IT Staffing/55 University Avenue
LEASE
(55 University Avenue)
BETWEEN
PENYORK PROPERTIES I INC.
LANDLORD
AND
IT STAFFING INC.
TENANT
TABLE OF CONTENTS
ARTICLE I
FUNDAMENTAL PROVISIONS 1
1.1 Landlord 1
1.2 Tenant 1
1.3 Building 1
1.4 Leased Premises 1
1.5 Term 1
1.6 Basic Rent 1
1,7 Additional Rents 1
1.8 Deposit 1
1.9 Basic Rent Commencement Date 1
1.10 Additional Rent Commencement Date 1
1.11 Fundamental Provisions 1
ARTICLE II
LEASED PREMISES 1
2.1 Lease 1
2.2 Use 2
2.3 Rules and Regulations 2
2.4 Observance of I aw 2
2.5 No Waste or Nuisance 2
2.6 Common Areas 2
2.7 Easements 2
ARTICLE Ill
TERM - POSSESSION 2
3,1 Term 2
3.2 Tenant Fixturing 2
3.3 Delay in Posession 3
3.4 Surrender 3
3.5 Overholding 3
ARTICLE IV
RENT 3
4.1 Payment 3
4.2 Basic Rent 3
4.3 Deposit 3
4.4 Realty Taxes 3
4.5 Proportionate-Share of Operating Costs 3
4.6 Utilities - Light Fixtures 4
4.7 Additional Services 4
4.8 General Provisions 4
ARTICLE V
TAXES 4
6.1 Taxes Payable by the Landlord 5
5.2 Business and Other Taxes Payable by the Tenant 5
5.3 Contesting Taxes 5
5.4 Alternate Methods of Taxation 5
I
TABLE OF CONTENTS CONTD.
MAINTENANCE, REPAIRS AND ALTERATIONS 5
6.1 General Statement 5
6.2 Responsibility of Tenant 5
6.3 Tenant Not Responsible 5
6.4 Responsibility of Landlord 6
6.5 Inspection, Entry and Notice 6
6.6 Notify the Landlord 6
6.7 Alterations Improvements 6
6.8 Removal and Restoration 8
6.9 External Changes 8
6.10 Trade Fixtures 8
6.11 Lien on Trade-Fixtures 8
6.12 Tenant's Signs 8
6.13 Directory Board 8
6.14 Landlord's Signs 8
ARTICLE VII
STANDARD SERVICES 9
7.1 Heating and Air-Conditioning 9
7.2 Cleaning 9
7.3 Elevators 9
7.4 Security and Information 9
7.5 Utilities 9
7.6 lnterruption or Delay of Services 10
7.7 Lanlord's Alterations 10
ARTICLE VIII
ASSIGNMENT AND SUBLETTING 10
8.1 Assignment, Subletting 10
8.2 Landlord's Consent 10
8.3 Requests for Consent 10
8.4 Assignment by Landlord 11
ARTICLE IX
INSURANCE AND INDEMNIFICATION 11
9.1 Tenant's Insurance 11
9.2 Policy Requirements 11
9.3 Proof of Insurance 11
9.4 Failure to Maintain 12
9.5 Damage to Leasehold Improvements 12
9.6 Increase in Insurance Premiums/Cancellation 12
9.7 Landlord's Insurance 12
9.8 Non-Liability for Loss, lnjury or Damage 12
9.9 Indemnification of the Landlord 12
9.10 Extension of Rights and Remedies 13
ARTICLE X
DAMAGE 13
10.1 Damage to Leased Premises 13
10.2 Damaae to thll Rielitlinn 14
10.3 Architect's Certificate 14
TABLE OF CONTENTS CONTD.
ARTICLE XI
UNAVOIDABLE DELAY 15
11.1 Unavoidable Delay 15
ARTICLE XII
LANDLORD'S REMEDIES 15
12.1 Landlord May Perform Tenant's Covenants 15
12.2 Re-Entry 15
12.3 Landlord May Beset 16
12.4 Right to Distrain 16
12.5 Landlord May Follow Chattels 16
12.6 Rights Cumulative 16
12.7 Acceptance of Rent Non-Waiver 16
ARTICLE XIII
STATUS STATEMENT, ATTORNMENT AND SUBORDINATION 17
13.1 Certification 17
13.2 Attornment 17
13.3 Subordination 17
13.4 Timely Execution 17
13.5 Rights of Mortgagees, Trustees 17
ARTICLE XIV
MISCELLANEOUS 17
14.1 Joint and Several Liability 17
14.2 Lanlord and Tenant Relationship 17
14.3 Planning Act 17
14.4 No Waiver 18
14.5 ExproDriation 18
14.6 Notice 18
14.7 Net Lease 18
14.8 Non Merger 18
14.9 Lease Entire Agreement 19
14.10 Registration 19
14.11 Name of Building 19
14,12 Exhibiting Premises 19
14.13 Governing Law 19
14.14 Survival of Tenant's Covenants 19
14.15 Quiet Enjoyment 19
14.16 [3inding on Successors 19
14.17 Limitation on Use 19
14.18 Corporate Ownership 19
14.19 Assignment and Subletting 19
14.20 Sever Liability 20
14.21 Time of the Essence 20
ARTICLE XV
DEFINITIONS -- INTERPRETATION 20
15.1 Definitions 20
16.2 Interpretation 25
SCHEDULES AND APPENDICES
SCHEDULE "A" LEGAL DESCRIPTION
SCHEDULE "B" FLOOR PLAN
SCHEDULE "C" LANDLORD'S AND TENANT'S IMPROVEMENTS
SCHEDULE "D" RULES AND REGULATIONS
SCHEDULE "E" SPECIAL CONDITIONS
SCHEDULE "F" STATUS STATEMENT
SCHEDULE "G" INDEMNITY AGREEMENT
SCHEDULE "L" CLEANING SCHEDULE
THIS LEASE is made as of the 1st day of December, 1997.
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT between the Landlord, Tenant and
Indemnifier, if any, listed below.
ARTICLE I
FUNDAMENTAL PROVISIONS
1.1 Landlord: PENYORK PROPERTIES I INC., a company having a mailing address
for the purposes of this Lease at 4 Eva Road, Suite 427, Etobicoke,
Ontario, M9C 2A8.
1.2 Tenant: IT STAFFING INC.
1.3 Building: 55 University Avenue, Toronto, Ontario and situate upon the
lands described in Schedule "A' of this Lease, and constructed with the
base building standards set forth on Schedule "C" annexed hereto.
1.4 Leased Premises: (Section 2.1)
The space outlined in red on Schedule "B" of this Lease, located on the
5th floor of the Building and having a Rentable Area of approximately four
thousand, four hundred (4,400) square feet.
Term: (Section 3.1)
Ten (10) years having a Term Commencement Date of December 1, 1997 and
ending November 30, 2007.
1.6 Basic Rent: (Section 4.2)
Forty Six Thousand, Two Hundred dollars ($46,200.00) per annum, computed
at the annual rate of $10.50 per square foot of Rentable Area, and payable
monthly in advance in the amount of Three Thousand, Eight Hundred and
Fifty dollars and Zero cents ($3,850.00) per month commencing on the Basic
Rent Commencement Date and Fifty Five Thousand dollars ($55,000.00) per
annum, computed at the annual rate of $12.50 per square foot of Rentable
Area, and payable monthly in advance in the amount of Four Thousand, Five
Hundred and Eighty Three dollars and Thirty Three cents ($4,583.33) per
month commencing December 1 2002.
1.7 Additional Rents: The following additional payments are payable as of and
from the Additional Rent Commencement Date:
(a) Realty Taxes for Leased Premises (Section 4.4)
(b) Proportionate Share of Operating Costs (Section 4.5)
(c) Utilities for Leased Premises (Section 4.6)
(d) Additional Services, if any (Section 4.7)
1.9 Basic Rent Commencement Date: December 1, 1997 (Section 4. 1)
1.10 Additional Rent Commencement Date: December 1, 1997 (Section 4.1)
1.11 Fundamental Provisions: Each reference in this Lease to any of the
Fundamental Provisions listed above shall be read as having the same
dates, quantities and other meanings as specified in this Article I.
ARTICLE II
LEASED PREMISES
2.1 Lease: In consideration of the Rent to be paid, the landlord hereby leases
to the Tenant the premises outlined in red on Schedule "B" of this Lease, (the
"Leased Premises") described in Section 1.4 hereof, together with the rights and
privileges as contained in this Lease, and the Tenant hereby leases and
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accepts the Leased Premises from the Landlord, to have and to hold during the
Term, subject to the terms, covenants and conditions set out in this Lease.
The area of the Leased Premises will be measured by the Landlord's
Architect, and the Basic Rent will be adjusted in accordance with the certified
area. The Landlord will advise the Tenant in writing of the Architects
measurements, and the parties agree to be bound thereby,
2.2 Use: The Tenant covenants to use the Leased Premises for general office
purposes only in accordance with the standards of a first class office building
of similar age and in a similar location, and subject in any event to the
limitations on use set forth in Section 14.17 hereof. The Tenant shall take
possession of the Leased Premises no later than the Term Commencement Date,
unless the Landlord otherwise consents in writing, which consent shall not be
unreasonably withheld.
2.3 Rules and Regulations: The Tenant covenants to abide by the Rules and
Regulations as set out in Schedule "D" annexed hereto, and to cause those for
whom it is responsible to observe such Rules and Regulations. The Landlord,
acting reasonably, may make changes to the Rules and Regulations, and shall
endeavour to cause the tenants in the Building to observe such Rules and
Regulations from time to time, provided that the Landlord shall not be liable in
any way for either a failure to enforce such observance, or a failure on the
part of other tenants to so observe.
2.4 Observance of Law:
(a) The Tenant covenants to comply with all laws and directives issued
by governing authorities and which affect the Tenanfs use and
occupancy of the Leased Premises or any Leasehold Improvements of
the Tenant or any use of other parts of the Lands or Building.
(b) To the extent necessary for the Landlord to comply with its
covenants in this Lease, the Landlord shall during the Term, with
respect to the Lands and Building, comply with all provisions of law
including, without limitation, federal and provincial legislative
enactments, building by-iaws and any other governmental or municipal
regulations which relate to the equipment, operation and use of the
Lands and Building, and to the making of repairs, replacements,
alterations, additions, changes, substitutions or improvements of or
to the Lands and Building, and to comply with all police, fire and
sanitary regulations imposed by any federal, provincial or municipal
authorities or made by any fire insurance company by which the
Landlord may be insured at any time during the Term from time to
time in force and applicable to the Lands and the Building. The
costs of items referred to in this subsection 2.4(b) shall be
included as an Operating Cost of the Building except if the actions
required to cause such compliance are required because of the use
and occupancy by the Tenant of the Leased Premises, in which event
such costs shall be the sole responsibility of the Tenant.
2.5 No Waste or Nuisance: The Tenant shall not commit or permit any waste or
damage to the Leased Premises, or commit or permit anything which may disturb
the quiet enjoyment of any occupancy of the Building. The Tenant further
covenants to co-operate with the Landlord in any of its programmes to improve or
make more efficient the operation of the Lands and Building.
2.6 Common Areas: The Landlord agrees that the Tenant, in common with all
chhers entitled thereto including the general public in concourse areas, may use
and have access through the Common Areas for
their intended purposes; provided however, that in an emergency or in the case
of the Landlord making repairs, the Landlord may temporarily close or restrict
the use of any part of the Common Areas, although the Landlord shall, in such
instances, endeavour not to restrict access to the Leased Premises.
2.7 Easements: The Tenant acknowledges that the Landlord and any persons
authorized by the Landlord may install, maintain and repair pipes, wires and
other conduits through the Common Areas and the Leased Premises. Any such
installing, maintaining and repairing shall be done as quickly as possible and
in a manner that will least inconvenience the Tenant.
ARTICLE III
TERM - POSSESSION
3.1 Term: This Lease shall be for the period of five (6) years (the "Term"),
commencing on the lst day of December, 1997 (the "Term Commencement Date"), and
ending on the 30th day of November, 2007 unless earlier terminated as provided
in this Lease, and nothing hereafter contained in this Article III shall
postpone the Term Commencement Date, or extend the Term.
3.2 Tenant Fixturing: Should the Tenant take possession of the Leased Premises
for purposes of fixturing or installing its Leasehold Improvements prior to the
Term Commencement Date, then all of the terms and conditions of this Lease,
except for payment of Rent, shall be in full force and effect as of the date the
Tenant took such possession, and the Tenant shall reimburse the Landlord for the
cost of any special
2
services provided during the Fixtuhng Period, as set out in Schedule "C"
including the cost of cleaning and rubbish removal, and any utilities consumed
in the Leased Premises; and should the Tenant commence conducting its business
prior to the Term Commencement date, Rent shall be payable as of and from such
date of business commencement.
3.3 Delay In Possession: Should the Tenant be delayed by fault of the Landlord
in taking possession of the Leased Premises on the Term Commencement Date, then
and only then shall the payment of Rent be postponed for the same number of days
that the Tenant is delayed in taking possession of the Leased Premises. The
Tenant hereby acknowledges and agrees that such postponement of the payment of
Rent shall be full settlement for any claims it might have against the Landlord
for being delayed in its taking possession of the Leased Premises
3.4 Surrender: The Tenant shall surrender possession of the Leased Premises
upon termination of this Lease by either effluxion of time or operation of the
terms hereof.
3.5 Overholding: If the Tenant remains in possession of the Leased Premises
following termination of this Lease by either effluxion of time or operation of
the terms hereof, with or without the consent of the landlord, which consent may
be arbitrarily withheld, the Tenant shall be deemed to be a monthly tenant upon
the same terms and conditions as are contained in this Lease except as to the
Term, and except as to Rent which shall be equal to the then prevailing rate
charged by the Landlord in the Building, or as may be stipulated in such
consent, as the case may be.
ARTICLE IV
RENT
4.1 Payment: From and after the lst day of December, 1997 (the "Basic Rent
Commencement
Date") the Tenant shall pay to the Landlord the Basic Rent as set out in Section
4.2 below and from and after the Ist day of December, 1997 (the "Additional Rent
Commencement Date"), the Tenant shall pay to the Landlord the Additional Rents
as set out in this Lease.
4.2 Basic Rent: The Tenant shall pay basic rent in the amount of Forty Six
Thousand, Two Hundred dollars and Zero cents ($46,200.00) per annum (the "Basic
Rent"), which shall be payable in advance in equal consecutive monthly
instalments of Three Thousand, Eight Hundred and Fifty dollars and Zero cents
($3,850.00) per month commencing on the Basic Rent Commencement Date and Fifty
Five Thousand dollars and Zero cents ($55,000.00) per annum (the "Basic Rent"),
which shall be payable in advance in equal consecutive monthly instalments of
Four Thousand, Five Hundred and Eighty Three dollars and Thirty Three cents
($4,583.33) per month commencing December 1, 2002. This is subject to adjustment
upon certification of the Rentable Area of the Leased Premises.
4.4 Realty Taxes:
(a) The Tenant shall pay to the Landlord, Realty Taxes assessed against
(or allocated in respect to) the Leased Premises on the basis of the
assessment for realty tax purposes of the Leased Premises as
indicated on the realty tax assessment(s) for the Building, or as
reasonably allocated by the Landlord, commencing on the Additional
Rent Commencement Date. On or before the Term Commencement Date and
the commencement of any Fiscal Year in which the Term fails, the
Landlord shall estimate the Realty Taxes to be assessed (or
allocated against the Leased Premises). The Tenant shall pay to the
Landlord in equal monthly instalments in advance on the first day of
each month a sum on account of its Realty Taxes based on the
landlord's
estimates.
(b) The Landlord may from time to time re-estimate the amount of
projected Realty Taxes for the then current year and for the
remainder of the Fiscal Year and the Tenant shall change its monthly
instalments to conform with the revised estimates.
(c) After the end of each Fiscal Year the Landlord shall determine the
actual Realty Taxes with respect to the Leased Premises and the
difference between such actual determination and the amount already
billed to the Tenant in instalments. If the aggregate of the
Tenant's instalments for the Fiscal Year in question were less than
the actual determination, then the Tenant shall pay the difference
to the Landlord forthwith, or if the aggregate of such instalments
were more than the actual determination, the Tenant shall deduct the
difference from its next payment of Basic Rent.
