P E N D E R P L A C E
7 5 0 W E S T P E N D E R
O F F I C E L E A S E
BETWEEN
PACIFIC CENTRE LEASEHOLDS LIMITED
(Landlord)
- AND -
THE NATIONAL FOR SALE PHONE COMPANY INC.
(Tenant)
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Pender Place
750 West Pender Street
Vancouver, British Columbia
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LEASE
TABLE OF CONTENTS
ARTICLE I - PREMISES - TERM AND USE ........................................ 1
Section 1.01 Grant and Premises .................................... 1
Section 1.02 Term .................................................. 1
Section 1.03 Construction of Premises .............................. 1
Section 1.04 Use and Conduct of Business ........................... 1
ARTICLE II - RENT ........................................................... 1
Section 2.01 Covenant to Pay ....................................... 1
Section 2.02 Net Rent .............................................. 1
Section 2.03 Payment of Operating Costs ............................ 2
Section 2.04 Payment of Taxes ...................................... 2
Section 2.05 Payment of Estimated Taxes and Operating Costs ........ 2
Section 2.06 Additional Rent ....................................... 3
Section 2.07 Rent Past Due ......................................... 3
Section 2.08 Utilities ............................................. 3
Section 2.09 Adjustment of Areas ................................... 3
Section 2.10 Net Lease ............................................. 3
Section 2.11 Deposit ............................................... 3
ARTICLE III - CONTROL OF BUILDING .......................................... 4
Section 3.01 Landlord's Services ................................... 4
Section 3.02 Alterations by Landlord ............................... 4
ARTICLE IV - ACCESS AND ENTRY .............................................. 4
Section 4.01 Entry for Inspection and Work ......................... 4
Section 4.02 Right to Show Premises ................................ 4
Section 4.03 Entry not Forfeiture .................................. 4
ARTICLE V - MAINTENANCE, REPAIRS AND ALTERATIONS ............................ 5
Section 5.01 Maintenance By Landlord ............................... 5
Section 5.02 Maintenance by Tenant; Compliance with Laws ........... 5
Section 5.03 Tenant's Alterations .................................. 5
Section 5.04 Repair Where Tenant at Fault .......................... 6
Section 5.05 Removal of Improvements and Fixtures .................. 6
Section 5.06 Liens ................................................. 6
Section 5.07 Notice by Tenant ...................................... 6
ARTICLE VI - INSURANCE AND INDEMNITY........................................ 6
Section 6.01 Tenant's Insurance..................................... 6
Section 6.02 Increase in Insurance Premiums......................... 7
Section 6.03 Cancellation of Insurance.............................. 7
Section 6.04 Loss or Damage......................................... 8
Section 6.05 Landlord's Insurance................................... 8
Section 6.06 Indemnification of the Landlord........................ 8
ARTICLE VII - DAMAGE AND DESTRUCTION........................................ 8
Section 7.01 No Abatement or Termination............................ 8
Section 7.02 Damage to Premises..................................... 9
Section 7.03 Right of Termination................................... 9
Section 7.04 Destruction of or Damage to Building................... 9
Section 7.05 Architect's Certificate................................ 10
ARTICLE VIII - ASSIGNMENT, SUBLETTING AND TRANSFERS.......................... 10
Section 8.01 Assignments, Subleases and Transfers................... 10
Section 8.02 Landlord's Rights...................................... 10
Section 8.03 Conditions of Transfer................................. 10
Section 8.04 Change of Control...................................... 11
Section 8.05 No Advertising......................................... 11
Section 8.06 Assignment By Landlord................................. 11
ARTICLE IX - DEFAULT........................................................ 12
Section 9.01 Default and Remedies................................... 12
Section 9.02 Distress............................................... 12
Section 9.03 Damages and Costs...................................... 12
Section 9.04 Allocation of Payments ................................ 13
Section 9.05 Survival of Obligations................................ 13
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ARTICLE X - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION.................. 13
Section 10.01 Status Statement...................................... 13
Section 10.02 Subordination......................................... 13
Section 10.03 Attornment............................................ 13
Section 10.04 Execution of Documents................................ 13
ARTICLE XI - GENERAL PROVISIONS.............................................. 13
Section 11.01 Rules and Regulations................................. 13
Section 11.02 Delay................................................. 13
Section 11.03 Overholding........................................... 14
Section 11.04 Waiver................................................ 14
Section 11.05 Registration.......................................... 14
Section 11.06 Notices............................................... 14
Section 11.07 Successors............................................ 14
Section 11.08 Joint and Several Liability........................... 14
Section 11.09 Captions and Section Numbers.......................... 14
Section 11.10 Extended Meanings..................................... 14
Section 11.11 Partial Invalidity.................................... 14
Section 11.12 Entire Agreement...................................... 15
Section 11.13 Governing Law......................................... 15
Section 11.14 Time of the Essence................................... 15
Section 11.15 Quiet Enjoyment....................................... 15
Section 11.16 Indemnity Agreement................................... 15
Section 11.17 Early Occupancy....................................... 15
Section 11.18 Landlord's Work....................................... 15
Section 11.19 Parking............................................... 15
Section 11.20 Execution............................................. 16
SCHEDULE "A" - LEGAL DESCRIPTION OF THE LANDS................................ 17
SCHEDULE "B" - FLOOR PLAN OF THE PREMISES.................................... 18
SCHEDULE "C" - DEFINITIONS................................................... 19
SCHEDULE "D" - RULES AND REGULATIONS......................................... 24
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THIS LEASE is dated the 9th day of July, 1999.
B E T W E E N:
PACIFIC CENTRE LEASEHOLDS LIMITED
(the "Landlord")
- and -
THE NATIONAL FOR SALE PHONE COMPANY INC.
(the "Tenant")
ARTICLE I - PREMISES - TERM AND USE
Section 1.01 Grant and Premises
In consideration of the performance by the Tenant of its obligations under this
Lease, the Landlord leases the Premises to the Tenant for the Term. The Premises
are located on the sixth (6th) floor of the Building and are shown outlined in
red on the floor plan attached as Schedule "B". The Net Rentable Area of the
Premises is approximately one thousand one hundred and seventy-seven (1,177)
square feet and the Rentable Area of the Premises is approximately one thousand
three hundred and seventy-two (1,372) square feet.
Section 1.02 Term
The Term of this Lease is three (3) years, from the 1st day of August, 1999, to
the 31 day of July, 2002.
Section 1.03 Construction of Premises
The provisions (if any) of the Lease Proposal relating to construction of the
Premises and delay in availability of the Premises for occupancy by the Tenant
shall remain in effect and shall not merge upon the execution of this Lease. The
Tenant shall abide by the provisions of this Lease and the tenant leasehold
improvement manual supplied by the Landlord for any construction it proposes to
do prior to or upon occupancy of the Premises, and any renovations to the
Premises after it takes occupancy. The Tenant agrees to accept the Premises in
their current "as is" condition, subject to any Landlord's work expressly set
out in this Lease.
Section 1.04 Use and Conduct of Business
The Premises shall be used only for conducting the business of general office
use and for no other purpose. The Tenant shall conduct its business in the
Premises in a reputable and first class manner. If the Tenant is a corporation,
the Tenant will be either incorporated or extra-provincially registered in the
Province and will remain in good standing during the Term with the Registrar of
Companies for the Province with respect to filing annual reports.
ARTICLE II - RENT
Section 2.01 Covenant to Pay
(a) Except as otherwise expressly provided in this Lease, the Tenant shall pay
Rent from the Commencement Date without prior demand and without any deduction,
abatement, setoff or compensation. If the Commencement Date is not on the first
day of a calendar month, or the period of time from the Commencement Date to the
end of the first Fiscal Year during the Term is less than 12 calendar months, or
the period of time from the last Fiscal Year end during the Term to the end of
the Term is less than 12 calendar months, then Rent for such month and such
periods shall be pro-rated on a per diem basis, based upon a period of 365 days.
(b) If an Event of Default occurs, at the request of the Landlord the Tenant
will deliver to the Landlord a series of monthly post-dated cheques for the next
ensuing twelve month period, for the total of the monthly payments of Net Rent
and any Additional Rent estimated by the Landlord in advance.
Section 2.02 Net Rent
The Tenant shall pay Net Rent in the sum of SIXTEEN THOUSAND ONE HUNDRED AND
TWENTY-0NE DOLLARS ($16,121.00) per annum payable in equal monthly instalments
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of ONE THOUSAND THREE HUNDRED AND FORTY-THREE DOLLARS AND FORTY-TWO CENTS
($1,343.42) each in advance, on the first day of each calendar month of the
Term. The Net Rent is based on an annual rate of ELEVEN DOLLARS AND SEVENTY-FIVE
CENTS ($11.75) per square foot of the Rentable Area of the Premises. As soon as
reasonably possible after completion of construction of the Premises, the
Landlord shall measure the Net Rentable Area of the Premises and shall calculate
the Rentable Area of the Premises and Rent shall be adjusted accordingly.
Section 2.03 Payment of Operating Costs
The Tenant shall pay to the Landlord the Tenant's Proportionate Share of
Operating Costs.
Section 2.04 Payment of Taxes
(a) The Tenant shall pay when due all Business Tax. If the Tenant's Business Tax
is payable by the Landlord to the relevant taxing authority, the Tenant shall
pay the amount thereof to the Landlord or as it directs. If no separate tax
bills for Business Tax are issued with respect to the Tenant or the Premises,
the Landlord may allocate Business Tax charged, assessed or levied against the
Building or the Lands to the Tenant on the basis of the Tenant's Proportionate
Share. If Business Taxes are eliminated by the Province or the city in which the
Building is located, and Taxes are increased the Tenant will pay an equitable
share of Taxes attributable to the Premises to the extent, (and only to the
extent) that Taxes attributable to the Premises are increased as a consequence
of the elimination of Business Taxes.
(b) The Landlord shall allocate Taxes between the Total Rentable Area of the
Building and other components of the Development on such basis as the Landlord,
acting equitably, determines from time to time.
(c) The Tenant shall promptly pay to the Landlord or the relevant taxing
authority, as the Landlord may direct, not later than the due date thereof, its
Proportionate Share of the Taxes allocated to the Total Rentable Area of the
Building by the Landlord.
(d) If the Landlord obtains a written statement from the assessment or taxing
authorities indicating that as a result of any construction or installation of
improvements in the Premises, or any act or election of the Tenant, the Taxes
payable by the Tenant under subsection 2.05(b) do not accurately reflect the
Tenant's proper share of Taxes, the Landlord may require the Tenant to pay such
greater or lesser amount as is determined by the Landlord, acting reasonably.
(e) The Landlord may: contest any Taxes and appeal any assessments with respect
thereto; withdraw any such contest or appeal; and agree with the taxing
authorities on any settlement or compromise with respect to Taxes. The Tenant
will co-operate with the Landlord in respect of any such contest or appeal and
will provide the Landlord with all relevant information, documents and consents
required by the Landlord in connection with any such contest or appeal. The
Tenant will not contest any Taxes or appeal any assessments related thereto
without the Landlord's prior written consent.
(f) The Tenant shall promptly deliver to the Landlord on request, copies of
assessment notices, tax bills and other documents received by the Tenant
relating to Taxes and Business Tax and receipts for payment of Taxes and
Business Tax payable by the Tenant.
(g) The Tenant shall on demand, pay to the Landlord or to the appropriate taxing
authority if required by the Landlord, all goods and services taxes, sales
taxes, value added taxes, business transfer taxes, or any other taxes imposed on
the Landlord with respect to Rent or in respect of the rental of space under
this Lease, whether characterized as a goods and services tax, sales tax, value
added tax, business transfer tax or otherwise. The Landlord shall have the same
remedies and rights with respect to the payment or recovery of such taxes as it
has for the payment or recovery of Rent under this Lease.
