall immediately become due and
payable to the Landlord as Additional Rent within five (5) days after demand.
(b) The Tenant acknowledges and agrees that the Landlord is not liable for
any damages, direct, indirect or consequential, or for damages for personal
discomfort, illness or inconvenience of the Tenant or the Tenant's servants,
clerks, employees, invitees or other Persons by reason of (i) the failure,
cessation or interruption of any Utilities, equipment, facilities
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or systems servicing the Building or the Leased Premises provided that these are
not caused by Landlord's negligence, (whether or not supplied by the Landlord or
others), or (ii) reasonable delays in the performance of any repairs,
replacements and maintenance for which the Landlord is responsible pursuant to
this Lease.
(c) If the Tenant refuses or neglects to carry out any repairs as required
pursuant to Section 8.1, and to the reasonable satisfaction of the Landlord, the
Landlord may, but will not be obliged to, make such repairs without being liable
for any loss or damage that may result to the Tenant's equipment, fixtures or
other property or to the Tenant's business by reason thereof, and upon
completion, the Tenant will pay to the Landlord as Additional Rent within five
(5) days after demand, both the Landlord's costs relating to any such repairs
and a sum equal to fifteen percent (15%) thereof representing the Landlord's
overhead.
(d) If any elevator servicing the Building or any of the mechanical or base
building equipment, facilities or systems in respect of the Building are damaged
or destroyed or are in need of repair, the Landlord will have a reasonable time
in which to make the required repairs or replacements necessary for the
resumption of such services to the Leased Premises (to the extent of the
Landlord's obligations under this Lease) and the Tenant is not entitled to any
compensation or damages therefor; but if any of the foregoing items become
impaired, damaged or destroyed as a result of any of the circumstances referred
to in Section 8.6, the Tenant will be responsible for the cost of repairing,
restoring or making good such damage in accordance with the provisions of
Section 8.6.
Section 8.4 Repair on Notice
In addition to the obligations of the Tenant contained in Section 8.1, the
Tenant will effect all repairs or replacements referred to therein according to
notice from the Landlord, but the failure to give notice will not relieve the
Tenant from its obligation to repair.
Section 8.5 Surrender of the Leased Premises
At the expiration or earlier termination of the Term, the Tenant will
peaceably surrender the Leased Premises to the Landlord in good condition,
reasonable wear and tear excepted. The Tenant will surrender all keys for the
Leased Premises to the Landlord at the place then fixed for the payment of Rent
and will inform the Landlord of all combinations of locks, safes and vaults, if
any, in the Leased Premises.
Section 8.6 Repair Where the Tenant is at Fault
Notwithstanding any other provisions of this Lease including, without
limitation, the Landlord's obligations to repair set out in Section 8.3, the
Landlord's obligations to take out insurance set out in Section 7.5, and the
Tenant's obligation to pay its Proportionate Share of the cost of insurance set
out in Paragraph 18(b)(i) of Schedule "F", if the Building or any part thereof,
or any equipment, machinery, facilities or improvements contained therein or
made thereto, or the roof or outside walls of the Building or any other
structural portions thereof require repair or replacement or become damaged or
destroyed through the negligence,
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carelessness or misuse of the Tenant or those for whom it is in law responsible
or by any Person having business with the Tenant or by the Tenant or those for
whom it is in law responsible in any way stopping up or damaging the climate
control, heating and air-conditioning apparatus, water pipes, drainage pipes or
other equipment or facilities or parts of the Building, the cost of the
resulting repairs, replacements or alterations plus a sum equal to fifteen
percent (15%) of the cost thereof representing the Landlord's overhead will be
paid by the Tenant to the Landlord as Additional Rent within five (5) days after
presentation of an account of such expenses incurred by the Landlord.
Section 8.7 Tenant Not To Overload Facilities
The Tenant will not install any equipment which will exceed or overload the
capacity of any utility, electrical or mechanical facilities in the Leased
Premises and the Tenant will not bring into the Leased Premises or install any
utility, electrical or mechanical facility or service which the Landlord does
not approve. The Tenant agrees that if any equipment installed by the Tenant
requires additional utility, electrical or mechanical facilities, the Landlord
may, in its sole discretion, if they are available, elect to install them at the
Tenant's expense and in accordance with plans and specifications to be approved
in advance in writing by the Landlord.
Section 8.8 Tenant Not To Overload Floors
The Tenant will not bring upon the Building or the Leased Premises any
machinery, equipment, article or thing that by reason of its weight, size or
use, might in the opinion of the Landlord damage the Building or the Leased
Premises and will not at any time overload the floors of the Leased Premises. If
any damage is caused to the Building or the Leased Premises by any machinery,
equipment, object or thing or by overloading, the Tenant will forthwith repair
such damage, or at the option of the Landlord, pay the Landlord within five (5)
days after demand as Additional Rent, the cost of repairing such damage plus a
sum equal to fifteen percent (15%) of such cost representing the Landlord's
overhead.
Section 8.9 Removal and Restoration by the Tenant
(a) All alterations, fixed decorations, additions and improvements (the
"Improvements") made by the Tenant, or made by the Landlord on the Tenant's
behalf (other than the Tenant's trade fixtures) will immediately become the
property of the Landlord upon affixation or installation, without compensation
therefor to the Tenant, but the Landlord is under no obligation to repair,
maintain or insure the Improvements. Such Improvements will not be removed from
the Leased Premises either during or at the expiration or earlier termination of
the Term, except that:
(i) the Tenant may during the Term in the usual or normal course
of its business and with the prior written consent of the Landlord remove its
trade futures, provided such trade fixtures have become excess for the Tenant's
purposes or the Tenant is substituting new and similar trade fixtures therefor,
and provided that in each case, (1) the Tenant is not in default under this
Lease and (2) such removal is done at the Tenant's expense; and
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(ii) the Tenant will, at the expiration of the Term, at its own
cost, remove all of its trade fixtures installed in the Leased Premises.
(b) If the Tenant does not remove its trade futures at the expiration or
earlier termination of the Term, the trade fixtures will, at the option of the
Landlord, become the property of the Landlord and may be removed from the Leased
Premises and sold or disposed of by the Landlord in such manner as it deems
advisable.
(c) The Tenant will effect the installation or removal of any such trade
futures or Improvements only at the times designated by the Landlord and will
promptly make good any damage caused to the Leased Premises or the Building by
the installation or removal of any such Improvements.
(d) For greater certainty, the Tenant's trade fixtures exclude: (i)
heating, ventilating or air conditioning systems, facilities and equipment; (ii)
floor covering affixed to the floor of the Leased Premises; (iii) light
fixtures; (iv) internal stairways and doors, if any; and (v) all futures,
improvements, installations, alterations or additions which are installed by or
at the expense of the Landlord pursuant to Schedule "C"; all of which are deemed
to be leasehold improvements.
Section 8.10 Notice by the Tenant
The Tenant, as soon as it becomes aware, will notify the Landlord of any
damage to, or deficiency or defect in any part of, the Building, including the
Leased Premises, any equipment or utility systems, or any installations located
therein, notwithstanding that the Landlord may have no obligation in connection
therewith.
Section 8.11 Tenant to Discharge all Liens
The Tenant will promptly pay all of its contractors and other Persons
supplying materials or performing work on its behalf in respect of the Leased
Premises and will do all things necessary so as to ensure that no lien is
registered against the Lands, the Building or the Tenant's leasehold interest
therein. If any such lien is made, filed or registered, the Tenant will
discharge it, or cause it to be discharged, forthwith at the Tenant's expense.
If the Tenant fails to discharge, or cause any such lien to be discharged,
then, in addition to any other right or remedy of the Landlord, the Landlord
may, but it will not be obligated to, discharge the lien by paying the amount
claimed to be due, and any additional amounts as may be required at law or
otherwise, into Court and the amount so paid by the Landlord plus the sum of
$750.00 representing the Landlord's overhead plus all costs and expenses
including solicitor's fees (on a solicitor and his client basis) incurred as a
result of the registration or discharge of any such lien, will be immediately
due and payable by the Tenant to the Landlord as Additional Rent within five (5)
days after demand.
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Section 8.12 Signs and Advertising
The Tenant will not place or permit to be placed any sign, picture,
advertisement, notice, lettering or decoration on any part of the outside of the
Building or the leased Premises or anywhere in the interior of the Leased
Premises which is visible from the outside of the Building or the Leased
Premises. The Landlord shall, at the Tenant's expense, provide signage
indicating the Suite number and Tenant identification at the main entrance to
the Leased Premises. This signage shall be in accordance with the Landlord's
Building standards and shall be installed at the Tenant's expense. At the
expiration of the Term or earlier termination of this Lease, the Tenant will
remove all signs, pictures, advertisements, notices, letterings or decorations
from the Leased Premises at the Tenant's expense and will promptly repair all
damage cause by its installation and removal.