4.5 Proportionate Share of Operating Costs:
(a) The Tenant shall pay to the Landlord its Proportionate Share of
Operating Costs commencing on the Additional Rent Commencement Date.
On or before the Term Commencement Date and the commencement of any
Fiscal Year in which the Term falls, the Landlord shall estimate the
Operating Costs and the Tenant's Proportionate Share thereof The
Tenant shall pay to the Landlord in equal monthly instalments in
advance on the first day of each month a sum on account of its
Proportionate Share of Operating Costs based on the Landlord's
estimates.
(b) The Landlord may from time to time re-estimate the amount of
projected Operating Costs for the then current year and re-estimate
the Tenant's Proportionate Share thereof for the remainder of the
Fiscal Year and the Tenant shall change its monthly instalments to
conform with the revised estimates.
(c) After the end of each Fiscal Year the Landlord shall determine the
actual Tenant's Proportionate Share of Operating Costs and the
difference between such actual determination and the amount already
paid by the Tenant. If the aggregate of the Tenant's instalments for
the Fiscal Year in question were less than the actual determination,
then the Tenant shall pay the difference to the Landlord with its
next payment of Basic Rent, or if the aggregate of such instalments
were more than the actual determination, the Tenant shall deduct the
difference from its next payment of Basic Rent.
4.6 Utilities-Light Fixtures: The Tenant shall pay to the Landlord the cost of
utilities supplied to the Leased Premises commencing on the Additional Rent
Commencement Date, as reasonably determined
by the Landlord, and billed monthly, in advance. The amount of such cost shall
be based on the Landiord's reasonable estimates for the quantities of utilities
supplied multiplied by the average unit costs to the Lahdford for such
utilities. The Tenant may have installed (at its own expense) meters to measure
the amount of any utility supplied and the Landlord shall employ the resulting
metered quantities in lieu of estimated consumption. The Tenant shall also pay
to the Landlord the reasonable cost of cleaning, maintaining and servicing all
electric light fixtures in the Leased Premises, including the cost of replacing
light bulbs, tubes, starters and ballasts.
4.7 Additional Services: The Tenant may from time to time request Additional
Services from the Landlord, and where the Tenant requests any Additional
Services and the Landlord provides same, the Tenant shall pay to the landlord a
reasonable charge for such Additional Services, payable forthwith upon receipt
of the Landford's invoice therefor.
4.8 General Provisions:
(a) No Delay in Payment of Rent: Nothing contained in this Lease shall
suspend or delay the payment of any money at the time it becomes due
and payable. The Tenant agrees that the Landlord may, at its option,
apply any sums received against any amounts due and payable under
this Lease in such manner as the Landlord sees fit.
(b) Interest on Arrears: If any amount of Rent is in arrears it shall
bear interest at the Interest Rate.
(c) Partial Periods: If either the Basic Rent Commencement Date or the
Additional Rent Commencement Date is any day other than the first
day of a calendar month, or if the
Term ends on a day other than the last day of a calendar month, then
Basic Rent and Additional Rents, as the case may be, will be
adjusted pro rata based on a 366 day year.
(d) Estimated Amounts: Where the Landlord estimates or re-estimates the
costs of Rea@ Taxes, Operating Costs and the amount of utilities
supplied, it shall do so acting reasonably and shall provide the
Tenant with statements of such estimates in reasonable detail.
(e) Audited Statement: Invoices for the actual determination of the
Tenant's Proportionate Share of Operating Costs shall be accompanied
by an audited statement of such Operating Costs.
General: All amounts payable by the Tenant to the Landlord in
accordance with this Lease shall be deemed to be Rent. All Rent
shall be paid in advance on the first day of each month without
deduction or abatement, except as expressly provided in this Lease,
and without set-off, and where payments due have been invoiced, such
invoiced amounts shall be paid within ten (10) days of receipt of
such invoice. All Rent shall be paid in lawful money of Canada.
ARTICLE V
TAXES
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5.1 Taxes Payable by the Landlord: The Landlord shall pay before delinquency
all Realty Taxes. The Landlord covenants that at all appropriate times it shall
declare itself a public school supporter for purposes of determining the amounts
of any Realty Taxes payable.
5.2 Business and Other Taxes Payable: The Tenant shall pay before delinquency
all business taxes, Rental Taxes, if applicable, and any other taxes, charges,
rates, duties and assessments levied, rated, imposed, charged or assessed
against and in respect of any use or occupancy of the Leased Premises or in
respect of the personal property, trade fixtures, fixtures and facilities of the
Tenant or the business or income of the Tenant on or from the Leased Premises,
and the Tenant shall indemnify the Landlord from and against costs or charges
resulting from the Tenant not paying these amounts and the Tenant shall, upon
request of the Landlord supply receipts for such taxes paid. The Tenant shall
pay to the Landlord any increase or incremental amount of Realty Taxes or other
taxes which the Landlord, acting reasonably, has determined to be attributable
to an act by the Tenant (for example declaring itself a separate school
supporter) or attributable to the Leasehold Improvements.
5.3 Contesting Taxes:
(a) The Tenant may, at its expense, appeal or contest the taxes,
assessments and other amounts payable as described in Section 5.2
hereof, provided it first gives the Landlord written notice of its
intention to do so, and consults with the Landlord, and obtains the
Landiord's prior written approval, which approval shall not be
unreasonably withheld, delivers to the Landlord such security for
the payment of such taxes, assessments and other charges as the
Landlord deems advisable, diligently prosecutes any such appeal or
contestation to a speedy resolution and keeps the Landlord advised
of its progress
from time to time; and provided that the Landlord may withhold its
approval of such appeal or contestation if the Landlord, acting
reasonably, considers that the effect thereof will be detrimental to
the Landlord or other tenants within the Building.
(b) The Landlord reserves the right to appeal or contest any taxes
payable by the Landlord so long as it does so in a diligent manner
and does not interfere with the quiet enjoyment granted to the
Tenant in this Lease.
5.4 Alternate Methods of Taxation: If, during the Term, the method of taxation
shall be altered, so that the whole or any part of the Realty Taxes now levied,
rated, assessed or imposed on real estate and improvements are levied, assessed,
rated or imposed wholly or partially as a capital levy or on the rents received
or reserved or otherwise, or if any tax, assessment, levy, imposition or charge
in lieu thereof, shall be imposed upon the Landlord, then all such taxes
assessments, levies, impositions and charges shall be included when determining
the Realty Taxes. If, during the Term, the method of taxation shall be altered,
so that the whole or any part of the business taxes ordinarily (and formerly)
payable in respect of any use or occupancy of the Leased Premises is merged into
a comprehensive realty tax, the Landlord shall have the right to allocate (and
collect) such component of the comprehensive realty tax (as would have been
formerly business taxes payable by the Tenant) in the manner (or on the same
basis) as would have been employed or used in taxation practice by the taxing
authority.
ARTICLE VI
MAINTENANCE, REPAIRS AND ALTERATIONS
6.1 General Statement: The landlord and Tenant agree to carry out their
respective responsibilities
for maintenance and repair as detailed in this lease in accordance with general
standards for a first class office building in the City of Toronto, of similar
age and in a similar location.
6.2 Responsibilitv of Tenant: Without notice or demand from the Landlord, the
Tenant shall:
(a) Maintain and keep in a good state of repair the Leased Premises and
the Leasehold Improvements.
(b) Decorate and redecorate the Leased Premises including the interior
faces of any demising walls and permanent building walls, columns
and covers for heating units along the exterior walls.
(c) Keep the Leased Premises in a clean and tidy condition, and not
permit wastepaper, garbage, ashes, waste or objectionable material
to accumulate thereon or in or about the Building, other than in
areas designated by the Landlord.
(d) Repair all damage in the Leased Premises resulting from any misuse,
excessive use or installation, alteration, or removal of Leasehold
Improvements, fixtures, furnishings or equipment.
6.3 Tenant Not responsible: Notwithstanding Section 6.2 hereof, the Tenant
shall not be responsible for:
(a) Reasonable wear and tear which does not affect the proper use and
enjoyment of the Leased Premises.
(b) Damage by fire, lightning, tempest or other casualty for which the
Landlord is indemnified under any policy of insurance (unless the
damage was caused by the
negligence of the Tenant or those for whom the Tenant is In law
responsible).
(c) The obligations of the Landlord as set out in Section 6.4 hereof
6.4 Responsibility of Landlord: The Landlord shall maintain and keep in a good
state of repair
(a) The Building structure, roof, and permanent building walls (except
for interior faces facing into the Leased Premises).
(b) Equipment installed by the Landlord to heat, ventilate, and air
condition the Building.
(c) Elevators.
(d) Systems installed by the Landlord for the distribution of utilities.
(a) The Common Areas.
The Landlord's Improvements in both the Common Areas and the Leased
Premises which have been installed by the Landlord.
6.5 Inspection, Entry and Notice:
(a) The Landlord, or its agents, may, from time to time, acting
reasonably and where practical in a manner that will not disrupt the
Tenant's business, enter the Leased Premises and inspect the state
of maintenance, repair and decoration, and upon reasonable prior
notice to the Tenant, show the Leased Premises to prospective
purchasers, tenants and existing or prospective mortgagees.
(b) The Landlord may give notice to the Tenant requiring it to perform
in accordance with Section 6.2 hereof, and the Tenant shall commence
to remedy any such failure to
perform within fifteen (15) days following receipt of such notice.
Should the Tenant fail to commence such remedy within the allotted
time, or having so commenced, fail to diligently continue such
remedy to conclusion, the Landlord may carry out such remedy without
further notice to the Tenant, and charge the Tenant for such remedy
as if it were an Additional Service requested by the Tenant.
(c) If the Tenant is not present to open and permit any entry into H the
Leased Premises when for any reason an entry shall be necessary in
the case of emergency, the Landlord or its agents may, using
reasonable force, enter the same without rendering the Landlord or
such agents liable therefor, and without affecting the obligations
and covenants of this Lease.
(d) Nothing in this Lease shall make the Landlord liable for any,
actions, notices or inspections as described in this Section 6.5,
nor is the Landlord required to inspect the Leased Premises, give
notice to the Tenant or carry out remedies on the Tenant's behalf,
nor is the Landlord under any obligation for the care, maintenance
or repair of the Leased Premises, except as specifically provided in
this Lease.
6.6 Notify the Landlord: The Tenant covenants to immediately notify the
Landlord of any defect, damage or malfunction affecting the Leased Premises or
other parts of the Building of which the Tenant is aware.
6.7 Alterations or Improvements:
(a) The Tenant agrees to accept the Leased Premises in their present
"as-is"
condition. The Landlord shall however, install at the Landiord's
cost, (1) a new double entry door to the suite; and (ii) replace
ceiling tiles where required.
(b) The Tenant following approval by the Landlord shall install its
initial Leasehold Improvements in accordance with the provisions of
Schedule "C" annexed hereto and the "Design Criteria Manual" (if
applicable) prepared by the Landlord and provided to the Tenant.
(c) Following installation of such initial Leasehold Improvements as
aforesaid, the Tenant shall not make any alterations, repairs,
changes, replacements, additions, fixturing, installations or
improvements to any part of the Leased Premises or Leasehold
Improvements without the Landiord's prior written approval, which
approval shall not be unreasonably withheld, unless the request is
in respect of a structural matter or will
affect the basic mechanical, electrical, air control or other basic
systems of the Building or the capacities thereof, in which instance
the Landiord's approval may be arbitrarily withheld. The Tenant
shall submit to the Landlord details of any proposed work, including
complete working drawings and specifications prepared by qualified
designers and conforming to good engineering practice, and the
Tenant shall provide such indemnification against liens, costs,
damages and expenses as the Landlord shall reasonably require, and
evidence satisfactory to the Landlord that the Tenant has obtained
all necessary consents, permits, licences and inspections from all
governmental authorities having jurisdiction.
(d) All Leasehold Improvements shall:
be performed expeditiously and at the sole cost of the
Tenant, be performed by competent workmen whose labour
union affiliations, if any, are compatible with others
employed by the Landlord and its contractors, and who will
not interfere unreasonably with work being performed by the
Landlord,
be performed in a good and workmanlike manner and in
accordance with the drawings and specifications which the
Landlord has approved,
be performed in compliance with the applicable requirements
of all regulatory authorities, and be subject to the
reasonable supervision and direction of the Landlord.
(e) Any Leasehold Improvements made by the Tenant without the prior
written consent of the Landlord or which are not in accordance with
the drawings and specifications approved by the Landlord shall, if
requested by the Landlord, be promptly removed by the Tenant at the
Tenant's expense, and the Leased Premises shall be restored to their
previous condition.
The Tenant shall reimburse the Landlord for the cost of technical
evaluation of the plans and specifications and shall revise such
plans and specifications as the Landlord deems necessary.
(g) In carrying out work in accordance with subsection (b) hereof, the
Tenant, at its expense, shall pay to the Landlord with respect to
such work the reasonable cost to the Landlord of all utilities
supplied to the leased Premises with respect to such work and any
special or additional services provided to the Tenant for the
conduct of such work, including the cost of any Additional Services,
the cost of any necessary cutting or patching of or repairing of any
damage to the Building or the Leased Premises, any cost to the
landlord of removing refuse or material and of cleaning as a result
of such work, any cost to the Landlord for hoisting of materials
used in the Tenant's work, any cost to the Landlord for changes
required by the Tenant for the use of the Leased Premises, all other
costs incurred for the accommodation of such work (including delays
caused by the conduct of such work), and any other costs of the
Landlord which can be reasonably allocated as a direct expense
relating to the conduct of such work.
(h) If a request is made by the Tenant with respect to structural
matters or matters which affect the basic mechanical, electrical,
air control or other basic systems of the Building or the capacities
thereof, which is approved by the Landlord, the landlord may require
that such work be designed by consultants designated by it and that
it be performed by the Landlord or its contractors. If the Landlord
or its contractors perform such work, it shall be at the Tenant's
expense in an amount equal to the Landford's total cost of such work
or the contract price therefor plus ten (10%) per cent, payable
following completion upon demand. Notwithstanding the foregoing, if
the Tenant requests the
Landlord to alter or install any Leasehold Improvements such work
will be considered as an Additional Service.
(i) No Leasehold Improvements by or on behalf of the Tenant shall be
permitted which may adversely affect the condition or operation of
the Building or Leased Premises or diminish the value thereof or
restrict or reduce the Landiord's coverage for municipal zoning
purposes.
During construction and installation of Leasehold Improvements the
Tenant shall keep the Building clean from any debris related
thereto, and in any event after construction is completed do an
adequate "first clean" to the Leased Premises.
(k) The Tenant shall promptly pay all its contractors and suppliers and
shall do all things necessary to prevent a lien attaching to the
Lands or Building for failure to pay its contractors and suppliers
and should any such lien be made or filed, the Tenant shall
discharge or vacate such lien immediately. If the Tenant fails to
discharge or vacate
any lien, then in addition to any other right or remedy of the
Landlord, the Landlord may discharge or vacate the lien by paying
into Court the amount required by statute to be paid to obtain a
discharge, and the amount so paid by the Landlord together with all
costs and expenses including solicitors fees (on a solicitor and his
client basis) incurred in connection therewith shall be due and
payable by the Tenant to the Landlord on demand.
6.8 Removal and Restoration:
(a) The Leasehold Improvements shall immediately upon installation
become the property of the Landlord without compensation to the
tenant.
(b) The Tenant shall repair and make good any damage to the Leased
Premises or to the Building caused either in the installation of
Leasehold Improvements.
6.9 External Changes: The Tenant agrees that it shall not erect, affix or
otherwise attach to any roof, exterior walls or surfaces of the Building any
antennae, sign, fixture or attachment of any kind, nor shall it make any opening
in or alteration to the roof, walls, or structure of the Leased Premises, or
install in the Lepsed Premises or Building free standing air-conditioning units,
without the prior written consent of the Landlord which may be arbitrarily
withheld.