Section 2.05 Payment of Estimated Taxes and Operating Costs
(a) The amount of Taxes and Operating Costs may be estimated by the Landlord for
such period as the Landlord determines from time to time, and the Tenant agrees
to pay to the Landlord the amounts so estimated in equal instalments, in
advance, on the first day of each month during such period. Notwithstanding the
foregoing, when bills for all or any portion of the amounts so estimated are
received, the Landlord may bill the Tenant for the Tenant's Proportionate Share
thereof (or the amount determined under Section 2.04(d)) after crediting against
such amounts any monthly payments of estimated Taxes and Operating Costs
previously made by the Tenant and the Tenant shall pay the Landlord the amounts
so billed.
(b) Within a reasonable time after the end of the period for which such
estimated payments have been made, the Landlord shall submit to the Tenant a
statement showing the calculation of the Tenant's share of Taxes and Operating
Costs together with a report from the Landlord's auditor as to the total amount
of Operating Costs. If: (i) the amount the Tenant has paid is less than the
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amounts due, the Tenant shall pay such deficiency to the Landlord; or (ii) the
amount paid by the Tenant is greater than the amounts due, the Landlord shall
pay such excess to the Tenant.
(c) The obligations contained in this Section shall survive the expiration or
earlier termination of the Term. Failure of the Landlord to render any statement
of Taxes or Operating Costs shall not prejudice the Landlord's right to render
such statement thereafter or with respect to any other period. The rendering of
any such statement shall also not affect the Landlord's right to subsequently
render an amended or corrected statement.
Section 2.06 Additional Rent
Except as otherwise provided in this Lease, all Additional Rent shall be payable
by the Tenant to the Landlord within 5 business days after demand.
Section 2.07 Rent Past Due
All Rent past due shall bear interest from the date on which the same became due
until the date of payment at 5% per annum in excess of the prime interest rate
for Canadian Dollar demand loans announced from time to time by any Canadian
chartered bank designated by the Landlord.
Section 2.08 Utilities
(a) The Tenant shall pay to the Landlord, or as the Landlord directs, all gas,
electricity, water, steam and other utility charges applicable to the Premises
on the basis of the Rentable Area of the Premises. Charges for utilities shall
be payable in advance on the first day of each month at a basic rate determined
by the Landlord's engineers. The Landlord shall be entitled to allocate to the
Premises an additional charge, as determined by the Landlord's engineer, for any
supply of utilities to the Premises in excess of those covered by such basic
charge. If any utility rates or related taxes or charges are increased or
decreased during the Term, such charges shall be equitably adjusted and the
decision of the Landlord, acting reasonably, shall be final and binding with
respect to any such adjustment.
(b) The Landlord shall have the exclusive right to replace bulbs, tubes and
ballasts in the lighting system in the Premises, on either an individual or a
group basis. The Tenant shall pay the cost of such replacement on the first day
of each month or at the option of the Landlord upon demand.
(c) The Tenant shall pay the cost of installing and maintaining any meters
installed at the request of the Landlord or the Tenant to measure the usage of
utilities in the Premises.
Section 2.09 Adjustment of Areas
The Landlord may from time to time re-measure the Net Rentable Area of the
Premises or re-calculate the Rentable Area of the Premises and may re-adjust the
Net Rent and/or the Tenant's Proportionate Share of Additional Rent accordingly.
The effective date of any such re-adjustment shall: (a) in the case of an
adjustment to the Rentable Area resulting from a change in the aggregate Net
Rentable Area of all office premises on the floor on which the Premises are
situated, be the date on which such change occurred; and (b) in the case of a
correction to any measurement or calculation error, be the date as of which such
error was introduced in the calculation of Rent. Any necessary adjusting payment
will be made by the party responsible for that payment forthwith upon the amount
of the adjusting payment being determined.
Section 2.10 Net Lease
This Lease is a completely net lease to the Landlord, except as expressly herein
set out. The Landlord is not responsible for any expenses or outlays of any
nature arising from or relating to the Premises, or the use or occupancy
thereof, or the contents thereof or the business carried on therein. The Tenant
shall pay all charges, impositions and outlays of every nature and kind relating
to the Premises except as expressly herein set out.
Section 2.11 Deposit
The Landlord hereby acknowledges receipt of the Tenant's deposit cheque in the
sum of TWO THOUSAND SIX HUNDRED AND NINETY-ONE DOLLARS AND FORTY-ONE CENTS
($2,691.41) which will be applied without interest against the last two (2)
months Rent due under this Lease.
Section 2.12 Electronic Data Interchange
At the Landlord's request, the Tenant will participate in an electronic data
interchange ("EDI") system or similar system whereby the Tenant will authorize
its bank, trust company, credit union or other financial institution to credit
the Landlord's bank account each month in an amount equal to the Net Rent and
Additional Rent payable on a monthly basis pursuant to the provisions of this
Lease.
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ARTICLE III - CONTROL OF BUILDING
Section 3.01 Landlord's Services
(a) The Landlord shall provide climate control to the Premises during Normal
Business Hours to maintain a temperature adequate for normal occupancy, except
during the making of repairs, alterations or improvements, provided that the
Landlord shall have no liability for failure to supply climate control service
when stopped as aforesaid or when prevented from doing so by repairs, or causes
beyond the Landlord's reasonable control. Any rebalancing of the climate control
system in the Premises necessitated by the installation of partitions, equipment
or fixtures by the Tenant or by any use of the Premises not in accordance with
the design standards of such system will be performed by the Landlord or, at the
option of the Landlord, by the Tenant, but in either case at the Tenant's
expense.
(b) Subject to the Rules and Regulations, the Landlord shall provide elevator
service during Normal Business Hours for use by the Tenant in common with
others, except when prevented by repairs. The Landlord will operate at least one
passenger elevator for use by tenants at all times except in the case of fire or
other emergencies.
(c) The Landlord will provide cleaning services in the Building consistent with
the standards of a first class office building.
(d) Subject to Section 2.08, the Landlord shall make available to the Premises
electricity for normal lighting and miscellaneous power requirements and, in
normal quantities gas, water, and other public utilities generally made
available to other tenants of the Building by the Landlord.
Section 3.02 Alterations by Landlord
The Landlord may: (a) alter, add to, subtract from, construct improvements to,
rearrange, build additional storeys on and construct additional facilities
adjoining or near the Development; (b) relocate the facilities and improvements
comprising the Building or erected on the Lands, or relocate, alter or rearrange
the Premises, provided that the premises as relocated, altered, or rearranged
shall be in all material aspects comparable to the Premises as herein
defined;(c) do such things on, or in the Lands or Development as are required to
comply with any laws, by-laws, regulations, orders or directives affecting the
Lands or any part of the Development; and (d) do such other things on or in the
Lands or Development as the Landlord, in the use of good business judgment
determines to be advisable; provided that notwithstanding anything contained in
this Section, access to the Premises shall at all times be available from the
elevator lobbies of the Building.
The Landlord shall not be in breach of its covenant for quiet enjoyment or
liable for any loss, costs or damages, whether direct or indirect, incurred by
the Tenant due to any of the foregoing.
ARTICLE IV - ACCESS AND ENTRY
Section 4.01 Entry for Inspection and Work
The Landlord shall be entitled at all reasonable times (and at any time in case
of emergency) to enter the Premises to examine them; to make such repairs,
alterations or improvements in the Premises or to the Building as the Landlord
considers necessary or desirable; to have access to underfloor ducts and access
panels to mechanical shafts; to check, calibrate, adjust and balance controls
and other parts of the heating, air conditioning, ventilating and climate
control systems; and for any other purpose necessary to enable the Landlord to
perform its obligations or exercise its rights under this Lease or in the
administration of the Building or other improvements on the Lands. The Tenant
shall not obstruct any pipes, conduits or mechanical or electrical equipment so
as to prevent reasonable access thereto. The Landlord shall exercise its rights
under this Section, to the extent possible in the circumstances, in such manner
so as to minimize interference with the Tenant's use and enjoyment of the
Premises.
Section 4.02 Right to Show Premises
The Landlord and its agents shall have the right to enter the Premises at all
reasonable times during Normal Business Hours to show them to prospective
purchasers, or Mortgagees or prospective Mortgagees, and, during the last six
months of the Term (or the last six months of any renewal term if this Lease is
renewed), to prospective tenants.
Section 4.03 Entry not Forfeiture
No entry into the Premises or anything done hereunder by the Landlord pursuant
to a right granted by this Lease shall constitute a breach of any covenant for
quiet enjoyment, or (except where expressed by the Landlord in writing) shall
constitute a re-entry or forfeiture, or an actual or constructive eviction. The
Tenant shall have no claim for injury, damages or loss suffered as a result of
any such entry or thing, except in the case of wilful misconduct by the Landlord
in the course of such entry, but the Landlord shall in no event be responsible
for the acts or negligence of any Persons providing cleaning services in the
Building.
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ARTICLE V - MAINTENANCE, REPAIRS AND ALTERATIONS
Section 5.01 Maintenance By Landlord
(a) The Landlord covenants to keep the following in good repair as a prudent
owner: (i) the structure of the Building including exterior walls and roofs;
(ii) the mechanical, electrical and other base building systems; and (iii) the
entrance, lobbies, plazas, stairways, corridors, parking areas and other
facilities from time to time provided for use in common by the Tenant and other
tenants of the Building. If such maintenance or repairs or alterations are
required by law or in the prudent management of the Building or any other
improvements on the Lands due to the business carried on by the Tenant, then the
full cost of such maintenance and repairs plus a sum equal to 15% of such cost
representing the Landlord's overhead, shall be paid by the Tenant to the
Landlord.
(b) The Landlord shall not be responsible for any damages caused to the Tenant
by reason of failure of any equipment or facilities serving the Building or
delays in the performance of any work for which the Landlord is responsible
under this Lease. The Landlord shall have the right to stop, interrupt or reduce
any services, systems or utilities provided to, or serving the Building or
Premises to perform repairs, alterations or maintenance or to comply with laws
or regulations, or requirements of its insurers, or for causes beyond the
Landlord's reasonable control or as a result of the Landlord exercising its
rights under Section 3.02. The Landlord shall not be in breach of its covenant
for quiet enjoyment or liable for any loss, costs or damages, whether direct or
indirect, incurred by the Tenant due to any of the foregoing, but the Landlord
shall make reasonable efforts to restore the services, utilities or systems so
stopped, interrupted or reduced.
(c) If the Tenant fails to carry out any maintenance, repairs or work required
to be carried out by it under this Lease to the reasonable satisfaction of the
Landlord, the Landlord may at its option carry out such maintenance or repairs
without any liability for any resulting damage to the Tenant's property or
business. The cost of such work, plus a sum equal to 15% of such cost
representing the Landlord's overhead, shall be paid by the Tenant to the
Landlord.
Section 5.02 Maintenance by Tenant; Compliance with Laws
(a) The Tenant shall at its sole cost repair and maintain the Premises exclusive
of base building mechanical and electrical systems, all to a standard consistent
with a first class office building, with the exception only of those repairs
which are the obligation of the Landlord under this Lease, subject to Article
VII. The Landlord may enter the Premises at all reasonable times to view their
condition and the Tenant shall maintain and keep the Premises in good and
substantial repair according to notice in writing. At the expiration or earlier
termination of the Term, the Tenant shall surrender the Premises to the Landlord
in as good condition and repair as the Tenant is required to maintain the
Premises throughout the Term.