ARTICLE 9
Damage and Destruction
Section 9.1 Destruction of the Leased Premises
(a) If the Leased Premises are destroyed or damaged (including, without
limitation, smoke and water damage) as a result of fire, the elements, accident
or other casualty required to be insured against by the Landlord pursuant to
Section 7.5 or otherwise insured against by the Landlord and not caused by the
Tenant, and if as a result of such occurrence:
(i) the Leased Premises are rendered wholly or partially
untenantable, this Lease will continue in full force and effect and the Landlord
will, subject to Sections 9.1(b) and 9.2(a), commence diligently to restore the
Leased Premises to the extent only of the Landlord's Work as set out in Schedule
"C" and then only to the extent of the insurance proceeds actually received by
the Landlord, and only Basic Rent (but not Additional Rent) will abate entirely
or proportionately, as the case may be, to the portion of the Leased Premises
rendered untenantable from the date of the destruction or damage until the
Leased Premises have been restored and rendered tenantable by the Landlord to
the extent of its obligations hereunder; or
(ii) the Leased Premises are not rendered untenantable in whole
or in part, the Lease will continue in full force and effect, the Rent and other
amounts payable by the Tenant will not abate and the Landlord shall, subject to
Sections 9.1(b) and 9.2(a), commence diligently to restore the Leased Premises
to the extent set forth in this Section 9.1.
(b) Notwithstanding Section 9.1(a), if the Leased Premises are damaged or
destroyed by any cause whatsoever, and if, in the opinion of the Landlord,
acting reasonably, the Leased Premises cannot be rebuilt or made fit for the
purposes of the Tenant within sixty (60) days of the damage or destruction, the
Landlord, instead of rebuilding or making the Leased Premises fit for the Tenant
in accordance with Section 9.1(a) may, at its option, elect to terminate this
Lease by giving to the Tenant, within thirty (30) days after such damage or
destruction, notice of termination, and thereupon Rent and any other payments
for which the Tenant is liable under this Lease will be apportioned and paid to
the date of such damage or destruction.
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(c) Upon the Tenant being notified in writing by the Landlord that the
Landlord's Work as set out in Schedule "C" has been substantially completed, the
Tenant will forthwith complete all Tenant's Work including, without limitation,
such work as is set out in Schedule "C" and all work required to fully restore
the Leased Premises for business. The Tenant will diligently complete the
Tenant's Work and, if the Leased Premises have been closed for business, reopen
for business within thirty (30) days after notice that the Landlord's Work is
substantially completed.
(d) Nothing in this Section 9.1 requires the Landlord to rebuild the Leased
Premises in the condition and state that existed before any such damage or
destruction, provided that the Leased Premises, as re-built, will have
reasonably similar facilities and services to those in the Leased Premises prior
to the damage or destruction having regard, however, to the age of the Building
at such time.
Section 9.2 Destruction of the Building
(a) Notwithstanding the provisions of Section 9.1, if twenty-five percent
(25%) or more of the Total Rentable Area of the Building is damaged or destroyed
by any cause whatsoever (irrespective of whether the Leased Premises are damaged
or destroyed) and if, in the opinion of the Landlord, acting reasonably, the
Total Rentable Area of the Building so damaged or destroyed cannot be rebuilt or
made fit for the purposes of the respective tenants of such space within one
hundred and twenty (120) days of the damage or destruction, then, the Landlord
may, at its option (to be exercised by written notice to the Tenant within sixty
(60) days following such damage or destruction), elect to terminate this Lease.
In the case of such election, the Term and the tenancy hereby created will
expire upon the thirtieth day after such notice is given, without indemnity or
penalty payable by, or any other recourse against, the Landlord, and the Tenant
shall, within such thirty (30) day period, vacate and surrender the Leased
Premises to the Landlord. Rent will be due and payable without reduction or
abatement subsequent to the destruction or damage and until the date of
termination, unless the Leased Premises will have been destroyed or damaged as
well, in which event Section 9.1 will apply.
(b) If any part of the Building is destroyed or damaged and the Landlord
does not elect to terminate this Lease in accordance with Section 9.2(a), the
Landlord will commence diligently to restore that part of the Building damaged
or destroyed, but only to the extent of the Landlord's responsibilities pursuant
to the terms of the various leases for the premises in the Building, and
exclusive of any tenant's responsibilities set out therein. If the Landlord
elects to restore the Building, or any part thereof, the Landlord may restore
according to plans, specifications and working drawings other than those used in
the original construction of the Building.
Section 9.3 Expropriation
Both the Landlord and the Tenant agree to co-operate with the other in
respect of any expropriation of all or any part of the Leased Premises or the
Building, so that each may receive the maximum award in the case of any
expropriation to which they are respectively entitled at law. To the extent that
any portion of the Building, other than the Leased Premises, is
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expropriated, then, the full proceeds accruing or awarded as a result thereof
will belong solely to the Landlord and the Tenant will abandon or assign to the
Landlord any rights which the Tenant may have or acquire by operation of law to
such proceeds or award and will execute all such documents as in the opinion of
the Landlord are necessary to give effect to this intention.
Section 9.4 Architect's Certificate
The certificate of the Architect will bind the parties as to (a) the
percentage of the Total Rentable Area of the Building damaged or destroyed; (b)
the period of time required to restore the Leased Premises or the Building; (c)
whether or not the Leased Premises are rendered untenantable and the extent of
such untenantability; (d) the date upon which the Landlord's Work or Tenant's
Work of restoration is completed or substantially completed and the date when
the Leased Premises are rendered tenantable; and (e) the state of completion of
any work of either the Landlord or the Tenant under this Lease.
ARTICLE 10
Transfer and Sale
Section 10.1 Assignment and Subletting
(a) The Tenant will not: (i) assign this Lease in whole or in part; (ii)
sublet, license, share or part with possession of all or any part of the Leased
Premises; nor (iii) mortgage or encumber this Lease or the Leased Premises, to
or in favour of any Person (collectively, a "Transfer") without the prior
written consent of the Landlord in each instance which consent will not be
unreasonably withheld or delayed. Provided however, notwithstanding any
statutory provision to the contrary, it will not be considered unreasonable for
the Landlord to take into account the following factors in deciding whether to
grant or withhold its consent: (i) whether any such Transfer violates or
breaches any covenants or restrictions granted by the Landlord to other existing
or prospective tenants or occupants of the Building; (ii) whether in the
Landlord's opinion the financial background, business history and capability of
the proposed Transferee is satisfactory; and (iii) whether any such Transferee
intends to actually use and occupy the Leased Premises in accordance with the
terms of this Lease. The consent by the Landlord to any Transfer will not
constitute a waiver of the necessity for consent to any subsequent Transfer.
This restriction against a Transfer includes a prohibition against a Transfer by
operation of law, including without limitation, an amalgamation. No Transfer
will take place by reason of a failure by the Landlord to give notice to the
Tenant within thirty (30) days as required by Section 10.1(b).
(b) If the Tenant intends to effect a Transfer, in whole or in part, the
Tenant will give prior written notice to the Landlord of such intent, specifying
the proposed assignee, subtenant, occupant or other Person taking the Transfer
(collectively, the "Transferee") and providing such information with respect
thereto including, without limitation, information concerning the principals
thereof and as to any credit, financial or business information relating to the
proposed Transferee, as the Landlord or the Mortgagee requires. The Landlord
will, within thirty (30) days after having received such notice and all such
necessary information, notify the
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Tenant in writing either that (i) it consents or does not consent to the
Transfer in accordance with the provisions and qualifications of Section
10.1(a),
(c) If there is a permitted Transfer, the Landlord may collect Rent from
the Transferee and apply the net amount collected to the Rent required to be
paid pursuant to this Lease, but no acceptance by the Landlord of any payments
by a Transferee will be deemed a waiver of this covenant, or the acceptance of
the Transferee as Tenant, or a release of the Tenant from the further
performance by the Tenant of its covenants or obligations contained in this
Lease. Any document evidencing the Transfer will be prepared by the Landlord or
its solicitors, and all reasonable legal costs with respect thereto will be paid
by the Tenant to the Landlord or its solicitors within five (5) days after
demand as Additional Rent. Any consent by the Landlord will be subject to the
Tenant executing and causing the Transferee to promptly execute an agreement
directly with the Landlord agreeing (i) to be bound by all of the terms,
covenants and conditions contained in this Lease as if the Transferee had
originally executed this Lease as Tenant. Notwithstanding any Transfer, the
Tenant will be jointly and severally liable with the Transferee on this Lease
and will not be released from performing any of the terms, covenants and
conditions of this Lease.
