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[LOGO]
MANULIFE FINANCIAL
LEASE AGREEMENT
COFFEE.COM INTERACTIVE CAFE CORP.
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PROPERTY: R.E. 426
BUILDING: MANULIFE HOUSE
603 - 7TH AVENUE S.W.
CALGARY,ALBERTA
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INDEX
PAGE
1. LEASED PREMISES.......................................................... 1
2. TERM
a) Term................................................................ 1
b) Delay in Occupancy.................................................. 1
c) Overholding......................................................... 2
3. RENT
a) Basic Rent.......................................................... 2
b) Additional Rent..................................................... 2
i) Taxes.......................................................... 2
ii) Operating Costs................................................ 2
c) Payment - Additional Rent........................................... 2
d) Accrual of Rent..................................................... 3
e) Recovery of Rent.................................................... 3
f) Limitations......................................................... 3
4. SECURITY DEPOSIT......................................................... 3
5. GENERAL COVENANTS
a) Landlord's Covenant ................................................ 3
b) Tenant's Covenant .................................................. 3
6. USE AND OCCUPANCY
a) Use................................................................. 4
b) Waste, Nuisance, etc................................................ 4
c) Insurance Risks..................................................... 4
d) Compliance with Law................................................. 4
e) Environmental Compliance............................................ 4
f) Rules and Regulations............................................... 4
7. ASSIGNMENT AND SUB-LETTING
a) No Assignment Without Consent....................................... 4
b) Assignment of Obligations........................................... 4
c) Assumption of Obligations........................................... 5
d) Tenants Continuing Obligations...................................... 5
8. REPAIR AND DAMAGE
a) Landlord's Repairs to Building and Property......................... 5
b) Landlord's Repairs to the Leased Premises........................... 5
c) Tenant's Repairs.................................................... 5
d) Indemnification..................................................... 6
e) Damage and Destruction............................................... 6
9. INSURANCE AND LIABILITY
a) Landlord's Insurance................................................ 7
b) Tenant's Insurance.................................................. 7
c) Limitation of Landlord's Liability.................................. 8
d) Indemnity of Landlord............................................... 8
e) Definition of "Insured Damage"...................................... 8
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10. EVENTS OF DEFAULT AND REMEDIES
a) Events of Default and Remedies ................................. 8
b) Payment of Rent, etc. on Termination ........................... 9
ADDITIONAL PROVISIONS
11. Relocation of Leased Premises............................................ 9
12. Subordination and Amount................................................. 10
13. Certificates............................................................. 10
14. Inspection of and Access to the Leased Premises.......................... 10
15. Delay.................................................................... 10
16. Waiver................................................................... 11
17. Sale, Demolition and Renovation.......................................... 11
18. Public Taking............................................................ 11
19. Registration of Lease.................................................... 12
20. Lease Entire Agreement .................................................. 12
21. Notices.................................................................. 12
22. Interpretation........................................................... 12
23. Extent of Lease Obligations.............................................. 12
24. Use and Occupancy Prior to Term ......................................... 13
25. Schedules ............................................................... 13
DEFINITIONS OF PRINCIPAL TERMS PARAGRAPH PAGE
Additional Rent 3(b) 2
Additional Services 4(a) D-1
Basic Rent 3(a) 2
Building 1 1
Debts, Liabilities & Obligations 4 3
Fiscal Period 3(c) 2
Insured Damage 9(e) 8
Landlord 1,11
Landlord's Taxes 2(a) C-1
Leased Premises 1 1
Leasehold Improvements 1 F-1
Landlord's Work 2 F-2
Operating Costs 5 D-2
Property 1 1
Public Taking 18 11
Rent 3(d) 3
Taxes 2(b) C-1
Tenant 1
Tenant's Proportionate Share 2(d) C-2
Tenant's Proportionate Share 7 D-3
Tenant's Taxes 2(c) C-1
Term 2(a) 1
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THIS AGREEMENT made this 20th day of March, 1997.
BETWEEN:
THE MANUFACTURERS LIFE INSURANCE COMPANY,
a body corporate, having its head office
in Toronto, Canada, and having a local
office at SUITE 1475, 550 - 6TH AVENUE S.W.
in the CITY
of CALGARY, PROVINCE OF ALBERTA
(hereinafter called the "Landlord")
OF THE FIRST PART,
--- and ---
COFFEE.COM INTERACTIVE CAFE CORP.
having an office at SUITE 550
603 - 7TH AVE. S.W.
in the City
of CALGARY, PROVINCE OF ALBERTA
(hereinafter called the "Tenant")
OF THE SECOND PART,
In consideration of the rents, covenants and agreements hereinafter
contained, the Landlord and Tenant hereby agree as follows.
1. LEASED PREMISES
LEASED PREMISES
The Landlord does demise and lease to the Tenant the premises (the
"Leased Premises") located in a building (the "Building") having a municipal
address of 603 - 7TH AVENUE S.W. , in the CITY OF CALGARY, PROVINCE OF ALBERTA
and known as MANULIFE HOUSE
(the Leased Premises, the Building, together with the lands described in
Schedule "A" attached hereto and present and future improvements, additions and
changes thereto being herein called the "Property"), the Leased Premises
consisting of approximately TWO THOUSAND EIGHT HUNDRED EIGHTY square feet
rentable (2,880 s.f.r.) on the FIFTH (5th) floor -- as outlined in red on the
plan or plans marked Schedule "B" attached hereto, excluding the exterior
surfaces of the exterior walls of the Leased Premises.
2. TERM
TERM
(a) TO HAVE AND TO HOLD the Leased Premises for and during the term of Five (5)
years and zero (0) days/months (the "Term") to be computed from the 1st day of
MAY, 1997, and to be fully complete and ended on the 30th day of APRIL, 2002,
unless otherwise terminated.
DELAY IN OCCUPANCY
(b) If the Leased Premises or any part thereof are not ready for occupancy on
the date of commencement of the Term, no part of the "Rent" (as hereinafter
defined) or only a proportionate part thereof, in the event that the Tenant
shall occupy a part of the Leased Premises, shall be payable for the period
prior to the date when the entire Leased Premises are ready for occupancy and
the full Rent shall accrue only after such last mentioned date. The Tenant
agrees to accept any such abatement of Rent in full settlement of all claims
which the Tenant might otherwise have by reason of the Leased Premises not being
ready for occupancy on the date of commencement of the
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Term, provided that when the Landlord has completed construction of such part of
the Leased Premises as it is obliged hereunder to construct, the Tenant shall
not be entitled to any abatement of Rent for any delay in occupancy due to the
Tenant's failure or delay to provide plans or to complete any special
installations or other work required for its purposes or due to any other
reason, nor shall the Tenant be entitled to any abatement of Rent for any delay
in occupancy if the Landlord has been unable to complete construction of the
Leased Premises by reason of such failure or delay by the Tenant. A certificate
of the Landlord as to the date the Leased Premises were ready for occupancy and
such construction as the Landlord is obliged to complete is substantially
completed, or as to the date upon which the same would have been ready for
occupancy and completed respectively but for the failure or delay of the Tenant,
shall be conclusive and binding on the Tenant and Rent in full shall accrue and
become payable from the date set out in the said certificate. Notwithstanding
any delay in occupancy, the expiry date of this Lease shall remain unchanged.
OVER-HOLDING
(c) If at the expiration of the Term or sooner termination hereof, the Tenant
shall remain in possession without any further written agreement or in
circumstances where a tenancy would thereby be created by implication of law or
otherwise, a tenancy from year to year shall not be created by implication of
law or otherwise, but the Tenant shall be deemed to be a monthly tenant only, at
double "Basic Rent" (as hereinafter defined) payable monthly in advance plus
"Additional Rent" (as hereinafter defined) and otherwise upon and subject to the
same terms and conditions as herein contained, excepting provisions for renewal
(if any) and leasehold improvement allowance (if any), contained herein, and
nothing, including the acceptance of any Rent by the Landlord, for periods other
than monthly periods, shall extend this Lease to the contrary except an
agreement in writing between the Landlord and the Tenant and the Tenant hereby
authorizes the Landlord to apply any moneys received from the Tenant in payment
of such monthly Rent.
3. RENT
BASIC RENT
(a) The Tenant shall without deduction or right of offset pay to the Landlord
yearly and every year during the Term as rental (herein called "Basic Rent"),
the sum of FOURTEEN THOUSAND FOUR HUNDRED Dollars ($14,400.00) of lawful money
of the jurisdiction in which the Leased Premises are located, in equal monthly
installments of ONE THOUSAND TWO HUNDRED Dollars ($1,200.00 ) each in advance on
the first day of each month during the Term, the first payment to be made on the
first day of MAY, 1997.
ADDITIONAL RENT
(b) The Tenant shall, without deduction or right of offset pay to the Landlord
yearly and every year during the Term as additional rental (herein called
"Additional Rent")
(i) the amounts of any Taxes payable by the Tenant to the Landlord
pursuant to the provisions of Schedule "C" attached hereto;
and
(ii) the amounts required to be paid to the Landlord pursuant to
the provisions of Schedule "D" attached hereto.
PAYMENT - ADDITIONAL RENT
(c) Additional Rent shall be paid and adjusted with reference to a fiscal period
of twelve (12) calendar months ("Fiscal Period"), which shall be a calendar year
unless the Landlord shall from time to time have selected a Fiscal Period which
is not a calendar year by written notice to the Tenant.
The Landlord shall advise the Tenant in writing of its estimate of the
Additional Rent to be payable by the Tenant during the Fiscal Period (or broken
portion of the Fiscal Period, as the case may be, if applicable at the
commencement or end of the term or because of a change in Fiscal Period) which
commenced upon the commencement date of the Term and for each succeeding Fiscal
Period or broken portion thereof which commences during the Term. Such estimate
shall in every case be a reasonable estimate and, if requested by the Tenant,
shall be accompanied by reasonable particulars of the manner in which it was
calculated. The Additional Rent payable by the Tenant shall be paid in equal
monthly installments in advance at the same time as payment of Basic Rent is due
hereunder based on the Landlord's estimate as aforesaid. From time to time, the
Landlord may re-estimate, on a reasonable basis, the amount of Additional Rent
for any Fiscal Period or broken portion thereof, in which case the Landlord
shall advise the Tenant in writing of such re-estimate and fix new equal monthly
installments for the remaining balance of such Fiscal Period or broken portion
thereof. After the end of each such Fiscal Period or broken portion thereof
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the Landlord shall submit to the Tenant a statement of the actual Additional
Rent payable in respect of such Fiscal Period or broken portion thereof and a
calculation of the amounts by which the Additional Rent payable by the Tenant
exceeds or is less than (as the case may be) the aggregate installments paid by
the Tenant on account of Additional Rent for such Fiscal Period.