(b) The Tenant shall, at its own expense, promptly comply with all laws,
by-laws, government orders and with all reasonable requirements or directives of
the Landlord's insurers affecting the Premises or their use, repair or
alteration.
Section 5.03 Tenant's Alterations
(a) No Alterations shall be made to the Premises without the Landlord's written
approval. The Tenant shall submit to the Landlord details of the proposed work
including drawings and specifications prepared by qualified architects or
engineers conforming to good engineering practice. All such Alterations shall be
performed: (i) at the sole cost of the Tenant; (ii) by contractors and workmen
approved by the Landlord; (iii) in a good and workmanlike manner; (iv) in
accordance with drawings and specifications approved by the Landlord; (v) in
accordance with all applicable legal and insurance requirements; (vi) subject to
the reasonable regulations, supervision, control and inspection of the Landlord;
(vii) subject to such indemnification against liens and expenses as the Landlord
reasonably requires; and (viii) in accordance with all applicable laws, by-laws
and government orders. The Landlord's reasonable cost incurred with respect to
the Tenant's Alterations including without limitation the cost of approving,
supervising and inspecting all such work shall be paid by the Tenant.
(b) If the Alterations would affect the structure of the Building or any of the
electrical, plumbing, mechanical, heating, ventilating or air conditioning
systems or other base building systems, such work shall at the option of the
Landlord be performed by the Landlord at the Tenant's cost. If the Landlord
performs such work, then on completion of such work, the cost of the work plus a
sum equal to 15% of said cost representing the Landlord's overhead shall be paid
by the Tenant to the Landlord.
(c) If the Tenant installs Leasehold Improvements, or makes Alterations which
depart from the Building standard and which restrict access to any Building
system or to any structural element of the Building by the Landlord or by any
person or corporation authorized by the Landlord, or which restrict the
installation of the leasehold improvements of any other tenant in the Building,
then the Tenant shall at the request of the Landlord remove any obstruction in a
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manner acceptable to the Landlord, failing which the Landlord may remove the
same; and the Tenant will pay, or reimburse the Landlord for, the cost of such
removal and for any replacement or restoration of such Leasehold Improvements or
Alterations.
Section 5.04 Repair Where Tenant at Fault
Notwithstanding any other provisions of this Lease, but subject to Section 6.07,
if the Building is damaged or destroyed or requires repair, replacement or
alteration as a result of the act or omission of the Tenant, its employees,
agents, invitees, licensees, contractors or others for whom it is in law
responsible, the cost of the resulting repairs, replacements or alterations plus
a sum equal to 15% of such cost representing the Landlord's overhead, shall be
paid by the Tenant to the Landlord.
Section 5.05 Removal of Improvements and Fixtures
All Leasehold Improvements (other than Trade Fixtures) shall immediately upon
their placement, before or during the Term, become the Landlord's property
without compensation to the Tenant. Except as otherwise agreed by the Landlord
in writing, no Leasehold Improvements shall be removed from the Premises by the
Tenant either during or at the expiration or sooner termination of the Term
except that:
(a) the Tenant may, during the Term, in the usual course of its business, remove
its Trade Fixtures, provided that the Tenant is not in default under this Lease;
(b) the Tenant shall, at the expiration or earlier termination of the Term, at
its sole cost, remove its Trade Fixtures from the Premises, failing which, at
the option of the Landlord, the Trade Fixtures shall become the property of the
Landlord and may be removed from the Premises and sold or disposed of by the
Landlord in such manner as it deems advisable; and
(c) the Tenant shall, at the expiration or earlier termination of the Term, at
its sole cost, either remove such of the Leasehold Improvements in the Premises
as the Landlord shall require to be removed, and restore the Premises to the
Landlord's then current base Building standard to the extent required by the
Landlord, or at the Landlord's option, pay to the Landlord the estimated cost of
such removal and restoration as determined by the Architect, acting reasonably.
If the Landlord requires the Tenant to perform the required work, then:
(i) the Tenant shall submit detailed demolition drawings to the
Landlord for its prior approval, and such work shall be
completed under the supervision of the Landlord;
(ii) the Tenant shall, at its expense, repair any damage caused to
the Building by such removal; and
(iii) if the Tenant fails to complete such work within 30 days
following the expiry or earlier termination of the Term, the
Tenant shall pay compensation to the Landlord for each day
following such 30th day until the completion of such work, at
a rate equal to the per diem Rent payable during the last
month preceding the expiration or earlier termination of the
Term, which sum is agreed by the parties to be a reasonable
estimate of the damages suffered by the Landlord for the loss
of use of the Premises.
No other property of the Landlord in or comprising the Premises or any other
part of the Building may be removed by the Tenant under any circumstances.
Section 5.06 Liens
The Tenant shall promptly pay for all materials supplied and work done in
respect of the Premises so as to ensure that no lien is registered against any
portion of the Lands or Building or against the Landlord's or Tenant's interest
therein. If a lien is registered or filed, the Tenant shall discharge it at its
expense forthwith, failing which the Landlord may at its option discharge the
lien by paying the amount claimed to be due into court or directly to the lien
claimant and the amount so paid and all expenses of the Landlord including legal
fees (on a solicitor and client basis) shall be paid by the Tenant to the
Landlord. The Tenant will not grant any security interest in the Leasehold
Improvements without the prior written consent of the Landlord and will promptly
cause the discharge of any financing statement or notice which may be filed in
respect of such security interest under any statute, unless such statement or
notice is in favour of the Landlord.
Section 5.07 Notice by Tenant
The Tenant shall notify the Landlord of any accident, defect, damage or
deficiency in any part of the Premises or the Building which comes to the
attention of the Tenant, its employees or contractors notwithstanding that the
Landlord may have no obligation in respect thereof.
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ARTICLE VI - INSURANCE AND INDEMNITY
Section 6.01 Tenant's Insurance
(a) The Tenant shall maintain the following insurance throughout the Term at its
sole cost:
(i) "All Risks" (including flood and earthquake) property
insurance with reasonable deductibles, naming the Landlord,
the owners of the Lands and Development and the Mortgagee as
insured parties, containing a waiver of any subrogation rights
which the Tenant's insurers may have against the Landlord and
against those for whom the Landlord is in law responsible, and
(except with respect to the Tenant's chattels) incorporating
the Mortgagee's standard mortgage clause. Such insurance shall
insure: (1) property of every kind owned by the Tenant or for
which the Tenant is legally liable located on or in the
Development including, without limitation, Leasehold
Improvements, in an amount equal to not less than 90% of the
full replacement cost thereof, subject to a stated amount
co-insurance clause; and (2) extra expense insurance in such
amount as will reimburse the Tenant for loss attributable to
all perils referred to in this paragraph 6.01(a)(i) or
resulting from prevention of access to the Premises;
(ii) Comprehensive general liability insurance which includes the
following coverages: owners protective; personal injury;
occurrence property damage; and employers and blanket
contractual liability. Such policies shall contain inclusive
limits of not less than $5,000,000, provide for cross
liability, and name the Landlord as an insured;
(iii) Tenant's "all risks" legal liability insurance for the
replacement cost value of the Premises including loss of use
thereof;
(iv) Automobile liability insurance on a non-owned form including
contractual liability, and on an owner's form covering all
licensed vehicles operated by or on behalf of the Tenant,
which insurance shall have inclusive limits of not less than
$1,000,000; and
(v) Any other form of insurance which the Tenant or the Landlord,
acting reasonably, or the Mortgagee requires from time to time
in form, in amounts and for risks against which a prudent
tenant would insure.
(b) All policies referred to in this Section 6.01 shall:
(i) be taken out with insurers reasonably acceptable to the
Landlord;
(ii) be in a form reasonably satisfactory to the Landlord;
(iii) be non-contributing with, and shall apply only as primary and
not as excess to any other insurance available to the
Landlord;
(iv) not be invalidated as respects the interests of the Landlord
or the Mortgagee by reason of any breach of or violation of
any warranty, representation, declaration or condition; and
(v) contain an undertaking by the insurers to notify the Landlord
by registered mail not less than 30 days prior to any material
change, cancellation or termination.
Certificates of insurance on the Landlord's standard form or other proof of
insurance as reasonably required by the Landlord, shall be delivered to the
Landlord prior to the Commencement Date and from time to time, forthwith upon
request. If the Tenant fails to take out or to keep in force any insurance
referred to in this Section 6.01 or should any such insurance not be approved by
either the Landlord or the Mortgagee and should the Tenant not commence to
diligently rectify (and thereafter proceed to diligently rectify) the situation
within 48 hours after written notice by the Landlord to the Tenant (stating, if
the Landlord or the Mortgagee, from time to time, does not approve of such
insurance, the reasons therefor) the Landlord has the right without assuming any
obligation in connection therewith, to effect such insurance at the sole cost of
the Tenant and all outlays by the Landlord shall be paid by the Tenant to the
Landlord without prejudice to any other rights or remedies of the Landlord under
this Lease.
Section 6.02 Increase in Insurance Premiums
The Tenant shall not keep or use in the Premises any article which may be
prohibited by any fire insurance policy in force from time to time covering the
Premises or the Development. If: (a) the conduct of business in, or use or
manner of use of the Premises; (b) or any acts or omissions of the Tenant in the
Development or any part thereof; cause or result in any increase in premiums for
any insurance carried by the Landlord with respect to the Development, the
Tenant shall pay any such increase in premiums. In determining whether increased
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premiums are caused by or result from the use or occupancy of the Premises, a
schedule issued by the organization computing the insurance rate on the
Development showing the various components of such rate, shall be conclusive
evidence of the items and charges which make up such rate.
Section 6.03 Cancellation of Insurance
If any insurer under any insurance policy covering any part of the Development
or any occupant thereof cancels or threatens to cancel its insurance policy or
reduces or threatens to reduce coverage under such policy by reason of the use
of the Premises by the Tenant or by any Transferee, or by anyone permitted by
the Tenant to be upon the Premises, the Tenant shall remedy such condition
within 48 hours after notice thereof by the Landlord.
Section 6.04 Loss or Damage
The Landlord shall not be liable for any death or injury arising from or out of
any occurrence in, upon, at, or relating to the Lands or Development or damage
to property of the Tenant or of others located on the Premises or elsewhere in
the Development, nor shall it be responsible for any loss of or damage to any
property of the Tenant or others from any cause, whether or not any such death,
injury, loss or damage results from the negligence of the Landlord, its agents,
employees, contractors, or others for whom it may, in law, be responsible.
Without limiting the generality of the foregoing, the Landlord shall not be
liable for any injury or damage to Persons or property resulting from fire,
explosion, falling plaster, falling ceiling tile, falling fixtures, steam, gas,
electricity, water, rain, flood, snow or leaks from any part of the Premises or
from the pipes, sprinklers, appliances, plumbing works, roof, windows or
subsurface of any floor or ceiling of the Development or from the street or any
other place or by dampness or by any other cause whatsoever. The Landlord shall
not be liable for any such damage caused by other tenants or Persons on the
Lands or in the Development or by occupants of adjacent property thereto, or the
public, or caused by construction or by any private, public or quasi-public
work. All property of the Tenant kept or stored on the Premises shall be so kept
or stored at the risk of the Tenant only and the Tenant releases and agrees to
indemnify the Landlord and save it harmless from any claims arising out of any
damage to the same including, without limitation, any subrogation claims by the
Tenant's insurers.