Section 10.2 No Advertising of the Leased Premises
The Tenant will not print, post, display or broadcast any notice or
advertisement, for the purpose of a Transfer, and it will not permit any broker
or other Person to do any of the foregoing, unless the complete text and format
of any such notice or advertisement is first approved in writing by the
Landlord, acting reasonably. In no event, will any text or format proposed by
the Tenant contain any reference to the rental rate of the Leased Premises.
Section 10.3 Corporate Ownership
(a) If the Tenant is a corporation or if the Landlord has consented to a
Transfer of this Lease to a corporation, any transfer or issue by sale,
assignment, bequest, inheritance, operation of law or other disposition, or by
subscription from time to time of all or any part of the corporate shares of the
Tenant or of any holding body corporate or subsidiary body corporate of the
Tenant or any corporation which is affiliated with the Tenant (as those terms
are defined pursuant to the Canada Business Corporations Act and amendments
thereto), which results in any change in the present effective voting control of
the Tenant by the Person holding such voting control at the date of execution of
this Lease (or at the date a Transfer of this Lease to a corporation is
permitted) will for the purposes of this Section 10.3 be deemed to be a Transfer
and the provisions of Sections 10.1(a) to 10.1(d), inclusive, will apply to a
Transfer under this Section 10.3.
(b) The Tenant will (i) when requesting consent to a Transfer pursuant to
Section 10.3(a), provide the Landlord with such information as to the proposed
purchaser as the Landlord requires including, without limitation, information
concerning creditworthiness, financial standing and business history; and (ii)
make available to the Landlord, or its lawful representatives, such corporate
books and records of the Tenant for inspection at all reasonable times
necessary, to ascertain whether there has been any change in control of the
Tenant.
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(c) However, this Section 10.3 shall not apply to the Tenant if the Tenant
is a public corporation whose shares are traded and listed on any recognized
stock exchange in Canada or the United States, and so long as the Landlord
receives assurances satisfactory to the Landlord that there will be a continuity
of management, of the Tenant, and of its business practices and policies,
notwithstanding any such Transfer pursuant to Section 10.3(a).
Section 10.4 Assignment by the Landlord
If there is a sale, lease or other disposition by the Landlord of the
Building and the Lands, or any part thereof, or the assignment by the Landlord
of this Lease or any interest of the Landlord hereunder, and to the extent that
the purchaser or assignee thereof assumes the covenants and obligations of the
Landlord hereunder, the Landlord will, thereupon and without further agreement,
be relieved of all liability with respect to its covenants and obligations.
ARTICLE 11
Access and Alterations
Section 11.1 Right of Entry
(a) The Landlord and its agents have the right to enter the Leased Premises
at all reasonable times (except in the event of an emergency, when the Landlord
can enter at any time) to show them to prospective purchasers, lessees (during
the last six (6) months of the Term or any renewal) or mortgagees, and to
examine the Leased Premises and to make repairs, alterations or changes to the
Leased Premises or the Building, or any part thereof, as the Landlord considers
necessary including, without limitation, the pipes, conduits, wiring, ducts and
other installations of any kind in the Leased Premises where necessary to serve
another part of the Building. ALTERATIONS AND CHANGES TO BE MADE AT THE
LANDLORD'S SOLE EXPENSE. For this purpose, the Landlord may take all required
material into and upon the Leased Premises and may have access to the underfloor
ducts and access panels to mechanical shafts and the Landlord has the right to
check, calibrate, adjust and balance controls and other parts of the heating,
ventilating, air-conditioning and climate control systems. The Rent will not
abate or be reduced while any such repairs, alterations or changes are being
made due to loss or interruption of business of the Tenant or otherwise, and the
Landlord will not be liable for any damage, injury or death caused to any
Person, or to the property of the Tenant or of others located on the Leased
Premises as a result of such entry. The Tenant shall not unduly obstruct any
such pipes, conduits, ducts or mechanical shafts so as to prevent reasonable
access thereto.
(b) If the Tenant is not present to open and permit an entry into the
Leased Premises, at the time that an entry is necessary or permissible, the
Landlord or its agents may, in the case of an emergency, real or reasonably
apprehended, forcibly enter the Leased Premises, without rendering the Landlord
or such agents liable therefor, and without in any manner affecting the
obligations and covenants of this Lease. Nothing herein contained, however, is
deemed or construed to impose upon the Landlord any obligation, responsibility
or liability whatsoever for the care, maintenance or repair of the Leased
Premises, or any part thereof, except as otherwise herein specifically provided.
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ARTICLE 12
Status Statement, Attornment and Subordination
Section 12.1 Status Statement
Within ten (10) days after written request by the Landlord, the Tenant will
deliver in a form supplied by the Landlord, a status statement or a certificate
(which will be certified by the Tenant to be accurate) to any proposed
purchaser, assignee, lessor or mortgagee, or to the Landlord, stating (if such
is the case),
(a) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect as
modified and identifying the modification agreements) or if this Lease is not in
full force and effect, the certificate shall so state;
(b) the Commencement Date;
(c) the date to which Basic Rent and Additional Rent have been paid under
this Lease;
(d) whether or not there is any existing default by the Tenant in the
payment of any Rent under this Lease, and whether or not there is any other
existing or alleged default by either party under this Lease with respect to
which a notice of default has been served and if there is any such default,
specifying the nature and "extent thereof.
(e) where there are any defences or counter-claims against enforcement of
the obligations to be performed by the Tenant under this Lease; and,
(f) with reasonable particularity, details respecting the Tenant's and any
Indemnifier's financial standing and corporate organization.
Section 12.2 Subordination and Attornment
(a) This Lease and the rights of the Tenant hereunder are, and will at all
times be, subject and subordinate to any and all ground or underlying leases,
mortgages, trust deeds, financing, refinancing or collateral financing and the
instruments, as well as the charge or lien resulting from, all or any of the
foregoing, and any renewals or extensions from time to time (collectively, the
"Encumbrances"). Upon request, the Tenant will subordinate this Lease and all of
its rights hereunder in such form as the Landlord requires to any Encumbrance
and, if requested, the Tenant will attorn to the holder of any such Encumbrance
(the "Encumbrancer"). THE LANDLORD AGREES TO USE REASONABLE EFFORTS TO OBTAIN
NONDISTURBANCE AGREEMENTS FROM ALL MORTGAGEES.
(b) The Tenant will, if possession is taken under, or any proceedings are
brought for possession under or the foreclosure of, or in the event of the
exercise of the power of
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sale under, any Encumbrance, attorn to the Encumbrancer or the purchaser upon
any such foreclosure, sale or other proceeding and recognize the Encumbrancer or
purchaser as the Landlord under this Lease.
Section 12.3 Attorney
The Tenant will, upon request of the Landlord or any Encumbrancer, execute
and deliver promptly all statements, instruments and certificates to carry out
the intent of Sections 12.1 and 12.2. If ten (10) days after the date of the
request by the Landlord, the Tenant has not executed the same, the Tenant
irrevocably appoints the Landlord as the Tenant's attorney with full power and
authority to execute and deliver in the name of the Tenant any such statements,
instruments or certificates.
Section 12.4 Financial Information
The Tenant will, upon request, provide the Landlord with such information
as to the Tenant's or any Indemnifier's financial standing and corporate
organization as the Landlord or the Mortgagee reasonably requires.