Within thirty (30) days after the submission of such statement either
the Tenant shall pay to the Landlord any amount by which the amount found
payable by the Tenant with respect to such Fiscal Period or broken portion
thereof exceeds the aggregate of the monthly payments made by it on account
thereof during such Fiscal Period or broken portion thereof, or the Landlord
shall pay to the Tenant any amount by which the amount found payable as
aforesaid is less than the aggregate of such monthly payments.
ACCRUAL OF RENT
(d) Basic Rent and Additional Rent (herein collectively called "Rent") shall be
considered as accruing from day to day, and Rent for an irregular period of less
than one year or less than one calendar month shall be apportioned and adjusted
by the Landlord for the Fiscal Periods of the Landlord in which the tenancy
created hereby commences and expires. Where the calculation of Additional Rent
for a period cannot be made until after the termination of this Lease, the
obligation of the Tenant to pay Additional Rent shall survive the termination
hereof and Additional Rent for such period shall be payable by the Tenant upon
demand by the Landlord. If the Term commences or expires on any day other
than the first or the last day of a month, Rent for such fraction of a month
shall be apportioned and adjusted as aforesaid and paid by the Tenant on the
commencement date of the Term.
RECOVERY OF RENT
(e) Rent and any other amounts required to be paid by the Tenant to the Landlord
under this Lease shall be deemed to be and be treated as rent and payable and
recoverable as rent, and the Landlord shall have all rights against the Tenant
for default in any payment of rent and other amounts as in the case of arrears
in rent.
LIMITATIONS
(f) The information set out in statements, documents or other writings setting
out the amount of Additional Rent submitted to the Tenant under or pursuant to
this Lease shall be binding on the Tenant and deemed to be accepted by it and
shall not be subject to amendment for any reason unless the Tenant gives written
notice to the Landlord within sixty (60) days of the Landlord's submission of
such statement, document, or writing identifying the statement, document, or
writing and setting out in reasonable detail the reason why such statement,
document or writing should not be binding on the Tenant.
4. SECURITY DEPOSIT
SECURITY DEPOSIT
The Tenant has paid to the Landlord the sum of TWO THOUSAND SEVEN HUNDRED
FORTY-THREE Dollars FORTY-EIGHT Cents ($2,743.48 ) as a deposit to the Landlord
to stand as security for the payment by the Tenant of any and all present and
future debts and liabilities of the Tenant to the Landlord and for the
performance by the Tenant of all of its obligations arising under or in
connection with this Lease (the "Debts, Liabilities and Obligations"). The
Landlord shall not be required to keep the deposit separate from its general
funds. In the event of the Landlord disposing of its Interest in this Lease, the
Landlord shall credit the deposit to its successor and thereupon shall have no
liability to the Tenant to repay the security deposit to the Tenant. Subject to
the foregoing and to the Tenant not being in default under this Lease, the
Landlord shall repay the security deposit to the Tenant without interest at the
end of the Term or sooner termination of the Lease provided that all Debts,
Liabilities and Obligations of the Tenant to the Landlord are paid and performed
in full, failing which the Landlord may on notice to the Tenant elect to retain
the security deposit and to apply it in reduction of the Debts, Liabilities and
Obligations and the Tenant shall remain fully liable to the Landlord for payment
and performance of the remaining Debts, Liabilities and Obligations,
5. GENERAL COVENANTS
LANDLORD'S COVENANT
(a) The Landlord covenants with the Tenant:
(i) for quiet enjoyment, and
(ii) to observe and perform all the covenants and obligations of
the Landlord herein.
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TENANT'S CONVENANT
(b) The Tenant convenants with the Landlord:
(i) to pay Rent, and
(ii) to observe and perform all the covenants and obligations of
the Tenant herein.
6. USE AND OCCUPANCY
USE
The Tenant covenants with the Landlord:
(a) not to use the Leased Premises for any purpose other than an office for the
conduct of the Tenant's business which is ADMINISTRATION OF A RESTAURANT CHAIN.
WASTE NUISANCE, ETC.
(b) not to commit, or permit, any waste, injury or damage to the Property
including the Leasehold Improvements and any trade fixtures therein, any loading
of the floors thereof in excess of the maximum degree of loading as determined
by the Landlord acting reasonably, any nuisance therein or any use or manner of
use causing annoyance to other tenants and occupants of the Property or to the
Landlord,
INSURANCE RISKS
(c) not to do, omit or permit to be done or omitted to be done upon the Property
anything which would cause to be increased the Landlord's cost of insurance or
the costs of insurance of another tenant of the Property against perils as to
which the Landlord or such other tenant has insured or which shall cause any
policy of insurance on the Property to be subject to cancellation;
COMPLIANCE WITH LAW
(d) to comply at its own expense with all governmental laws, regulations and
requirements pertaining to the occupation and use of the Leased Premises, the
condition of the Leasehold Improvements, trade fixtures, furniture and equipment
installed by or on behalf of the Tenant therein and the making by the Tenant of
any repairs, changes or improvements therein,
ENVIRONMENTAL COMPLIANCE
(e) (i) to conduct and maintain its business and operations at the Leased
Premises so as to comply in all respects with common law and with all
present and future applicable federal, provincial/ state, local,
municipal, governmental or quasi-governmental laws, by-laws, rules,
regulations, licenses, orders, guidelines, directives, permits,
decisions or requirements concerning occupational or public health and
safety or the environment and any order, injunction, judgment,
declaration, notice or demand issued thereunder, ("Environmental
Laws").
(ii) not to permit or suffer any substance which is hazardous or is
prohibited, restricted, regulated or controlled under any Environmental
Law to be present at, on or in the Leased Premises, unless it has
received the prior written consent of the Landlord which consent may be
arbitrarily withheld.
RULES AND REGULATIONS
(f) to observe and perform, and to cause its employees, invitees and others over
whom the Tenant can reasonably be expected to exercise control to observe and
perform, the Rules and Regulations contained in Schedule "E" hereto, and such
further and other reasonable rules and regulations and amendments and additions
therein as may hereafter be made by the Landlord and notified in writing to the
Tenant, except that no change or addition may be made that is inconsistent with
this Lease unless as may be required by governmental regulation or unless the
Tenant consents thereto. The imposition of such Rules and Regulations shall not
create or imply any obligation of the Landlord to enforce them or create any
liability of the Landlord for their non-enforcement or otherwise.
7. ASSIGNMENT AND SUE-LETTING
NO ASSIGNMENT AND SUB-LETTING
(a) The Tenant covenants that it will not assign this Lease or sub-let the
Leased Premises in whole or in part without the prior written consent of the
Landlord, which consent the Landlord covenants not to withhold unreasonably (i)
as to any assignee or sub-lessee who is in a satisfactory financial condition,
agrees to use the Leased Premises for those purposes permitted hereunder, and is
otherwise satisfactory to the Landlord, and (ii) as to any portion of the Leased
Premises which, in the Landlord's sole judgement, is a proper and rational
division of the Leased Promises, subject to the Landlord's right of termination
arising under this paragraph. Without limitation, the Tenant shall for the
purpose of this paragraph be considered to assign or sub-let in any case where
it permits the Leased Premises or any portion thereof to be, or the Leased
Promises or any portion thereof are, occupied by persons other than the Tenant,
its employees and others engaged in carrying on the business of the Tenant,
whether pursuant to assignment, sub-letting, license or other right, or where
any of the foregoing occurs by operation of law.
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ASSIGNMENT OR SUB-LETTING PROCEDURES
(b) The Tenant shall not assign this Lease or sub-let the whole or any part of
the Leased Premises unless:
(i) it shall have received or procured a bone fide written offer
to take an assignment or sublease which is not inconsistent
with the Lease, and the acceptance of which would not breach
any provision of this Lease if this paragraph is complied with
and which the Tenant has determined to accept subject to this
paragraph being complied with, and
(ii) it shall have first requested and obtained the consent in
writing of the Landlord thereto.
Any request for consent shall be in writing and accompanied by a copy of the
offer certified by the Tenant to be true and complete, and the Tenant shall
furnish to the Landlord all information available to the Tenant and requested by
the Landlord as to the responsibility, financial standing and business of the
proposed assignee or sub-tenant. Notwithstanding the provisions of sub-paragraph
(a), within twenty (20) days after the receipt by the Landlord of such request
for consent and of all information which the Landlord shall have requested
hereunder, the Landlord shall have the right upon written notice of termination
submitted to the Tenant, if the request is to assign this Lease or sub-let the
whole of the Leased Premises, to cancel and terminate this Lease, or if the
request is to sub-let a part of the Leased Premises only, to cancel and
terminate this Lease with respect to such part, in each case as of a termination
date to be stipulated in the notice of termination which shall be not less than
sixty (60) days or more than ninety (90) days following the giving of such
notice. In such event the Tenant shall surrender the whole or part, as the case
may be, of the Leased Premises in accordance with such notice of termination and
Basic Rent and Additional Rent shall be apportioned and paid to the date of
surrender and, if a part only of the Leased Premises is surrendered, Basic Rent
and Additional Rent shall after the date of surrender abate proportionately. If
such consent shall be given the Tenant shall assign or sub-let, as the case may
be, only upon the terms set out in the offer submitted to the Landlord as
aforesaid and not otherwise,
ASSUMPTION OF OBLIGATIONS
(c) No assignment or sub-letting of this Lease shall be effective unless the
assignee or sub-lessee shall execute an assumption agreement on the Landlord's
form, assuming all the obligations of the Tenant hereunder, and shall pay to the
Landlord its reasonable fee for processing the assignment or sub-letting.
TENANT'S CONTINUING OBLIGATIONS
(d) The Tenant agrees that any consent to an assignment or sub-letting of this
Lease or Leased Premises, shall not thereby release the Tenant of its
obligations hereunder.
8. REPAIR & DAMAGE
LANDLORD'S REPAIRS TO BUILDING & PROPERTY
(a) The Landlord covenants with the Tenant to keep in a good and reasonable
state of repair and decoration:
(i) those portions of the Property consisting of the entrance,
lobbies, stairways, corridors, landscaped areas, parking
areas, and other facilities from time to time provided for use
in common by the Tenant and other tenants of the Building or
Property, and the exterior portions (including foundations and
roofs) of all buildings and structures from time to time
forming part of the Property and affecting its general
appearance;
(ii) the Building (other than the Leased Promises and premises of
other tenants) including the systems for interior climate
control, the elevators and escalators (if any), entrances,
lobbies, stairways, corridors and washrooms from time to time
provided for use in common by the Tenant and other tenants of
the Building or Property and the systems provided for use in
common by the Tenant and other tenants of the Building or
Property and the systems provided for bringing utilities to
the Leased Premises.