6.10 Trade Fixtures: The Tenant may, during or at the end of the Term, if not
in default, remove its trade fixtures, and the Tenant shall, in the case of
every installation or removal of trade fixtures, make good any damage caused to
the Leased Premises or the Building by such installation or removal. Any trade
fixtures and equipment belonging to the Tenant, if not removed at the
termination or expiration of this Lease,
shall, if the Landlord so elects, be deemed abandoned and thereupon become the
property of the Landlord without any compensation to the Tenant. If the Landlord
shall not so elect, the Landlord may remove such fixtures or equipment from the
Leased Premises and store them at the Tenant's risk and expense and the Tenant
shall save the Landlord harmless from all damage to the Leased Premises caused
by such removal, whether by the Tenant or by the Landlord.
6.11 Lien on Trade Fixtures: If at any time the Tenant shall be in default
under any covenant herein contained, the landlord shall have the right to
distrain on all stock in trade, inventory and fixtures, equipment and facilities
of the Tenant as security against loss or damage resulting from any such default
by the Tenant, and the stock in trade, inventory, fixtures, equipment or
facilities shall not be removed by the Tenant until such default is cured,
unless otherwise so directed by the Landlord.
6.12 Tenant's Signs: The Tenant shall not at any time cause or permit any sign,
picture, advertisement, notice, lettering, flag, decoration or direction
(hereinafter collectively called "Signs") to be painted, displayed, inscribed,
placed, affixed or maintained in or on any windows or the exterior of the Leased
Premises, nor anywhere else on or in the Building, without the prior and
continuous consent of the Landlord which consent may be arbitrarily withheld.
The Landlord may at any time prescribe a uniform pattern of identification signs
for tenants to be placed on the outside of the interior doors leading into the
Leased Premises and other premises. Any breach by the Tenant of this provision
may be immediately rectified by the Landlord at the Tenant's expense. The Signs
shall remain the property of the Tenant and shall be removed by the Tenant, at
its sole cost, at the earlier of the expiration of the Term or termination of
this Lease. Upon such removal, the Leased Premises shall be restored to their
original condition. The Tenant shall indemnify the Landlord against any loss or
damage caused to any person or property as a
result of placing, use or removal of any Sign on or in the Building.
6.13 Directory Board: The Landlord may erect and maintain (as an Operating
Cost) a directory board in the main lobby of the Building which shall indicate
the name of the Tenant and the location of the Leased Premises within the
Building. The Tenant shall pay the Landiord's cost of changes thereto, and any
other signage with respect to the Leased Premises. Should sufficient space exist
on the directory board, the Landlord may provide to the Tenant, at the Tenants
expense, additional entries as requested. The directory board shall be for
identification only and not for advertising. The Landlord's acceptance of any
name for listing on the directory board will not be deemed, nor will it
substitute for, Landford's consent, as required by this Lease, to any sublease,
assignment or other occupancy of the Leased Premises.
6,14 Landlord's Signs: In addition to the Landiord's right to install general
information and direction signs in and about the Building as would be customary
for a first-class office building in the City of Toronto, the Landlord shall
have the right at any time during the Term to place upon the Building a notice
of reasonable dimensions, reasonably placed so as not to interfere with the
Tenant's business, stating that the Building is for sale, or that areas of the
Building are for lease, as the case may be, and at any time during the last six
(6) months of the Term, that the Leased Premises are for rent and the Tenant
shall not remove such notice, or permit the same to be removed.
ARTICLE VII
STANDARD SERVICES
7.1 Heating and Air-Conditioning:
(a) The Landlord shall provide heat to the leased Premises and interior
Common Areas (excluding any areas below concourse and in the
penthouse) sufficient to maintain
reasonable temperatures for the Tenant's comfort during Normal
Business Hours. It is understood and accepted by the Tenant that the
Landlord may reduce the degree of heating provided after Normal
Business Hours in a manner comparable to other first class office
buildings in the City of Toronto of a similar age and in a similar
location.
(b) The Landlord shall provide ventilation and air-conditioning to the
Leased Premises and interior Common Areas (excluding any areas below
concourse and in the penthouse) during Normal Business Hours. The
systems furnished and operated by the Landlord for air-conditioning
and ventilation to the Leased Premises are designed for a reasonable
density of persons and for general office purposes based on window
shading being fully closed where windows are exposed to direct
sunlight. Arrangement of partitions, equipment or special purpose
areas, or the installation of equipment with high levels of heat
production by the Tenant may require alteration of the portion of
the air-conditioning and ventilation systems located within the
Leased Premises. Any alterations that can be accommodated by the
Landiord's equipment shall be made at the Tenant's expense and in
accordance with Section 6.7 hereof. The Tenant acknowledges that
alterations made from time to time whether inside the leased
Premises or in other areas of the Building, may temporarily cause
imbalance of air-conditioning and ventilation, and the Tenant shall
allow a reasonable amount of time for readjustment and rebalancing.
(c) Should the Landlord fail to provide sufficient heat or
air-conditioning at any time it shall
not be made liable for direct, indirect, or consequential damages,
for personal discomfort or illness.
7.2 Cleaning: The Landlord shall provide janitorial services to the Leased
Premises at such times and in such manner as is consistent with the prevailing
practices in similar first class office buildings in the City of Toronto of
similar age and in a similar location. The Landlord shall periodically clean
both sides of exterior windows so as to maintain the Building to the standard of
a first class office building in the City of Toronto of similar age and in a
similar location. The Tenant acknowledges that the Landlord may clean the
windows during Normal Business Hours and the Tenant agrees to allow the
Landlord, its employees and contractors entry into the Leased Premises for this
purpose. The Landlord shall keep those portions of the Common Areas accessible
to the public in a clean and orderly fashion, and keep the sidewalks and
driveways located on the Lands clear of snow.
7.3 Elevators: The Landlord shall provide operatoriess elevator passenger
service at all times. The Landlord may reduce the number of elevators in service
after Normal Business Hours. The Landlord retains the right to regulate the use
of elevators for the purpose of carrying freight.
7.4 Security and lnformation: The Landlord may provide a security guard or
receptionist in the main lobby of the Building to provide general information to
visitors and to control traffic in and out of the Building. The Landlord may
from time to time elect to substitute such services with automated systems and
other devices that may from time to time seem appropriate for a first class
office building in the City of Toronto. It is acknowledged by the Tenant that
such services are intended for the general benefit of the Building and are not
intended to specifically protect or otherwise serve the Tenant or the Leased
Premises.
7.5 Utilities:
(a) Electrical Power The landlord will supply to the Leased Premises
sufficient electrical power to operate the standard lighting
fixtures supplied by the Landlord plus circuits sufficient to
deliver power to the Leased Premises as set out in Schedule "C" of
this Lease. If the Tenant requires electrical power at a
different.voltage or at a greater capacity than the Landiord's
system can deliver, then any additional systems required shall be
installed and maintained at the Tenant's cost.
(b) Water and Sewage Connections: The Landlord shall provide to the
floor(s) on which the Leased Premises is located chilled water for
drinking fountains, hot and cold water for washroom facilities and
the necessary sewer connections. Any connections made to Leasehold
Improvements or special facilities by the Tenant shall be made at
the Tenant's cost and in accordance with Section 6.7 hereof
(c) The obligation of the Landlord to furnish utilities as set out in
this Section 7.5 shall be subject to the rules and regulations of
the supplier of such utility andior municipal or other governmental
authority regulating the business or providing any of these
utilities.
7.6 Interruption or Delay of Services: The Landlord may slow down, interrupt,
delay, or shut down any of the services outlined in this Article VII on account
of repairs, maintenance or alterations to any equipment or other parts of the
Building so long as where practical, it schedules such interruptions, delays,
slow downs, or stoppage so as to minimize any inconvenience to the Tenant. The
Landlord shall not be held responsible for any direct or indirect damages,
losses, or injuries caused.
7.7 Landlord's Alterations: Notwithstanding anything contained in this Lease,
the Landlord shall
have the right, at any time, to add buildings and parking structures on the
Lands and to make any changes in, additions to, subtractions from,
rearrangements of or relocations to any part of the Common Areas, the Lands or
the Building (including the Leased Premises, provided that the premises, as
rearranged or relocated shall in all material respects be comparable to the
Leased Premises as herein defined) and to enclose any open area, and to grant,
modify or terminate easements and other agreements pertaining to the use and
maintenance of all or any part of the Building or the Lands, and to close all or
any part of the Lands or the Building to such extent as the Landlord or the
Landiord's counsel considers reasonably necessary to prevent accrual of any
rights therein to any persons at any time during the Term, and to make changes
to the parking areas and to make any changes or additions to the pipes,
conduits, utilities and other building services in the Leased Premises which
serve any premises in the Building (which acts are herein collectively called
the "Changes"); provided that in so doing (a) the costs of any such activities
which are not properly Operating Costs, shall be at the sole expense of the
Landlord, and (b) access to the Leased Premises will at all times be available
from the elevator lobby of the Building; and provided that in so doing any of
the foregoing, the Landlord shall have the right to enter upon the Leased
Premises. The Landlord shall not be liable for any damage caused to the Tenant's
property, except if due to negligence or wilful misconduct of the Landlord or
those for whom the Landlord is in law responsible. No claim for compensation
shall be made by the Tenant by reason of inconvenience, nuisance or discomfort
arising from such Changes. The Landlord shall make such Changes as expeditiously
as is reasonably possible. All Common Areas shall at all times be subject to the
exclusive control and management of the Landlord or as the Landlord may direct
from time to time.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 Assignment, Subletting: The Tenant shall not assign this Lease, nor
sublet all, or any part of the Leased Premises without the prior consent in
writing of the Landlord, which consent shall, subject to Section 8.2 hereof,
not be unreasonably withheld; provided however, such leave to any assignment
or subletting, shall not relieve the Tenant from its obligations for the
payment of Rent and for the full and faithful observance and performance of
the covenants, terms and conditions herein contained. If this Lease is
assigned or any part of the Leased Premises is occupied by any person other
than the Tenant, the Landlord may collect Rent or sums on account of Rent
from the assignee, subtenant or transferee of possession, and apply the net
amount collected to the Rent and other amounts payable hereunder but no such
assignment, subletting, transfer of possession or collection or the
acceptance of the assignee, subtenant or transferee as tenant shall be deemed
a waiver of this covenant.
8.2 Landlord's Consent: If the Tenant desires to assign this Lease, or tg
sublet the Leased Premises, then and so often as such event shall occur, the
Tenant shall make its request to the Landlord in writing, and the Landlord
shall, within ten (10) business days after receipt of all information
requested, notify the Tenant in writing either that; (a) the Landlord
consents or does not consent, as the case may be, or (b) the Landlord elects
to cancel and terminate this Lease if the request is to assign the Lease or
to sublet all of the Leased Premises, or if the request is to sublet a
portion of the Leased Premises only, to cancel and terminate this Lease with
respect to such portion. If the Landlord elects to cancel this Lease as
aforesaid, and so advises the Tenant in writing, the Tenant shall then notify
the Landlord in writing within fifteen (15) days thereafter of the Tenant's
intention either to refrain from such assigning or subletting or to accept
the
cancellation of the Lease (in whole, or in part). Failure of the Tenant to
deliver notice to the Landlord within such fifteen (15) day period advising
of the Tenant's desire to refrain from such assigning or subletting, shall be
deemed to be an acceptance by the Tenant of the Landlord's cancellation of
this Lease (in whole, or in part, as the case may be). Any cancellation of
this Lease pursuant to this Section 8.2 shall be effective on the later of
the date originally proposed by the Tenant as being the effective date of
transfer or the last day of the month sixty (60) days following the date of
the Landlord's notice to cancel this Lease.
8.3 Requests for Consent: Requests by the Tenant to assign this Lease or
sublet all, or part of the Leased Premises shall be in writing to the
Landlord accompanied with such information as the Landlord may reasonably
require and shall include an original copy of the proposed assignment or
sublease, as the case may be, and the Landlord shall, within ten (1 0)
business days thereafter, notify the Tenant in writing either that it
consents or does not consent to such proposal as set out in Section 8.2
hereof. Prior to any consent being given by the Landlord to the Tenants
request, the Landlord shall be satisfied as to the following, inter alia: (a)
that the liability of the Tenant in fulfilling the terms, covenants and
conditions of this Lease shall remain, (b) the nature of the business to be
carried on, the financial ability and good credit rating and standing of the
proposed assignee, subtenant or transferee, as the case may be, (c) that the
Tenant has regularly and duly paid Rent and performed all the covenants and
provisos contained in this Lease, (d) that
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any mortgagee (including a trustee for bondholders) of the Landlord will consent
to such request, and (e) that the proposed assignee or subtenant has, or will
enter into an agreement with the Landlord agreeing to be bound by all of the
terms, covenants and conditions of this Lease. All expenses incurred by the
Landlord in connection with the review by the Landlord and/or its solicitors of
the Tenant's request pursuant to this Article Vill, and in the preparation and
review of any documentation in connection therewith, shall be the responsibility
of the Tenant and shall be paid forthwith upon demand. If the Tenant receives
consent pursuant to this Section 8.3 it shall be conditional on the Tenant
paying to the Landlord as Additional Rent, any profit (net of all reasonable
costs incurred by the Tenant in connection therewith) earned by the Tenant in
assigning this Lease or subletting all or any part of the Leased Premises.
8.4 Assicinment by Landlord: In the event of the sale or lease by the
Landlord of its interest in the Lands or Building or any part or parts
thereof and in conjunction therewith the assignment by the Landlord of this
Lease or any interest of the Landlord hereunder, the Landlord shall be freed
and relieved of any liability under this Lease.
ARTICLE IX
INSURANCE AND INDEMNIFICATION
911 Tenant's Insurance: The Tenant shall, at its sole cost and expense,
take out and maintain in full force and effect at all times throughout the
Term the following insurance:
(a) "All Risks" insurance upon property of every description and kind
owned by the Tenant, or for which the Tenant is legally liable, or
which is installed by or on behalf of the Tenant, within the Leased
Premises, including, without limitation, stock in trade,
ftjmiture, fittings, installations, alterations, partitions,
fixtures and anything in the nature of a tenant's leasehold
improvement in an amount of not less than the full replacement cost
thereof from time to time. In the event that there shall be a
dispute as to the amount of full replacement cost, the decision of
the Landlord or the Mortgagee shall be conclusive;
(b) General liability and property damage insurance, including personal
liability, contractual liability, tenants' legal liability,
non-owned automobile liability, lease agreement contractual coverage
and owners'and contractors'protective insurance coverage with
respect to the Leased Premises and the Common Areas, which coverage
shall include the business operations conducted by the Tenant and
any other person on the Leased Premises. Such policies shall be
written on a comprehensive basis with coverage for any one
occurrence or claim of not less than Five Million Dollars
($5,000,000.00) or such higher limits as the landlord or the
Mortgagee may reasonably require from time to time;
(c) Any form or forms of insurance as the Tenant, the Landlord or the
Mortgagee may reasonably require from time to time in amounts and
for insurance risks against which a prudent tenant would protect
itself.
9.2 Policy Requirements: Each policy of insurance taken out by the Tenant
in accordance with this Lease shall be taken out with insurers, and shall be
in such form and on such terms as are satisfactory to the Landlord, and each
such policy shall name the Landlord and any others designated by the Landlord
as additional named insureds, as their respective interests may appear, and
each of such policies shall contain,
in form satisfactory to the Landlord:
(a) the standard mortgage clause as required by the Mortgagee;
(b) a waiver by the insurer of any rights of subrogation or indemnity or
any other claim over, to which such insurer might otherwise be
entitled against the Landlord, its agents, employees or those for
whom it is in law responsible;
(c) an undertaking by the insurer to notify the Landlord and the
Mortgagee in writing not less than thirty (30) days prior to any
proposed material change, cancellation or other termination
thereof.,
(d) a provision that the Tenant's insurance is primary and shall not
call into contribution any other insurance available to the
Landlord;
(e) a severability of interests clause and a cross-liability clause,
where applicable.
9.3 Proof of Insurance: The Tenant shall provide to the Landlord and the
Mortgagee on demand, and from time to time, satisfactory evidence that the
policies of insurance required to be maintained by the Tenant in accordance with
this Lease are in fact being maintained, which evidence shall be in the form of
certificates of insurance, or if required by the Landlord or the Mortgagee,
certified copies of each such insurance policy.