ARTICLE 13
Default
Section 13.1 Right to Re-enter
If and whenever:
(a) the Tenant fails to pay any Rent or other sum due hereunder on the day
or dates appointed for the payment (provided the Landlord first gives five (5)
days' written notice to the Tenant of any such failure); or
(b) the Tenant fails to observe or perform any other of the terms,
covenants or conditions of this Lease to be observed or performed by the Tenant
(other than the terms, covenants or conditions set out below in subparagraphs
(c) to (k), inclusive, for which no notice shall be required) provided the
Landlord first gives the Tenant ten (10) days', or such shorter period of time
as is otherwise provided in this Lease, written notice of any such failure to
perform and the Tenant within such period of ten (10) days fails to commence
diligently and thereafter to proceed diligently to cure any such failure to
perform; or
(c) the Tenant or any Indemnifier becomes bankrupt or insolvent or takes
the benefit of any act now or hereafter in force for bankrupt or insolvent
debtors or files any proposal or makes any assignment for the benefit of
creditors or any arrangement or compromise; or
(d) a receiver or a receiver-manager is appointed for all or a portion of
the Tenant's or Indemnifier's property; or
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(e) any steps are taken or any action or proceedings are instituted by the
Tenant or by any other Person for the dissolution, winding-up or liquidation of
the Tenant or its assets; or
(f) the Tenant makes a sale in bulk of any of its assets, wherever
situated, (other than a bulk sale to a permitted Transferee in compliance with
the Bulk Sales Act (Ontario));
(g) the Tenant abandons or attempts to abandon the Leased Premises, or
sells or disposes of the trade fixtures, goods or chattels of the Tenant or
removes them from the Leased Premises so that there would not in the event of
such sale or disposal be sufficient trade fixtures, goods or chattels of the
Tenant on the Leased Premises subject to distress to satisfy all Rent due or
accruing hereunder for a period of at least six (6) months; or
(h) the Leased Premises become and remain vacant for a period of five
(5) consecutive days or are used by any Persons other than such as are entitled
to use them; or
(i) the Tenant effects or permits a Transfer without the Landlord's
consent; or
(j) this Lease or any of the Tenant's assets are taken under any writ of
execution; or
(k) re-entry is permitted under any other terms of this Lease,
then the Landlord, in addition to any other rights or remedies it has pursuant
to this Lease or by law, has the immediate right of re-entry upon the Leased
Premises and it may repossess the Leased Premises and enjoy them as of its
former estate and may expel all Persons and remove all property from the Leased
Premises and such property may be removed and sold or disposed of by the
Landlord as it deems advisable or may be stored in a public warehouse or
elsewhere at the cost and for the account of the Tenant, all without service of
notice or resort to legal process and without the Landlord being considered
guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby.
Section 13.2 Right to Relet
(a) If the Landlord elects to re-enter the Leased Premises or if it takes
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, it may either terminate this Lease or it may from time to time without
terminating this Lease, make any alterations and repairs as are necessary in
order to relet the Leased Premises, or any part thereof, for such term or terms
(which may be for a term extending beyond the Term) and at such rent and upon
such other terms, covenants and conditions as the Landlord in its sole
discretion considers advisable. Upon each reletting all Rent received by the
Landlord will be applied, first to the payment of any indebtedness other than
Rent due hereunder from the Tenant to the Landlord; second, to the payment of
any costs and expenses of reletting, including brokerage fees and solicitor's
fees and the costs of alterations and repairs; third, to the payment of Rent due
and unpaid hereunder; and the residue, if any, will be held by the Landlord and
applied in payment of
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future Rent as the same becomes due and payable hereunder. If the rent received
from such reletting during any month is less than that payable by the Tenant
under the terms of this Lease, the Tenant will pay any such deficiency in
advance on the first day of each month. No re-entry or taking possession of the
Leased Premises by the Landlord will be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to the
Tenant. Notwithstanding any reletting without termination the Landlord may at
any time thereafter elect to terminate this Lease for the previous breach.
(b) If the Landlord terminates this Lease, in addition to any other
remedies it may have, the Landlord may recover from the Tenant all damages it
incurs by reason of the Tenant's breach, including the cost of recovering the
Leased Premises, solicitor's fees (on a solicitor and his client basis) and
including the worth at the time of such termination of the excess, if any, of
the amount of Basic Rent, Additional Rent and other charges required to be paid
pursuant to this Lease for the remainder of the stated Term over the then
reasonable rental value of the Leased Premises for the remainder of the stated
Term, all of which amounts shall be immediately due and payable by the Tenant to
the Landlord. In any of the events referred to in Section 13.1, in addition to
all other rights, including the rights referred to in this Section and in
Section 13.1, the full amount of the current month's installment of Basic Rent
and all Additional Rent payments for the current month and any other payments
required to be made monthly hereunder, together with the next three (3) months'
installments of Basic Rent and all Additional Rent and such other payments for
the next three (3) months, all of which will be deemed to be accruing due on a
day-to-day basis, will immediately become due and payable as accelerated rent,
and the Landlord may immediately distrain for the same, together with any
arrears then unpaid.
Section 13.3 Expenses
If legal action is brought for recovery of possession of the Leased
Premises, for the recovery of Basic Rent and Additional Rent or any other amount
due under this Lease, or because of the breach of any other of the Tenant's
obligations, the Tenant will pay to the Landlord all expenses incurred therefor,
including a solicitor's fee (on a solicitor and his client basis), unless a
court otherwise awards.
Section 13.4 Waiver of Exemption from Distress
The Tenant agrees that notwithstanding anything contained in Section 30 of
the Landlord and Tenant Act (Ontario) or any statute or provision subsequently
passed to take the place of or amend the Act, none of the goods and chattels of
the Tenant which are on, or have at any time been on, the Leased Premises will
be exempt from levy by distress for Rent in arrears by the Tenant.
Section 13.5 Landlord May Cure the Tenant's Default or Perform the Tenant's
Covenants
If the Tenant fails to pay when due any Rent which is payable to third
parties, the Landlord, after giving five (5) days' notice in writing to the
Tenant, may, but shall not be obligated to, pay all or any part of the Rent. If
the Tenant is in default in the performance of any
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of its other covenants or obligations under this Lease (other than the payment
of Rent) the Landlord may, but shall not be obligated to, after giving such
notice as it considers sufficient (or without notice in the case of an
emergency) perform or cause to be performed any of such covenants or
obligations, and for such purpose may do such things as may be required
including, without limitation, entering upon the Leased Premises and doing all
things upon or in respect of the Leased Premises as the Landlord reasonably
considers necessary. All expenses incurred and expenditures made by the Landlord
plus a sum equal to fifteen percent (15%) thereof representing the Landlord's
overhead shall be paid by the Tenant as Additional Rent within five (5) days
after demand. The Landlord will have no liability to the Tenant for any loss or
damages resulting from any such entry by the Landlord upon the Leased Premises
pursuant to this Section 13.5.
Section 13.6 Additional Rent
If the Tenant is in default in the payment of any amounts or charges
required to be paid pursuant to this Lease, they shall, if not paid when due, be
collectible as Additional Rent within five (5) days after demand, but nothing
herein contained is deemed to suspend or delay the payment of any amount of
money at the time it becomes due and payable hereunder, or limit any other
remedy of the Landlord. The Landlord may, at its option, apply or allocate any
sums received from or due to the Tenant against any amounts due and payable
under this Lease in any manner as the Landlord deems advisable.
ARTICLE 14
Miscellaneous
Section 14.1 Rules and Regulations
The Rules and Regulations adopted and promulgated by the Landlord from time
to time including, without limitation, those set out in Schedule "E" attached,
are made a part of this Lease as if they were embodied herein, and the Tenant
will comply with and observe all Rules and Regulations as though they were
covenants. The Rules and Regulations may differentiate between different types
of businesses in the Building, but the Rules and Regulations will be adopted and
promulgated by the Landlord acting reasonably and in such manner as would a
prudent landlord of a reasonably similar office building. The Tenant's failure
to keep and observe the Rules and Regulations constitutes a default under this
Lease. The Landlord reserves the right from time to time to amend or supplement
the Rules and Regulations applicable to the Leased Premises or the Building as
in the Landlord's judgment are from time to time needed for the safety, care,
cleanliness and more efficient operation of the Building. Notice of the Rules
and Regulations and amendments and supplements, if any, will be given to the
Tenant and the Tenant will thereupon comply with and observe all such Rules and
Regulations, provided that no Rules and Regulations will contradict any
provisions of this Lease. The Landlord agrees to make reasonable efforts but is
not under any obligation to enforce the Rules and Regulations against other
tenants in the Building and is not responsible to the Tenant for the
non-observance of any Rules or Regulations by any of the other tenants in the
Building.
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Section 14.2 Intent and Interpretation
(a) Net Lease
The Tenant acknowledges that it is intended that this Lease is a completely
carefree net lease to the Landlord, except as expressly herein set out, that the
Landlord is not responsible during the Term for any costs, charges, expenses and
outlays of any nature whatsoever arising from or relating to the Leased
Premises, or the use and occupancy thereof, and the Tenant will pay all charges,
impositions, costs and expenses of every nature and kind relating to the Leased
Premises, except as expressly herein set out.
(b) Obligations as Covenants
Each obligation or agreement of the Landlord or the Tenant expressed in
this Lease, even though not expressed as a covenant, is considered to be a
covenant for all purposes.
(c) Captions and Section Numbers
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 define, limit, construe or describe the scope or intent of such sections or
articles of this Lease nor in any way affect this Lease.