LANDLORD'S REPAIRS TO THE LEASED PREMISES
(b) The Landlord covenants with the Tenant to repair, so far as reasonably
feasible, and as expeditiously as reasonably feasible, defects in standard
demising walls or structural elements, exterior walls of the Building, suspended
ceiling, electrical and mechanical installations standard to the Building
installed by the Landlord in the Leased Premises (if and to the extent that such
defects are sufficient to impair the Tenant's use of the Leased Premises while
using them in a manner consistent with this Lease) and "Insured Damage" (as
herein defined), The Landlord shall in no event be required to make repairs to
Leasehold Improvements made by the Tenant, or by the Landlord on behalf of the
Tenant or another tenant or to make repairs to wear and tear within the Leased
Premises.
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TENANT'S REPAIRS
(c) The Tenant covenants with the Landlord to repair, maintain and keep at the
Tenant's own cost, except insofar as the obligation to repair rests upon the
Landlord pursuant to this paragraph, the Leased Premises, including Leasehold
Improvements in good and substantial repair, reasonable wear and tear excepted,
provided that this obligation shall not extend to structural elements or to
exterior glass or to repairs which the Landlord would be required to make under
this paragraph but for the exclusion therefrom of defects not sufficient to
impair the Tenant's use of the Leased Premises while using them in a manner
consistent with this Lease. The Landlord may enter the Leased Premises at all
reasonable times and view the condition thereof and the Tenant covenants with
the Landlord to repair, maintain and keep the Leased Premises in good and
substantial repair according to notice in writing, reasonable wear and tear
excepted. If the Tenant shall fail to repair as aforesaid after reasonable
notice to do so, the Landlord may effect the repairs and the Tenant shall pay
the reasonable cost thereof to the Landlord on demand. The Tenant covenants with
the Landlord that the Tenant will at the expiration of the Term or sooner
termination thereof peaceably surrender the Leased Premises and appurtenances in
good and substantial repair and condition, reasonable wear and tear excepted.
INDEMNIFICATION
(d) If any part of the Property becomes out of repair, damaged or destroyed
through the negligence of, or misuse by, the Tenant or its employees, agents,
invitees or others under its control, the Tenant shall pay the Landlord on
demand the expense of repairs or replacements, including the Landlord's
reasonable administration charge thereof, necessitated by such negligence or
misuse.
DAMAGE AND DESTRUCTION
(e) It is agreed between the Landlord and the Tenant that;
(i) In the event of damage to the Property or to any part thereof,
if the damage is such that the Leased Premises or any
substantial part thereof is rendered not reasonably capable of
use and occupancy by the Tenant for the purposes of its
business for any period of time in excess of ten (10) days,
then
(1) unless the damage was caused by the fault or
negligence of the Tenant or its employees, agents,
invitees or others under its control, from the date
of occurrence of the damage and until the Leased
Premises are again reasonably capable for use and
occupancy as aforesaid, the Rent payable pursuant to
this Lease shall abate from time to time in
proportion to the part or parts of the Leased
Premises not reasonably capable of such use and
occupancy, and
(2) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case may
be (according to the nature of the damage and their
respective obligations to repair as provided in
sub-paragraphs (a), (b) and (c) of this paragraph)
shall repair such damage with all reasonable
diligence, but to the extent that any part of the
Leased Premises is not reasonably capable of such use
and occupancy by reason of damage which the Tenant is
obligated to repair hereunder, any abatement of Rent
to which the Tenant would otherwise be entitled
hereunder shall not extend later than the time by
which, in the reasonable opinion of the Landlord,
repairs by the Tenant ought to have been completed
with reasonable diligence; and
(ii) if the Leased Premises are substantially damaged or destroyed
by any cause and if in the reasonable opinion of the Landlord
given in writing within thirty (30) days of the occurrence the
damage cannot reasonably be repaired within one hundred and
eighty (180) days after the occurrence thereof, then the
Lease shall terminate, in which event neither the Landlord nor
the Tenant shall be bound to repair as provided in
sub-paragraphs (a), (b) and (c) of this paragraph, and the
Tenant shall instead deliver up possession of the Leased
Premises to the Landlord with reasonable expedition and Rent
shall be apportioned and paid to the date of the occurrence;
and
(iii) if premises whether of the Tenant or other tenants of the
Property comprising in the aggregate half or more of the total
number of square feet of rentable office area in the Property
or half or more of the total number of square feet of rentable
office area in Building (as determined by the Landlord) or
portions of the Property which affect access or services
essential thereto, are substantially damaged or destroyed by
any cause and if in the reasonable opinion of the Landlord the
damage cannot reasonably be repaired within one hundred and
eighty (180) days after the occurrence thereof, then the
Landlord may, by written notice to the Tenant given within
thirty (30) days after the occurrence of such damage or
destruction, terminate this Lease, in which event neither the
Landlord nor the Tenant shall be bound to repair as provided
in sub-paragraphs (a) (b) and (c) of this
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paragraph, and the Tenant shall instead deliver up possession
of the Leased Premises to the Landlord with reasonable
expedition but in any event within sixty (60) days after
delivery of such notice of termination, and Rent shall he
apportioned and paid to the date upon which possession is so
delivered up (but subject to any abatement to which the Tenant
may be entitled under subparagraph (e) (i) of this paragraph),
9. INSURANCE AND LIABILITY
LANDLORD'S INSURANCE
(a) The Landlord shall take out and keep in force during the Term insurance with
respect to the Property except for the "Leasehold Improvements" (as hereinafter
defined) in the Leased Premises. The insurance to be maintained by the Landlord
shall be in respect of perils and to amounts and on terms and conditions which
from time to time are insurable at a reasonable premium and which are normally
insured by reasonable prudent owners of properties similar to the Property, all
as from time to time determined at reasonable intervals by insurance advisors
selected by the Landlord, and whose opinion shall be conclusive. Unless and
until the insurance advisors shall state that any such perils are not
customarily insured against by owners of properties similar to the Property, the
perils to be insured against by the Landlord shall include, without limitation,
public liability, boilers and machinery, fire and extended perils and may
include at the option of the Landlord losses suffered by the Landlord in its
capacity as Landlord through business interruption. The insurance to be
maintained by the Landlord shall contain a waiver by the insurer of any rights
of subrogation or indemnity or any other claim over which the insurer might
otherwise be entitled against the Tenant or the agents or employees of the
Tenant.
TENANT'S INSURANCE
(b) The Tenant shall take out and keep in force during the Term:
(i) comprehensive general public liability insurance all on an
occurrence basis with respect to the business carried on in or
from the Leased Premises and the Tenant's use and occupancy of
the Leased Premises and of any other part of the Property,
with coverage for any one occurrence or claim of not less than
One Million Dollars ($1,000,000) or such other amount as the
Landlord may reasonably require upon not less than one (1)
month notice at any time during the Term, which insurance
shall include the Landlord as a named insured and shall
protect the Landlord in respect of claims by the Tenant as if
the Landlord were separately insured,
(ii) insurance in respect of fire and such other perils as are from
time to time in the usual extended coverage endorsement
covering the Leasehold Improvements, trade fixtures, and the
furniture and equipment in the Leased Premises for not less
than 80% of the full replacement cost thereof, and which
insurance shall include the Landlord as a named insured as the
Landlord's interest may appear, and
(iii) Insurance against such other perils and in such amounts as the
Landlord may from time to time reasonably require upon not
less than ninety (90) days' written notice, such requirement
to be made on the basis that the required insurance is
customary at the time for prudent tenants of properties
similar to the Property.
All insurance required to be maintained by the Tenant shall be on terms and with
insurers satisfactory to the Landlord. Each policy shall contain a waiver by the
insurer of any rights of subrogation or indemnity or any other claim over to
which the insurer might otherwise be entitled against the Landlord or the agents
or employees of the Landlord, and shall also contain an undertaking by the
insurer that no material change adverse to the Landlord or the Tenant will be
made, and the policy will not lapse or be cancelled, except after not less than
thirty (30) days' written notice to the Landlord of the intended change, lapse
or cancellation. The Tenant shall furnish to the Landlord, if and whenever
requested by it, certificates or other evidences acceptable to the Landlord as
to the insurance from time to time effected by the Tenant and its renewal or
continuation in force, together with evidence as to the method of determination
of full replacement cost of the Tenant's Leasehold Improvements, trade fixtures,
furniture and equipment, and if the Landlord reasonably concludes that the full
replacement cost has been underestimated, the Tenant shall forthwith arrange for
any consequent increase in coverage required under subparagraph (b). If the
Tenant shall fail to take out, renew and keep in force such insurance, or if the
evidences submitted to the Landlord are unacceptable to the Landlord (or no such
evidences are submitted within a reasonable period after request therefor by the
Landlord), then the Landlord may give to the Tenant written notice requiring
compliance with this sub-paragraph and specifying the respects in which the
Tenant is not then in compliance with this sub-paragraph, If the Tenant does not
within forty-eight (48) hours provide appropriate evidence of compliance with
this sub-paragraph, the Landlord may (but shall not be
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obligated to) obtain some or all of the additional coverage or other insurance
which the Tenant shall have failed to obtain, without prejudice to any other
rights of the Landlord under this Lease or otherwise, and the Tenant shall pay
all premiums and other reasonable expenses incurred by the Landlord to the
Landlord on demand.
LIMITATION OF LANDLORD'S LIABILITY
(c) The Tenant agrees that the Landlord shall not be liable for any bodily
injury or death of or loss or damage to any property belonging to, the Tenant or
its employees, invitees or licensees or any other person in, on or about the
Property unless resulting from the actual willful misconduct or gross negligence
of the Landlord or its own employees. In no event shall the Landlord be liable
for any damage which is caused by steam, water, rain or snow or other thing
which may leak into, issue or flow from any part of the Property or from the
pipes or plumbing works, including the sprinkler system (if any) therein or from
any other place or for any damage caused by or attributable to the condition or
arrangement of any electric or other wiring or of sprinkler heads (if any) or
for any damage caused by anything done or omitted by any other tenant.
INDEMNITY OF LANDLORD
(d) Except with respect to claims or liabilities in respect of any damage which
is Insured Damage to the extent of the cost of repairing such Insured Damage,
the Tenant agrees to indemnify and save harmless the Landlord in respect of
(i) all claims for bodily injury or death, property damage or
other loss or damage arising from the conduct of any work or
any act or omission of the Tenant or any assignee, sub-tenant,
agent, employee, contractor, invitee or licensee of the
Tenant, and in respect of all costs, expenses and liabilities
incurred by the Landlord in connection with or arising out of
all such claims, including the expenses of any action or
proceeding pertaining thereto, and
(ii) any loss, cost, (including, without limitation, lawyers' fees
and disbursements), expense or damage suffered by the Landlord
arising from any breach by the Tenant of any of its covenants
and obligations under this Lease.