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9.4 Failure to Maintain: If the Tenant fails to take out or keep in force
any insurance referred to in this Article IX, or. should any such insurance
not be approved by either the Landlord or the Mortgagee and should the Tenant
not rectify the situation within forty-eight (48) hours following receipt by
the Tenant of written notice from the Landlord to the Tenant (stating, if the
Landlord or the Mortgagee do not approve of such insurance, the reasons
therefor), the Landlord shall have 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 payable by the Tenant to the
Landlord and shall be due on the first day of the next month following said
payment by the Landlord without prejudice to any other rights and remedies of
the landlord under this Lease.
9.5 Damage to Leasehold Improvements: In case of damage to the Leasehold
Improvements, or any material part thereof, the proceeds of insurance in
respect thereto shall be and are hereby assigned and made payable to the
Landlord, and such proceeds shall be released to the Tenant (provided that
the Tenant is not in default hereunder) upon the Tenant's written request for
progress payments, at stages determined by a certificate of the Architect
stating that repairs to each such stage have been satisfactorily completed
free of liens by the Tenant or by the Tenant's contractors. In the event the
Tenant defaults in making such repairs, the Landlord may, but shall not be
obliged to, perform the repairs and the proceeds may be applied by the
Landlord to the cost thereof.
9.6 Increase In Insurance Premiums/Cancellation: The Tenant shall not do or
permit anything to be done upon the Leased Premises which shall cause the
premium rate of insurance on the Building to be increased. Notwithstanding
the foregoing, if the premium rate of insurance on the Building shall be
increased by reason of any use made of the leased Premises or by reason of
anything done or omitted or
permitted to be done by the Tenant or by anyone permitted by the Tenant to be
upon the leased Premises, the Tenant shall pay to the Landlord on demand the
amount of such premium increase. In the event of an actual or threatened
cancellation of any insurance on the Building or any adverse change thereto
by the indurer by reason of the use or occupation of the Leased Premises or
any part thereof by the Tenant or by anyone permitted by the Tenant to be
upon the Leased Premises, and if the Tenant has failed to remedy the
situation, use, condition, occupancy or other factor giving rise to such
actual or threatened cancellation or adverse change within twenty-four (24)
hours after notice thereof by the Landlord, then the Landlord may, at its
option, in addition to any other remedy it may have, either terminate this
Lease by notice in writing to the Tenant and thereupon Rent shall be
apportioned and paid in full to the date of such termination, the Tenant
shall immediately deliver up possession of the Leased Premises to the
Landlord and the landlord may re-enter and take possession of the same, or
the Landlord may remedy the situation, use, condition, occupancy or other
factor giving rise to such actual or threatened cancellation or change, all
at the cost of the Tenant to be paid forthwith on demand, and for such
purposes the Landlord shall have the right to enter upon the Leased Premises
without further notice.
9,7 Landlord's Insurance: The Landlord agrees to insure the Building and
the machinery, boilers and equipment contained therein and owned by the
Landlord (specifically excluding any property with respect to which the
Tenant is obliged to insure under this Article IX) against damage by fire and
extended perils coverage in such reasonable amounts as would be carried by a
prudent owner of a first-class office building in the City of Toronto of
similar age and in a similar location. The Landlord will also carry public
liability and property damage insurance with respect to the operation of the
Building in such reasonable amounts as would be carried by a prudent owner.
The Landlord may take out and carry any other form or
forms of insurance as it or the Mortgagee may reasonably determine advisable.
Notwithstanding that the Tenant shall be contributing to the Landlord's costs
and premiums respecting such insurance pursuant to the terms of this Lease, the
Tenant shall not have any insurable or other interest in any of the Landiord's
insurance other than the rights, if any, expressly set forth in this Lease or in
any policy of insurance obtained by the Landlord, and in any event, the Tenant
shall not have any interest in, nor any right to recover any proceeds under any
of the Landlord's insurance policies.
9.8 Non-Liability for Loss, Injury or Damage: The Tenant acknowledges and
agrees that the Landlord shall not be liable for (a) any death or injury
arising from or out of any occurrence in, upon, at or relating to the Lands
or Building, and (b) damage to property of the Tenant or others located on
the Leased Premises, and (c) any loss or damage to any property of the Tenant
or others from any cause whatsoever (whether or not such property has been
entrusted to the Landlord, its agents, servants or employees) and, 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, steam, water, rain, snow or gas which may leak into or issue or
flow from any part of the Building or from the water, steam or drainage pipes
or plumbing works of the Building or from any other place or quarter, and (d)
any damage caused by or attributable to the condition or arrangement of any
electric or other wiring, and (e) any damage caused by anything done or
omitted to be done by the Landlord or by any other tenant of the Building,
and (f) any claim or demand in connection with any injury, loss or damage to
the Tenant, its agents, invitees or licensees, or to the property of the
Tenant, its agents, invitees or licensees, where such injury, loss or damage
arises out of the security services in force or the lack thereof in the
Building from time to time, and (g) in any event, any indirect or
consequential damages suffered by the Tenant. Without limiting the foregoing,
the Tenant hereby releases
the Landlord, and those for whom the landlord is in law responsible, from all
losses, damages and claims of any kind in respect of which the Tenant is
required to maintain insurance or is otherwise insured.
9.9 Indemnification of the Landlord: The Tenant shall indemnify the Landlord
and also save it harmless from all losses, liabilities, damages, claims, demands
and actions of any kind or nature which the Landlord shall or may become liable
for or suffer by reason of any breach, violation or non-performance by
12
the Tenant of any covenant, term or provision of this Lease and against any and
all losses, liabilities, damages, claims, demands, actions and expenses in
connection with loss of life, personal injury or damage to property arising from
any occurrence on the Leased Premises save where caused by the negligence or
wilful misconduct of the Landlord, or arising from the occupancy or use by the
Tenant of the Leased Premises, the Lands or Building by the Tenant, its agents,
contractors, employees, servants, licensees, concessionaires or invitees or
occasioned wholly or in part by any act or omission of the Tenant, its agents,
contractors, employees, servants, licensees or concessionaires whether on the
Leased Premises, lands or in the Building. In case the Landlord, without actual
fault on its part, is made a party to any litigation commenced by or against the
Tenant, the Tenant shall protect and hold the Landlord harmless and shall pay
all costs, expenses and reasonable legal fees incurred or paid by the Landlord
in respect of such litigation.
9.10 Extension of Ri-qhts and Remedies: Every right, exemption from liability,
defence and immunity of whatsoever nature applicable to the Landlord under this
Lease shall also be available and shall extend to protect all other companies
owned, operated or controlled by or affiliated with the Landlord and to protect
its officers, directors and employees and for such purposes the Landlord is or
shall be deemed to be acting as agent or trustee on behalf of and for the
benefit of such companies and persons.
ARTICLE X
DAMAGE
10.1 Damage to Leased Premises: It is understood and agreed that,
notwithstanding the other provisions of this Lease, should the Leased Premises
at any time be partially or wholly destroyed or
damaged by any cause whatsoever or should demolition of the Leased Premises be
necessitated thereby or bhould the Leased Premises become unfit for occupancy by
the Tenant:
(a) Subject as hereinafter provided in this Section 10.1, the Landlord
shall, to the extent of the insurance proceeds available for
reconstruction and actually received by the Landlord from its
insurers following an election by the Mortgagee to apply all or any
portion of such insurance proceeds against the debt owing to the
Mortgagee as the case may be, expeditiously reconstruct the Leased
Premises in accordance with the Laindlord's obligations to repair
under the provisions of Section 6.4 hereof. Upon substantial
completion of the Landiord's work, the Landlord shall notify the
Tenant, and the Tenant shall forthwith commence and expeditiously
complete reconstruction and repair of the Leased Premises in
accordance with the Tenant's obligations to repair under the
provisions of Section 6.2 hereof.,
(b) Rent shall not abate unless the Leased Premises are rendered wholly
or partially unfit for occupancy by such occurrence and in such
event Rent, as of the date of such occurrence shall abate
proportionately as to the portion of the Leased Premises rendered
unfit for occupancy, until thirty (30) days following receipt by the
Tenant of the Landiord's notice given to the Tenant as provided in
subsection 10.1 (a) hereof, at which time Rent shall recommence;
(c) If the Leased Premises, in the opinion of the Architect, such
opinion to be given to the landlord and the Tenant within thirty
(30) days of the date of such damage, cannot be repaired and made
fit for occupancy within one hundred and eidhty (180) days next
following any occurrence, the Landlord may, by written notice to the
Tenant within thirty (30) days of receipt of such opinion of the
Architect, terminate this Lease.and Rent shall cease and be adjusted
as of the date of such occurrence, and the Tenant shall immediately
vacate the Leased Premises and surrender same to the Landlord;
(d) If, in the opinion of the Architect, such opinion to be given to the
Landlord and the Tenant within thirty (30) days of the date of such
damage, thirty per cent (30%) or more of the Leased Premises are at
any time destroyed or damaged in whole or in part by any cause
whatsoever or by demolition caused or necessitated thereby, then and
so often as such event occurs, the Landlord may, at its option, to
be exercised by notice in writing to the Tenant within sixty (60)
days of receipt of such opinion of the Architect, elect to terminate
this Lease and in the case of such election the Term and tenancy
hereby created shall expire on the thirtieth (30th) day following
the giving of such notice and in such event Rent shall cease and be
adjusted as of the date of the occurrence, and all rights and
obligations contained in this Lease shall thereupon also cease, save
and except for rights and obligations that may have accrued prior to
such termination and the Tenant shall within such thirty (30) day
period vacate the Leased Premises and surrender the same to the
Landlord with the Landlord having the right to re-enter and
repossess the Leased Premises discharged of this Lease and to remove
all persons therefrom; and
(e) In no event, including termination of the Lease in accordance with
the provisions of
subsection 10.1 (c) or (d) hereof, shall the Landlord be liable to
reimburse the Tenant for damage to, or replacement or repair of any
Leasehold Improvements or any of the
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Tenant's property.
10.2 Damage to the Building: It is understood and agreed that,
notwithstanding the other provisions of this Lease, should the Building at
any time be partially or wholly destroyed or damaged by any cause whatsoever,
or should demolition of the Building, or any part thereof, be necessitated
thereby:
(a) Subject as hereinafter provided in this Section 10.2, the Landlord
shall, to the extent of the insurance proceeds available for
reconstruction and actually received by the Landlord from its
insurers following any election by the Mortgagee to apply all or any
portion of such insurance proceeds against the debt owing to the
Mortgagee as the case may be, expeditiously reconstruct and repair
the Building, and to the extent necessary, the Leased Premises, in
accordance with the Landlard's obligations to repair under the
provisions of Section 6.4 hereof. Upon substantial completion of the
Landiord's work the Landlord shall notify the Tenant, and the Tenant
shall forthwith commence and expeditiously complete reconstruction
and repair of the Leased Premises to the extent they are so
affected, in accordance with the Tenants obligations to repair under
the provisions of Section 6.2 hereof,
(b) Rent shall not abate unless the Leased Premises are rendered wholly
or partially unfit for occupancy by such occurrence, and in such
event, Rent, as of the date of such occurrence shall abate
proportionately as to the portion of the Leased Premises rendered
unfit for occupancy unfit thirty (30) days following receipt by the
Tenant of the Landlord's notice given to the Tenant as provided in
subsection 10.2(a) hereof, at which time Rent shall recommence;
(c) If in the opinion of the Architect, such opinion to be given to the
Landlord and the Tenant within thirty (30) days of the date of such
damage, thirty per cent (30%) or more of the Total Rentable Area of
the Building is at any time destroyed or damaged in whole or in part
by any cause whatsoever, or by demolition caused or necessitated
thereby, notwithstanding that the leased Premises may be unaffected
by such occurrence, then and so often as such event occurs, the
Landlord may, at its option, by written notice to the Tenant, within
thirty (30) days of receipt of such opinion of the Architect, elect
to terminate this Lease and in the case of such election the Term
and the tenancy hereby created shall expire on the thirtieth (30th)
day following the giving of such notice and in such event, Rent
shall cease and be adjusted as of the date of such termination, and
all rights and obligations contained in this Lease shall thereupon
also cease, save and except for rights and obligations that may have
accrued prior to such termination and the Tenant shall within such
thirty (30) day period vacate the Leased Premises and surrender the
same to the Landlord with the Landlord having the right to re-enter
and repossess the Leased Premises discharged of this Lease and to
remove all persons therefrom. If the Landlord has not elected to
terminate this Lease within such period as aforesaid, and provided
such damage or destruction was not caused or contributed to by the
Tenant, its employees or those for whom the Tenant is in law
responsible, the Landlord shall, to the extent of the insurance
proceeds available for reconstruction and actually received by the
Landlord from its insurers
following any election by the Mortgagee to apply any,portion of such
insurance proceeds against the debt owing to the Mortgagee, as the
case may be, let a contract for the repair and reconstruction of the
portion of the Building so damaged or destroyed (save that with
respect to the Leased Premises, the Landiord's obligation to repair
and reconstruct shall be in accordance with the provisions of
Section 6.4 hereoo within the twelve (12) month period following
such damage or destruction and shall continue thereafter to
expeditiously reconstruct and repair the Building, provided that the
Landlord shall not be responsible for the repair or replacement of
the Leasehold Improvements or the Tenant's property, the repair and
replacement of which shall be the obligation of the Tenant and in
this regard shall be governed by the provisions of Section 10.1
hereof,.
(d) In repairing, reconstructing or rebuilding the Building or any part
thereof, the Landlord may use designs, plans and specifications,
other than those used in the original construction of the Building,
and the Landlord may alter or relocate, or both, any or all
buildings, facilities and improvements, including the Leased
Premises, provided that the Leased Premises as altered or relocated
shall be substantially the same size and shall be in all material
respects reasonably comparable to the Leased Premises, as defined
herein; and
(e) In no event, including termination of this Lease in accordance with
the provisions of subsection 10.2(c) hereof, shall the Landlord be
liable to reimburse the Tenant for damage to, or replacement or
repair of any Leasehold Improvements or of any of the
Tenants property.
10,3 Architect's Certit]cate: It is understood and agreed by the Tenant that
wherever a certificate of the Architect is required or deemed appropriate by the
Landlord, the certificate of the Architect shall bind the parties hereto as to
completion of construction of the Leased Premises and the availability of
services,
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the percentage of the Leased Premises or Building destroyed or damaged and the
number of days required to make repairs. or reconstruct and the state or tenant
ability of the Leased Premises, the state of completion of any work or repair of
either the Landlord or the Tenant, and the computation of the area of any
premises including the Leased Premises provided, however, the Landlord may elect
to furnish a certificate prepared by a qualified land surveyor for the purpose
of area measurement and such certificate shall be equally binding.
ARTICLE XI
UNAVOIDABLE DELAY
11.1 Unavoidable Delay: Whenever and to the extent that the landlord or Tenant
shall be unable to fulfil or shall be delayed or restricted in the fulfilment of
any obligation hereunder in respect of the supply or provision of any service or
utility or the doing of any work or the making of any repairs by reason of being
unable to obtain the material, goods, equipment, service, utility or labour
required to enable it to fulfil such obligation or by reason of any strike, work
stoppage, statute, law or order in council or any regulation or order passed or
made pursuant thereto or by reason of the order or direction of any
administrator, controller or board, or any governmental department or officer or
other authority, or by reason of not being able to obtain any permission or
authority required thereby, or by reason of any other cause beyond its control
whether of the foregoing character or not, the Landlord or Tenant shall be
entitled to extend the time for fulfilment of such obligation by a time equal to
the duration of such delay or restriction and the Landlord or Tenant shall not
be entitled to any compensation for any inconvenience, nuisance or discomfort
thereby occasioned. The provisions of this Section 1 1. 1 shall not operate to
excuse the Tenant from prompt payment of all sums required to be paid pursuant
to the terms of this Lease.