(d) Extended Meanings
The words "hereof", "herein", "hereunder" and similar expressions used in
any Section or subsection of this lease relate to the whole of this Lease and
not to that Section or subsection only, unless otherwise expressly provided. The
use of the neuter singular pronoun to refer to the Landlord or the Tenant is
deemed a proper reference even though the Landlord or the Tenant is an
individual, a partnership, a corporation or a group of two or more individuals,
partnerships or corporations. The necessary grammatical changes required to make
the provisions of this Lease apply in the plural sense where there is more than
one Landlord or Tenant and to either corporations, associations, partnerships,
or individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
(e) Partial Invalidity
If any term, covenant or condition of this Lease, or the application
thereof to any Person or circumstance, is to any extent held or rendered
invalid, unenforceable or illegal, then such term, covenant or condition:
(i) is deemed to be independent of the remainder of the Lease and to
be severable and divisible therefrom, and its invalidity, unenforceability or
illegality does not affect, impair or invalidate the remainder of the Lease or
any part thereof; and
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(ii) continues to be applicable to and enforceable to the fullest
extent permitted by law against any Person and circumstances other than those as
to which it has been held or rendered invalid, unenforceable or illegal.
Neither party is obliged to enforce any term, covenant or condition of this
Lease against any Person, if, or to the extent by so doing, such party is caused
to be in breach of any laws, rules, regulations or enactments from time to time
in force.
(f) Entire Agreement
This Lease and the Schedules and Riders, if any, attached, together with
the Rules and Regulations, set forth all the covenants, promises, agreements,
conditions and understandings between the Landlord and the Tenant concerning the
Leased Premises and there are no other covenants, promises, agreements,
conditions or understandings, either oral or written, between them. No
alteration, amendment or addition to this Lease will be binding upon the
Landlord or the Tenant unless in writing and signed by the Tenant and the
Landlord.
(g) Governing Law
This Lease will be construed in accordance with and governed by the laws of
the Province of Ontario.
(h) Time of the Essence
Time is of the essence of this Lease and of every part hereof.
Section 14.3 Overholding - No Tacit Renewal
If the Tenant remains in possession of the Leased Premises after the end of
the Term without having executed and delivered a new lease or an extension
agreement, there is no tacit renewal of this Lease, notwithstanding any
statutory provisions or legal presumption to the contrary, and the Tenant will
be deemed to be occupying the Leased Premises as a tenant from month to month at
a monthly Basic Rent equal to twice the monthly amount of Basic Rent for the
last month of the Term calculated in accordance with Section 1.1(d) and
otherwise, upon the same terms, covenants and conditions as are set forth in
this Lease (including the payment of all Additional Rent), so far as these are
applicable to a monthly tenancy.
Section 14.4 Successors
All rights and liabilities under 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. as the case may be. No
rights, however, will enure to the benefit of any Transferee of the Tenant
unless the Transfer has been consented to by the Landlord in writing as provided
in Section 10.1. If there is more than one Tenant, they are all bound jointly
and severally by the terms, covenants and conditions of this Lease.
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Section 14.5 Tenant Partnership
If the Tenant is a partnership (the "Tenant Partnership") each Person who
is presently a member of the Tenant Partnership, and each Person who becomes a
member of any successor Tenant Partnership will be and continue to be liable
jointly and severally for the full and complete performance of, and will be and
continue to be subject to, the terms, covenants and conditions of this Lease,
whether or not such Person ceases to be a member of such Tenant Partnership or
successor Tenant Partnership.
Section 14.6 Waiver
The waiver by the Landlord of any breach of any term, covenant or condition
contained in this Lease is not deemed to be a waiver of such term, covenant or
condition or of any subsequent breach of the same or of any other term, covenant
or condition contained in this Lease. The subsequent acceptance of Rent by the
Landlord is not deemed to be a waiver of any preceding breach by the Tenant of
any term, covenant or condition of this Lease. regardless of the Landlord's
knowledge of such preceding breach at the time of acceptance of Rent. No term,
covenant or condition of this Lease is deemed to have been waived by the
Landlord unless such waiver is in writing by the Landlord.
All Basic Rent and Additional Rent to be paid by the Tenant to the Landlord
will be paid without any deduction, abatement, set-off or compensation
whatsoever (except for the Basic Rent to the extent it may be abated pursuant to
Section 9.1), and the Tenant hereby waives the benefit of any statutory or other
rights in respect of abatement, set-off or compensation in its favour at the
time hereof or at any future time.
Section 14.7 Accord and Satisfaction
No payment by the Tenant or receipt by the Landlord of a lesser amount than
the monthly payment of Basic Rent or Additional Rent herein stipulated is deemed
to be other than on account of the earliest stipulated Basic Rent or Additional
Rent, nor is any endorsement or statement on any cheque or any letter
accompanying any cheque or payment of Rent deemed an acknowledgment of full
payment or accord and satisfaction, and the Landlord may accept and cash any
cheque or payment without prejudice to the Landlord's right to recover the
balance of the Rent due or pursue any other remedy provided in this Lease.
Section 14.8 No Partnership or Agency
The Landlord does not in any way or for any purpose become a partner of the
Tenant in the conduct of its business, or otherwise, or a joint venturer or a
member of a joint enterprise with the Tenant, nor is the relationship of
principal and agent created.
Section 14.9 Force Majeure
Notwithstanding anything in this Lease, if either party is bona fide
delayed or hindered in or prevented from the performance of any term, covenant
or act required hereunder
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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
work or doing acts required under the terms of this Lease, then the performance
of that term, covenant or act is excused for the period of the delay and the
party delayed will be entitled to perform such term, covenant or act within the
appropriate time period after the expiration of the period of such delay.
However, the provisions of this Section do not operate to excuse the Tenant from
the prompt payment of Rent.
Section 14.10 Notices
Any notice, demand, request or other instrument which may be or is required
to be given under this Lease will be delivered in person or sent by registered
mail postage prepaid and will be addressed (a) if to the Landlord, to c/o the
address specified in Paragraph (h) of the Special Provisions, or to such other
Person or at such other address as the Landlord designates by written notice,
and (b) if to the Tenant, at the Leased Premises or, at the Landlord's option,
to the Tenant's office at the address specified in Paragraph (i) of the Special
Provisions. Any notice, demand, request or consent is conclusively deemed to
have been given or made on the day upon which it is delivered, or, if mailed,
then seventy-two (72) hours following the date of mailing, as the case may be.
Either party may at any time give written notice to the other of any change of
its address and thereafter the new address is deemed to be the address of that
party for the giving of notices hereunder. If the postal service is interrupted
or is substantially delayed, any notice, demand, request or other instrument
will be delivered in person.
Section 14.11 No Option
The submission of this Lease for examination does not constitute a
reservation of or option to lease, for the Leased Premises and this Lease
becomes effective as a lease only upon its execution and delivery by the
Landlord and the Tenant.
Section 14.12 Registration
Neither the Tenant, nor any one on the Tenant's behalf or claiming under
the Tenant, will register this Lease or any assignment or sublease of this Lease
or any document evidencing any interest of the Tenant in the Lease or the Leased
Premises, against the Lands (or any part thereof) comprising the Building or the
Leased Premises. If either party intends to register a document for the purpose
only of giving notice of this Lease or of any assignment or sublease of this
Lease, then, upon the request of either party, the other will join in the
execution of a short form or notice of this Lease (the "Short Form") which will
(i) be prepared by the Landlord or its solicitors at the Tenant's expense; (ii)
only describe the parties, the Leased Premises and the Commencement Date and the
expiration date of the Term; and (iii) at the Landlord's option, be accompanied
by a registrable power of attorney whereby the Tenant appoints the Landlord as
its attorney to execute any instruments required under Article XII. All costs,
expenses and taxes necessary to register or file the Short Form will be the sole
responsibility of the Tenant.
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Section 14.13 Directory Board
The Tenant will be entitled at Landlord's expense to have its name shown
upon the directory board of the Building. The Landlord will design the style of
such identification and the directory board will be located in an area
designated by the Landlord in the main lobby of the Building.
Section 14.14 Accrual of Basic Rent and Additional Rent
Basic Rent and Additional Rent will be considered as annual and accruing
from day to day and where it becomes necessary for any reason to calculate Rent
for an irregular period of less than one (1) year, an appropriate apportionment
and adjustment shall be made.
Section 14.15 Compliance with the Planning Act
It is a condition of this Lease that the subdivision control provisions of
the Planning Act (Ontario), and amendments thereto, be complied with if they
apply. If the provisions of the Planning Act do apply, then until any necessary
consent to the Lease is obtained, the Term (including any extensions thereof)
and the Tenant's rights and entitlement granted by this Lease are deemed to
extend for a period not exceeding twenty-one (21) years less one (l) day from
the Commencement Date.
Section 14.16 Survival of Covenants
The Tenant's obligation to observe and perform its covenants and agreements
under this Lease, including without limitation, any obligations on its behalf
(i) to make any necessary re-adjustments on account of Rent, or (ii) to repair
the Leased Premises or remove its trade fixtures and leasehold improvements as
required by the Landlord, will survive the expiration of the Term or earlier
termination of this Lease.