DEFINITION OF "INSURED DAMAGE"
(e) For purposes of this Lease, "Insured Damage" means that part of any damage
occurring to the Property of which the entire cost of repair (or the entire cost
of repair other than deductible amount properly collectable by the Landlord as
part of the Additional Rent) is actually recovered by the Landlord under a
policy or policies of insurance from time to time effected by the Landlord
pursuant to sub-paragraph (a) Where an applicable policy of insurance contains
an exclusion for damages recoverable from a third party, claims as to which the
exclusion applies shall be considered to constitute Insured Damage only if the
Landlord successfully recovers from the third party.
10. EVENTS OF DEFAULT AND REMEDIES
EVENTS OF DEFAULT AND REMEDIES
(a) In the event of the happening of any one of the following events:
(i) the Tenant shall have failed to pay an installment of Basic
Rent or of Additional Rent or any other amount payable
hereunder when due, and such failure shall be continuing for a
period of more than ten (10) days after the date such
installment or amount was due;
(ii) there shall be a default of or with any condition, covenant,
agreement or other obligation on the part of the Tenant to be
kept, observed or performed hereunder (other than a condition,
covenant, agreement or other obligation to pay Basic Rent,
Additional Rent or any other amount of money) and such default
shall be continuing for a period of more than fifteen (15)
days after written notice by the Landlord to the Tenant
specifying the default and requiring that it discontinue;
(iii) if any policy of insurance upon the Property or any part
thereof from time to time effected by the Landlord shall be
cancelled or about to be cancelled by the insurer by reason of
the use or occupation of the Leased Premises by the Tenant or
any assignee, sub-tenant or licensee of the Tenant or anyone
permitted to be upon the Leased Premises and the Tenant after
receipt of notice in writing from the Landlord shall have
failed to take such immediate steps in respect of such use or
occupation as shall enable the Landlord to reinstate or avoid
cancellation (as the case may be) of such policy of insurance,
(iv) the Leased Premises shall, without the prior written consent
of the Landlord, be used by any other persons than the Tenant
or its permitted assigns or sub-tenants or for any purpose
other than that for which they were leased or occupied or by
any persons whose
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occupancy is prohibited by this Lease,
(v) the Leased Premises shall be vacated or abandoned, or remain
unoccupied without the prior written consent of the Landlord
for fifteen (15) consecutive days or more while capable of
being occupied,
(vi) the balance of the Term of this Lease or any of the goods and
chattels of the Tenant located in the Leased Premises, shall
at any time be seized in execution or attachment, or
(vii) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt or insolvent or take the benefit
of any statute for bankrupt or insolvent debtors or, if a
corporation, shall take any steps or suffer any order to be
made for its winding-up or other termination of its corporate
existence; or a trustee, receiver or receiver-manager or agent
or other like person shall be appointed of any of the assets
of the Tenant,
the Landlord shall have the following rights and remedies all of which are
cumulative and not alternative and not to the exclusion of any other or
additional rights and remedies in law or equity available to the Landlord by
statute or otherwise:
(A) to remedy or attempt to remedy any default of the Tenant, and
in so doing to make any payments due or alleged to be due by
the Tenant to third parties and to enter upon the Leased
Premises to do any work or other things therein, and in such
event all reasonable expenses of the Landlord in remedying or
attempting to remedy such default shall be payable by the
Tenant to the Landlord on demand;
(B) with respect to unpaid overdue Rent, to the payment by the
Tenant of the Rent and of interest (which said interest shall
be deemed included herein in the term "Rent") thereon at a
rate equal to the lesser of three percent (3%) above the prime
commercial loan rate charged to borrowers having the highest
credit rating from time to time by the Landlord's principal
bank from the date upon which the same was due until actual
payment thereof and the maximum amount allowed under the laws
of the jurisdiction in which the Building is located;
(C) to terminate this Lease forthwith by leaving upon the Leased
Premises or by affixing to an entrance door to the Leased
Premises notice terminating the Lease and to immediately
thereafter cease to furnish any services hereunder and enter
into and upon the Leased Premises or any part thereof in the
name of the whole and the same to have again, repossess and
enjoy as of its former estate, anything in this Lease
contained to the contrary notwithstanding; and
(D) to enter the Leased Premises as agent of the Tenant and as
such agent to re-let them and to receive the rent therefor and
as the agent of the Tenant to take possession of any furniture
or other property thereon and upon giving ten (10) days'
written notice to the Tenant to store the same at the expense
and risk of the Tenant or to sell or otherwise dispose of the
same at public or private sale without further notice and to
apply the proceeds thereof and any rent derived from
re-letting the Leased Premises upon account of the Rent due
and to become due under this Lease and the Tenant shall be
liable to the Landlord for the deficiency if any.
PAYMENT OF RENT, ETC. ON TERMINATION
(b) Upon the giving by the Landlord of a notice in writing terminating this
Lease under sub-paragraph (a)(C) of this paragraph, this Lease and the term
shall terminate, Rent and any other payments for which the Tenant is liable
under this Lease, shall be computed, apportioned and paid in full to the date of
such termination forthwith, and there shall immediately become due and payable
forthwith in one lump sum as liquidated damages and not a penalty the aggregate
of Basic Rent and additional Rent (as estimated by the Landlord acting
reasonably), for a period of one year, being the estimated time required for
re-releasing the Leased Premises or, if less than one year remains of the
Tenant, the aggregate of Basic Rent and Additional Rent (as estimated by the
Landlord acting reasonably) for the unexpired portion of the Term. Upon
termination of this Lease and the Term, the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord, and the Landlord may
forthwith re-enter and take possession of them.
(c) The Tenant shall pay to the Landlord on demand all costs and expenses,
including lawyers' fees, incurred by the Landlord in enforcing any of the
obligations of the Tenant under this Lease.
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ADDITIONAL PROVISIONS
RELOCATION OF LEASED PREMISES
11. The Landlord shall have the right at any time upon sixty(60)days' written
notice (the "Notice of Relocation") to relocate the Tenant to other premises in
the Property (the "Relocated Premises") and the following terms and conditions
shall be applicable.
(a) the Relocated Premises (which term shall mean the Leased
Premises after relocation) shall contain approximately the
same as, or greater rentable area than, the Leased Premises;
(b) the Landlord shall provide at its expense leasehold
improvements in the Relocated Premises equal to the standards
of the "Leasehold Improvements" (as hereinafter defined) in
the Leased Premises which have been completed or which the
Landlord is obliged herein to provide in the Leased Premises;
(c) the Landlord shall pay for the reasonable moving costs (if
any) from the Leased Premises to the Relocated Premises of the
Tenant's trade fixtures and furnishings;
(d) as compensation for all other costs, expenses and damages
which the Tenant may suffer or incur in connection with the
relocation including disruption and loss of business, Basic
Rent and Additional Rent for the Relocated Premises for the
period of the first one (1) month of occupancy shall abate,
(e) Basic Rent and "Tenant's Proportionate Share" (as hereinafter
defined) of Additional Rent for the Relocated Premises shall
be no greater than the Basic Rent and Tenant's Proportionate
Share of Additional Rent for the Leased Premises,
notwithstanding the Relocated Premises may contain a greater
rentable area;
(f) all other terms and conditions of the Lease shall apply to the
Relocated Premises except as are inconsistent with the terms
and conditions of this sub-paragraph.
SUBORDINATION AND ATTORNMENT
12. This Lease and all rights of the Tenant hereunder are subject and
subordinate to all underlying leases and charges, or mortgages now or hereafter
existing (including charges, and mortgages by way of debenture, note, bond,
deeds of trust and mortgage and all instruments supplemental thereto) which may
now or hereafter affect the Property or any part thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof provided the
lessor, chargee, mortgagee or trustee agrees to accept this Lease if not in
default; and in recognition of the foregoing the Tenant agrees that it will,
whenever requested, attorn to such lessor, chargee, mortgagee as a tenant upon
all the terms of this Lease. The Tenant agrees to execute promptly whenever
requested by the Landlord or by the holder of any such lease, charge, or
mortgage an instrument of subordination or attornment, as the case may be, as
may be required of it,
CERTIFICATES
13. The Tenant agrees that it shall promptly whenever requested by the Landlord
from time to time execute and deliver to the Landlord, and if required by the
Landlord, to any lessor, chargee, or mortgagee (including any trustee) or other
person designated by the Landlord, an acknowledgment in writing as to the then
status of this Lease, including as to whether it is in full force and effect, is
modified or unmodified, confirming the Basic Rent and Additional Rent payable
hereunder and the State of the accounts between Landlord and the Tenant, the
existence or non-existence of defaults, and any other matters pertaining to this
Lease as to which the Landlord shall request an acknowledgment.
INSPECTION OF ACCESS TO THE LEASED PREMISES
14. The Landlord shall be permitted at any time and from time to time to enter
and to have its and authorized agents, employees and contractors enter the
Leased Premises for the purposes of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements to the
Leased Premises or the Property, or to have access to utilities and services
(including all ducts and access panels (if any), which the Tenant agrees not to
obstruct) and the Tenant shall provide free and unhampered access for the
purpose, and shall not be entitled to compensation for any inconvenience,
nuisance or discomfort caused thereby. The Landlord and its authorized agents
and employees shall be permitted entry to the Leased Premises for the purpose of
exhibiting them to prospective tenants. The Landlord in exercising its rights
under this paragraph shall do so to the extent reasonably necessary so as to
minimize interference with the Tenant's use and enjoyment of the Leased Premises
provided that in an emergency the Landlord or persons
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authorized by it may enter the Leased Premises without regard to minimizing
interference.
DELAY
15. Except as herein otherwise expressly provided, if and whenever and to the
extent that either the Landlord or the Tenant shall be prevented, delayed or
restricted in the fulfillment of any obligation hereunder in respect of the
supply or provision of any service or utility, the making of any repair, the
doing of any work or any other thing (other than the payment of moneys required
to be paid by the Tenant to the Landlord hereunder) by reason of:
(a) strikes or work stoppages;
(b) being unable to obtain any material, service, utility or labor
required to fulfill such obligation;
(c) any statute, law or regulation of, or inability to obtain any
permission from any government authority having lawful
jurisdiction preventing, delaying or restricting such
fulfillment;
or
(d) other unavoidable occurrence,
the time for fulfillment of such obligation shall be extended during the period
in which such circumstance operates to prevent, delay or restrict the
fulfillment thereof, and the other party to this Lease shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned;
provided that nevertheless the Landlord will use its best efforts to maintain
services essential to the use and enjoyment of the Leased Premises and provided
further that if the Landlord shall be prevented, delayed or restricted in the
fulfillment of any such obligation hereunder by reason of any of the
circumstances set out in sub-paragraph (c) of this paragraph 15 and to fulfill
such obligation could not, in the reasonable opinion of the Landlord, be
completed without substantial additions to or renovations of the Property, the
Landlord may on sixty (60) days' written notice to the Tenant terminate this
Lease.