ARTICLE XII
LANDLORD'S REMEDIES
12.1 Landlord May Perform Tenant's Covenants: If the Tenant is in default of
any of its covenants, obligations or agreements under this Lease (other than its
covenant to pay rent) and such default shall have continued for a period of ten
(10) consecutive days after notice by the Landlord to the Tenant specifying with
reasonable particularity the nature of such default and requiring the same to be
remedied (or, if by reason of the nature thereof, such failure cannot be cured
by the payment of money and cannot with due diligence be wholly cured within
such ten (10) day period, if the Tenant shall fail to proceed promptly to cure
the same or shall thereafter fail to prosecute the curing of such failure with
due diligence), the landlord, without prejudice to any other rights which it may
have with respect to such default, may remedy such default and the cost thereof
to the Landlord together with Interest therean from the date such cost was
incurred by the Landlord until repaid by the Tenant shall be treated as
Additional Rent and added to the Rent due on the next succeeding date on which
Basic Rent is payable and such amount shall thereupon become due and payable as
Rent in addition to the regular payment of Basic Rent then due. The Landlord
shall be subrogated to the extent of such payment to all rights, remedies and
priorities of the payee to the extent of the amount paid by the Landlord to
remedy such default.
12.2 Re-Entry: When:
(a) the Tenant shall be in default in the payment of any Rent, whethjr
lawfully demanded or not, and such default shall continue for a
period of ten (10) consecutive days after notice by the Landlord to
the Tenant;
(b) the Tenant shall be in default of any of its covenants, obligations
or agreements under this Lease (other than its covenant to pay
rent) and such default shall have continued for a period of ten
(10) consecutive days after notice by the Landlord to the Tenant
specifying with reasonable particularity the nature of such default
and requiring the same to be remedied;
(c) any property of the Tenant has been sold under a valid writ of
execution, or the Tenant shall have made an assignment for the
benefit of creditors, or shall make any assignment or have had a
receiving order made against it under the Bankruptcy Act, or if the
Tenant has become bankrupt or insolvent and shall have made
application for relief under the provisions of any statute now or
hereafter in force concerning bankrupt or insolvent debtors, or any
action whatever, legislative or otherwise, shall have been taken
with a view to the winding up, dissolution or liquidation of the
Tenant, or if a receiver of any of the Tenant's goods or chattels
has been appointed;
(d) any insurance policy is cancelled or not renewed by any insurer by
reason of any particular use or occupation of the Leased Premises;
or
(e) the leased Premises shall have been abandoned, or have become
vacant or shall have remained unoccupied for a period of five (5)
consecutive days without the consent of the Landlord (which consent
shall not be unreasonably withheld), or the
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Leased Premises shall have been used by any other person or persons
other than the Tenant or any person permitted by Article Vill
hereof.,
then, and in any of such cases, the then current month's Rent
together with the Rent for the three (3) months next ensuing shall
immediately become due and payable, and at the option of the
Landlord the Term shall become forfeited and void, and the Landlord
without notice or any form of legal process whatever may forthwith
re-enter the Leased Premises or any part thereof in the name of the
whole and repossess and enjoy the same as of its former estate,
anything contained in any statute or law to the contrary
notwithstanding. Such forfeiture shall be wholly without prejudice
to the right of the Landlord to recover arrears of Rent and damages
for any antecedent breach of the covenants, obligations or
agreements of the Tenant under this Lease. Notwithstanding any such
forfeiture, the Landlord may subsequently recover from the Tenant
damages for loss of Rent suffered by reason of this Lease having
been prematurely determined and it may recover from the Tenant all
damages it may incur with respect thereto, including the cost of
recovering the Leased Premises, and including the worth at the time
of such termination of the excess, if any, of the amount of Rent for
the remainder of the Term over the then reasonable rental value of
the Leased Premises for the remainder of the Term, all of which Rent
shall be immediately due and payable from the Tenant to the
Landlord. In determining the Rent which would be payable under this
Lease by the Tenant subsequent to default, the annual Rent for each
year of the unexpired portion of the Term shall be equal to the
average annual Rent payable by the Tenant (a) from the Basic Rent
Commencement Date to the time of default, or (b) during the three
(3) full calendar years preceding such default, whichever period is
shorter.
12.3 Landlord May Relet: if the Landlord does not exercise its option under
Section 12.2 hereof to terminate this Lease, it may nevertheless in the events
set out in Section 12.2 hereof from time to time, re-enter the Leased Premises
without terminating this Lease, make such alterations and repairs as may be
neicessary in order to reset the Leased Premises, and relet the Leased Premises
or any part thereof as agent for the Tenant for such period or periods (which
may extend beyond the Term) and at such rental or rentals and upon such other
terms and conditions as the Landlord in its sole discretion may deem advisable.
Upon each such reletting all rentals received by the Landlord from such
reletting shall be applied, first, to the payment of any indebtedness other than
rent due from the Tenant to the Landlord; second, to the payment of any costs
and expenses of such reletting, including brokerage fees, solicitors' fees and
the costs of alterations and repairs performed in connection with such
reletting; third, to the payment of rent due and unpaid; and the residue, if
any, shall be held by the Landlord and applied in payment of future rent as the
same may become due and payable. The Tenant shall pay to the Landlord the amount
by which the rent received from such reletting during any month during the term
is less than the rent payable during that month by the Tenant. Notwithstanding
any such resetting without termination, the Landlord may at any time thereafter
elect to terminate this Lease. No such re-entry or taking of possession by the
landlord shall be construed as an election on its part to terminate this Lease
unless, at the time of or subsequent to such re-entry or taking of possession, a
written notice of such intention has been given to the Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
12.4 Right to Distrain: The Tenant waives and renounces the benefit of any
present or future statute purporting to limit or qualify the Landford's right to
distrain and agrees with the Landlord that if any of the events set out in
Section 12.2 hereof shall occur, the Landlord, in addition to the other rights
reserved to it,
shall have the right to enter the Leased Premises as agent of the Tenant either
by force or otherwise without being liable for any prosecution therefor and to
take possession of any goods and chattels whatever an the Leased Premises, save
and except any such goods and chattels which are owned by any occupiers of the
Leased Premises other than the Tenant, and to sell the same at public or private
sag without notice and apply the proceeds of such sale on account of the Rent or
in satisfaction of the breach of any covenant, obligation or agreement of the
Tenant under this lease and the Tenant shall remain liable for the deficiency,
if any. Notwithstanding anything contained in the Landlord and Tenant Act,
R.S.O. 1980, or any successor legislation or other statute which may hereafter
be passed to take the place of the said Act or to amend the same, none of the
goods and chattels of the Tenant at any time during the continuance of the Term
shall be exempt from levy by distress for Rent and the Tenant hereby waives all
and every benefit that it could or might have under such Act. Upon any claim
being made for such exemption by the Tenant, or on distress being made by the
Landlord, this provision may be pleaded as an estoppel against the Tenant in any
action brought to test the right to the levying of distress upon any such goods.
12.5 Landlord May Follow Chattels: In case of removal by the Tenant of the
goods or chattels of the Tenant from the Leased Premises, the Landlord may
follow the same for thirty (30) days in the same manner as is provided for in
the Landlord and Tenant Act, R.S.O. 1980, or any successor legislation or other
statute which may hereafter be passed to take the place of the said Act or to
amend the same.
12.6 Rights Cumulative: The rights and remedies given to the Landlord in this
Lease are distinct, separate and cumulative, and no one of them, whether or not
exercised by the Landlord shall be deemed to be in exclusion of any other rights
or remedies provided in this Lease or by law or in equity.
12.7 Acceptance of Rent Non-Waiver. No receipt of monies by the Landlord from
the Tenant after the cancellation or termination of this Lease in any lawful
manner shall reinstate, continue or extend the Term, or affect any notice
previously given to enforce the payment of Rent then due or thereafter failing
due or operate as a waiver of the right of the Landlord to recover possession of
the Leased Premises by proper suit, action, proceedings or other remedy; it
being agreed that, after the service of a notice to cancel this
16
Lease and the expiration of the time therein specified, and after the
commencement of any suit, action, proceeding or other remedy, or after a final
order or judgment for possession of the Leased Premises, the Landlord may
demand, receive and collect any monies due, or thereafter failing due without in
any manner affecting such notice, suit, action, proceeding, order or judgment;
and any and all such monies so collected shall be deemed payments on account of
the use and occupation of the Leased Premises or at the election of the Landlord
on account of the Tenant's liability hereunder.
ARTICLE XIII
STATUS STATEMENT, A-RTORNMENT AND SUBORDINATION
13.1 Certification: The Landlord and Tenant respectively agree that within ten
(10) days after a written request therefor, they shall execute and deliver to
the other or to such person as may be identified in the written request (but in
no event more than twice in any year) a written statement certifying that this
Lease is unmodified and is in full force and effect (or if modified stating the
modifications and that this Lease is in full force and effect as modified), the
amount of the Basic Rent and the date to which it as well as all other charges
under this lease have been paid, whether or not there is any existing default on
the part of the Landlord or the Tenant of which the person signing the
certificate has notice and giving as well such further information as the person
requesting the certificate shall reasonably require.
13.2 Attornment: If proceedings are brought for foreclosure, or if there is
exercise of the power of sale or if there is an entry into possession of the
Building or any part thereof pursuant to any mortgage, charge, deed of trust or
any lien resulting from any other method of financing or refinancing made by the
Landlord covering the Leased Premises and the Building, the Tenant shall attom
to the mortgagee, chargee,
lessee, trustee, other encumbrancer or the purchaser upon any such foreclosure
or sale and recognize such mortgagee, chargee, lessee, trustee, other
encumbrancer or the purchaser as the Landlord under this Lease.
13.3 Subordination: The Tenant shall postpone and subordinate its rights under
this Lease to the Mortgagee, and any mortgage or mortgages, or any lien
resulting from any other method of financing or refinancing, now or hereafter in
force against the Lands and Building or any part or parts thereof as it exists
from time to time, and to all advances made or hereafter to be made upon the
security thereof.
13.4 Timely Execution: The Tenant shall execute promptly such instruments or
certificates to carry out the intent of Sections 13.2 and 13.3 hereof as shall
be requested by the Landlord.
13.5 Rights of Mortgagees, Trustees: If at any time during the currency of any
mortgage or other charge on the interest of the Landlord in the Leased Premises,
notice of which has been given to the Tenant, any default shall occur in the
performance of any of the covenants, obligations or agreements of the Landlord
which would give rise to a right of the Tenant to terminate this Lease, then the
Tenant, before becoming entitled as against the holder of such mortgage or
charge to exercise any right to terminate this Lease, shall obtain from the
Landlord the address of such mortgagee or chargee and give to the holder of such
mortgage or charge notice in writing of such default. The holder of such
mortgage or charge shall thereupon have such period as may be reasonable in the
circumstances within which to remedy such default as agent of the Landlord (or
by such other means as will avoid the holder if a mortgagee, becoming a
mortgagee in possession of the Leased Premises by reason of effecting such
remedy) and if such default is remedied within such time the Tenant shall not by
reason thereof terminate this Lease.
The rights and privileges granted to the holder of any such mortgage or charge
by virtue of this Section 13.5 shall not in any way be deemed to alter, affect
or prejudice any of the rights and remedies available to the Tenant against the
Landlord. Any notice to be given to the holder of such security shall be deemed
to have been properly given if mailed by registered mail to its most recent
address of which the Tenant shall have received notice by such holder or the
Landlord.
ARTICLE XIV
MISCELLANEOUS
14.1 Joint and Several Liability: If two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereo@ sign this Lease as the Tenant, the liability of each such individual,
corporation, partnership or other business association to pay Rent and to
perform all other obligations hereunder shall be deemed to be joint and several.
In like manner, if the Tenant is a partnership or other business association,
the members of which are, by virtue of statute or general law, subject to
personal liability, the liability of each such member shall be joint and
several.
14.2 Landlord and Tenant Relationship: No provision of this Lease is intended
to nor creates a joint venture or partnership or any other similar relationship
between the Landlord and Tenant, it being agreed that the only relationship
created by this Lease is that of landlord and tenant.
14.3 Planning Act: It is an express condition of this Lease that the
provisions of section 49 of the Planning Act, 1983 (Ontario) and amendments
thereto be complied with.
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14.4 No Waiver: No condoning or waiver by either the Landlord or Tenant or any
default or breach by the other at. any time or times in respect of any of the
agreements, terms, covenants and conditions contained in this Lease to be
performed or observed by the other shall be deemed or construed to operate as a
waiver of the Landiord's or Tenant's rights under this lease, as the case may
be, in respect of any continuing or subsequent default or breach nor so as to
defeat or affect in any way the rights or remedies of the Landlord or the Tenant
under this Lease, as the case may be, in respect of any such continuing or
subsequent default or breach.
Unless expressly waived in writing, the failure of the Landlord or the
Tenant to insist in any one or more cases upon the strict performance of any of
the agreements, terms, covenants or conditions contained in this Lease to be
performed or observed by the other shall not be deemed or construed to operate
as a waiver of the future strict performance or observance of such agreements,
terms, covenants and conditions.
14.5 Expropriation: The Landlord and the Tenant shall co-operate in respect of
any expropriation of all or any part of the Leased Premises or the Lands and
Building so that the Tenant may receive the maximum award to which it is
entitled in law for relocation costs and business interruption and so that the
Landlord may receive the maximum award to which it is entitled in law for all
other compensation arising from or relating to such expropriation (including all
compensation for the value of the Tenant's leasehold interest expropriated and
for the reduction in value of the Tenant's remaining leasehold interest upon a
partial expropriation) which shall be the property of the Landlord, and to which
the Tenant waives all rights. If the whole or any part of the Leased Premises or
of the Lands and Building are expropriated, as between the parties hereto, their
respective rights and obligations under this Lease shall continue until the day
on
which the expropriating authority takes possession thereof. If, in the case of
partial expropriation of the Leased Premises this Lease is not frustrated by
operation of governing law and such expropriation does not render the remaining
part of the Leased Premises untenantable for the purposes of this Lease, the
Tenant and the Landlord shall restore the part not so taken in accordance with
their respective repair obligations under the provisions of Article VI of this
Lease. In this Section the word "expropriation" shall include a sale by the
landlord to any authority with powers of expropriation, in lieu of or under
threat of expropriation.
14.6 Notice: Any notice required or contemplated by any provision of this
Lease shall be given in writing enclosed in a sealed envelope addressed, in the
case of the Landlord to:
PENYORK PROPERTIES INC,
4 Eva Road, Suite 427
Etobicoke, Ontario
M9C 2A8
Attention: Leasing Manager
in the case of notice to the Tenant: to it at the Leased Premises; and delivered
or sent in both cases by registered mail, postage prepaid, return receipt
requested. The time of giving of such notice if mailed shall be conclusively
deemed to be the fifth (5th) business day after the day of such mailing. If
regular mail service is interrupted on or before the fifth (5th) business day
following the mailing thereof by strikes or other irregularities, which are made
known to the public, then such notice shall be deemed to have been received when
it would have been received in the normal course following the resumption of
normal mail service. Such notice shall also be sufficiently given if and when
the same shall be delivered, in the case of notice to the Landlord, to an
officer or employee of the Landlord at the above address of the Landlord, and in
the case of notice to the Tenant, to an officer or employee of the Tenant at the
above address for the Tenant. Such
notice, if delivered, shall be conclusively deemed to have been given and
received at the time of such delivery. If in this Lease two or more persons are
named as Tenant, such notice shall be delivered personally to any one of such
persons. Provided that either party may, by notice to the other, from time to
time designate another address in Canada to which notices mailed more than ten
(10) days thereafter shall be addressed.
14.7 Net Lease: It is the purpose and intent of the Landlord and the Tenant
that the Basic Rent shall be absolutely net and carefree to the Landlord, so
that this Lease shall yield, net and carefree to the Landlord, the Basic Rent
specified in each year during the Term without notice or demand, and free of any
charges, assessments, impositions or deductions of any kind and without
abatement, deduction or set-off and under no circumstances or conditions whether
now existing or hereafter arising whether beyond the present contemplation of
the parties is the Landlord to be expected or required to make any payment of
any kind whatsoever or to be subject to any other obligation or liability
hereunder. All expenses and obligations of every kind and nature whatsoever
relating to the Leased Premises which may arise or become due during the Term of
this Lease shall be paid by the Tenant and the Tenant shall indemnify and save
harmless the Landlord from all costs of same.