Section 14.17 Quiet Enjoyment
If the Tenant pays the Rent and observes and performs its terms, covenants
and conditions contained in this Lease, the Tenant will peaceably and quietly
hold and enjoy the Leased Premises for the Term without hindrance or
interruption by the Landlord, or any other Person lawfully claiming by, through
or under the Landlord unless otherwise permitted by the terms of this Lease. The
Tenant acknowledges that the exercise by the Landlord of any of the rights
conferred on the Landlord under this Lease and the entry upon the Leased
Premises for or in connection with such purposes will not be deemed to be a
constructive or actual eviction of the Tenant and will not be considered to be a
breach of the Landlord's covenant for quiet enjoyment.
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IN WITNESS WHEREOF, the Landlord and the Tenant have signed and sealed this
Lease.
SIGNED, SEALED AND DELIVERED ) 20 ADELAIDE ST. EAST,
in the presence of: ) A CO-OWNERSHIP
) (Landlord)
)
)
) Per:
) -----------------------------
) Per:
) -----------------------------
)
) PARAGON MANAGEMENT SYSTEMS
) (CANADA) INC.
)
) (Tenant)
)
)
) Per:
) -----------------------------
) Per:
) -----------------------------
)
) I/We have the authority to bind the
) Corporation.
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SCHEDULE "A"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
LEGAL DESCRIPTION OF THE LANDS
In the City of Toronto, in the Municipality of Metropolitan Toronto and
Province of Ontario, being composed of Part of Town Lot 1 on the north side of
Newgate Street, now Adelaide Street East and part of Old Toronto Street, closed
by Act of Parliament in 1810, according to the Town of York Plan registered in
the Land Registry Office for the Registry Division of Toronto (No. 63), the said
parcel of land being designated as Part 1 on a Plan of Survey deposited in the
said Land Registry Office as 63R-3209.
The northerly limit of Adelaide Street East as confirmed under the
Boundaries Act by Plan BA-789 registered on December 30, 1975 as Instrument No.
CT 157878.
The westerly limit of Victoria Street as confirmed under the Boundaries Act
by Plan BA-2189 registered on April 26, 1985.
Together with the easement over Part 2 on the said Reference Plan 63R-3209
as set out in Instrument No. CT 736794.
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SCHEDULE "B"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
[FLOOR PLAN OF PREMISES THAT IS LOCATED ON THE 8TH FLOOR OF THE BUILDING,
WITH RENTABLE AREA OF APPROXIMATELY 11,700 SQ FT.]
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SCHEDULE "C"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
CONSTUCTION OF THE BUILDING AND THE LEASED PREMISES
INTENTIONALLY DELETED
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SCHEDULE "D"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
INTENTIONALLY DELETED
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SCHEDULE "E"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
RULES AND REGULATIONS
1. The Tenant will not place or permit any debris, garbage, trash or
refuse to be placed or left in or upon any part of the Building outside of the
Leased Premises.
2. The Landlord will permit the Tenant and the Tenant's employees and all
Persons lawfully requiring communication with them to have the use during Normal
Business Hours in common with others entitled thereto of the main entrance and
the stairways, corridors, elevators or other mechanical means of access leading
to the Leased Premises, together with the Common Areas and Facilities located on
the Tenant's floor of the Building. At times other than during Normal Business
Hours the Tenant and its employees will have access to the Building and to the
Leased Premises only in accordance with the Rules and Regulations and will 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 purpose. 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. In addition,
the Landlord is not required to open the door to the Leased Premises for the
purpose of permitting entry therein to any Person not having a key to the Leased
Premises.
3. The Landlord will permit the Tenant and its employees in common with
others entitled thereto, to use the washrooms on the Tenant's floor of the
Building or, in lieu thereof, those washrooms designated by the Landlord.
4. The Tenant will permit window cleaners to clean the windows of the
Leased Premises during Normal Business Hours.
5. The sidewalks, entrances, passages, escalators, elevators and
staircases will not be obstructed or used by the Tenant, its agents, servants,
contractors, invitees or employees for any purpose other than ingress to and
egress from the Leased Premises and the Building. The Landlord reserves the
entire control of all parts of the 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 Leased 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 will have the right to place such signs
and appliances therein, as it deems advisable, provided that ingress to and
egress from the Leased Premises is not unduly impaired thereby.
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6. The Tenant, its agents, servants, contractors, invitees or employees,
will not bring in or take out, position, construct, install or move any safe or
other heavy machinery or equipment or anything liable to injure or destroy any
part of the Building, including the Leased Premises, without first obtaining the
written consent of the Landlord. The Landlord will have the right to prescribe
the weight permitted and the position thereof, and the use and design of planks,
skids or platforms, to distribute the weight. All damage done to any part of the
Building by moving or using any such heavy equipment or other office equipment
or furniture will be repaired at the expense of the Tenant. The moving of all
heavy equipment or other office equipment or furniture will occur only by prior
arrangement with the Landlord. The Tenant will not employ anyone to do its
moving in the Building, including the Leased Premises, other than the staff of
the Building, unless permission to employ anyone else is given by the Landlord
and the reasonable cost of such moving will be paid by the Tenant. Safes and
other heavy office equipment and machinery will be moved through the halls and
corridors only upon steel bearing plates. No freight or bulky matter of any
description will be received into the Building or carried in the elevators
except during hours approved by the Landlord acting reasonably.
7. The Tenant will not place or cause to be placed any additional locks
upon any doors of the Leased Premises without the approval of the Landlord and
subject to any conditions imposed by the Landlord. Two keys will be supplied to
the Landlord for each entrance door to the Leased Premises and all locks will be
standard to permit access by the Landlord's master key.
8. The water closets and other water apparatus will not be used for any
purpose other than those for which they were constructed. The Tenant will not
(1) let the water run unless it is in actual use, (2) deface or mark any part of
the Building, including the Leased Premises, (3) drive nails, spikes, hooks or
screws into the walls or woodwork of the Building, including the Leased
Premises, or (4) bore, drill or cut into the walls or woodwork of the Building
including the Leased Premises, in any manner or for any reason without Landlord
consent.
9. No one will use the Leased Premises for sleeping apartments or
residential purposes, or for the long term storage of personal effects or
articles other than those required for business purposes.
10. The Tenant will not permit any cooking or any heating of any foods or
liquid in the Leased Premises without the written consent of the Landlord.
11. Canvassing, soliciting and peddling in or about the Building are
prohibited.
12. No inflammable oils or other inflammable, dangerous or explosive
materials except those approved in writing by the Landlord's or its insurers
will be kept or permitted to be kept in the Leased Premises.
13. No bicycles or other vehicles will be brought within the Building
without the consent of the Landlord.
14. No animals or birds will be brought into the Building without the
consent of the Landlord.
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15. The Tenant will not install or permit the installation or use of any
machine dispensing goods for sale in the Leased Premises or the Building or
permit the delivery of any food or beverage to the Leased Premises without the
approval of the Landlord.
16. No gas pipe or electric wire will be permitted which has not been
ordered or authorized by the Landlord. No outside radio or television aerials
shall be allowed on the Leased Premises without authorization in writing by the
Landlord.
17. The Tenant will not cover or obstruct any of the skylights and windows
that reflect or admit light into any part of the Building, except for the proper
use of approved blinds and drapes.
18. Any hand trucks, carryalls, or similar appliances used in the Building
with the consent of the Landlord, will be equipped with rubber tires, slide
guards and such other safeguards as the Landlord requires.
19. The Tenant will not permit or allow any odours, vapours, steam, water,
vibrations, noises or other undesirable effects to emanate from the Leased
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 by the Landlord or the occupants and tenants thereof
or their agents, servants, invitees or employees.
20. The Tenant will not receive or ship articles of any kind except
through facilities and designated doors and at hours designated by the Landlord
acting reasonably and under the supervision of the Landlord acting reasonably.
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SCHEDULE "F"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
DEFINITIONS
In this Lease and in the Schedules;
1. "Additional Rent" means any and all sums of money or charges required
to be paid by the Tenant under this Lease (except Basic Rent) whether or not the
same are designated "Additional Rent" or are payable to the Landlord or
otherwise, and all such sums are payable in lawful money of Canada without
deduction, abatement, set-off or compensation whatsoever.
2. "Advance Rent" means the amount payable by the Tenant pursuant to and
in the manner set out in Paragraph (e) of the Special Provisions.
3. "Architect" means the architect from time to time named by the
Landlord. The decision of the Architect whenever required by this Lease (or
requested by the Landlord) and any related certificate will be final and binding
on the parties.