WAIVER
16. If either the Landlord or the Tenant shall overlook, excuse, condone or
suffer any default, breach, non-observance, improper compliance or
non-compliance by the other of any obligation hereunder, this shall not operate
as a waiver of such obligation in respect of any continuing or subsequent
default, breach, or non-observance, and no such waiver shall be implied but
shall only be effective if expressed in writing.
SALE, DEMOLITION AND RENOVATION
17. (a) The term "Landlord" as used in this Lease, means only the owner for
the time being of the Property, so that in the event of any sale or sales or
transfer or transfers of the Property, or the making of any lease or leases
thereof, or the sale or sales or the transfer or transfers or the assignment or
assignments of any such lease or leases, previous landlords shall be and hereby
are relieved of all covenants and obligations of Landlord hereunder. It shall be
deemed and construed without further agreement between the parties, or their
successors in interest, or between the parties and the transferee or acquiror,
at any such sale, transfer or assignment, or lessee on the making of any such
lease, that the transferee, acquiror or lessee has assumed and agreed to carry
out any and all of the covenants and obligations of Landlord hereunder to
Landlord's exoneration, and Tenant shall thereafter be bound to and shall attorn
to such transferee, acquiror or lessee, as the case may be, as Landlord under
this Lease;
(b) Notwithstanding anything contained in this Lease to the contrary,
in the event the Landlord intends to demolish or to renovate substantially all
the Building, then the Landlord, upon giving the Tenant one hundred and eighty
(180) days' written notice, shall have the right to terminate this Lease and
this Lease shall thereupon expire on the expiration of one hundred and eighty
(180) days from the date of the giving of such notice without compensation of
any kind to the Tenant.
PUBLIC TAKING
18. The Landlord and Tenant shall co-operate, each with the other, in respect of
any Public Taking of the Leased Premises or any part thereof so that the Tenant
may receive the maximum award to which it is entitled in law for relocation
costs and business interruption and so that the Landlord may receive the maximum
award for all other compensation arising from or relating to such Public Taking
(including all compensation for the value of the Tenant's leasehold interest
subject to the Public Taking) which shall be the property of the Landlord, and
the Tenant's rights to such compensation are hereby assigned to the Landlord. If
the whole or any part of the Leased Premises is
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Publicly Taken, as between the parties hereto, their respective rights and
obligations under this Lease shall continue until the day on which the Public
Taking authority takes possession thereof. If the whole or any part of the
Leased Premises is Publicly Taken, the Landlord shall have the option, to be
exercised by written notice to the Tenant, to terminate this Lease and such
termination shall be effective on the day the Public Taking authority takes
possession of the whole or the portion of the Property Publicly Taken. Rent and
all other payments shall be adjusted as of the date of such termination and the
Tenant shall, on the date of such Public Taking, vacate the Leased Premises and
surrender the same to the Landlord, with the Landlord having the right to
re-enter and re-possess the Leased Premises discharged of this Lease and to
remove all persons therefrom. In this paragraph, the words "Public Taking" shall
include expropriation and condemnation and shall include a sale by the Landlord
to an authority with powers of expropriation, condemnation or taking, in lieu of
or under threat of expropriation or taking and "Publicly Taken" shall have a
corresponding meaning.
REGISTRATION OF LEASE
19. The Tenant agrees with the Landlord not to register this Lease in any
recording office and not to register notice of this Lease in any form without
the prior written consent of the Landlord. If such consent is provided such
notice of Lease or caveat shall be in such form as the Landlord shall have
approved and upon payment of the Landlord's reasonable fee for same and all
applicable transfer or recording taxes or charges. The Tenant shall remove and
discharge at Tenant's expense registration of such a notice or caveat at the
expiry or earlier termination of the Term, and in the event of Tenant's failure
to so remove or discharge such notice or caveat after ten (10) days' written
notice by Landlord to Tenant, the Landlord may in the name and on behalf of the
Tenant execute a discharge of such a notice or caveat in order to remove and
discharge such notice of caveat and for the purpose thereof the Tenant hereby
irrevocably constitutes and appoints any officer of the Landlord the true and
lawful attorney of the Tenant.
LEASE ENTIRE AGREEMENT
20. The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions express or implied, collateral or otherwise
forming part of or in any way affecting or relating to this Lease save as
expressly set out in this Lease and Schedules attached hereto and that this
Lease and such Schedules constitute the entire agreement between the Landlord
and the Tenant and may not be modified except as herein explicitly provided or
except by agreement in writing executed by the Landlord and the Tenant.
NOTICES
21. Any notice, advice, document or writing required or contemplated by any
provision hereof shall be given in writing and if to the Landlord, either
delivered personally to an officer of the Landlord or mailed by prepaid mail
addressed to the Landlord at the said local office address of the Landlord shown
above, and if to the Tenant, either delivered personally to the Tenant (or to an
officer of the Tenant, if a corporation) or mailed by prepaid mail addressed to
the Tenant at the Leased Premises, or if an address of the Tenant is shown in
the description of the Tenant above, to such address. Every such notice, advice,
document or writing shall be deemed to have been given when delivered
personally, or if mailed as aforesaid, upon the fifth day after being mailed.
The Landlord may from time to time by notice in writing to the Tenant designate
another address as the address to which notices are to be mailed to it, or
specify with greater particularity the address and persons to which such notices
are to be mailed and may require that copies of notices be sent to an agent
designated by it. The Tenant may, if an address of the Tenant is shown in the
description of the Tenant above, from time to time by notice in writing to the
Landlord, designate another address as the address to which notices are to be
mailed to it, or specify with greater particularity the address to which such
notices are to be mailed.
INTERPRETATION
22. In this Agreement "herein", "hereof", "hereby", "hereunder", "hereto",
"hereinafter" and similar expressions refer to this Lease and not to any
particular paragraph, clause or other portion thereof, unless there is something
in the subject matter or context inconsistent therewith; and the parties agree
that all of the provisions of this Lease are to be construed as covenants and
agreements as though words importing such covenants and agreements were used in
each separate paragraph hereof, and that should any provision or provisions of
this Lease be illegal or not enforceable it or they shall be considered separate
and severable from the Lease and its remaining provisions shall remain in force
and be binding upon the parties hereto as though the said provision or
provisions had never been included, and further that the captions appearing for
the provisions of this Lease have been inserted as a matter of convenience and
for reference only and in no way define, limit or enlarge the scope or meaning
of this Lease or of any provisions hereof.
EXTENT OF LEASE OBLIGATIONS
23. This Agreement and everything herein contained shall enure to the benefit
of and be binding upon the respective heirs, executors, administrators,
successors, assigns and other legal representatives, as the case may be, of each
and every of the parties hereto, subject to the granting of
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consent by the Landlord to any assignment or sublease, and every reference
herein to any party hereto shall include the heirs, executors, administrators,
successors, assigns and other legal representatives of such party, and where
there is more than one tenant or there is a male or female party the provisions
hereof shall be read with all grammatical changes thereby rendered necessary and
all covenants shall be decreed joint and several.
USE AND OCCUPANCY PRIOR TO TERM
24. If the Tenant shall for any reason use or occupy the Leased Premises in any
way prior to the commencement of the Term without there being an existing lease
between the Landlord and Tenant under which the Tenant has occupied the Leased
Premises, then during such prior use or occupancy the Tenant shall be a Tenant
of the Landlord and shall be subject to the same covenants and agreements in
this Lease mutatis mutandis.
SCHEDULES
25. The provisions of the following Schedules attached hereto shall form part of
this Lease as if the same were embodied herein:
Schedule "A" - Legal Description of Property
Schedule "B" - Outline of Leased Premises
Schedule "C" - Taxes Payable by Landlord and Tenant
Schedule "D" - Services and Costs
Schedule "E" - Rules and Regulations
Schedule "F" - Leasehold Improvements
Schedule "G" - N/A
Schedule "H" - N/A
Schedule "I" - N/A
Schedule "J" - N/A
Schedule "K" - OCCUPANCY PRIOR TO COMMENCEMENT OF TERM
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
Landlord:
THE MANUFACTURERS LIFE INSURANCE
COMPANY
CHECKED
[SIG]
VERIFIED
[SIG]
[SIG] by Signature /s/ CHRIS HOLTVED
- ----------------------------- ----------------------------
Witness as to signing Title: CHRIS HOLTVED
by Landlord Regional Director
Tenant:
COFFEE.COM INTERACTIVE CAFE CORP.
[SIG] by Signature /s/ LINDA CARLING
- ------------------------------ ----------------------------
Witness as to signing by Title: V.P. Promotions
Tenant or officer(s) of Tenant
by Signature
----------------------------
Title:
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SCHEDULE "A"
(Legal Description of Property)
TO A LEASE AGREEMENT BETWEEN
THE MANUFACTURERS LIFE INSURANCE COMPANY
- AND -
COFFEE.COM INTERACTIVE CAFE CORP.
Those portions of Lots Seventeen (17), Eighteen (18),
Nineteen (19) and Twenty (20), which lie to the South of
the Northerly Seven (7) feet throughout the said Lots
Seventeen (17), Eighteen (18), Nineteen (19) and
Twenty (20) in Block Forty-eight (48) on Plan "A-1", Calgary,
Excepting out of Lots Nineteen (19) and Twenty (20)
all mines and minerals.
(hereinafter referred to as the "Property')
DATED THE 20TH DAY OF MARCH, 1997.
MUNICIPALLY DESCRIBED AS: 603 - 7th Avenue S.W.
Calgary, Alberta
Property Name: MANULIFE HOUSE
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SCHEDULE "B"
(Plan of Leased Premises outlined in red)
7TH AVENUE
[DIAGRAM]
Suite 550
2,880 square feet
Property Name: MANULIFE HOUSE
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SCHEDULE "C"
TAXES PAYABLE BY LANDLORD AND TENANT
TENANT'S TAXES
1. (a) The Tenant covenants to pay all Tenant's Taxes, as and when
the same become due and payable. Where any Tenant's Taxes are
payable by the Landlord to the relevant taxing authorities,
the Tenant covenants to pay the amount thereof to the
Landlord.