Section 6.05 Landlord's Insurance
The Landlord shall throughout the Term carry: (a) insurance on the Development
(excluding the foundations and excavations) and the machinery, boilers and
equipment in or servicing the Development and owned by the Landlord or the
owners of the Development (excluding any property which the Tenant and other
tenants are obliged to insure under Section 6.01 or similar sections of their
respective leases) against damage by fire and extended perils coverage; (b)
public liability and property damage insurance with respect to the Landlord's
operations in the Development; and (c) such other form or forms of insurance as
the Landlord or the Mortgagee reasonably considers advisable. Such insurance
shall be in such reasonable amounts and with such reasonable deductibles as
would be carried by a prudent owner of a reasonably similar building, having
regard to size, age and location. Notwithstanding the Landlord's covenant in
this Section and notwithstanding any contribution by the Tenant to the cost of
the Landlord's insurance premiums, the Tenant acknowledges and agrees that:
subject to Section 6.07, (i) the Tenant is not relieved of any liability arising
from or contributed to by its negligence or its wilful act or omissions; (ii) no
insurable interest is conferred upon the Tenant under any insurance policies
carried by the Landlord; and (iii) the Tenant has no right to receive any
proceeds of any insurance policies carried by the Landlord.
Section 6.06 Indemnification of the Landlord
Notwithstanding any other provision of this Lease, the Tenant shall indemnify
the Landlord and save it harmless from all loss (including loss of Net Rent and
Additional Rent) claims, actions, damages, liability and expense in connection
with loss of life, personal injury, damage to property or any other loss or
injury whatsoever arising out of this Lease, or any occurrence in, upon or at
the Premises, or the occupancy or use by the Tenant of the Premises or any part
thereof, or occasioned wholly or in part by any act or omission of the Tenant or
by anyone permitted to be on the Premises by the Tenant. If the Landlord shall,
without fault on its part, be made a party to any litigation commenced by or
against the Tenant, then the Tenant shall protect, indemnify and hold the
Landlord harmless in connection with such litigation. The Landlord may, at its
option, participate in or assume carriage of any litigation or settlement
discussions relating to the foregoing, or any other matter for which the Tenant
is required to indemnify the Landlord under this Lease. Alternatively, the
Landlord may require the Tenant to assume carriage of and responsibility for all
or any part of such litigation or discussions.
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Section 6.07 Release by the Landlord
Despite any other section or clause of this Lease (except the last sentence of
this Section 6.07), the Tenant is not responsible for any part, in excess of
$5,000,000.00, or any amount of liability insurance coverage available to the
Tenant, whichever is the greater, of any loss or damage to property of the
Landlord that is located in, or is part of the Building and Lands caused by any
of the perils for which the Landlord is required under Section 6.05 to maintain
insurance. This release applies whether or not the loss or damage arises from
the negligence of the Tenant. This release does not apply, however, to damage
arising from the wilful or grossly negligent acts of the Tenant.
ARTICLE VII - DAMAGE AND DESTRUCTION
Section 7.01 No Abatement or Termination
If the Premises or Building are damaged or destroyed in whole or in part by fire
or any other occurrence, this Lease shall continue in full force and effect and
there shall be no abatement of Rent except as provided in this Article VII.
Section 7.02 Damage to Premises
If the Premises are at any time destroyed or damaged as a result of fire or any
other casualty required to be insured against by the Landlord under this Lease
or otherwise insured against by the Landlord and not caused or contributed to by
the Tenant, then the following provisions shall apply:
(a) if the Premises are rendered untenantable only in part, the Landlord shall
diligently repair the Premises to the extent only of its obligations under
Section 5.01 and Net Rent shall abate proportionately to the portion of the
Premises rendered untenantable from the date of destruction or damage until the
Landlord's repairs have been completed;
(b) if the Premises are rendered wholly untenantable, the Landlord shall
diligently repair the Premises to the extent only of its obligations pursuant to
Section 5.01 and Net Rent shall abate entirely from the date of destruction or
damage until the Landlord's repairs have been completed;
(c) if the Premises are not rendered untenantable in whole or in part, the
Landlord shall diligently perform such repairs to the Premises to the extent
only of its obligations under Section 5.01, but in such circumstances Net Rent
shall not terminate or abate;
(d) upon being notified by the Landlord that the Landlord's repairs have been
substantially completed, the Tenant shall diligently perform all repairs to the
Premises which are the Tenant's responsibility under Section 5.02, and all other
work required to fully restore the Premises for use in the Tenant's business, in
every case at the Tenant's cost and without any contribution to such cost by the
Landlord, whether or not the Landlord has at any time made any contribution to
the cost of supply, installation or construction of Leasehold Improvements in
the Premises;
(e) nothing in this Section shall require the Landlord to rebuild the Premises
in the condition which existed before any such damage or destruction so long as
the Premises as rebuilt will have reasonably similar facilities to those in the
Premises prior to such damage or destruction, having regard, however, to the age
of the Building at such time; and
(f) nothing in this Section shall require the Landlord to undertake any repairs
having a cost in excess of the insurance proceeds actually received by the
Landlord with respect to such damage or destruction.
Section 7.03 Right of Termination
Notwithstanding Section 7.02, if the damage or destruction which has occurred in
the Premises is such that in the reasonable opinion of the Landlord the Premises
cannot be rebuilt or made fit for the purposes of the Tenant within 90 days of
the happening of the damage or destruction, the Landlord may, at its option,
terminate this Lease on notice to the Tenant given within 30 days after such
damage or destruction. If such notice of termination is given, Rent shall be
apportioned and paid to the date of such damage or destruction and the Tenant
shall immediately deliver vacant possession of the Premises in accordance with
the terms of this Lease.
Section 7.04 Destruction of or Damage to Building
(a) Notwithstanding anything contained in this Lease and specifically
notwithstanding the provisions of Section 7.03, if
(i) thirty-five percent (35%) or more of the Total Rentable Area
of the Building; or
(ii) a portion of the Building or of the Lands or any other
improvements on the Lands which affect access or services
essential to the Premises;
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is damaged or destroyed by any cause whatsoever (irrespective of whether the
Premises are damaged or destroyed) and if, in the reasonable opinion of the
Landlord, the Total Rentable Area of the Building or the essential portion
described above, as the case may be, so damaged or destroyed cannot be rebuilt
or made fit for the purposes of the respective tenants of such space within one
hundred and eighty (180) days of the happening of the damage or destruction;
then, the Landlord may at its option (to be exercised by written notice to the
Tenant within sixty (60) days following any such occurrence), elect to terminate
this Lease. In the case of such election, the Term and the tenancy hereby
created shall expire upon the thirtieth (30th) day after such notice is given,
without indemnity or penalty payable by, or any other recourse against the
Landlord, and the Tenant shall, within such thirty (30) day period, vacate the
Premises and surrender them to the Landlord with the Landlord having the right
to re-enter and repossess the Premises discharged of this lease and to expel all
Persons and remove all property therefrom. Net Rent and Additional Rent shall be
due and payable without reduction or abatement subsequent to the destruction or
damage and until the date of termination, unless the Premises shall have been
destroyed or damaged as well, in which event Section 7.03 shall apply.
(b) If the Landlord is entitled to, but does not elect to terminate this Lease
under Section 7.04(a), the Landlord shall, following such damage or destruction,
diligently repair if necessary that part of the Building damaged or destroyed,
but only to the extent of the Landlord's obligations under the terms of the
various leases for premises in the Building and exclusive of any tenant's
responsibilities with respect to such repair. If the Landlord elects to repair
the Building, the Landlord may do so in accordance with plans and specifications
other than those used in the original construction of the Building.
Section 7.05 Architect's Certificate
The certificate of the Architect shall bind the parties as to: (a) the
percentage of the Total Rentable Area of the Building damaged or destroyed; (b)
whether or not the Premises are rendered untenantable and the percentage of the
Premises rendered untenantable; (c) the date upon which either the Landlord's or
Tenant's work of reconstruction or repair is completed or substantially
completed and the date when the Premises are rendered tenantable; and (d) the
state of completion of any work of the Landlord or the Tenant.
ARTICLE VIII - ASSIGNMENT, SUBLETTING AND TRANSFERS
Section 8.01 Assignments, Subleases and Transfers
The Tenant shall not enter into, consent to, or permit any Transfer without the
prior written consent of the Landlord in each instance, which consent shall not
be unreasonably withheld but shall be subject to the Landlord's rights under
Section 8.02. Notwithstanding any statutory provision to the contrary, it shall
not be considered unreasonable for the Landlord to take into account the
following factors in deciding whether to grant or withhold its consent: (a)
whether such Transfer is in violation or in breach of any covenants or
restrictions made or granted by the Landlord to other tenants or occupants or
prospective tenants or occupants of the Building; (b) whether in the Landlord's
opinion, the financial background, business history and capability of the
proposed Transferee is satisfactory; and (c) if the Transfer is to an existing
tenant of the Landlord. Consent by the Landlord to any Transfer if granted shall
not constitute a waiver of the necessity for such consent to any subsequent
Transfer. This prohibition against Transfer shall include a prohibition against
any Transfer by operation of law and no Transfer shall take place by reason of
the failure of the Landlord to give notice to the Tenant within 30 days as
required by Section 8.02. Notwithstanding anything to the contrary herein
contained, the Tenant may not assign this Lease while any Rent is in arrears
hereunder or while any other Event of Default exists hereunder. Before making
any assignment of this Lease the Tenant will pay all Rent in arrears and will
remedy any Event of Default which then exists or will cause any Event of Default
to cease to exist.
Section 8.02 Landlord's Rights
If the Tenant intends to effect a Transfer, the Tenant shall give prior notice
to the Landlord of such intent specifying the identity of the Transferee, the
type of Transfer contemplated, the portion of the Premises affected thereby, and
the financial and other terms of the Transfer, and shall provide such financial,
business or other information relating to the proposed Transferee and its
principals as the Landlord or any Mortgagee requires, together with copies of
any documents which record the particulars of the proposed Transfer. The
Landlord shall, within 30 days after having received such notice and all
requested information, notify the Tenant either that:
(a) it consents or does not consent to the Transfer in accordance with the
provisions and qualifications of this Article VIII; or
(b) it elects to cancel this Lease as to the whole or part, as the case may be,
of the Premises affected by the proposed Transfer, in preference to giving such
consent; or
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(c) it elects to take over the position of the proposed Transferee with respect
to the Transfer such that the Landlord becomes the assignee or subtenant, as the
case may be, of the Tenant on the financial terms set out in the notice.
If the Landlord elects to terminate this Lease it shall stipulate in its notice
the termination date of this Lease, which date shall be no less than 30 days nor
more than 90 days following the giving of such notice of termination. If the
Landlord elects to terminate this Lease, the Tenant shall notify the Landlord
within 10 days thereafter of the Tenant's intention either to refrain from such
Transfer or to accept termination of this Lease or the portion thereof in
respect of which the Landlord has exercised its rights. If the Tenant fails to
deliver such notice within such 10 days or notifies the Landlord that it accepts
the Landlord's termination, this Lease will as to the whole or affected part of
the Premises, as the case may be, be terminated on the date of termination
stipulated by the Landlord in its notice of termination. If the Tenant notifies
the Landlord within 10 days that it intends to refrain from such Transfer, then
the Landlord's election to terminate this Lease shall become void.