4. "Basic Rent" means the annual rent payable by the Tenant pursuant to
and in the manner set out in Section 2.2 of this Lease.
5. "Building" means the multi-storey office building known municipally as
20 Adelaide Street East, Toronto, Ontario, including the Common Areas and
Facilities, and the areas and facilities serving the Building or having utility
in connection therewith as determined by the Landlord, whether or not located
directly under the Building.
6. "Business Day" means any of the days from Monday to Friday of each
week, and Saturday from 7:00 a.m. to 1:00 p.m. of each week, unless any of such
days is a statutory holiday.
7. "Commencement Date" means the date specified in Paragraph (c) of the
Special Provisions. If the Commencement Date is determined in accordance with
Paragraph (c)B(ii) of the Special Provisions, the Landlord shall determine the
actual Commencement Date and shall send a notice to the Tenant advising the
Tenant of the actual Commencement Date and such notice shall form a part of this
Lease.
8. "Common Areas and Facilities" means (a) those areas, facilities,
utilities, improvements, equipment and installations (collectively, the
"facilities") in the Building which, from time to time, are not designated or
intended by the Landlord to be leased to tenants of the Building and (b) those
facilities which serve or are for the benefit of the Building, whether or not
located within, adjacent to, or near the Building and which are designated from
time to time by
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the Landlord as part of the Common Areas and Facilities. Common Areas and
Facilities includes, without limitation, the facilities which are provided or
designated (and which may be changed from time to time) by the Landlord for the
use or benefit of the tenants, their employees, customers and other invitees in
common with others entitled to the use or benefit thereof in the manner and for
the purposes permitted by the Lease.
Without limiting the generality of the foregoing, Common Areas and
Facilities includes the roof, exterior wall assemblies (including weather
walls), exterior and interior structural elements and bearing walls; parking
areas (if any), all vestibules for and entrances and exits thereto and all
structural elements thereof; driveways, truckways and related areas; pedestrian
sidewalks; landscaped and planted areas; public seating and service areas;
corridors and underground or above ground tunnels or passageways; equipment,
furniture, furnishings and fixtures; stairways, escalators, ramps and elevators
and other transportation equipment and systems; tenant common and public
washrooms; telephone, meter, valve, mechanical, mail, storage, service and
janitor rooms and galleries; music, fire prevention, security and communication
systems; general signs; columns, pipes; electrical, plumbing, drainage,
mechanical, and all other installations, equipment or services located therein
or related thereto as well as the structures housing the same (including,
without limitation, the heating, ventilating and air-conditioning system of the
Building).
9. "C.P.I." means the Consumer Price Index (All Items for Regional
Cities) for the Municipality of Metropolitan Toronto (or any index published in
substitution for the Consumer Price Index or any other replacement index
reasonably designated by the Landlord if it is no longer published) published by
Statistics Canada (or by any successor thereof or any other governmental agency
including a provincial agency). In the case of any required substitution, the
Landlord shall be entitled to make all necessary conversions for comparison
purposes.
10. "Full Floor Rentable Area of the Leased Premises" means the area
expressed in square feet and in square metres set out in Paragraph (a) of the
Special Provisions and determined in accordance with the method of floor
measurement as set forth in Schedule "D" attached.
11. "Indemnifier' means the Person described in Paragraph (j) of the
Special Provisions who has executed or agreed to execute the Indemnity Agreement
which is attached to this Lease as Appendix "A", if applicable.
12. "Landlord" means the party of the First Part. Wherever the word
"Landlord" is used in this Lease, it is deemed to have the same meaning as
"lessor", and includes the Landlord and its duly authorized representatives.
13. "Lands" means the lands underneath, adjacent and appurtenant to the
Building, as more particularly described in Schedule "A" attached or as such
Lands may be altered, expanded or reduced from time to time.
14. "Leased Premises" means the premises leased to the Tenant as referred
to and described in Section 1.1 hereof.
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15. "Mortgagee" means any mortgagee or chargee (including any trustee for
bondholders), from time to time, of the Building and the Lands, or any part
thereof, or the Landlord's or the owners of the Building's or the Land's
interest in them. The security documents held by the Mortgagee and any ground or
underlying leases affecting the Lands or the Building are referred to as
"Encumbrances", as more particularly defined in Section 12.2.
16. "Net Rentable Area of the Leased Premises" means the area expressed in
square feet and in square metres set out in Paragraph (a) of the Special
Provisions and determined in accordance with the method of floor measurements
set forth in Schedule "D" attached.
17. "Normal Business Hours" means the hours from 7:00 a.m. to 6:00 p.m. on
Mondays to Fridays and the hours from 7:00 a.m. to 1:00 p.m. on Saturdays,
unless any of such days is a statutory holiday.
18. (a) "Operating Costs" means the total amounts incurred, paid or
payable whether by the Landlord or by others on behalf of the Landlord for the
maintenance, insurance, operation, repair, replacement and administration of the
Building and the Lands, calculated as if the Building were fully leased,
occupied and operational during each Rental Year of the Term.
(b) Operating Costs include, without limitation and without
duplication, the aggregate of:
(i) the total annual costs and expenses (after deducting
recoveries from tenants, pursuant to clauses similar to Section 7.2 of the Lease
under leases for premises in the Building) of insuring the Lands, the Building
and the improvements and equipment and other property servicing the Building
from time to time, owned or operated by the Landlord or for which the Landlord
is legally liable, in accordance with Section 7.5;
(ii) cleaning (including window cleaning), snow removal, garbage
and waste collection and disposal, including, without limitation, those costs
referred to in Section 4.2(c);
(iii) the aggregate of the costs and amounts paid for (1) all
fuel used in heating, including the purchase of steam; (2) all electricity
furnished by the Landlord to the Building other than electricity exclusively
furnished to and paid for by tenants; (3) all hot and cold water other than that
chargeable to tenants by reason of their extraordinary consumption of water; (4)
climate control; (5) telephone and other utility costs, used in the maintenance
and operation of the Building; and (6) installing and maintaining energy
conservation equipment and safety or life support systems in any portion of the
Building;
(iv) the costs of policing, security and supervision, including
all rental and other costs incurred in respect of the management office for the
Building;
(v) salaries, wages and other amounts paid or payable for all
personnel including the Building manager, superintendent, operating and
maintenance staff, end other employees of the Landlord involved in the
maintenance and operation of the Building and the
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Lands, including contributions and premiums towards reasonable fringe benefits,
unemployment and Workmen's Compensation insurance, pension plan contributions
and similar premiums and contributions and the total charges of any independent
contractors or managers engaged in the repair, care, maintenance and cleaning of
the Building and any portion of the Lands;
(vi) the cost of the rental of any equipment and signs, and the
cost of supplies, used by the Landlord in the maintenance and operation of the
Building and the Lands;
(vii) heating, ventilating and air-conditioning of the Building,
including the individual premises;
(viii) audit fees and the cost of accounting services incurred in
the preparation of the certificates referred to in this Lease and related
financial statements, and in the computation of the rents and charges payable by
tenants of the Building;
(ix) all repairs (including major repairs) and replacements to
and maintenance (including, without limitation, gardening and landscaping
maintenance, repair and replacement) and operation of the Building, and the
systems, facilities and equipment serving the Building (including, without
limitation, all escalators, elevators, and other transportation equipment and
systems and the heating, ventilating, air-conditioning and climate control
systems serving the Building);
(x) depreciation or amortization of (1) the costs and expenses
including, without limitation, repair and replacement, of all maintenance and
cleaning equipment and master utility meters and all other fixtures, equipment
and facilities serving or comprising the Building (including, without
limitation, all supplies and inventory required for the maintenance, operation
and repair of the Building and the heating, ventilating, air conditioning and
climate control systems serving the Building) which by their nature, require
periodic or substantial repair or replacement, unless, pursuant to Paragraph
18(b)(ix), they are charged fully in the Rental Year in which they are incurred,
in accordance with sound accounting principles, and (2) the costs of
improvements properly charged to capital account which substantially reduce
Operating Costs, amortized over their useful life, as determined by the Landlord
in accordance with sound accounting principles;
(xi) all Capital Taxes as defined in Paragraph 18(c) hereof as
they relate to or are attributed by the Landlord to the Building and the Lands;
(xii) interest calculated at two (2) percentage points above the
average daily prime bank commercial lending rate charged during such Rental Year
by any Canadian chartered bank designated from time to time by the Landlord upon
the undepreciated portion of the original cost of all fixtures, equipment and
facilities referred to in Paragraph 18(b)(x);
(xiii) a fee of five percent (5%) for the administration and
management of the Building and the Lands applied against the Rent payable to the
Landlord by tenants of the Building.