14,8 Non Merger: There shall be no merger of this Lease nor of the leasehold
estate created hereby with the fee estate in the Lands or any part thereof by
reason of the fact that the same person, firm, corporation or entity may acquire
or own or hold directly or indirectly:
(a) This Lease or the leasehold estate created hereby or any interest
in this Lease or any such leasehold estate, and
18
(b) the fee estate in the Lands or any part thereof or any interest in
such fee estate, and no such merger shall occur unless and until
the landlord, the Tenant and the Landiord's Mortgagees (including a
trustee for bondholders) shall join in a written instrument
effecting such merger and shall duly record the same.
14.9 Lease Entire Agreement: There are no covenants, representations,
warranties, agreements, or conditions expressed or implied, collateral or
otherwise forming part of or in any way affecting or relating to this Lease or
the Leased Premises save as expressly set out in this Lease and this Lease
constitutes the entire agreement between the Landlord and the Tenant and may not
be amended or modified except by subsequent agreement in writing of equal
formality executed by the Landlord and the Tenant.
The submission of this Lease for examination does not constitute a
reservation of or option for the Leased Premises, and this Lease becomes
effective as a lease only upon execution and delivery thereof by both the
landlord and the Tenant.
14.10 Registration: The Tenant shall not register this Lease on the title to the
Lands; however, the Tenant may register a Notice of Lease on title to the Lands,
at its sole cost, provided such Notice of Lease shall describe only the parties,
the Leased Premises, the Term of this Lease, and any renewals. Such Notice of
Lease shall be prepared by the Tenant's solicitors, and shall be subject to the
prior written approval of Landlord and its solicitors, at the Tenant's expense,
and shall be registered at the Tenant's expense.
14.11 Name of Building: The Tenant shall not refer to the Building by any name
other than that, if any, designated from time to time by the Landlord, and the
Tenant may use such designated name of the Building
for the business address of the Tenant but for no other purpose.
14.12 Exhibiting Premises: The Tenant agrees to permit the Landlord or its
agents to exhibit the Leased Premises to prospective tenants during the Normal
Business Hours for the last six (6) months of the Term.
14.13 Governing Law: This Lease shall be governed by and construed in accordance
with the laws of the Province of Ontario.
14.14 Survival of Tenant's Covenants: All agreements, covenants and
indemnifications in this lease made by the Tenant shall survive the expiration
or earlier termination of this Lease, anything to the contrary in this Lease
notwithstanding.
14.15 Quiet Enjoyment: The landlord agrees that upon the Tenant duly paying the
Rent hereby reserved and duly observing and performing the agreements, terms and
conditions herein on its part to be observed and performed, the Tenant shall and
may peaceably possess and enjoy the Leased Premises for the Term without any
hindrance, interruption or disturbance from the Landlord.
14.16 Binding on Successors: This Lease and everything herein contained shall
enure to the benefit of and be binding upon the respective heirs, executors,
administrators, successors, assigns and other legal representatives, as the case
may be, of each and every one of the parties hereto, subject to the granting of
consent by the Landlord to any assignment or sublease and every reference herein
to any party hereto shall include the heirs, executors, administrators,
successors, assigns and other legal representatives or such party, and where
there is more than one tenant or there is a mate or female party or where a
corporation is a party, the provisions hereof shall be read with all grammatical
chang6s thereby rendered necessary.
14.17 Limitation-on Use: The Leased Premises shall be used continuously during
the Term for general office purposes and for no other use. The Tenant
acknowledges and agrees that it will not, nor will it permit the Leased Premises
(or any part thereof to be used for any purpose which is not generally permitted
in first class office buildings in the City of Toronto, and that it will not,
nor will it permit the Leased Premises (or any part thereo@ to be used by any
other trade or business without the prior written consent of the Landlord, which
consent may be unreasonably withheld.
14.18 Corporate Ownenship: In the event that the Tenant proposes to transfer, or
issue by sale, assignment, bequest, inheritance, operation of law, or other
disposition, or by subscription, any part or all of the corporate shares of the
Tenant, so as to result in any change in the present effective voting control of
the Tenant by the party or parties holding such voting control at the date of
commencement of this Lease, such transaction shall be deemed to be an assignment
of this Lease, and the provisions of Article Vill hereof shall apply mutatis
mutandis. The Tenant shall make available to the Landlord or to its lawful
representatives, such books and records of the Tenant for inspection at all
reasonable times, in order to ascertain whether there has, in effect, been a
change in control.
14.19 Assignment and Subletting: The use of the word "assignment", "subletting",
"assign", or "assigned" or "subfef'in this Lease shall include the mortgaging or
encumbering of this Lease, the Tenant's interest herein or the Leased Premises
or any part thereof and the occupation or parting with or sharing the possession
of all or any part of the Leased Premises by any person, firm, partnership, or
corporation, or any groups of persons, firms, partnerships, or corporations, or
any combination thereof other than in respect of bona tide third party financing
provided to the Tenant by a party with whom the Tenant deals at arm's length.
19
An assignment or transfer shall be construed so as to include an assignment
or transfer by operation of law.
14.20 Several Liability: If two or more corporations, partnerships or other
business associations (or any combination of two or more thereof constitute
the Landlord in this Lease, the liability of each such corporation,
partnership or other business association hereunder is several. In the event
of default by the Landlord under this Lease, the Tenant agrees that should it
proceed against such corporations, partnerships or other business
associations, it shall do so only in accordance with their several interests,
as they may be from time to time.
14.21 Time of the Essence: Time shall be of the essence for this Lease and
for every part hereof.
ARTICLE XV
DEFINITIONS - INTERPRETATION
15.1 Definitions: In this Lease, unless there is something in the subject
matter or context inconsistent therewith:
(a) "Additional Rents" means the Realty Taxes, the Proportionate Share
of Operating Costs, payments for utilities and light fixtures, and
all other payments for additional services, and such other sums,
excluding Basic Rent, otherwise payable by the Tenant in accordance
with the terms of this Lease.
(b) "Additional Rent Commencement Date" is defined in Section 1.10
hereof.
I (c) "Additional Services" means any service and/or supervision
requested by the Tenant and supplied by the Landlord or by anyone
authorized by the Landlord and not
o.therwise provided for as a standard service under this Lease; by
way of example steam cleaning of carpets, moving of ftjmiture,
alterations to Leasehold Improvements, or providing air-
conditioning or ventilation for periods in excess of Normal
Business Hours.
(d) "Architect" means the architect, surveyor or engineer from time to
time appointed by the Landlord.
(a) "Basic Rent" means the basic rent payable by the Tenant pursuant to
this Lease.
"Basic Rent Commencement Date" is defined in Section 1.9 hereof.
"Building" means the buildings, structures, and improvements from
time to time during the Term erected on the Lands together with all
fixtures, sprinklers, elevators, escalators, heating, ventilating,
air-conditioning and mechanical and electrical equipment and
machinery and water, gas, sewage, telephone and other communication
facilities and electrical power services and utilities comprised
therein, belonging thereto, connected therewith or used in the
operation thereof, and now or hereafter constructed, erected and
installed.therein and thereon, and all alterations, additions, and
replacements thereto, but excludes all Leasehold Improvements made,
constructed, erected or installed therein by or on behalf of an@
tenant of premises therein. The municipal address of the Building
is 55 University Avenue, Toronto, Ontario.
(h) "Capital Tax" means any tax or taxes payable by the Landlord to any
taxing authority
based upon or computed by reference to the value of the Building, or
the paid-up capital or place of business of the Landlord. If the
system of capital taxation shall be altered such that any new
capital tax shall be levied or imposed in substitution for or in
addition to Capital Tax from time to time levied or imposed, then
any such new tax or levy shall be deemed to be Capital Tax or
included in Capital Tax.
(i) "Capital Tax for the Building" for any fiscal period means the
amount calculated by multiplying the aggregate book value to the
Landlord of the Lands and Building (and all equipment used in
connection therewith) by the applicable Capital Tax rate imposed,
from time to time, by the taxing authority having Jurisdiction.
Aggregate book value shall be net of depreciation and amortization,
for financial statement purposes and determined as at the end of
such fiscal period. The parties acknowledge that Capital Tax for the
Building is an approximation based upon the concept of Capital Tax,
and is not necessarily the actual Capital Tax paid or payable by the
Landlord in respect of the Building. If the calculation of Capital
Tax changes, then the Landlord may adjust its calculation of such
amount to reasonably reflect such change.
"Common Areas" means:
(i) all common areas and facilities within the Building from time
to time furnished
20
or designated (and which may be changed) by the Landlord
for the use in common, in such manner as the Landlord may
permit, by tenants of premises in the Building and all
others entitled thereto including, without restricting the
generality of the foregoing, lobbies, corridors, together
with washrooms, fan rooms, janitors' closets, electrical
closets and other closets not situate within the demising
line of any premises in the Building, and excluding parking
spaces;and
(ii) all of the Lands described in Schedule "A" hereto, not for the
time being demised by the Landlord and not covered by any
building (other than service buildings) available for the
general benefit of all tenants of the Building and including
without restricting the generality of the foregoing, parking
areas, access roads, driveways, sidewalks and landscaped
areas.
(k) "Dominant Portion" means that portion of the inside finished surface
of the permanent outer building wall which is 50% or more of the
vertical dimension. If there is no dominant portion or if the
dominant portion is not vertical, the measurement for area shall be
to the inside finished surface of the permanent outer building wall
where it intersects the finished floor.
(1) "Fiscal Year" means the twelve (12) month period designated from
time to time by the Landlord.
(m) "Interest" means interest at a rate equivalent to three (3%) per
cent per annum in
excess of the prime lending rate of The Canadian Imperial Bank of
Commerce, Main Branch, Toronto Ontario (or its successors) where the
prime lending rate of such bank means the rate of interest (now
commonly known as that Bank's "prime rate"), expressed as a rate per
annum, charged by such bank in Toronto on demand loans made by it in
Canadian dollars at such time.
(n) "Lands" means the lands described in Schedule "A'annexed hereto.
(o) "Landlord's Improvements" means improvements to be constructed or
installed in or to the Leased Premises by the Landlord in accordance
with the Landlord's working drawings prepared for the construction
of the Building; by way of example, and without limiting the
generality of the foregoing, Landlord's Improvements include:
ceilings, lighting, and window covering systems originally installed
by the Landlord and standard to the Building. Any Landiord's
Improvements from time to time modified by or on behalf of the
Tenant so as to no longer be standard to the Building shall be
considered Leasehold Improvements. Landlord's Improvements shall not
include any Leasehold Improvements installed by the Landlord on
behalf of the Tenant or a previous occupant of the Leased Premises.
(p) "Lease" means this document as originally signed, sealed and
delivered or as amended, from time to time, which amendments shall
be in writing, signed, sealed and delivered by both the Landlord and
the Tenant.
(q) "Leased Premises" means the premises leased to the Tenant described
in Section 1.4 hereof
(r) "Leasehold Improvements" means all fixtures, improvements,
installations, alterations and additions from time to time made,
constructed, erected or installed in or to the Leased Premises by or
on behalf of the Tenant, including without limitation, all interior
partitions however affixed and all rugs, carpeting and floor
coverings attached in any way to the Leased Premises, and all water,
gas, sewage, telephone and other communication facilities located in
the leased Premises or which are for the exclusive use of the
Tenant, but excludes moveable trade fixtures, moveable partitions,
and furniture and equipment not affixed to the Leased Premises.
"Leasehold Improvements" shall include any Landiord's Improvements
modified by or on behalf of the Tenant.
(S) "Mortgagee" means the Landiord's mortgagee(s) from time to time with
respect to the Lands, the Building and/or this Lease, and includes a
trustee,for bondholders.
(t) "Normal Business Hours" means the hours from 8:30 a.m. to 6:00 p.m.
on Monday to Friday of each week only except any statutory holiday,
any day declared a civic holiday in the City of Toronto, or Province
of Ontario.
(U) "Operating Costs" means the total amounts incurred, paid or payable,
whether by the Landlord, or by others on behalf of the Landlord, for
the maintenance, operation, repairs and replacements to the Lands
and the Building, including without limiting the generality of the
foregoing:
21
(i) the total annual costs of insuring the Building and the Lands
with such forms of coverage and in such amounts as the
Landlord, or its mortgagees (including a trustee for
bondholders) may, from time to time determine, including,
without limitation, costs and premiums paid for insurance
against any risks of physical loss or damage to property of
the Landlord on a replacement cost basis, boiler, pressure
vessels, air-conditioning equipment and miscellaneous
electrical apparatus insurance on a broad form blanket
coverage repair and replacement basis, loss of insurable gross
profits attributable to all perils reasonably insured against
by the landlord or commonly insured against by prudent
landlords, third party liability hazards including exposure to
personal injury, bodily injury and property damage on an
occurrence basis including insurance for all contractual
obligations and covering also actions of all authorized
employees, sub-contractors and agents while working on behalf
of the landlord, and any other form or forms of insurance as
the landlord or its mortgagees (including a trustee for
bondholders) may reasonably require from time to time for
insurable risks and in amounts against which a prudent owner
of a first-class office building in the City of Toronto would
protect himself,
(ii) costs and premiums paid for warranties and guarantees;
(ill) complete maintenance and janitorial service for the Building
and Lands,
including snow removal, window cleaning, garbage and waste
collection and disposal, the cost of operating and maintaining
any merchandise holding and receiving areas and truck docks,
and the cost of interior and exterior landscaping;
(iv) elevator maintenance, lighting, public and private utilities
(net of the amounts chargeable under Section 4.5 hereo@,
together with the cost of energy management programmes and the
cost of maintaining any signs considered by the Landlord to be
part of the Common Areas;
(v) policing and supervision;
(vi) salaries of all personnel employed to carry out supervision,
maintenance and service operations, (including without
limitation contributions towards usual fringe benefits,
unemployment insurance, pension plan contributions and similar
contributions), and to the extent such personnel are not
engaged full time to perform such supervision, maintenance and
service operations, then only such portion of their salaries
as is attributable to such on-site performance;
(vii) the cost to the Landlord of the rental of any equipment and
signs, and the cost of building supplies, used by the Landlord
in the maintenance and operation of the Lands and the
Building;
(viii) costs of heating, air-conditioning and ventilation of the
Building;
(ix) repair and replacement to and the maintenance and operation of
the Lands and the Building and the mechanical, electrical,
plumbing, heating and air-conditioning equipment appurtenant
thereto:
(X) costs of operating a parking garage;
(xi) all business taxes, if any, from time to time payable by the
Landlord, on account of its ownership or operation of the
Lands and Building but excluding income tax of the Landlord,
and taxes on Leasehold Improvements separately payable to the
Landlord by the Tenant pursuant to this Lease;
(Xii) legal fees as reasonably attributable to the daily operation
of the Lands and Building but excluding legal fees otherwise
recoverable and legal fees for lease enforcement and leasing
of the Lands and Building;
(xiii) all fees and expenses incurred by the Landlord in connection
with actions taken by the Landlord to appeal property
assessments for the Lands and Building;
(xiv) accounting services and audit fees in connection with the
calculations referred to in this Lease;
(xv) security services, if any, undertaken by or on behalf of the
Landlord;
(xvi) depreciation and amortization of capital costs as determined
in accordance
22
with generally accepted accounting principles for:
A. the costs of all maintenance and cleaning equipment and
master utility meters;
B. the costs incurred for all other fixtures, furniture,
replacement of finishes in the Common Areas, equipment, and
facilities serving the Building; and
C. the costs, together with Interest, of equipment
modification of the Building, or improvements, properly
charged to capital account which the Landlord determines
may reduce Operating Costs, amortized over their useful
life, as determined by the Landlord; and
D. the costs incurred by the Landlord pursuant to Sections
2.4(b) and 6.4(b) - (f) hereof together with Interest;
(xvii) Capital Tax for the Building;
(xviii) a management fee which shall be an amount equal to three
(3%) per cent of the aggregate of basic rent received, or
receivable by the Landlord from all tenants in the Building,
Reafty Taxes, and all other Operating Costs; and
(xix) actual costs related to the operation of a regional or on-site
administrative office serving the Building, including the fair
rental value (having regard to rentals prevailing from time to
time for similar space) of space occupied by the Landford's
employees for day to day administrative and supervisory
purposes
relating to the Building. In the case of a regional office,
the costs will be apportioned among the buildings served by it
on a pro rata basis.