Section 8.03 Conditions of Transfer
(a) Subject to Section 8.03(e), if there is a permitted Transfer, the Landlord
may collect Rent from the Transferee and apply the net amount collected to the
Rent payable under this Lease but no acceptance by the Landlord of any payments
by a Transferee shall be deemed a waiver of the Tenant's covenants or any
acceptance of the Transferee as tenant or a release from the Tenant from the
further performance by the Tenant of its obligations under this Lease. Any
consent by the Landlord shall be subject to the Tenant and Transferee executing
an agreement with the Landlord agreeing:
(i) that the Transferee will be bound by all of the terms of this
Lease and, except in the case of a sublease, that the
Transferee will be so bound as if it had originally executed
this Lease as tenant; and
(ii) to amend the Lease to incorporate such terms, covenants and
conditions as are necessary so that the Lease will be in
accordance with the Landlord's standard form of office lease
in use for the Building at the time of the Transfer, and so as
to incorporate any conditions imposed by the Landlord in its
consent or required by this Section 8.03.
(b) Notwithstanding any Transfer permitted or consented to by the Landlord,
including a Transfer to the Landlord pursuant to Section 8.02(c), the Tenant
making such Transfer shall remain liable under this Lease and shall not be
released from performing any of the terms of this Lease.
(c) The Landlord's consent to any Transfer shall be subject to the condition
that: (i) the net and additional rent payable by the Transferee shall not be
less than the Rent payable by the Tenant under this Lease as at the effective
date of the Transfer, (including any increases provided for in this Lease); and
(ii) if the net and additional rent to be paid by the Transferee under such
Transfer exceeds the Rent payable under this Lease, the amount of such excess
shall be paid by the Tenant to the Landlord. If the Tenant receives from any
Transferee, either directly or indirectly, any consideration other than rent or
additional rent for such Transfer, either in the form of cash, goods or services
(other than the proceeds of any financing as the result of a Transfer involving
a mortgage, charge or similar security interest in this Lease) the Tenant shall
forthwith pay to the Landlord an amount equivalent to such consideration. The
Tenant and the Transferee shall execute any agreement required by the Landlord
to give effect to the foregoing terms.
(d) Notwithstanding the effective date of any permitted Transfer as between the
Tenant and the Transferee, all Rent for the month in which such effective date
occurs shall be paid in advance by the Tenant so that the Landlord will not be
required to accept partial payments of Rent for such month from either the
Tenant or Transferee.
(e) If a Transfer occurs as a result of the Landlord's election pursuant to
Section 8.02(c), the Landlord will apply the Rent payable by the Landlord, as
Transferee, to the Rent payable under this Lease, but otherwise the Tenant will
not be released from its covenants under this Lease or from the further
performance of its obligations under this Lease. The Tenant will enter into an
agreement with the Landlord setting out the terms of such Transfer, which
agreement will be prepared by the Landlord or its solicitors and all legal costs
associated with such Transfer shall be paid by the Tenant.
(f) Any document evidencing any Transfer permitted by the Landlord, or setting
out any terms applicable to such Transfer or the rights and obligations of the
Tenant or Transferee thereunder including a Transfer under Section 8.02(c), or
any amendment of this Lease pursuant to clause 8.03(a)(ii), shall be prepared by
the Landlord or its solicitors and all associated legal costs shall be paid by
the Tenant.
Section 8.04 Change of Control
If the Tenant is at any time a corporation or partnership, any actual or
proposed Change of Control in such corporation or partnership shall be deemed to
be a Transfer and subject to all of the provisions of this Article VIII. The
Tenant shall make available to the Landlord or its representatives all of its
corporate or partnership records, as the case may be, for inspection at all
reasonable times, in order to ascertain whether any Change of Control has
occurred.
Section 8.05 No Advertising
The Tenant shall not advertise that the whole or any part of the Premises are
available for a Transfer and shall not permit any broker or other Person to do
so unless the text and format of such advertisement and the publications in
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which such advertisement is to be placed are approved in writing by the
Landlord. No such advertisement shall contain any reference to the rental rate
of the Premises.
Section 8.06 Assignment By Landlord
The Landlord shall have the unrestricted right to sell, lease, convey or
otherwise dispose of all or any part of the Building or Lands or this Lease or
any interest of the Landlord in this Lease. To the extent that the purchaser or
assignee from the Landlord assumes the obligations of the Landlord under this
Lease, the Landlord shall thereupon and without further agreement be released
from all liability under this Lease.
ARTICLE IX - DEFAULT
Section 9.01 Default and Remedies
If and whenever an Event of Default occurs, then without prejudice to any other
rights which it has pursuant to this Lease or at law, the Landlord shall have
the following rights and remedies, which are cumulative and not alternative:
(a) to re-enter the Premises or any part thereof in the name of the whole and
the same to have again, repossess, and enjoy as of the Landlord's former estate,
anything herein contained to the contrary notwithstanding;
(b) to terminate this Lease, with or without notice to the Tenant, whether or
not the Landlord has, with respect to the same or another Event of Default,
previously elected or pursued a right or remedy which is inconsistent with
termination of this Lease;
(c) to enter the Premises as agent of the Tenant and to relet the Premises for
whatever term, and on such terms as the Landlord in its discretion may determine
and to receive the Rent therefor and as agent of the Tenant to take possession
of any property of the Tenant on the Premises, to store such property at the
expense and risk of the Tenant or to sell or otherwise dispose of such property
in such manner as the Landlord may see fit without notice to the Tenant; to make
alterations to the Premises to facilitate their reletting; and to apply the
proceeds of any such sale or reletting first, to the payment of any expenses
incurred by the Landlord with respect to any such reletting or sale; second, to
the payment of any indebtedness of the Tenant to the Landlord other than Rent;
and third, to the payment of Rent in arrears; with the residue to be held by the
Landlord and applied in payment of future Rent as it becomes due and payable.
The Tenant shall remain liable for any deficiency to the Landlord. If any
reletting extends for a period beyond the end of the Term, such reletting shall
not constitute a termination of this Lease, but a reletting as agent of the
Tenant up to the end of the Term and a letting thereafter by the Landlord for
its own account. The Tenant acknowledges and agrees that if the Tenant has
abandoned property on the Premises after notice from the Landlord to remove such
property, the Landlord has no obligation whatsoever to store such property for
any period of time;
(d) to remedy or attempt to remedy any default of the Tenant under this Lease
for the account of the Tenant and to enter upon the Premises for such purposes.
No notice of the Landlord's intention to perform such covenants need be given
the Tenant unless expressly required by this Lease. The Landlord shall not be
liable to the Tenant for any loss, injury or damage caused by acts of the
Landlord in remedying or attempting to remedy such default and the Tenant shall
pay to the Landlord all expenses incurred by the Landlord in connection with
remedying or attempting to remedy such default;
(e) to recover from the Tenant all damages, and expenses incurred by the
Landlord as a result of any breach by the Tenant including, if the Landlord
terminates this Lease, any deficiency between those amounts which would have
been payable by the Tenant for the portion of the Term following such
termination and the net amounts actually received by the Landlord during such
period of time with respect to the Premises;
(f) to recover from the Tenant the full amount of the current month's Rent
together with 3 months' instalments of Rent, all of which shall immediately
become due and payable as accelerated rent and may be held and applied by the
Landlord without interest against the last Rent due under this Lease; and
(g) if this Lease has been terminated in accordance with Section 9.01(b), to
recover from the Tenant the unamortized portion of any leasehold improvement
allowance or inducement paid or given by the Landlord under the terms of this
Lease or the Lease Proposal, calculated from the date which is the later of the
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date of payment by the Landlord or the Commencement Date, on the basis of an
assumed rate of depreciation on a straight line basis to zero over the initial
Term of this Lease.
Section 9.02 Distress
Notwithstanding any provision of this Lease or any provision of applicable
legislation, none of the goods and chattels of the Tenant on the Premises at any
time during the Term shall be exempt from levy by distress for Rent in arrears,
and the Tenant waives any such exemption. If the Landlord makes any claim
against the goods and chattels of the Tenant by way of distress, this provision
may be pleaded as an estoppel against the Tenant in any action brought to test
the right of the Landlord to levy such distress. The Tenant acknowledges and
agrees that the Landlord is entitled to levy by distress any accelerated rent
which becomes due and is payable pursuant to Section 9.01(f) of this Lease.
Section 9.03 Damages and Costs
The Tenant shall pay to the Landlord all damages and costs (including, without
limitation, all legal fees on a solicitor and his client basis) incurred by the
Landlord in enforcing or interpreting the terms of this Lease, or with respect
to any matter or thing which is the obligation of the Tenant under this Lease,
or in respect of which the Tenant has agreed to insure, or to indemnify the
Landlord.
Section 9.04 Allocation of Payments
The Landlord may at its option apply sums received from the Tenant against any
amounts due and payable by the Tenant under this Lease in such manner as the
Landlord sees fit.
Section 9.05 Survival of Obligations
If the Tenant has failed to fulfil its obligations under this Lease with respect
to the payment of Rent, the maintenance, repair and alteration of the Premises
and removal of improvements and fixtures from the Premises during or at the end
of the Term, such obligations and the Landlord's rights in respect thereto shall
remain in full force and effect notwithstanding the expiration, surrender or
sooner termination of the Term.
ARTICLE X - STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
Section 10.01 Status Statement
Within 10 days after written request by the Landlord, the Tenant shall deliver
in a form supplied by the Landlord a statement or estoppel certificate to the
Landlord as to the status of this Lease, including as to whether this Lease is
unmodified and in full force and effect (or, if there have been modifications
that this Lease is in full force and effect as modified and identifying the
modification agreements); the amount of Net Rent and Additional Rent then being
paid and the dates to which same have been paid; whether or not there is any
existing or alleged default by either party with respect to which a notice of
default has been served and if there is any such default, specifying the nature
and extent thereof; and any other matters pertaining to this Lease as to which
the Landlord shall request such statement or certificate.
Section 10.02 Subordination
This Lease and all rights of the Tenant shall be subject and subordinate to any
and all Mortgages and any ground, operating, overriding or underlying leases,
from time to time in existence against the Lands and Building (including without
limitation those referred to in section 11.15 hereof). On request, the Tenant
shall acknowledge in writing the subordination of this Lease and its rights
under this Lease to any and all such Mortgages and leases and to all advances
made under such Mortgages. The form of such subordination shall be as required
by the Landlord or any Mortgagee or the lessee under any such lease.
Section 10.03 Attornment
The Tenant shall promptly, on request, attorn to any Mortgagee, or to the owners
of the Building and Lands, or the lessor under any ground, operating,
overriding, underlying or similar lease of all or substantially all of the
Building made by the Landlord or otherwise affecting the Building and Lands, or
the purchaser on any foreclosure or sale proceedings taken under any Mortgage,
and shall recognize such Mortgagee, owner, lessor or purchaser as the Landlord
under this Lease.
Section 10.04 Execution of Documents
The Tenant irrevocably constitutes the Landlord the agent and attorney of the
Tenant for the purpose of executing any agreement, certificate, attornment or
subordination required by this Lease and for registering postponements in favour
of any Mortgagee if the Tenant fails to execute such documents within 10 days
after request by the Landlord.
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ARTICLE XI - GENERAL PROVISIONS
Section 11.01 Rules and Regulations
The Tenant shall comply with all Rules and Regulations, and amendments thereto,
adopted by the Landlord from time to time including those set out in Schedule
"D". Such Rules and Regulations may differentiate between different types of
businesses in the Building, and the Landlord shall have no obligation to enforce
any Rule or Regulation or the provisions of any other lease against any other
tenant, and the Landlord shall have no liability to the Tenant with respect
thereto.
Section 11.02 Delay
Except as expressly provided in this Lease, whenever the Landlord or Tenant is
delayed in the fulfilment of any obligation under this Lease (other than the
payment of Rent and surrender of the Premises on termination) by an unavoidable
occurrence which is not the fault of the party delayed in performing such
obligation, then the time for fulfilment of such obligation shall be extended
during the period in which such circumstances operate to delay the fulfilment of
such obligation.