(b) The Tenant covenants to pay the Landlord the Tenant's
Proportionate Share of the amount of the Landlord's Taxes in
each Fiscal Period.
(c) The Tenant covenants to pay to the Landlord the Tenant's
Proportionate Share of the costs and expenses (including legal
and other professional fees and interest and penalties on
deferred payments) incurred in good faith by the Landlord in
contesting, resisting or appealing any of the Taxes.
LANDLORD'S TAXES
(d) The Landlord covenants to pay all Landlord's Taxes subject to
the payments on account of Landlord's Taxes required to be
made by the Tenant elsewhere in this Lease. The Landlord may
appeal any official assessment or the amount of any Taxes or
other taxes based on such assessment and relating to the
Property. In connection with any such appeal, the Landlord may
defer payment of any Taxes or other taxes, as the case may be,
payable by it to the extent permitted by law, and the Tenant
shall co-operate with the Landlord and provide the Landlord
with all relevant information reasonably required by the
Landlord in connection with any such appeal.
SEPARATE ALLOCATION
(e) In the event that the Landlord is unable to obtain from the
taxing authorities any separate allocation of Landlord's
Taxes, Tenant's Taxes or assessment as required by the
Landlord to make calculations of Additional Rent under this
Lease, such allocation shall be made by the Landlord acting
reasonably and shall be conclusive.
INFORMATION
(f) Whenever requested by the Landlord, the Tenant shall deliver
to it receipts for payment of all the Tenant's Taxes and
furnish such other information in connection therewith as the
Landlord may reasonably require.
TAX ADJUSTMENT
(g) If the Building has not been taxed as a completed and fully
occupied building for any Fiscal Period, the Landlord's Taxes
will be determined by the Landlord as if the Building had been
taxed as a completed and fully occupied building for any such
Fiscal Period.
DEFINITION
2. In this lease:
(a) "Landlord's Taxes" shall mean the aggregate of all Taxes
attributable to the Property, the Rent or the Landlord in
respect thereof and including, any amounts imposed, assessed,
levied or charged in substitution for or in lieu of any such
Taxes, but excluding such taxes as capital gains taxes,
corporate income, profit or excess profit taxes to the extent
such taxes are not levied in lieu of any of the foregoing
against the Property or the Landlord in respect thereof;
(b) "Taxes" shall mean all taxes, rates, duties, levies, fees,
charges, local improvement rates, capital taxes, rental taxes
and assessments whatsoever including fees, rents, and levies
for air rights and encroachments on or over municipal property
imposed, assessed, levied or charged by any school, municipal,
regional, state, provincial, federal, parliamentary or other
body, corporation, authority, agency or commission provided
that "Taxes" shall not include any special utility, levies,
fees or charges imposed, assessed, levied or charged which are
directly associated with initial construction of the Property;
(c) "Tenant's Taxes" shall mean the aggregate of:
(i) all Taxes (whether imposed upon the Landlord or the
Tenant) attributable to the personal property, trade
fixtures, business, income, occupancy or sales of the
Tenant or any other occupant of the Leased Premises,
and to any Leasehold Improvements or fixtures
installed by or on behalf of the Tenant within the
Leased Premises, and to the use by the Tenant of any
of the Property, and
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SCHEDULE "D"
SERVICES AND COSTS
INTERIOR CLIMATE CONTROL
1. The Landlord covenants with the Tenant:
(a) To maintain in the Leased Premises conditions of reasonable
temperature and comfort in accordance with good standards
applicable to normal occupancy of premises for office purposes
subject to governmental regulations during hours to be
determined by the Landlord (but to be at least the hours from
8:00 a.m. to 6:00 p.m. from Monday to Friday inclusive with
the exception of holidays, Saturdays and Sundays), such
conditions to be maintained by means of a system for heating
and cooling, filtering and circulating air; the Landlord shall
have no responsibility for any inadequacy of performance of
the said system if the occupancy of the Leased Premises or the
electrical power or other energy consumed on the Leased
Premises for all purposes exceeds reasonable amounts as
determined by the Landlord or the Tenant installs partitions
or other installations in locations which interfere with the
proper operation of the system of interior climate control or
if the window covering on exterior windows is not kept fully
closed;
JANITOR SERVICE
(b) To provide janitor and cleaning services to the Leased
Premises and to common areas of the Building consisting of
reasonable services in accordance with the standards of
similar office buildings;
ELEVATORS, LOBBIES, ETC.
(c) To keep available the following facilities for use by the
Tenant and its employees and invitees in common with other
persons entitled thereto:
(i) passenger and freight elevator service to each floor
upon which the Leased Premises are located provided
such service is installed in the Building and
provided that the Landlord may prescribe the hours
during which and the procedures under which freight
elevator service shall be available and may limit the
number of elevators providing service outside normal
business hours;
(ii) common entrances, lobbies, stairways and corridors
giving access to the Building and the Leased
Premises, including such other areas from time to
time which may be provided by the Landlord for common
use and enjoyment within the Property;
(iii) the washrooms as the Landlord may assign from time to
time which are standard to the Building, provided
that the Landlord and the Tenant acknowledge that
where an entire floor is leased to the Tenant or some
other tenant the Tenant or such other tenant, as the
case may be, may exclude others from the washrooms
thereon.
ELECTRICITY
2. (a) The Landlord covenants with the Tenant to furnish electricity
to the Leased Premises (except Leased Premises which have
separate meters) for normal office use for lighting and for
office equipment capable of operating from the circuits
available to the Leased Premises and standard to the Building
during hours to be determined by the Landlord (but to be at
least the hours from 8:00 a.m. to 6:00 p.m. from Monday to
Friday inclusive with the exception of holidays, Saturdays and
Sundays) and during such other hours that the Tenant elects at
its sole cost and expense subject to governmental regulations;
(b) The amount of electricity consumed on the Leased Premises in
excess of electricity required by the Tenant for normal office
use shall be as determined by the Landlord acting reasonably
or by a metering device installed by the Tenant at the
Tenant's expense. The Tenant shall pay the Landlord for any
such excess electricity on demand.
3. The Landlord shall maintain and keep in repair the facilities required for
the provision of the interior climate control, elevator (if installed in the
Building) and other services referred to in sub-paragraph (a) and (c) of
paragraph I and sub-paragraph (a) of paragraph 2 of this Schedule in accordance
with the standards of office buildings similar to the Building but reserves the
right to stop the use of any of these facilities and the supply of the
corresponding services when necessary by reason of accident or breakdown or
during the making of repairs, alterations or improvements, in the reasonable
judgment of the Landlord necessary or desirable to be made until the repairs,
alterations or improvements shall have been completed to the satisfaction of the
Landlord.
ADDITIONAL SERVICES
4. (a) The Landlord may (but shall not be obliged) on request of the
Tenant supply services or materials to the Leased Premises and
the Property which are not provided for under this Lease and
which are used by the Tenant (the "Additional Services")
including, without limitation,
(i) replacement of tubes and ballasts;
(ii) carpet shampooing;
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(iii) drapery cleaning;
(iv) locksmithing;
(v) removal of bulk garbage;
(vi) picture hanging; and
(vii) special security arrangement.
(b) When Additional Services are supplied or furnished by the
Landlord, accounts therefor shall be rendered by the Landlord
and shall be payable by the Tenant to the Landlord on demand.
In the event the Landlord shall elect not to supply or furnish
Additional Services, only persons with prior written approval
by the Landlord (which approval shall not be unreasonably
withheld) shall be permitted by the Landlord or the Tenant to
supply or furnish Additional Services to the Tenant and the
supplying and furnishing shall be subject to the reasonable
rules fixed by the Landlord with which the Tenant undertakes
to cause compliance and to comply.
OPERATING CHARGES PAYABLE
5. (a) The Tenant covenants to pay to the Landlord the Tenant's
Proportionate Share of the amount of the Operating Costs in
each Fiscal Period;
(b) Subject to the other terms and conditions of this Lease, the
Landlord shall not be responsible during the Term for any
costs, charges, expenses and outlays of any nature whatsoever
arising from or relating to the Leased Premises and the Tenant
shall pay all charges, impositions, costs and expenses of
every nature and kind relating to the Leased Premises and the
amounts included as Additional Rent whether or not
specifically provided for herein and the Tenant covenants with
the Landlord accordingly;
(c) In this Lease "Operating Costs" shall include all costs
incurred or which will be incurred by the Landlord in the
maintenance, operation, administration and management of the
Property including without limitation:
(i) cost of heating, ventilating and air-conditioning;
(ii) cost of water and sewer charges;
(iii) cost of electricity, fuel or other form of energy
which are not separately metered and recovered or
paid by tenants;
(iv) costs of insurance carried by the Landlord pursuant
to paragraph 9(a) of this Lease and cost of any
deductible amount paid by the Landlord in connection
with each claim made by the Landlord under such
insurance;
(v) cost of building office expenses, including
telephone, rent, stationery and supplies;
(vi) costs of all elevator and escalator (if installed in
the Building) maintenance and operation;
(vii) costs of operating staff, management staff and other
administrative personnel, including salaries, wages,
and fringe benefits;
(viii) cost of providing security;
(ix) cost of providing janitorial services, window
cleaning, garbage and snow removal and pest control;
(x) cost of supplies and materials;
(xi) cost of decoration of common areas;
(xii) cost of landscaping;
(xiii) cost of maintenance and operation of the parking
area;
(xiv) cost of consulting, and professional fees including
expenses;
(xv) cost of replacements, additions and modifications
unless otherwise included under Operating Costs under
subparagraph (xvi), and cost of repair and;
(xvi) costs in respect of each Major Expenditure (as
hereinafter defined) as amortized over the period of
the Landlord's reasonable estimate of the economic
life of the Major Expenditure, but not to exceed
fifteen (15) years, using equal monthly installments
of principal and interest at ten percent (10%) per
annum compounded semi-annually. For the purpose
hereof "Major Expenditure" shall mean any expenditure
incurred after the date of substantial completion of
the Building for replacement of machinery, equipment,
building elements, systems or facilities forming a
part of or used in connection with the Property or
for modifications, upgrades or additions to the
Property or facilities used in connection therewith,
provided that, in each case, such expenditure was
more than ten percent (10%) of the total Operating
Costs for the immediately preceding Fiscal Period.
(d) In this Lease there shall be excluded from Operating Costs the
following:
(i) interest on debt and capital retirement of debt;
(ii) such of the Operating Costs as are recovered from
insurance proceeds; and
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(iii) costs as determined by the Landlord of acquiring
tenants for the Property.