Provided that if the Building is not fully occupied for any period within
the Term, the Operating Costs shall be adjusted to reflect full occupancy.
And provided further, and notwithstanding the foregoing provisions,
Operating Costs shall not include the following:
(1) commissions, advertising costs, or legal expenses, in
connection with leasing the Lands and Building or any
part thereof.
(2) the cost of painting, repainting, decorating, or
redecorating, or of providing special cleaning services
for any occupant of any space in the Building, other
than the Leased Premises;
(3) the cost of any insurance premiums for plate glass
insurance;
(4) the cost of any insurance premiums to the extent t hat
the Tenant is obliged to reimburse the Landlord for the
cost of such premiums pursuant to any provision of this
Lease and/or to the extent that any other tenant of the
Building would be obligated to reimburse the Landlord
@for the cost of such premiums pursuant to any provision
of such tenant's lease:
(5) the costs of any insurance premiums relating to risks or
amounts which are not normally insured against by
reasonably prudent owners of comparable first-class
office buildings in the City of Toronto;
(6) the cost of any payment which the Landlord is obligated
to make solely pursuant to an agreement to indemnify and
hold harmless any person, firm, or corporation, except
to the extent that similar agreements are customarily
made by reasonably prudent owners of comparable
first-class office buildings in the City of Toronto;
(7) expenses incurred by the Landlord in respect of charges
directly chargeable to other tenants of the Building
including for electricity used by other tenants of the
Building for fighting or for the operation of business
equipment and machinery within such tenants'leased
premises, or with respect to the repair of damage to the
Building and Lands, all to the extent that the Landlord
received reimbursement therefor by other tenants of the
Building or from the proceeds of insurance;
(8) the expenses incurred by the Landlord in respect of
installation of other tenants' improvements;
(9) interest and principal on mortgages and capital cost
allowance on the
23
Building;
(10) any costs relating to aerials, antennae, cables,
machinery, equipment, installations, or other forms of
communications equipment not part of the operation of
the Building as a first-class office building, or
installed at the request of and for the limited or
specific use of any person whether occupying space in
the Building or not;
(11) any payments relating to any agreement affecting title
to the Lands with respect to which the Tenant is not a
party or has not otherwise specifically agreed to have
such payments included in Operating Costs;
(12) any amounts directly chargeable to other tenants for
services, costs and expenses solely attributable to the
accounts of such tenants.
(v) "Proportionate Share" as it relates to Realty Taxes and Operating
Costs shall be determined by dividing the Operating Costs by the
Total Rentable Area of the Building and multiplying the quotient by
the Rentable Area of the Leased Premises. Where any component of
Operating Costs is attributable to only part of the Building, then
those costs shall be divided only by the Rentable Area to which
those costs are attributable. Should any component of Operating
Costs not be attributable to the Leased Premises, the Tenant shall
remain responsible for payment of its Proportionate Share as that
component of Realty Taxes or Operating Costs relates to non-leasable
areas.
(W) "Realty Taxes" means all real estate taxes (including local
improvement rates), levies, rates, duties, and assessments
whatsoever, and the cost of appealing such assessments, which may be
levied or assessed against the Lands and Building, or the Landlord,
or the owners of the Lands and Building, and any and all taxes which
may, in the future, be levied in lieu thereof;
(X) "Rent, rent, Rental or rental" means all payments and charges
payable by the Tenant pursuant to this Lease, including without
limitation the Basic Rent and the Additional Rents.
(Y) "Rentable Area" means:
(i) Rentable Area for Single Tenancy Office Floors The
Rentable Area of a single tenancy ofrice floor shall be
computed by measuring to the inside finished surface of
the Dominant Portion of the permanent outer building
walls, and shall exclude only major vertical
penetrations of the floor together with the walls
enclosing them. No deductions shall be made for columns
and projections necessary to the Building or for any
floor penetrations exclusively serving the Tenant,
(ii) Rentable Area for Multiple Tenancy Office Floors The
Rentable Area of Leased Premises on multiple tenancy
office floors shall be determined by multiplying the
Rentable Area of the whole floor (measured as a single
tenancy office floor in accordance with subparagraph
(y)(i) above) times a fraction, the numerator of which
is the Useab14 Area of the Leased
Premises and the denominator of which is the Useable
Area for the whole floor.
(ill) Rentable Area for a Main Floor or Concourse level Leased
Premises The Rentable Area of a Leased Premises on the
main floor or the concourse level shall be calculated by
measuring from the Building standard storefront fine for
such floor, and from the inner surface of corridor and
other permanent walls and to the centre of partitions
separating the Leased Premises from adjoining leasable
area. No deductions shall be made for vestibules serving
the Leased Premises or for columns or projections
necessary to the Building.
(z) "Rental Taxes" means any tax or duty imposed upon the Landlord or
the Tenant which is measured by or based in whole or in part
directly upon the Rent payable under this Lease, whether existing at
the date hereof or hereinafter imposed by any governmental
authority, including without limitation value added tax, business
transfer tax, retail sales tax, federal sales tax, excise taxes or
duties, or any tax similar to any of the foregoing.
(aa) "Term" means the initial term of this Lease as set out in Section
1.5 hereof, any renewal term and any overholding period.
(bb) "Term Commencement Date"is defined in Section 1.5 hereof.
(cc) "Total Rentable Area of the Building" means the sum of Rentable
Areas for all office
24
floors (measured in accordance with subparagraph (y)(i) hereoo
and the Rentable Area of all leased premises on the main floor
and concourse level.
(dd) "Useable Area for Multiple Tenancy Office Floors" means the area of
a Leased Premises on an office floor divided for multiple tenancy
and shall be computed by measuring to the finished surface of the
Leased Premises side of corridor and other permanent walls, to the
centre of partitions that separate the Leased Premises from
adjoining leasable areas, and to the inside finish of the Dominant
Portion of the permanent outer building walls. No deductions shall
be made for columns and projections necessary to the Building.
15.2 Interpretation:
(a) In this Lease "herein", "hereof', "hereunde?', "hereinaftee'and
similar expressions refer to this Lease and not to any particular
paragraph, section or other portion thereof, unless -there is
something in the subject matter or context inconsistent therewith,*
(b) All of the provisions of this Lease are to be construed as covenants
and agreements as though the words importing such covenants and
agreements were used in each separate paragraph hereof,
(c) Should any provision or provisions of this Lease be illegal or
unenforceable, it or they shall be considered separate and severable
from this lease, and its remaining provisions shall remain in force
and be binding upon the parties hereto as though the said provision
or provisions had never been included;
I (d) The captions appearing in this Lease have been inserted as a
matter of convenience and for reference only and in no way define,
limit or enlarge the scope or meaning of this Lease or of any
provision hereof
IN WITNESS WHEREOF the parties hereto have executed this Lease.
SIGNED, SEALED AND ACCEPTED BY THE TENANT This 5th day
of September 1997
IT STAFFING INC,
-------------------------------------------
Per Declan French
Title: President
Per:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
I/We have the authority to bind the Corporation.
SIGNED, SEALED AND ACCEPTED BY THE LANDLORD
This 8th day of September 1997
PENYORK PROPERTIES I INC,
Per
---------------------------------------
Name: Durham Stephens
Title: Leasing Manager
Per:
--------------------------------------------------------
Name: Jean Louis Dube Name: David Hicks
Title: Senior Vice President, Title: Vice President,
Operations Operations
I/WE have the authority to bind the Corporation.
25
SCHEDULE"A"
LEGAL DESCRIPTION
In the City of Toronto in the Municipality of Metropolitan Toronto being
Lots 13, 14 and 15 according to Plan D-37 registered in the land Registry Office
(No. 63) - Registry Division of Toronto, and those parts of lots 9 and 12
according to said Plan D-37; and the public lane lying in rear of said Lots 14
and 15 according to said Corporation of the City of Toronto registered in the
said Land Registry Office as Instrument CT-99023 (Toronto).
See A-487713, and Lot 5 according to Plan 724-E registered in the said
Land Registry Office, and that part of Town Lot 10 according to Town of York
Plan on the North Side of Wellington Street West, in the City of Toronto in the
Municipality of Metropolitan Toronto, designated as PARTS 1, 2 and 3 on a Plan
of Survey or record in the Land Registry Office (No. 66) - Land Titles Division
of Toronto and York, - at Toronto, as 66R-7968 and entered in the Register for
Section: A-D-37 as Parcel 9-1.
The Certificate of First Registration of Owner was registered in the Land
Registry Office (No. 63) for the Registry Division of Toronto on 14th of May
1975 as Number CT-1 19462.
I
SCHEDULE"B"
55 UNIVERSITY AVE
TORONTO
FIFTH FLOOR
SCALE
SCHEDULE "C"
LANDLORD'S AND TENANT'S IMPROVEMENTS
The Landlord and Tenant agree that the Premises are provided In an "as is"
condition and that the Landlord's work outlined below has been completed subject
to the provisions of Schedule "E", In the event that the Tenant requires
additional leasehold improvements, the Tenant shall complete at its cost, the
"Tenant's Work" as outlined below:
LANDLORD'S WORK
The Landlord shall. complete at its cost save where specifically provided
otherwise, the following (the "Landlord's Work"):
1. Ceilings
The Landlord's standard ceilings are suspended metal 'T'bar grid
with 2'x 5'lay-in acoustic panels fissured pattern. The ceiling
system is based on a 5' square module incorporating a 1' wide
fluorescent fixture strip. Locating partitions off the module will
necessitate modifications to the electrical and mechanical systems
at the Tenant's cost. Floor slab to finished ceiling measures
approximately 8'7Y2".
2. Underfloor Ducts
1201208 volt power distribution is available through an underfloor
duct system complete with companion raceway for telephone
distribution. The underfloor duct system runs north and south in
approximately 7'6" centres.
3. Heating
The perimeter zone of each floor from the mezzanine to the
eighteenth floor is served by a wall-fin heating unit system with a
continuous painted metal enclosure between the columns and one
shutoff valve per bay. On the mezzanine floor the physical
dimensions of the enclosures are approximately 6" wide by 1'2" high
standing 9" proud of the window frame. On the remaining floors the
enclosures are approximately 6" wide by 2'2" high against the inside
face of the outside wall with a 9 1/2" sill to the windows. The
temperature of the heating units is controlled by a central
inside/outside thermostat.
4. Ventilatina nd Air-Condi
The perimeter and interior zones, from the mezzanine to the 18th
floor are served by distribution through air-handling light
fixtures. Return air is drawn through other light fixtures to the
return air plenum above the ceiling. Each perimeter bay of
approximately 400 square feet is controlled by a thermostat located
on the face of the perimeter columns. The interior zohe is
sub-divided on each floor into two areas comprising the west and
north zone and the east and south zone, each separately controlled
by thermostats, one on the west, and one on the east care wall.
5. Sound Control
The Landlord will install sound baffles around corridor and demising
partitions.
6. Fire Hose Cabinets
Should additional fire hose cabinets be required or existing
cabinets relocated as a result of the Leased Premises' perimeter
and/or interior layout, such work will be performed by the Landlord
at the Tenant's expense.
7. Sprinklers
An overhead sprinkler system is provided on all floors on an open
floor basis. The Tenant must ensure that sprinkler coverage is
maintained throughout the Leased Premises in accordance with the
appropriate building codes, regulations, laws & by-laws. Should
additional sprinkler heads be required or existing sprinkler heads
relocated as a result of the configuration of the Leased Premises'
perimeter and/or interior layout, such work will be performed by the
Landlord at the Tenant's expense.
8. Floors
All floors are structural concrete slab.
SCHEDULE "C" (CONT'D) LANDLORD AND TENANTS IMPROVEMENTS
9. Demising Walls
The Landlord's standard corridor and demising partition on multiple
tenancy floors shall be a slab-to-slab height drywall partition
constructed of 2 1/2" metal studs at 16" on centre, with one layer
of 1/2" gypsum board each side and 2 1/2" sound attenuation blankets
between; walls shall be taped, sanded and painted with one base and
two finish coats.
10. Demising Doors
The Landlord's standard Tenant entrance is a single 3' wide
full-height, solid core door with a natural finish, flat sliced red
oak veneer facing.
The Landlord will provide the Tenant with a standard entrance door
complete with frame and hardware, as required by the applicable
governmental or municipal authorities on an open floor basis.
Additional doors required by applicable governmental of municipal
authorities due to the Tenant's interior partition layout, or
required by the Tenant, will be at the Tenant's expenses. The
Landlord will provide the Tenant with two (2) keys. Additional keys
are available from the Landlord at the Tenant's expense.
The standard locksets are tulip, heavy duty type, dull, stainless
steel finish as manufactured by Dominion Lock Company Limited.
11. Plumbing
Two wet stacks consisting of one capped drain line and one capped
vent line are located at opposite corners of the Building on each
floor; capped cold water lines are located outside Men's and Women's
washrooms for future connection by the Tenant.
TENANT'S WORK
The Tenant shall complete at its cost, the following work (the "Tenant's
Work"):
1 . Electrical
All main disconnects, transformers, lighting panels, electric check
meters, power panels, branch wiring, lighting and electrical
fixtures including lamps, time clocks, exit signs, emergency
lighting and other equipment required in excess of that provided by
the Landlord, as well as any hook-up charge, fee or deposit required
by any appropriate authority.
Where the service capacity of three (3) watts per square foot of
Useable Floor Area is not adequate, the Tenant shall inform the
Landlord of the service required in amperes based on the service
voltage supplied, and if the Landlord is able to provide such
additional service capacity, the Tenant will pay for the increase in
cost for the said additional capacity.
All power poles and monuments in open areas, armoured cable and/or
conduits in partitions are fed from the underfloor duct system.
2. Mechanical
The Tenant shall install all sinks, toilets and any other plumbing
fixtures and equipment, including but not limited to water meters,
hot water tanks, instant hot taps, controls and appurtenances as
required, for the maintenance of required conditions throughout the
Leased Premises and as required by the Landlord.
3. Heating, Ventialating and Air-Conditioning
Any additional heating, ventilating or air-conditioning system
required by the Tenant beyond that provided by the landlord shall be
subject to the prior written approval of the Landlord and shall be
installed by the Landlord at the Tenant's expense. The Landlord
reserves the right to refuse to allow the Tenant to exceed a design
fighting load of three watts per square foot of Useable Floor Area.
4. Communications
When required by the Landlord, by any governmental or regulatory
authority having jurisdiction, or by the Tenant subject to the
Landiord's approval, the Landlord reserves the right, in its sole
discretion, to supply and install all parts and components of the
following systems: intercom, burglar and fire alarm, antenna and
cable at the Tenant's expense.
2
SCHEDULE SCHEDULE "C" (CONT'D) LANDLORD'S AND TENANT'S IMPROVEMENTS
5. Interior Finishes
All other interior finishes and installations not provided for under
Landiord's Work.
6. Floor Finish
The flooring must be approved in writing by the Landlord and not be
of a lesser quality than the Landiord's standard as approved from
time to time.
7. Additiona!Reguirements
Any additional requirements of the Tenant are subject to the
Landiord's approval.
8. Procedures
Work Drawings - The Landlord shall submit an outline of the plan of
the Leased Premises to the Tenant and the Tenant shall within
sufficient time so as not to delay the commencement of the Term of
the Lease, prepare and submit to the landlord for approval (in
triplicate) working drawings and specifications for the Tenant's
Improvements, including sepias, as prepared by a qualified designer
and engineer, both to be approved by the Landlord. The Tenant's
submission shall include:
1 . Floor Plan - showing partition and interior decoration,
including wall assemblies, elevations and millwork.
Scale: 1/8" = l'0"
2. Electrical and Telephone Plan - showing electrical and
telephone outlets and power pole locations, including all
modifications and/or additions to the base building electrical
system required to suite the Tenant's interior design.
Scale: 1/8" = 1'0"
3. Reflected Ceiling Plan - showing any modifications to the
Landiord's base building ceiling system, including relocation of
existing or installation of new supply air diffusers, lights, and
fight switches, exit lights, emergency lights and sprinklers.