Section 11.03 Overholding
If the Tenant remains in possession of the Premises after the end of the Term
with the consent of the Landlord but without having executed and delivered a new
lease or an agreement extending the Term, there shall be no tacit renewal of
this Lease, and the Tenant shall be deemed to be occupying the Premises as a
Tenant from month to month at a monthly Net Rent payable in advance on the first
day of each month equal to twice the monthly amount of Net Rent payable during
the last month of the Term, and otherwise upon the same terms as are set forth
in this Lease, so far as these are applicable to a monthly tenancy.
Section 11.04 Waiver
If either the Landlord or Tenant excuses or condones any default by the other of
any obligation under this Lease, no waiver of such obligation shall be implied
in respect of any continuing or subsequent default.
Section 11.05 Registration
Neither the Tenant nor anyone claiming under the Tenant shall register this
Lease or any Transfer without the prior written consent of the Landlord. The
Tenant hereby waives any right which the Tenant may have to require the Landlord
to deliver this Lease in registrable form or to provide a plan of the Premises
acceptable to the land title office or other office of public record for
registration or filing purposes.
Section 11.06 Notices
Any notice, consent or other instrument which may be or is required to be given
under this Lease shall be in writing and shall be delivered in person or sent by
registered mail postage prepaid, addressed: (a) if to the Landlord: c/o The
Cadillac Fairview Corporation Limited, 20 Queen Street, 5th Floor, Toronto,
Ontario, M5H 3R4, Attention: Executive Vice President, Property Management, with
a copy to the Building Manager; and (b) if to the Tenant, at the Premises. Any
such notice or other instrument shall be deemed to have been given and received
on the day upon which personal delivery is made or, if mailed, then 48 hours
following the date of mailing. Either party may give notice to the other of any
change of address and after the giving of such notice, the address therein
specified is deemed to be the address of such party for the giving of notices.
If postal service is interrupted or substantially delayed, all notices or other
instruments shall be delivered in person.
Section 11.07 Successors
The rights and liabilities created by this Lease extend to and bind the
successors and assigns of the Landlord and the heirs, executors, administrators
and permitted successors and assigns of the Tenant. No rights, however, shall
enure to the benefit of any Transferee unless the provisions of Article VIII are
complied with.
Section 11.08 Joint and Several Liability
If there is at any time more than one Tenant or more than one Person
constituting the Tenant, their covenants shall be considered to be joint and
several and shall apply to each and every one of them. If the Tenant is or
becomes a partnership, each Person who is a member, or shall become a member, of
such partnership or its successors shall be and continue to be jointly and
severally liable for the performance of all covenants of the Tenant pursuant to
this Lease, whether or not such Person ceases to be a member of such partnership
or its successor.
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Section 11.09 Captions and Section Numbers
The captions, section numbers, article numbers and table of contents appearing
in this Lease are inserted only as a matter of convenience and in no way affect
the substance of this Lease.
Section 11.10 Extended Meanings
The words "hereof", "hereto" and "hereunder" and similar expressions used in
this Lease relate to the whole of this Lease and not only to the provisions in
which such expressions appear. This Lease shall be read with all changes in
number and gender as may be appropriate or required by the context. Any
reference to the Tenant includes, where the context allows, the employees,
agents, invitees and licensees of the Tenant and all others over whom the Tenant
might reasonably be expected to exercise control.
Section 11.11 Partial Invalidity
All of the provisions of this Lease are to be construed as covenants even though
not expressed as such. If any such provision is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Lease and
the remaining provisions of this Lease shall remain in force and bind the
parties as though the illegal or unenforceable provision had never been included
in this Lease.
Section 11.12 Entire Agreement
This Lease and the Schedules and riders, if any, attached hereto and the Lease
Proposal, if any, and the Landlord's leasehold improvement manual, set forth the
entire agreement between the Landlord and Tenant concerning the Premises and
there are no agreements or understandings between them other than as are herein
set forth. Subject to Section 11.01, this Lease and its Schedules and riders may
not be modified except by agreement in writing executed by the Landlord and
Tenant. In the event of any inconsistency between the provisions of this Lease
and the provisions of the Lease Proposal, the provisions of this Lease shall
prevail.
Section 11.13 Governing Law
This Lease shall be construed in accordance with and governed by the laws of the
Province.
Section 11.14 Time of the Essence
Time is of the essence of this Lease.
Section 11.15 Quiet Enjoyment
If the Tenant pays Rent, fully observes and performs all of its obligations
under this Lease, and there has been no Event of Default, the Tenant shall be
entitled to peaceful and quiet enjoyment of the Premises for the Term without
interruption or interference by the Landlord or any Person claiming through the
Landlord.
Section 11.16 Indemnity Agreement
If any Indemnifier is named in this Lease, the Indemnifier agrees to execute and
deliver to the Landlord an Indemnity Agreement in the form attached as Schedule
"E" hereto (with blanks completed) with respect to this Lease and any and all
renewals hereof; and the Tenant agrees that failure of the Indemnifier to do so
shall constitute an Event of Default.
Section 11.17 Early Occupancy
Following the execution and delivery of this Lease by the Tenant to the
Landlord, the Tenant shall be given access to the Premises for purposes of
fixturing and improving the same. From the date of such early access to the
Commencement Date, the Tenant shall not be required to pay any Net Rent or
Additional Rent. The Tenant shall, during that period, observe and perform all
other provisions contained in the Lease and shall, without limiting the
generality of the foregoing, place and maintain all policies of insurance
required by the Lease.
Section 11.18 Landlord's Work
The Landlord agrees to perform the work set out below in respect of the Premises
on a "once only" basis (also herein referred to as "Landlord's Work"). It is
understood and agreed that the Landlord is not required to provide any materials
or to do any work to or in respect of the Premises except the Landlord's Work
and materials listed below and Landlord's Work will be performed in accordance
with the Landlord's specifications and using standard finishes for the Building:
(i) build a small storage room in the location agreed to between the
parties
(ii) re-carpet, re-paint and install glazing in the boardroom, and
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(iii) rebalance the heating, ventilating and air conditioning
system.
Section 11.19 Parking
The Landlord agrees that the use and occupation by the Tenant of the Premises
throughout the Term includes the license to use, subject to compliance by the
Tenant of the reasonable rules and regulations of the Landlord from time to
time, one (1) unreserved parking stall in the parkade at the prevailing monthly
rate as established by the Landlord from time to time.
The Landlord is not responsible for damage to, or loss of the Tenant's vehicle
or its contents and the Tenant releases and agrees to hold harmless the Landlord
from and against all liability for any loss or damage to the Tenant or its
vehicle by any cause whatsoever.
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Section 11.20 Execution
If the Tenant is a corporation, the Tenant confirms and agrees that this Lease
has been executed by its authorized signatories and that if only one signatory
has signed this Lease, the Tenant is authorized by its articles of incorporation
or other constating documents to execute leases by such sole authorized
signatory and if this Lease is not executed under seal by the Tenant, the Tenant
is authorized by its articles of incorporation or other constating documents to
execute leases without a seal.
IN WITNESS WHEREOF the Parties hereto have duly executed this Agreement as of
the day and year first above written, under the hands of their proper signing
officers duly authorized in that behalf or by signing in their personal
capacity, as the case may be.
PACIFIC CENTRE LEASEHOLDS LIMITED
____________________________________________________________
(Landlord)
Per: /s/ S. Swain
--------------------------------------------------------
Authorized Signature
Per: /s/ B. Murray
--------------------------------------------------------
Authorized Signature
I/We have authority to bind the corporation.
THE NATIONAL FOR SALE PHONE COMPANY INC.
____________________________________________________________
(Tenant)
Per: /s/ Brian Collins
--------------------------------------------------------
Authorized Signature
Per:
--------------------------------------------------------
Authorized Signature
I/We have authority to bind the corporation.
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SCHEDULE "A" - LEGAL DESCRIPTION OF THE LANDS
Those lands and premises lying and being in the City of
Vancouver in the Province of British Columbia more particularly known and
described as
City of Vancouver
Parcel Identifier 015-106-705
Parcel Identifier 015-106-713
Parcel Identifier 015-106-721
Parcel Identifier 015-106-730
Parcel Identifier 015-106-748
Lots 1 to 5
Block 32
District Lot 541
Plan 210
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SCHEDULE "B" - FLOOR PLAN OF THE PREMISES
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SCHEDULE "C" - DEFINITIONS
In this Lease and in the Schedules to this Lease:
1. "Additional Rent" means all sums of money required to be paid by the Tenant
under this Lease (except Net Rent) whether or not the same are designated
"Additional Rent" or are payable to the Landlord or otherwise.
2. "Alterations" means all repairs, replacements, improvements or alterations to
the Premises by the Tenant and the placing of a load of more than 50 lbs per
square foot in any part of the Premises or the relocation of any such load.
3. "Architect" means the architect from time to time named by the Landlord.
4. "Building" means the multi-storey building known municipally as 750 West
Pender Street, Vancouver, British Columbia and generally as Pender Place from
and including the ground floor of such Building to and including the roof
thereof and including all premises rented or intended to be rented therein,
whether for office, retail, cafeteria, banking or other similar purposes but
excluding any Premises below grade which are intended for leasing for retail or
parking purposes; and the areas, buildings systems and facilities serving the
Building or having utility in connection therewith, as determined by the
Landlord, whether or not located directly under the Building, which areas and
facilities may include, without limitation, internal malls, sidewalks and
plazas, exhibit areas, storage and mechanical areas, janitor rooms, mail rooms,
telephone, mechanical and electrical rooms, stairways, escalators, elevators,
truck and receiving areas, driveways, parking facilities, loading docks and
corridors.
5. "Business Tax" means all taxes (whether imposed on the Landlord or Tenant)
attributable to the personal property, trade fixtures, business, income,
occupancy or sales of the Tenant or any other occupant of the Premises and to
any leasehold improvements installed in the Premises and to the use of the
Building or Lands by the Tenant.
6. "Capital Tax" is an amount determined by multiplying each of the "Applicable
Rates" by the "Building Capital" and totalling the products. "Building Capital"
is the amount of capital which the Landlord determines, without duplication, is
invested from time to time by the Landlord, the owners, or all of them, in doing
all or any of the following: acquiring, developing, expanding, redeveloping and
improving the Building. Building Capital will not be increased by any financing
or refinancing except to the extent that the proceeds are invested directly as
Building Capital. An "Applicable Rate" is the capital tax rate specified from
time to time under any statute of Canada and any statute of the Province which
imposes a tax in respect of the capital of corporations. Each Applicable Rate
will be considered to be the rate that would apply if none of the Landlord or
the owners employed capital outside of the Province.
7. "Change of Control" means, in the case of any corporation or partnership, the
transfer or issue by sale, assignment, subscription, transmission on death,
mortgage, charge, security interest, operation of law or otherwise, of any
shares, voting rights or interest which would result in any change in the
effective control of such corporation or partnership unless such change occurs
as a result of trading in the shares of a corporation listed on a recognized
stock exchange in Canada or the United States and then only so long as the
Landlord receives assurances reasonably satisfactory to it that there will be a
continuity of management and of the business practices of such corporation
notwithstanding such Change of Control.
8. "Commencement Date" means the date on which the Term commences under Section
1.02.