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From the total of the above costs, there is deducted:
(aa) all net recoveries which reduce the Operating Costs received by
the Landlord from tenants as a result of any act, omission, default or
negligence of such tenants or by reason of a breach by such tenants of
provisions in their respective leases (other than recoveries from such tenants
under clauses in their respective leases requiring their contribution to
Operating Costs); and
(bb) net proceeds received by the Landlord from insurance policies
taken out by the Landlord to the extent that such proceeds relate to the
Operating Costs.
(c) Capital Tax is an imputed amount presently or hereafter imposed
from time to time upon the Landlord or the owners of the Building and Lands and
payable by the Landlord or the owners of the Building and Lands (or by any
corporation acting on behalf of the Landlord or the owners) and which is levied
or assessed against the Landlord or the owners on account of its ownership of or
capital employed in the Building and the Lands. Capital Tax shall be imputed as
if the amount of such tax were that amount due if the Building and the Lands
were the only real property of the Landlord and Capital Tax includes the amount
of any capital or place of business tax levied by the provincial government or
other applicable taxing authority against the Landlord with respect to the
Building and the Lands whether or not known as Capital Tax or by any other name.
(d) The Tenant acknowledges that the Total Rentable Area of the
Building contains a retail commercial area on the ground floor of the Building
in addition to the office area of the Building. The Landlord, acting equitably,
may adjust the Operating Costs pursuant to this Paragraph in accordance with
reasonable and current practices relevant to a multi-use commercial building to
include a reasonable proportion of the expenses incurred by or on behalf of
retail and other tenants in the Building who, by agreement with the Landlord, or
otherwise, have undertaken cleaning, maintenance work or other outlays usually
performed by the Landlord to the extent that those expenses if directly carried
out by the Landlord would have been included in Operating Costs.
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SCHEDULE "G"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
INTENTIONALLY DELETED
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SCHEDULE "H"
TENANT: PARAGON MANAGEMENT SYSTEMS (CANADA) INC.
FLOOR NO.: 8TH FLOOR
DATE: AUGUST 30, 1999
LANDLORD'S CLEANING SCHEDULE
ENTRANCE AND MAIN LOBBY
A. NIGHTLY SERVICES
1. Floors will be swept, washed and rinsed using a neutral detergent.
2. Rubber matting and door rats will be thoroughly cleaned.
3. Finger marks and smudges will be removed from walls where wall finishes
permit.
4. Door glass will be cleaned on both sides and metal wiped clean.
5. Directory Board will be cleaned.
6. All horizontal surfaces within normal arm's reach will be dusted using a
traced cloth.
7. Ashtrays and stands will be emptied and wiped clean.
B. PERIODIC SERVICES
1. Floors will be machine scrubbed weekly with a protective non-slip floor
finish applied for surface protection.
2. All horizontal surfaces within normal arm's reach will be dusted monthly.
3. Walls to be kept free of dust.
ELEVATORS
A. NIGHTLY SERVICES
1. Carpets in elevator cabs to be vacuumed and spot cleaned as required.
2. Walls and metal work to be cleaned and polished.
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3. Elevator doors and frames on all floors to be kept clean and free of finger
marks and smudges.
4. Two (2) sets of elevator carpets will be supplied for periodic changing.
The Landlord shall arrange for such changing and the cleaning of each set not
less than twice annually.
5. Threshold plates on elevator cabs and elevator lobby floors to be cleaned
or vacuumed.
B. PERIODIC SERVICES
1. Floors under elevator carpets to be maintained in a clean condition and
detergent washed not less than twice annually.
ELEVATOR LOBBIES AND CORRIDORS
A. NIGHTLY SERVICES
1. Tile floors will be swept with a treated dust mop four (4) nights per week
and on the fifth night will be spray buffed on a rotational basis.
2. All cigarette urns will be emptied and cleaned
3. All horizontal ledges within normal arm's reach will be dusted using a
treated cloth.
4. Drinking fountains will be cleaned and disinfected.
5. All carpeted floors will be vacuumed.
B. PERIODIC SERVICES
1. Tile floors will be stripped and refinished as necessary to maintain a
clean condition and to protect the floor covering. Frequency of stripping will
vary according to traffic and soil conditions throughout the Building and shall
be not less than twice yearly.
2. All baseboards, ledges or other surfaces not reached in nightly dusting
will be dusted not less than once per month using a treated cloth or other
suitable means.
COMMON STAIRS AND LANDINGS
A. NIGHTLY SERVICES
1. Landings will be swept.
2. All doors to be kept free of finger marks and smudges and washed not less
than once per month or as necessary.
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B. PERIODIC SERVICES
1. Handrails, stringers and riser under-sides and ledges where existing will
be dusted or vacuumed weekly.
2. All baseboards, ledges or other surfaces will be dusted with a treated
cloth as necessary but not less than once per month.
3. Stairs will be swept weekly for a three (3) week period. On the fourth
week, stairs and landings will be washed and rinsed.
JANITOR SERVICES ROOMS
1. These rooms will be maintained in a clean and orderly manner at all times.
LEASED PREMISES
A. NIGHTLY SERVICES (Monday to Friday, inclusive, unless any such day is a
holiday)
1. All waste receptacles will be emptied and refuse removed in plastic garbage
bags or other suitable containers to a designated area in the Building for
disposal by others.
2. Waste receptacles will be damp wiped and washed on a rotating basis but not
less than once every two (2) months.
3. All ashtrays will be emptied and cleaned The contents of ashtrays will be
emptied into metal containers and left over night to ensure that any live
cigarettes are extinguished.
4. The horizontal surfaces of fixture, fixtures, desk tops, table tops,
business equipment and other working surfaces will be dusted by means of a
treated feather type or similar hand duster four (4) nights per week and hand
dusted with a treated cloth duster on the fifth night.
5. All other horizontal surfaces within normal arm's reach will be treated as
(4) on the previous page.
Floor Finishes
(a) Tile Floors
1. All floors will be dusted with a treated dust mop.
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(b) Carpeted Floors
1. All carpeted or rug areas to have traffic isles vacuumed. The balance
of the area to receive a litter pick-up by vacuum or carpet sweeper four (4)
nights per week and on the fifth night all carpeted and/or rugged areas to be
thoroughly vacuumed.
2. All carpeted or rug areas to be spot cleaned provided such function
can be carried out by the use of damp sponge. Where special solutions or other
treatments are required, special spot cleaning will be for the Tenant's account.
B. PERIODIC SERVICES
1. Dusting of wall hangings such as pictures, graphs, etc., tops of doors,
high ledges above normal arm's reach to be dusted on a rotational basis, but not
less than once per month.
2. Vertical surfaces, i.e. sides of desks, chairs, tables, filing cabinets and
business equipment to be dusted with a treated dust cloth on a rotational basis
but not less than once per month.
3. All bright work including push plates, kick plates, and the like will be
cleaned as necessary, but no less than once per month.
4. Finger marks will be removed from glass desk or table tops, door glass and
partition glass once per week.
5. Finger marks or smudges will be removed from walls or other painted
surfaces once per week provided such surfaces lend themselves to this type of
cleaning.
6. Venetian blinds will be dusted not less than once every three (3) months
using a feather type hand duster or other suitable means.
Floor Finishes
(a) Tile Floors
1. Tile floors will be spray waxed and buffed every two (2) weeks.
2. Tile floors will be stripped and refinished as required to maintain a
clean condition and protect the tile finish. Frequency of stripping will vary
according to traffic and soil conditions in different tenant areas but shall be
done not less than twice per year.
(b) Carpeted Floors
1. Shampooing and spot cleaning of carpeted and rug areas, other than as
specified under "Nightly Services", Carpeted Floors, item (2) will be as
requested by the Tenant for the Tenant's account and shall not form part of the
Landlord's obligations under this Schedule "H".
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WASHROOMS STANDARD TO THE BUILDING
A. NIGHTLY SERVICES
1. Sweep and wash all floors using a disinfectant.
2. Wash and polish all mirrors, powder shelves, bright work, i.e., faucets,
flushometers, toilet seat hinges.
3. Wash and sanitize all basins, toilet bowls and urinals.
4. Wash and disinfect both sides of all toilet seats.
5. Dust tops of partitions and all other ledges within normal arm's reach.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse in plastic garbage bags or other suitable
containers to a designated area in the Building for disposal by others.
8. Replenish all washroom supplies with materials supplied by the Landlord.
B. PERIODIC SERVICES
1. Partitions and tile walls to be cleaned and disinfected as required but not
less than once per month.
2. Floors shall be machine scrubbed as required but not less than once every
three (3) months.
3. Urinals shall be decalcified as required but not less than once per week.
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