6. In calculating Operating Costs for any Fiscal Period, if less than one
hundred percent (100%) of Building is occupied by tenants, then the amount of
such Operating Costs shall be deemed for the purposes of this Schedule to be
increased to an amount equal to the like Operating Costs which normally would be
expected by the Landlord to have been incurred had such occupancy been one
hundred percent (100%) during such entire period.
7. In this Lease, "Tenant's Proportionate Share" shall mean THREE DECIMAL FIVE
NINE percent (3.59%) subject to adjustment as determined solely by the Landlord
and notified to the Tenant in writing for physical increases or decreases in the
total rentable area of the Property provided that total rentable area of the
Property and the rentable area of the Leased Premises shall exclude areas
designated (whether or not rented) for parking and for storage.
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SCHEDULE "E"
RULES AND REGULATIONS
1. The sidewalks, entry passages, elevators (if installed in the Building) and
common stairways shall not be obstructed by the Tenant or used for any other
purpose than for ingress and egress to and from the Leased Premises. The Tenant
will not place or allow to be placed in the Building corridors or public
stairways any waste paper, dust, garbage, refuse or anything whatever.
2. The washroom plumbing fixtures and other water apparatus shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown therein. The
expense of any damage resulting by misuse by the Tenant shall be borne by the
Tenant,
3. The Tenant shall permit window cleaners to clean the windows of the Leased
Premises during normal business hours.
4. No birds or animals shall be kept in or about the Property nor shall the
Tenant operate or permit to be operated any musical or sound-producing
instruments or device or make or permit any improper noise inside or outside the
Leased Premises which may be heard outside such Leased Premises.
5. No one shall use the Leased Premises for residential purposes, or for the
storage of personal effects or articles other than those required for business
purposes.
6. All persons entering and leaving the Building at any time other than during
normal business hours shall register in the books which may be kept by the
Landlord at or near the night entrance and the Landlord will have the right to
prevent any person from entering or leaving the Building or the Property unless
provided with a key to the premises to which such person seeks entrance and a
pass in a form to be approved by the Landlord. Any persons found in the Building
at such times without such keys and passes will be subject to the surveillance
of the employees and agents of the Landlord.
7. No dangerous or explosive materials shall be kept or permitted to be kept in
the Leased Premises.
8. The Tenant shall not and shall not permit any cooking in the Leased
Premises. The Tenant shall not install or permit the installation or use of any
machine dispensing goods for sale in the Leased Premises without the prior
written approval of the Landlord. Only persons authorized by the Landlord shall
be permitted to deliver or to use the elevators (if installed in the Building)
for the purpose of delivering food or beverages to the Leased Premises.
9. The Tenant shall not bring in or take out, position, construct, install or
move any safe, business machine or other heavy office equipment without first
obtaining the prior written consent of the Landlord. In giving such consent, the
Landlord shall have the right in its sole discretion, to prescribe the weight
permitted and the position thereof, and the use and design of planks, skids or
platforms to distribute the weight thereof. All damage done to the Building by
moving or using any such heavy equipment or other office equipment or furniture
shall be repaired at the expense of the Tenant. The moving of all heavy
equipment or other office equipment or furniture shall occur only at times
consented to by the Landlord and the persons employed to move the same in and
out of the Building must be acceptable to the Landlord. Safes and other heavy
office equipment 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 (if installed in the Building)
except during hours approved by the Landlord.
10. The Tenant shall give the Landlord prompt notice of any accident to or any
defect in the plumbing, heating, air-conditioning, ventilating, mechanical or
electrical apparatus or any other part of the Building.
11. The parking of automobiles shall be subject to the charges and the
reasonable regulations of the Landlord. 'Me Landlord shall not be responsible
for damage to or theft of any car, its accessories or contents whether the same
be the result of negligence or otherwise.
12. The Tenant shall not mark, drill into or in any way deface the walls,
ceilings, partitions, floors or other parts of the Leased Premises and the
Building.
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13. Except with the prior written consent of the Landlord, no tenant shall use
or engage any person or persons other than the janitor or janitorial contractor
of the Landlord for the purpose of any cleaning of the Leased Premises.
14. If the Tenant desires any electrical or communications wiring, the Landlord
reserves the right to direct qualified persons as to where and how the wires are
to be introduced, and without such directions no borings or cutting for wires
shall take place. No other wires or pipes of any kind shall be introduced
without the prior written consent of the Landlord.
15. The Tenant shall 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. Additional keys may be
obtained from the Landlord at the cost of the Tenant.
16. The Tenant shall be entitled to have its name shown upon the directory board
of the Building and at one of the entrance doors to the Leased Premises all at
the Tenant's expense, but the Landlord shall in its sole discretion design the
style of such identification and allocate the space on the directory board for
the Tenant.
17. The Tenant shall keep the sun drapes (if any) in a closed position at all
times. The Tenant shall not interfere with or obstruct any perimeter heating,
air-conditioning or ventilating units.
18. The Tenant shall not conduct, and shall not permit any, canvassing in the
Building.
19. The Tenant shall take care of the rugs and drapes (if any) in the Leased
Premises and shall arrange for the carrying-out of regular spot cleaning and
shampooing of carpets and dry cleaning of drapes in a manner acceptable to the
Landlord.
20. The Tenant shall permit the periodic closing of lanes, driveways and
passages for the purpose of preserving the Landlord's rights over such lanes,
driveways and passages.
21. The Tenant shall not place or permit to be placed any sign, advertisement,
notice or other display on any part of the exterior of the Leased Premises or
elsewhere if such sign, advertisement, notice or other display is visible from
outside the Leased Premises without the prior written consent of the Landlord
which may be arbitrarily withheld. The Tenant, upon request of the Landlord,
shall immediately remove any sign, advertisement, notice or other display which
the Tenant has placed or permitted to be placed which, in the opinion of the
Landlord, is objectionable, and if the Tenant shall fail to do so, the Landlord
may remove the same at the expense of the Tenant.
22. The Landlord shall have the right to make such other and further reasonable
rules and regulations and to alter the same as in its judgment may from time to
time be needful for the safety, care, cleanliness and appearance of the Leased
Premises and the Building and for the preservation of good order therein, and
the same shall be kept and observed by the tenants, their employees and
servants. The Landlord also has the right to suspend or cancel any or all of
these rules and regulations herein set out.
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SCHEDULE "F"
LEASEHOLD IMPROVEMENTS
DEFINITION OF LEASEHOLD IMPROVEMENTS
1. For purposes of this Lease, the term "Leasehold Improvements" includes,
without limitation, all fixtures, improvements, installations, alterations and
additions from time to time made, erected or installed by or on behalf of the
Tenant, or any previous occupant of the Leased Premises, in the Leased Premises
and by or on behalf of other tenants in other premises in the Building
(including the Landlord if an occupant of the Building), including all
partitions, doors and hardware however affixed, and whether or not movable, all
mechanical, electrical and utility installations and all carpeting and drapes
with the exception only of furniture and equipment not of the nature of
fixtures.
INSTALLATION OF IMPROVEMENTS AND FIXTURES
2. The Tenant shall not make, erect, install or alter any Leasehold
Improvements in the Leased Premises without having requested and obtained the
Landlord's prior written approval. The Landlord's approval shall not, if given,
under any circumstances be construed as consent to the Landlord having its
estate charged with the cost of work. The Landlord shall not unreasonably
withhold its approval to any such request, but failure to comply with the
Landlord's reasonable requirements from time to time for the Building shall be
considered sufficient reason for refusal. In making, erecting, installing or
altering any leasehold Improvements the Tenant shall not, without the prior
written approval of the Landlord, alter or interfere with any installations
which have been made by the Landlord or others and in no event shall alter or
interfere with window coverings (if any) or other light control devices (if
any) installed in the Building. The Tenant's request for any approval hereunder
shall be in writing and accompanied by an adequate description of the
contemplated work and, where appropriate, working drawings and specifications
thereof. If the Tenant requires from the Landlord drawings or specifications of
the Building in connection with leasehold Improvements, the Tenant shall pay
the cost thereof to the Landlord on demand. Any reasonable costs and expenses
incurred by the Landlord in connection with the Tenant's Leasehold Improvements
shall be paid by the Tenant to the Landlord on demand. All work to be performed
in the Leased Premises shall be performed by competent contractors and
sub-contractors of whom the Landlord shall have approved in writing prior to
commencement of any work, such approval not to be unreasonably withheld (except
that the Landlord may require that the Landlord's contractors and
sub-contractors be engaged for any mechanical or electrical work) and by
workmen who have labor union affiliations that are compatible with those
affiliations (if any) of workmen employed by the Landlord and its contractors
and sub-contractors. All such work including the delivery, storage and removal
of materials shall be subject to the reasonable supervision of the Landlord,
shall be performed in accordance with any reasonable conditions or regulations
imposed by the Landlord including, without limitation, payment on demand of a
reasonable fee of the Landlord for such supervision, and shall be completed in
good and workmanlike manner in accordance with the description of the work
approved by the Landlord and in accordance with all laws, regulations and
by-laws of all regulatory authorities. Copies of required building permits or
authorizations shall be obtained by the Tenant at its expense and copies
thereof shall be provided to the Landlord. No locks shall be installed on the
entrance doors or in any doors in the Leased Premises that are not keyed to the
Building master key system.
LIENS AND ENCUMBRANCES ON IMPROVEMENTS
AND FIXTURES
3. In connection with the making, erection, installation or alteration of
leasehold Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the provisions
of the mechanics' lien and other similar statutes from time to time applicable
thereto (including any proviso requiring or enabling the retention by way of
holdback of portions of any sums payable) and, except as to any such holdback,
shall promptly pay all accounts relating thereto. The Tenant will not create
any mortgage, conditional sale agreement or other encumbrance in respect of its
Leasehold Improvements or, without the written consent of the Landlord, with
respect to its trade fixtures nor shall the Tenant take any action as a
consequence of which any such mortgage, conditional sale agreement or other
encumbrance would attach to the Property or any part thereof. If and whenever
any mechanics' or other lien for work, labor, services or materials supplied to
or for the Tenant or for the cost of which the Tenant may be in any way liable
or claims therefor shall arise or be filed or any such mortgage, conditional
sale agreement or other encumbrance shall attach, the Tenant shall within
twenty (20) days after submission by the
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SCHEDULE "K"
OCCUPANCY PRIOR TO COMMENCEMENT OF TERM
The Tenant may enter the Leased Premises thirty (30 ) days prior to commencement
of the Term for the sole purpose of installing Leasehold Improvements (the
"Improvement Period"). Landlord and Tenant mutually acknowledge and agree that
the Improvement Period precedes and is not part of Basic Rent Free Period, if
any, provided for in this Lease.