9. "Development" means the Lands more particularly described in Schedule "A"
attached to this Lease or as such Lands may be altered, expanded or reduced from
time to time, and the improvements, buildings, equipment and facilities erected
thereon or situate from time to time therein. The Development includes those
areas designated or intended by the Landlord to be leased for office, retail,
service and storage purposes, and those areas not so designated or intended, and
all non-leasable areas, parking facilities and the shared common areas and
facilities of the Development. The Development is known generally as "Pender
Place".
10. An "Event of Default" shall occur whenever:
(a) any Rent is in arrears and is not paid within 5 days after written demand
by the Landlord;
(b) the Tenant has breached any of its obligations in this Lease (other than the
payment of Rent) and:
(i) fails to remedy such breach within 15 days (or such shorter period
as may be provided in this Lease); or
(ii) if such breach cannot be reasonably remedied within 15 days or
such shorter period, the Tenant fails to commence to remedy such breach
within such 15 days or shorter period or thereafter fails to proceed
diligently to remedy such breach; in either case after notice in
writing from the Landlord;
- 20 -
(c) the Tenant or any Indemnifier becomes bankrupt or insolvent or takes the
benefit of any statute for bankrupt or insolvent debtors or makes any proposal,
assignment or arrangement with its creditors, or any steps are taken or
proceedings commenced by any Person for the dissolution, winding-up or other
termination of the Tenant's existence or the liquidation of its assets;
(d) a trustee, receiver, receiver/manager or like Person is appointed with
respect to the business or assets of the Tenant or any Indemnifier;
(e) the Tenant makes a sale in bulk of all or a substantial portion of its
assets other than in conjunction with a Transfer approved by the Landlord;
(f) this Lease or any of the Tenant's assets are taken under a writ of
execution;
(g) the Tenant purports to make a Transfer other than in compliance with the
provisions of this Lease;
(h) the Tenant abandons or attempts to abandon the Premises or disposes of its
goods so that there would not after such disposal be sufficient goods of the
Tenant on the Premises subject to distress to satisfy Rent for at least 3
months, or the Premises become vacant and unoccupied for a period of 10
consecutive days or more without the consent of the Landlord;
(i) any insurance policies covering any part of the Building or any occupant
thereof are actually or threatened to be cancelled or adversely changed as a
result of any use or occupancy of the Premises;
(j) if an Event of Default as defined in this paragraph occurs with respect to
any lease or agreement under which the Tenant occupies other premises in the
Building; or
(k) if the Tenant or any Indemnifier is a corporation and at any time during the
Term does not remain in good standing with the Office of the Registrar of
Companies for the Province.
11. "Fiscal Year" means (i) the period of time commencing on the Commencement
Date and ending on the last day of the next ensuing October; and (ii) thereafter
the period of time commencing on the first day of November and ending on the
last day of the next ensuing October, or (iii) the fiscal period designated by
the Landlord from time to time.
12. "Indemnifier" means the Person, if any, who has executed or agreed to
execute an Indemnity Agreement substantially in the form attached to this Lease
as Schedule "E", or any other indemnity agreement in favour of the Landlord.
13. "Landlord" means the party named as landlord on the first page of this Lease
and those for whom it is responsible at law.
14. "Lands" means the lands situated in the City of Vancouver in the Province of
British Columbia on which the Building is constructed, as more particularly
described in Schedule "A", or as such lands may be expanded or reduced from time
to time.
15. "Lease Proposal" means the written proposal to lease between Pacific Centre
Leaseholds Limited and the Tenant with respect to the Premises, consisting of an
offer dated the 10th day of June, 1999 and accepted on the 11th day of June,
1999.
16. "Leasehold Improvements" mean leasehold improvements in the Premises
determined according to common law, and shall include, without limitation, all
fixtures, improvements, installations, alterations and additions from time to
time made, erected or installed in the Premises by or on behalf of the Tenant or
any previous occupant of the Premises, including signs and lettering,
partitions, doors and hardware however affixed and whether or not movable, all
mechanical, electrical and utility installations and all carpeting and drapes
with the exception only of furniture and equipment not in the nature of
fixtures.
17. "Mortgage" means any and all mortgages, charges, debentures, security
agreements, trust deeds, hypothecs or like instruments resulting from financing,
refinancing or collateral financing (including renewals or extensions thereof)
made or arranged by the Landlord of its interest in all or any part of the
Building or Lands.
18. "Mortgagee" means the holder of, or secured party under, any Mortgage and
includes any trustee for bondholders.
19. "Net Rent" means the annual rent payable by the Tenant under Section 2.02.
20. "Net Rentable Area" means, in the case of premises consisting of part of a
floor, the floor area bounded by the inside surface of the exterior glass, the
- 21 -
office side of the corridor or other permanent partitions and the centre of
partitions that separate the premises from adjoining leasable areas (if any)
without deductions for columns or projections but after making the same
exclusions as are made in computing Rentable Area.
21. "Normal Business Hours" means the hours from 8:00 a.m. to 6:00 p.m. on
Mondays through Fridays and the hours from 8:00 a.m. to 1:00 p.m. on Saturdays,
unless any such day is a statutory holiday.
22. "Operating Costs" means (without duplication) any amounts paid or payable
whether by the Landlord or by others on behalf of the Landlord for maintenance,
operation, repair, replacement to and administration of the Lands and Building
or allocated by the Landlord to the Lands and Building and for services provided
generally to tenants, calculated as if the Building were 100% occupied by
tenants during the Term, including without limitation:
(a) the cost of insurance which the Landlord is obligated or permitted to obtain
under this Lease and any deductible amount applicable to any claim made by the
Landlord under such insurance;
(b) the cost of security, janitorial, landscaping, window cleaning, garbage
removal and snow removal services;
(c) the cost of heating, ventilating and air-conditioning;
(d) the cost of fuel, steam, water, electricity, telephone and other utilities
used in the maintenance, operation or administration of the Building, including
charges and imposts related to such utilities to the extent such costs, charges
and imposts are not recovered from other tenants;
(e) management office expenses of operation, and salaries, wages and other
amounts paid or payable for all personnel involved in the repair, maintenance,
operation, leasing, on site management, security, supervision or cleaning of the
Building, including fringe benefits, unemployment and worker's compensation
insurance premiums, pension plan contributions and other employment costs and
the cost of engaging contractors for the repair, maintenance, security,
supervision or cleaning of the Building;
(f) auditing, accounting, legal and other professional and consulting fees and
disbursements;
(g) the costs: (i) of repairing, operating and maintaining the Building and the
equipment serving the Building and of all replacements and modifications to the
Building or such equipment, including those made by the Landlord in order to
comply with laws or regulations affecting the Building;(ii) incurred by the
Landlord in providing and installing energy conservation equipment or systems
and life safety systems; (iii) incurred by the Landlord to make alterations,
replacements or additions to the Building intended to reduce operating costs,
improve the operation of the Building or maintain its operation as a first class
office building; and, (iv) incurred to replace machinery or equipment which by
its nature requires periodic replacement; all to the extent that such costs are
fully chargeable in the Fiscal Year in which they are incurred in accordance
with sound accounting principles;
(h) the cost of the rental of all equipment, supplies, tools, materials and
signs;
(i) all costs incurred by the Landlord in contesting or appealing Taxes or
related assessments including legal, appraisal and other professional fees, and
administration and overhead costs;
(j) Capital Tax;
(k) depreciation or amortization of the costs referred to in paragraph 22(g)
above as determined by the Landlord in accordance with sound accounting
principles, if such costs have not been charged fully in the Fiscal Year in
which they are incurred;
(l) interest calculated at 2 percentage points above the average daily prime
bank commercial lending rate charged during such Fiscal Year by any Canadian
chartered bank designated from time to time by the Landlord upon the
undepreciated or unamortized balance of the costs referred to in paragraph
22(k); and
(m) a reasonable fee for the administration and management of the Building equal
to an amount which the Landlord might reasonably pay to a third party for the
administration and management of the Building as part of the Pender Place
complex.
Operating Costs shall exclude or have deducted from them as the case may be:
(aa) all amounts which otherwise would be included in Operating Costs which are
recovered by the Landlord from tenants (other than under sections of their
leases comparable to section 2.03 of this Lease);
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(bb) such of the Operating Costs as are recovered from insurance proceeds,
warranties or guarantees to the extent such recovery represents reimbursements
for costs previously included in Operating Costs;
(cc) interest on debt and capital retirement of debt;
(dd) ground rent payable by the Landlord to the owner of the Lands under any
ground lease of the Lands; and
(ee) all amounts which otherwise would be included in Operating Costs which are
directly attributable to the operation of the parking garage forming part of and
serving the Building. Costs incurred in maintaining and operating the Building
may be attributed by the Landlord to the various components of the Building in
accordance with reasonable and current practices and on a basis consistent with
the nature of the particular costs being attributed, and the costs so attributed
may be allocated to the tenants of such components accordingly.
(ff) commissions and other expenses payable in connection with the marketing and
leasing of the Building including the cost of any leasehold improvement
allowance or other inducement paid to tenants of the Building; and
(gg) the amount of any goods and services tax ("G.S.T.") paid or payable by the
Landlord on the purchase of goods and services included in Operating Costs which
may be available to the Landlord as a credit in determining the Landlord's net
tax liability or refund on account of G.S.T.
23. "Person" means any person, firm, partnership or corporation, or any group or
combination of persons, firms, partnerships or corporations.
24. "Premises" means the premises leased to the Tenant described in Section 1.01
and includes Leasehold Improvements in such premises.
25. "Proportionate Share" means a fraction which has as its numerator the
Rentable Area of the Premises and as its denominator the Total Rentable Area of
the Building.
26. "Province" the province in which the Building is located.
27. "Rent" means the aggregate of Net Rent and Additional Rent.
28. "Rentable Area" means (a) in the case of premises used or intended to be
used for office purposes and occupying an entire floor, the floor area bounded
by the inside surface of the glass on the exterior walls, including without
limitation, washrooms, telephone, electrical and janitorial closets and elevator
lobbies; (b) in the case of premises used or intended to be used for office
purposes and consisting of part of a floor, the area computed by multiplying the
Net Rentable Area of such premises by a fraction, the numerator of which is the
aggregate floor area of the floor on which the Premises are located (using the
measurement method set out in subparagraph (a)) and the denominator of which is
the aggregate Net Rentable Area of all office premises on such floor; and (c) in
the case of premises used or intended to be used for retail purposes, the Net
Rentable Area thereof. In calculating Rentable Area, stairs, elevator shafts,
flues, stacks, pipe shafts and vertical ducts with their own enclosing walls,
any of which are used in common, shall be excluded but no deductions or
exclusions shall be made for columns and projections necessary for the Building.
The Landlord may for the purpose of calculating the Net Rent and any
Proportionate Share change the fraction referred to in subparagraph (b) from
time to time to reflect the actual ratio of the aggregate floor area of the
floor on which the Premises or part thereof are located (using the measurement
method set out in subparagraph (a)) to the aggregate Net Rentable Area of all
office premises on such floor.
29. "Rules and Regulations" means the rules and regulations adopted and
promulgated by the Landlord from time to time pursuant to Section 11.01. The
Rules and Regulations existing as at the Commencement Date are those set out in
Schedule "D".
30. "Taxes" means all taxes, levies, charges, local improvement rates and
assessments whatsoever assessed or charged against the Building and the Lands or
any part thereof by any lawful taxing authority and including any amounts
assessed or charged in substitution for or in lieu of any such taxes, but
excluding only 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 Building or Lands or the Landlord in respect thereof.
Taxes shall in every instance be calculated on the basis of the Total Rentable
Area of the Building being assessed as fully leased and operational.
31. "Tenant" means the party named as tenant on the first page of this Lease,
and those for whom it is responsible in law.
32. "Term" means the period set out in Section 1.02.
- 23 -
33. "Total Rentable Area of the Building" means the aggregate of the Rentable
Area of each floor in the Building intended for office or retail use as if each
floor is occupied by one tenant, all as determined by the Architect. The Total
Rentable Area of the Building shall: (a) exclude the main telephone, mechanical,
electrical and other utility rooms and enclosures, public lobbies on the ground
floor, and other public space common to the entire Building; and, (b) be
adjusted by the Architect from time to time to take account of any structural,
functional or other change affecting the same.
34. "Trade Fixtures" means trade fixtures as determined at common law, but for
greater certainty, shall not include: (a) heating, ventilating or air
conditioning systems, facilities and equipment in or serving the Premises; (b)
floor coverings affixed to the floor of the Premises; (c) light fixtures; (d)
internal stairways and doors; and, (e) any fixtures, facilities, equipment or
installations installed by or at the expense of the Landlord pursuant to this
Lease or otherwise.
35. "Transfer" means an assignment of this Lease in whole or in part, a sublease
of all or any part of the Premises (whether by the Tenant or by a subtenant),
any transaction whereby the rights of the Tenant under this Lease or the rights
of any subtenant or to the Premises are transferred to another, any transaction
by which any right of use or occupancy of all or any part of the Premises is
conferred upon anyone, any mortgage, charge or encumbrance of this Lease or the
Premises or any part thereof or other arrangement under which either this Lease
or the Premises become security for any indebtedness or other obligations and
includes any transaction or occurrence whatsoever (including, but not limited
to, expropriation, receivership proceedings, seizure by legal process and
transfer by operation of law), which has changed or might change the identity of
the Persons having lawful use or occupancy of any part of the Premises or which
creates a security interest in any part of the Premises, including without
limitation, any of the Leasehold Improvements.
36. "Transferee" means the Person or Persons to whom a Transfer is or is to be
made.
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SCHEDULE "D" - RULES AND REGULATIONS
1. Life Safety. (a) The Tenant shall not do or permit anything to be done in the
Premises, or bring or keep anything therein which will in any way increase the
risk of fire or the rate of fire insurance on the Building or on property kept
therein, or obstruct or interfere with the rights of other tenants or in any way
injure or annoy them or the Landlord, or violate or act at variance with the
laws relating to fires or with regulations of the Fire Department, or with any
insurance upon the Lands or Building or in any part thereof, or violate or act
in conflict with any statutes, rules and ordinances governing health standards
or with any other statute or municipal by-law. (b) No inflammable oils or other
inflammable, dangerous or explosive materials save those approved in writing by
the Landlord's insurers shall be kept or permitted to be kept in the Premises.
2. Security. (a) The Landlord shall permit the Tenant and the Tenant's employees
and all Persons lawfully requiring communication with them to have the use,
during Normal Business Hours in common with others entitled thereto, of the main
entrance and the stairways, corridors, elevators, escalators, or other
mechanical means of access leading to the Building and the Premises. At times
other than during Normal Business Hours the Tenant and the employees of the
Tenant shall have access to the Building and to the Premises only in accordance
with the Rules and Regulations and shall be required to satisfactorily identify
themselves and to register in any book which may at the Landlord's option be
kept by the Landlord for such purpose. If identification is not satisfactory,
the Landlord is entitled to prevent the Tenant or the Tenant's employees or
other Persons lawfully requiring communication with the Tenant from having
access to the Building and to the Premises. In addition, the Landlord is not
required to open the door to the Premises for the purpose of permitting entry
therein to any Person not having a key to the Premises. (b) The Tenant shall not
place or cause to be placed any additional locks upon any doors of the Premises
without the approval of the Landlord. Two keys shall be supplied to the Tenant
for each entrance door to the Premises and all locks shall be Building standard
to permit access by the Landlord's master key. If additional keys are required,
they must be obtained from the Landlord at the cost of the Tenant. Keys or other
means of access for entrance doors to the Building will not be issued without
the written authority of the Landlord.
3. Housekeeping. (a) The Tenant shall permit window cleaners to clean the
windows of the Premises during Normal Business Hours. (b) The Tenant shall not
place any debris, garbage, trash or refuse or permit same to be placed or left
in or upon any part of the Lands or Building outside of the Premises, other than
in a location provided by the Landlord specifically for such purposes, and the
Tenant shall not allow any undue accumulation of any debris, garbage, trash or
refuse in or outside of the Premises. If the Tenant uses perishable articles or
generates wet garbage, the Tenant shall provide refrigerated storage facilities
suitable to the Landlord. (c) The Tenant shall not place or maintain any
supplies, or other articles in any vestibule or entry of the Premises, on the
adjacent footwalks or elsewhere on the exterior of the Premises or elsewhere on
the Lands or Building. (d) The sidewalks, entrances, passages, escalators,
elevators and staircases shall not be obstructed or used by the Tenant, its
agents, servants, contractors, invitees or employees for any purpose other than
ingress to and egress from the Premises and the Building. The Landlord reserves
entire control of all parts of the Lands and Building employed for the common
benefit of the tenants and without restricting the generality of the foregoing,
the sidewalks, entrances, corridors and passages not within the Premises,
washrooms, lavatories, air conditioning closets, fan rooms, janitor's closets,
electrical closets and other closets, stairs, escalators, elevator shafts,
flues, stacks, pipe shafts and ducts and shall have the right to place such
signs and appliances therein, as it deems advisable, provided that ingress to
and egress from the Premises is not unduly impaired thereby. (e) The Tenant
shall not cause or permit: any waste or damage to the Premises; any overloading
of the floors or the utility, electrical or mechanical facilities of the
Premises; any nuisance in the Premises; or any use or manner of use causing a
hazard or annoyance to other occupants of the Building or to the Landlord.
4. Receiving, Shipping, Movement of Articles. (a) The Tenant shall not receive
or ship articles of any kind except through facilities and designated doors and
at hours designated by the Landlord and under the supervision of the Landlord.
(b) Hand trucks, carryalls or similar appliances shall only be used in the
Building with the consent of the Landlord and shall be equipped with rubber
tires, slide guards and such other safeguards as the Landlord requires. (c) The
Tenant, its agents, servants, contractors, invitees or employees, shall not
bring in or take out, position, construct, install or move any safe, business
machinery or other heavy machinery or equipment or anything liable to injure or
destroy any part of the Building, including the Premises, without first
obtaining the consent in writing of the Landlord. In giving such consent, the
Landlord shall have the right in its sole discretion, to prescribe the weight
permitted and the position thereof, the use and design of planks, skids or
platforms, and to distribute the weight thereof. All damage done to the
Building, including the Premises, by moving or using any such heavy equipment or
other office equipment or furniture shall be repaired at the expense of the
Tenant. The moving of all heavy equipment or other office furniture shall occur
only by prior arrangement with the Landlord. The cost of such moving shall be
paid by the Tenant. Safes and other heavy office equipment and machinery shall
be moved through the halls and corridors only in a manner expressly approved by
the Landlord. No freight or bulky matter of any description will be received
into any part of the Building, including the Premises, or carried in the
elevators except during hours approved by the Landlord.
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5. Prevention of Injury to Premises. (a) It shall be the duty of the Tenant to
assist and co-operate with the Landlord in preventing injury to the Premises.
(b) The Tenant shall not deface or mark any part of the Building, including the
Premises, and shall not drive nails, spikes, hooks or screws into the walls,
floors, ceilings or woodwork of any part of the Building, including the
Premises, or bore, drill or cut into the walls, floors, ceilings or woodwork of
any part of the Building including the Premises, in any manner or for any
reason. (c) If the Tenant desires telegraphic or telephonic connections, the
Landlord, in its sole discretion, may direct the electricians as to where and
how the wires are to be introduced. No gas pipe or electric wire will be
permitted which has not been ordered or authorized by the Landlord. No outside
radio or television antenna shall be allowed on any part of the Premises without
authorization in writing by the Landlord.
6. Windows. Except for the proper use of approved blinds and drapes, the Tenant
shall not cover, obstruct or affix any object or material to any of the
skylights and windows that reflect or admit light into any part of the Building,
including, without limiting the generality of the foregoing, the application of
solar films.
7. Washrooms. (a) The Landlord shall permit the Tenant and the employees of the
Tenant in common with others entitled thereto, to use the washrooms on the floor
of the Building on which the Premises are situated or, in lieu thereof, those
washrooms designated by the Landlord, save and except when the general water
supply may be turned off from the public main or at such other times when repair
and maintenance undertaken by the Landlord shall necessitate the non-use of the
facilities. (b) The water closets and other apparatus shall not be used for any
purposes other than those for which they were intended, and no sweepings,
rubbish, rags, ashes or other substances shall be thrown into them. Any damage
resulting from misuse shall be borne by the Tenant by whom or by whose agents,
servants, invitees, or employees such damage is caused.
8. Use of Premises. (a) No one shall use the Premises for sleeping apartments or
residential purposes, or for the storage of personal effects or articles other
than those required for business purposes. (b) No cooking or heating of any
foods or liquids (other than the heating of water or coffee in coffee makers or
kettles) shall be permitted in the Premises without the written consent of the
Landlord. (c) The Tenant shall not install or permit the installation or use of
any machine dispensing goods for sale in the Premises or the Building or permit
the delivery of any food or beverage to the Premises without the written
approval of the Landlord or in contravention of the Rules and Regulations. (d)
The Tenant shall not permit or allow any odours, vapours, steam, water,
vibrations, noises or other undesirable effects to emanate from the Premises or
any equipment or installation therein which, in the Landlord's opinion, are
objectionable or cause any interference with the safety, comfort or convenience
of the Building to the Landlord or the occupants and tenants thereof or their
agents, servants, invitees or employees.
9. Canvassing, Soliciting, Peddling. Canvassing, soliciting and peddling in or
about the Lands and Building are prohibited.
10. Bicycles. No bicycles or other vehicles shall be brought within any part of
the Lands or Building without the consent of the Landlord.
11. Animals and Birds. No animals or birds shall be brought into any part of the
Lands or Building without the consent of the Landlord.
12. Signs and Advertising. The Tenant shall not paint, affix, display or cause
to be painted, affixed or displayed, any sign, picture, advertisement, notice,
lettering or decoration on any part of the outside of the Building or in the
interior of the Premises which is visible from the outside of the Building. The
Landlord will prescribe a uniform pattern and location of identification signs
for tenants, to be placed on the outside of the Premises, by the Landlord at the
expense of the Tenant, and the Tenant shall not paint, affix, display or cause
to be painted, affixed or displayed any sign, picture, advertisement, notice,
lettering or decoration on the outside of the Premises for exterior view without
the written consent of the Landlord. Any such signs shall remain the property of
the Tenant and shall be maintained at the Tenant's sole cost and expense. At the
expiration of the Term or earlier termination of this Lease, the Tenant shall
remove any such sign, picture, advertisement, notice, lettering or decoration
from the Premises at the Tenant's expense and shall promptly repair all damage
caused by any such removal. The Tenant's obligation to observe and perform this
covenant shall survive the expiration of the Term or earlier termination of the
Lease.
13. Directory Board. The Tenant shall be entitled at its expense to have its
name shown upon the directory board of the Building and the Landlord shall
design the style of such identification and shall determine the number of spaces
available on the directory board for each tenant. The directory board shall be
located in an area designated by the Landlord in the main lobby of the Building.
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)
)
)
)
)
)
)__________________________________ (seal)
) Print Name______________________
)
)
)
)
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