Tenant's occupancy of the Leased Premises during the Improvement Period shall be
upon and subject to the following conditions:
1. During the Improvement Period the Tenant, its servants, agents,
employees, contractors, subcontractors, officers and directors shall be
subject to and bound by all of the terms and conditions of this Lease
including without limiting the generality of the foregoing insurance
and indemnification subject only to the following:
(a) During the Improvement Period the Tenant shall not be
obligated to pay Rent.
(b) In the event the Tenant commences to conduct its business
from the Leased Premises during the Improvement Period all
Rent and other charges shall commence from the date of such
commencement notwithstanding that the Term has not yet begun.
(c) During the Improvement Period the Landlord shall have no
obligation to provide the Tenant any of the services required
to be provided by the Landlord hereunder to the Tenant
including without limitation any of the services referred to
in paragraphs 1, 2, 3 and 4 of Schedule "D" of this Lease and
the Landlord shall not be liable to the Tenant for any loss
whatsoever resulting from Landlord not providing any such
services.
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(ii) the amount by which Taxes (whether imposed upon the Landlord
or the Tenant) are increased above the Taxes which would have
otherwise been payable as a result of the Leased Premises or
the Tenant or any other occupant of the Leased Premises being
taxed or assessed in support of separate schools; and
(d) "Tenant's Proportionate Share" shall mean THREE DECIMAL FIVE NINE
percent (3.59%) subject to adjustment as determined solely by the
Landlord and notified to the Tenant in writing for physical increases
or decreases in the total rentable area of the Property provided that
total rentable area of the Property and the rentable area of the Leased
Premises shall exclude areas designated (whether or not rented) for
parking and for storage.
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AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT made this 13th day of November, 1997.
BETWEEN:
THE MANUFACTURERS LIFE INSURANCE COMPANY
(hereinafter called the "Landlord")
OF THE FIRST PART,
and
COFFEE.COM INTERACTIVE CAFE CORP.
(hereinafter called the "Tenant")
OF THE SECOND PART,
WHEREAS by a Lease Agreement made the 20th day of March 1997 (the "Lease"), the
Landlord leased to the Tenant the following premises:
Property: - 603 - 7th Avenue S.W., Calgary: as per
Lease,
Leased Premises: - 2,880 square feet, fifth (5th) Floor,
Suite 550: as per Lease,
Term: - Five (5) years: as per Lease,
Basic Rent: - $14,440.00 per annum: as per Lease,
Tenant's Proportionate Share: - 3.59%: as per Lease;
AND WHEREAS the Landlord and the Tenant have agreed to amend the Lease;
NOW WITNESSTH that in consideration of the rents, covenants and agreements
contained in the Lease, and in consideration of the covenants and agreements
hereinafter contained, and the sum of ONE DOLLAR ($1.00) now paid by each of the
parties to the other (the receipt and sufficiency of which is hereby
acknowledged), the Landlord and Tenant hereby agree to amend the Lease as
follows to give effect to Tenant's expansion within the Property:
1) (i) Clause 1 of the Lease shall be amended as follows:
"As of the 1st day of December 1997 (the "Effective Date") the
area of the Leased Premises shall be increased by Four
Thousand Ninety rentable square feet (4,090 r.s.f) as outlined
on Schedule "B-1" attached hereto (the "Expansion Premises"),
and the revised area of the Leased Premises shall be deemed to
consist of Six Thousand Nine Hundred Seventy rentable square
feet (6,970 r.s.f.)."
(ii) Clause 3 Paragraph 3(a) of the Lease shall be amended
as follows:
"As of the Effective Date the Basic Rent shall be increased by
Forty-Seven Thousand Forty dollars ($47,040.00) to Sixty-One
Thousand Four Hundred Forty dollars ($61,440.00) of lawful
money of the jurisdiction in which the Leased Premises are
located, payable in equal month installments. The monthly
installments shall be Five Thousand One Hundred Twenty dollars
($5,120.00) each in advance on the first day of each month
during the Term. The first amended payment to be made on the
1st day of December, 1997, subject to Schedule "K" attached
hereto, which shall form part of the Lease as if the same were
embodied therein."
Commencing on the 1st day of December, 1999 and continuing
until the 30th day of November, 2000, the Basic Rent shall be
increased to Sixty-Five Thousand Five Hundred Twenty dollars
($65,520.00) per annum of lawful money of the jurisdiction in
which the Leased Premises are located payable in equal monthly
installments of Five Thousand Four Hundred Sixty dollars
($5,460.00) each in advance on the first day of each month
during the Term, the first payment to be made on the 1st day
of December, 1999.
Commencing on the 1st day of December, 2000 and continuing
until the 30th day of April, 2002, the Basic Rent shall be
increased to Sixty-Nine Thousand Six Hundred Twelve
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dollars ($69,612.00) per annum of lawful money of the
jurisdiction in which the Leased Premises are located payable
in equal monthly installments of Five Thousand Eight Hundred
One dollars ($5,801.00) each in advance on the first day of
each month during the Term, the first payment to be made on
the 1st day of December, 2000.
(iii) Clause 4 of the Lease shall be amended by the
addition of the following:
"On the 1st day of March, 1998 the Tenant shall pay an
additional Security Deposit of Five Thousand dollars
($5,000.00) to Landlord, such that the total Security Deposit
held is Seven Thousand Seven Hundred Forty-Three dollars and
Forty-Eight cents ($7,743.48)."
(iv) Schedule C Clause 2 Paragraph 2(d) and Schedule D
Clause 7 shall be amended by the addition of the
following:
"As of the Effective Date Tenant's Proportionate Share shall
be increased by five decimal one one percent (5.11%) to eight
decimal seven zero percent (8.70%)".
(v) Schedule F Clause 5 Paragraph 5(b) shall be amended
by the addition of the following:
"As of the Effective Date Landlord's Work for the Expansion
Premises shall include:
The Landlord shall, at its sole cost demolish
approximately 15 feet of lineal drywall in the
existing reception area, repair and paint walls
relating to the demolition area only and patch the
carpet with existing carpet base."
2) As of the Effective Date, Schedule "B-1" - Outline of Additional
Leased Premises, attached hereto, shall form part of the Lease as if the same
were embodied therein.
3) As of the Effective Date Schedule "K-1", Occupancy Prior to
Commencement of Term, attached hereto, shall form part of the Lease as if the
same were embodied therein.
4) The Landlord and the Tenant hereby confirm each to the other the
several covenants and agreements in the Lease as amended by this Amendment to
Lease Agreement.
5) This Amendment to Lease Agreement and everything herein contained
shall enure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors, assigns and other legal representatives,
as the case may be, of each of the parties hereto, and every reference herein to
any party hereto shall include the heirs, executors, administrators, successors,
assigns and other legal representatives of such party, and where there is more
than one tenant or there is a male or female party, the provisions hereof shall
be read with all grammatical changes thereby rendered necessary and all
covenants shall be deemed joint and several.
IN WITNESS HEREOF the, parties hereto have executed this Amendment to Lease
Agreement. I/We have authority to bind the corporation.
LANDLORD:
THE MANUFACTURERS LIFE INSURANCE COMPANY
by Signature: /s/ CHRIS HOLTVED
---------------------------
Name: Chris Holtved
Title: Regional Director
TENANT:
COFFEE.COM INTERACTIVE CAFE CORP.
/s/ [SIG] by Signature: /s/ [SIG]
- -------------------- ---------------------------
Witness as to Name: ??????
signing by Tenant Title: ??????
INITIAL
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SCHEDULE "B1"
(Location of Leased Premises cross-hatched)
This Schedule is for identification purposes only and is not to be interpreted
as being a representation or warranty on the part of the Landlord as to the
exact location, area, configuration and layout,
5th floor diagram
Property Name: MANULIFE HOUSE
INITIAL
Landlord | Tenant
[SIG] [SIG]
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SCHEDULE "K"
BASIC RENT FREE PERIOD
The Tenant shall not be required to pay Basic Rent for the Expansion Premises
the first thirty-one (31) days of the Term of this Lease (herein called the
"Basic Rent Free Period"). For clarification, this represents a reduction of
Three Thousand Nine Hundred Twenty dollars ($3,920.00) in the revised Basic Rent
for the month of December 1997.
All other terms and provisions of this Lease shall, however, remain in full
force and effect during the Basic Rent Free Period and thereafter including
without limitation the payment of Additional Rent.
INITIAL
Landlord | Tenant
[SIG] [SIG]
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SCHEDULE "K-1
OCCUPANCY PRIOR TO COMMENCEMENT OF TERM
The Tenant may enter the Expansion Premises sixteen (16) days prior to
commencement of the Term for the sole purpose of installing Leasehold
Improvements (the, "Improvement Period"). Landlord and Tenant mutually
acknowledge and agree that the Improvement Period precedes and is not part of
Basic Rent Free Period, if any, provided for in this Lease.
Tenant's occupancy of the Leased Premises during the Improvement Period shall be
upon and subject to the following conditions:
1. During the Improvement Period the Tenant, its servants, agents,
employees, contractors, subcontractors, officers and directors shall be
subject to and bound by all of the terms and conditions of this Lease
including without limiting the generality of the foregoing insurance
and indemnification subject only to the following:
(a) During the Improvement Period the Tenant shall not be
obligated to pay Rent except those charges set out in l(d).
(b) In the event the Tenant commences to conduct its business from
the Leased Premises during the Improvement Period all Rent and
other charges shall commence from the date of such
commencement notwithstanding that the Term has not yet begun.
(c) During the Improvement Period the Landlord shall have no
obligation to provide the Tenant any of the services required
to be provided by the Landlord hereunder to the Tenant
including without limitation any of the services referred to
in paragraphs 1, 2, 3 and 4 of Schedule "D" of this Lease
except those services reasonably required by the Tenant for
the purposes of installing the Leasehold Improvements and the
Landlord shall not be liable to the Tenant for any loss
whatsoever resulting from Landlord not providing any such
services.
(d) The Tenant shall be responsible for the Landlord's reasonable
charges during the Improvement Period for services and
utilities used for or in connection with the Leased Premises,
including, without limiting the generality of the foregoing,
those relating to security and access to the Leased Premises,
garbage removal from the Leased Premises and the use and
consumption of utilities such as water, fuel, power and
telephone. The Tenant shall pay to the Landlord on demand the
amount of such charges, based on estimates by the Landlord.
(e) Tenant acknowledges that Landlord may be completing Landlord's
Work for the Expansion Premises during the Improvement Period.
INITIAL
Landlord | Tenant
[SIG] [SIG]