Scale: 1/8" = l'0"
4. Total Connected Electrical Loads in Leased Premises including:
(a) lighting (KW)
(b) receptacles (KW)
(c) special equipment including copiers, computers, etc.(KW)
(d) others (KW)
5. Mechanical Plan - showing any modification and/or addition to the
Landlord's base building heating, ventilating, air-conditioning and
plumbing systems required to suite the Tenants interior design.
Scale: 1/8" = l'0"
Approvals - No work for which drawings and specifications
are required shall be commenced by the Tenant until the said
drawings and specifications have been approved in advance in
writing by the Landlord and until the Tenant has secured approval
thereof from every governmental authority having jurisdiction and
submitted proof of such approval to the Landlord. Under no
circumstances shall the Tenant, its employees, its contractors or
its contractors' employees make any opening in the floors or
walls of the Building (other than the Tenant's interior
partitions) without the prior written approval of the Landlord.
Contractors - Prior to the commencement of the Tenant's
Improvements, the Tenant shall submit to the Landlord a liability
certificate from the Tenant's general contractor or from each of the
Tenant's independent sub-contractors, as the case may be, in an
amount not less than TWO MILLION DOLLARS ($2,000,000.00) per
occurrence, which liability insurance shall be on a comprehensive
form and shall cover all hazards related to any work performance by
any such general contractor or independent contractor, as the case
may be, in or on the Leased Premises.
Such policy or policies shall include the Owner as an
additional named insured and shall contain a cross-liability clause.
3
SCHEDULE "C" (CONT'D) LANDLORD'S AND TENANT'S IMPROVEMENTS
Damage to leased Premises or Building - Any damage to the Leased
Premises or the Building caused by the Tenant or any of its employees,
contractors, or workers shall be repaired forthwith by the Landlord at the
TenanCs expense or by the Tenant with the Landiord's approval.
Tenanfs Contractors - All items or work undertaken by the Tenant
shall be performed by competent workers whose labour affiliations are
compatible with those of all other employed by the Landlord and its
contractors.
Unless the Landlord otherwise consents in writing, the Tenant shall
employ the landiord's interior contractor in the completion of the
Tenant's Improvements, except for all modifications required to the
landiord's mechanical and electrical systems.
Such mechanical and electrical modifications shall be carried out by
the Landlord at the Tenant's expense. Should the Tenant choose to engage
an interior contractor other than the Landiord's interior contractor, the
Tenant shall pay to the Landlord with respect to the execution of the
Tenant's work, a Tenant Coordination Fee, being the greater of $500.00 or
$1.00 per square foot of the Net Rentable Area of the Leased Premises.
This payment is in consideration of the Landiord's administration
services, disbursements, project security, temporary services and
utilities, washroom facilities, loading dock access, elevator service and
building operations co-ordination all being provided during the Tenant's
fixturing period.
Additional Work - All work carried out by the Landlord at the
Tenant's expense shall be invoiced to the Tenant as a "backcharge". The
amount so invoiced to the Tenant shall be the total cost to the
Landlord including architectural and engineering fees, where
applicable, plus a further Fifteen Per Cent (15%) for the Landiord's
administration and supervision, payable upon substantial completion and
upon demand.
State of Completion - The opinion in writing of the Landlord's
Architect shall be binding on both the Landlord and the Tenant on all
matters of dispute regarding state of completion and workmanship of the
Landlord's and the Tenant's Improvements.
Statutory Declaration - Upon completion of the Tenant's
Improvements, the Tenant shall forthwith furnish to the Landlord a
Statutory Declaration in a form satisfactory to the Landlord stating that
no liens against the Leased Premises exist on account of the Tenants
Improvements.
4
SCHEDULE "D"
RULES AND REGULATIONS
The Tenant shall observe the following Rules and Regulations (as
amended, modified or supplemented from time to time by the Landlord as
provided in this Lease):
1 The Tenant shall not permit in the Leased Premises any cooking or
the use of any apparatus for the preparation of food or beverages
(except where the landlord has approved of the installation of
cooking facilities as part of the Tenant's Leasehold Improvements)
nor the use of any electrical apparatus likely to cause an
overloading of electrical circuits.
2. The sidewalls, entries, passages, corridors, lobbies, elevators and
staircase shall not be obstructed or used by the Tenant, his agents,
servants, contractors, invitees or employees for any purpose other
than ingress to and egress from the offices. the landlord reserves
entire control of the Common Area and all parts of the Building and
the Land employed for the common benefit of the tenants.
3. The Tenant, his agents, servants, contractors, invitees or
employees, shall not bring in or take out, position, construct,
install or move any safe, business machine or other heavy office
equipment without first obtaining the 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, and the use and design of planks, skids or
platforms to distribute the weight thereof. All damage done to the
Building by moving or using any such heavy equipment or other
office equipment or furniture shall be repaid at the expense of the
Tenant. The moving of all heavy equipment or other office equipment
or furniture shall occur between 6:00 p.m. and 8:00 a.m. or any
other time consented to by the Landlord and the Persons employed to
move the same in and out of the Building must be acceptable to the
Landlord. Safes and other heavy office equipment will be moved
through the halls and corridors only upon steel bearing plates. No
deliveries requiring the use of an elevator for freight purposes
will be received into the Building or carried in the elevators,
except during hours approved by and scheduled through the Landlord.
Only elevators so designated by the Landlord shall be used for
deliveries of workmen and materials, furniture and other freight.
The Tenant shall pay, as Additional Rent, any costs incurred by the
Landlord in connection with the moving of the Tenant's equipment,
furniture, etc.
4. All persons entering and leaving the Building at any time other than
during Normal Business Hours shall register in the books kept by the
Landlord at or near the entrance or entrances and the Landlord will
have the right to prevent any person from entering or leaving the
Building unless provided with a key to the premises to which such
person seeks entrance and a pass in a form to be approved by the
Landlord and provided at the Tenant's expense. Any persons found in
the Building at such times without such keys or passes will be
subject to the surveillance of the employees and agents of the
Landlord. The Landlord shall be under no responsibility for failure
to enforce this rule.
5. The Tenant shall not place or cause to be placed any additional
locks upon any doors of the Leased Premises without the approval of
the Landlord, which approval shall @ot be unreasonably withheld, and
subject to any conditions imposed by the Landlord. Additional keys
may be obtained from the Landlord at the cost of the Tenant.
6. The water closets and other water apparatus shall not be used for
any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown
therein. Any damage resulting from misuse shall be repaired at the
cost of the Tenant by whom or by whose agents, servants or employees
same is caused. Tenant shall not let the water run unless it is in
actual use, and shall not deface or mark any part of the Building,
or drive nails, spikes, hooks or screws into the walls or woodwork
of the Building.
7. No one shall use the Leased Premises for sleeping apartments or
residential purposes, or for any illegal purpose, or for the storage
of personal effects or articles other than those required for
business purposes.
8. Canvassing, soliciting and peddling In the Building or Common Areas
are prohibited.
9. Any hand trucks, carry-ails, or similar appliances used in the
Building shall be equipped with rubber tires, side guards and such
other safeguards as the Landlord shall require.
10. No animals or birds shall be brought into the Building.
SCHEDULE "D" CONTD. RULES AND REGULATIONS
11. The Tenant shall not install or permit the installation or use of
any machine dispensing goods for sale in the Leased Premises or the
Building or permit the delivery of any food or beverages to the
Leased Premises without the approval of the Landlord or in
contravention of any regulations fixed or to be fixed by the
Landlord. Only persons authorized by the Landlord shall be permitted
to deliver or to use the elevators in the Building for the purpose
of delivering food or beverages to the Leased Premises.
12. The Tenant shall not perform any acts or carry on any practice which
may damage the Building or the Common Areas or be a nuisance to any
tenant in the Building.
13. The Tenant shall keep all mechanical apparatus free of vibration and
noise which may be transmitted beyond the Leased Premises.
14. The Tenant shall not use or permit the use of any objectionable
advertising medium such as without limitation, loud speakers,
stereos, public address systems, sound amplifiers, radio broadcast
or television apparatus within the Building which is in any manner
audible or visible outside of the Leased Premises.
15. The Tenant shall not mark, drill into, bore or cut or in any way
damage or deface the walls, ceilings, or floors of the Leased
Premises. No wires, pipes, conduits, telephonic, telegraphic,
electronic wire service or other connections shall be installed in
the Leased Premises without the prior written approval of the
Landlord.
16. the Tenant shall not, except with the prior written consent of the
Landlord, install any blinds, drapes, curtains or other window
coverings in the Building and shall not remove, add to or change the
blinds, curtains, drapes or other window coverings installed by the
Landlord from time to time. So that the Building may have a uniform
appearance from the outside, the tenant shall co-operate with the
Landlord win keeping window coverings open or closed at various times
as the Landlord may reasonably, from time to time, direct.
17. The Tenant shall not use any janitor, telephone or electrical
closets for anything other than their originally intended purposes.
18. The Tenant shall abide and be bound by the Security Services in
force in the Building from time to time. For the purpose of this
clause, the term "Security Services" shall mean all aspects of
security for the Building and the Lands, including equipment,
procedures, rules and regulations pertaining to such security.
19. No public or private auction or other similar type of sale of any
goods, wares or merchandise shall be conducted in or from the Leased
Premises.
20. Nothing shall be placed on the outside of window sills or
projections of the Leased Premises, nor shall the Tenant place any
air-conditioning unit or any other equipment or projection so that
it will project out from the Leased Premises. The Tenant may not
install air-conditioning equipment of any kind in any part of the
Leased Premises without the prior written consent of the landlord.
21. All glass and trimmings in, upon or about the doors and windows of
the Leased Premises shall be kept whole, and whenever any part
thereof shall become broken, the same shall be immediately replaced
or repaired under the directions and to the satisfaction of the
Landlord and shall be paid for by the Tenant as Additional Rent.
22. No bicycles or other vehicles shall be brought within the Building
except as specifically designated by the Landlord.
23. No inflammable oils or other inflammable, dangerous or explosive
materials shall be brought into the Building or kept or permitted to
be kept in the Leased Premises.
24. In the event the Leased Premises are used for restaurant or food
handling purposes, the Tenant shall, at its expense:
a) carry out at least monthly a roach spraying program, and provide
evidence thereof to the Landlord, and
b) clean all exhaust ducts at least twice yearly, and provide
evidence thereof to the Landlord.
2
SCHEDULE "E"
SPECIAL CONDITIONS
EARLY OCCUPANCY: To the extent that the Lease has been executed and the
leasehold improvements have been completed, the Tenant
shall have the right to occupy the premises on a gross
rent free basis until the Commencement Date. The Tenant
shall, however, during such period, be bound by all the
other terms of the lease.
LEASEHOLD
IMPROVEMENT
ALLOWANCE: The Landlord shall provide a leasehold improvement
allowance In the amount of $15.00 per square foot of
rentable area. Said allowance to be paid upon receipt of
paid invoices relating to the completion of such work
and receipt of a statutory declaration from the Tenant's
contractor that there are no lions on the building,
TENANT'S WORK: All plans, drawings and specifications for the
Tenant's leasehold Improvements and the Tenant's choice
of contractors shall be subject to the prior approval of
the Landlord, Alternatively, the Tenant may request the
Landlord to make said Improvements to a maximum cost of
$15.00 per square foot. To the extent that the cost of
leasehold improvements exceeds the above allowance, the
Landlord shall amortize the cost over the term to a
maximum of $25.00 per square foot using an interest rate
factor of 10%.
PARKING: The Landlord agrees to provide up to four (4) unreserved
parking spaces In the building's parking garage
throughout the term at the prevailing monthly charge.
Additional underground parking may be provided on a
month to month basis.
FREE RENT: The Landlord shall grant the Tenant rent free periods as
follows:
One (1) month (Dec.'97) gross free
Two (2) months (Jan.'98 - Feb.'98) net free
During said period, the Tenant shall be bound by all
other terms and conditions of the lease including the
payment of Additional Rent.
EXPANSION: The Tenant shall have the right to lease the adjacent
premises, being approximately 1,600 square feet as
outlined in blue on the attached Schedule "B".
Specifically, the Tenant shall have the option to lease
the premises at the same rental rate and with the same
allowance as outlined in this proposal, effective
December 1, 1998. Said option must be exercised in
writing no later than six (6) months after the
commencement of the Tern].
SCHEDULE "F"
STATUS STATEMENT
PROPERTY 55 University Avenue
LANDLORD PenYork Properties I lnc,
TENANT IT Staffing Inc.
LEASE DATED December 1, 1997
TO: The Landlord or any Person who is or may become or
contemplates to become a Secured Lender as well as to
any prospective purchaser of the Property or any part
thereof.
THE UNDERSIGNED, the Tenant under the above Lease, hereby certifies
and represents that:
(i) The Tenant has accepted and is in possession and in
occupation of the Premises having I an Area of
approximately four thousand, four hundred square feet
(4,400 sq. ft.).
(ii) The Lease has been validly executed and delivered by the
Tenant (and the Guarantor, if any) pursuant to due
corporate action properly taken by the Tenant (and the
Guarantor, if any).
(ill) The Lease is presently in full force and effect and
unmodified.
(iv) All rent is now accruing under the Lease, and all
Minimum Rent, Percentage Rent and Additional Rent under
the Lease have been paid to this date.
(v) There is no existing default by either Tenant or
Landlord pursuant to the Lease for which a notice of
default has been given.
(vi) The Tenant has no defenses, counter claims, or claims of
offset, deduction or compensation under the Lease or
otherwise against rents or other charges due or to
become due under the Lease. Furthermore, the Tenant does
not have the right or option to terminate the
Lease prior to the expiry of the Term.
(vii) No rent under the Lease has been paid more than thirty
(30) days in advance of its due date.
(viii) The Premises are free from any construction
deficiencies.
(ix) All Landiord's Work has been completed to the
satisfaction of the Tenant.
The Tenant hereby certifies and represents that the above statements
including any exceptions which may have been added thereto are true
and complete and may be relied and acted upon.
DATED AT TORONTO THIS 5th DAY OF SEPTEMBER 1997.
IT STAFFING INC,
PER: Declan French
SCHEDULE"G"
INDEMNITY AGREEMENT
PROPERTY 55 University Avenue
LANDLORD PenYork Properties I lnc,
TENANT IT Staffing lnc,
GUARANTOR(S) Declan French
LEASE DATED December 1, 1997
PREMISES 5th Floor
THE UNDERSIGNED party(ies), (singularly or collectively, "Guarantor'),
intervenes in the present Lease and having taken communication of the Lease,
declares itself to be fully satisfied with the contents thereof and furthermore
declares that in consideration of Landlord leasing the Premises to Tenant, the
sufficiency offwhich consideration Guarantor hereby acknowledges, Guarantor
binds itself to Landlord, jointly and severally with Tenant and with each other
if applicable, for the due performance of every obligation, condition and
agreement in the Lease Tenant has agreed to perform, observe or keep,
(collectively, "Obligations"), including without limitation, the prompt payment
of all Minimum Rent, Percentage Rent and Additional Rent which become due
pursuant to the Lease, as well as for any consequences resulting from Tenant's
default to fulfil any Obligations, including without limitation, any damages,
interest or penalties, which may be claimed as a result thereof, the Guarantor
making of the whole its own personal affair.
Guarantor waives acceptance of this guarantee by Landlord and the benefits of
division, discussion and subrogation.
Guarantor hereby consents to Landlord making any agreement or arrangement
whatever with Tenant, any other Guarantor, or any other Person with respect to
any one or more Obligations, including without limitation, extensions of time to
fulfil any Obligation, the release of Tenant, any other Guarantor, or any other
Person to fulfil all or any part of any Obligation, or the change or surrender
of any and ail security with respect to the Obligations. Guarantor agrees that
none of the foregoing will in any way, affect or impair the liability of
Guarantor hereunder.
Nothing shall release or satisfy the liability of the Guarantor until all
Obligations and all consequences of default to fulfil them are satisfied in
full. Without limitation, Guarantors liability hereunder will not be affected
or impaired by the bankruptcy, insolvency or winding-up of Tenant, any other
Guarantor, nor by any disclaimer or any other action taken by any trustee,
liquidator, referee or other officer appointed by any court or other body of
competent jurisdiction under any bankruptcy, insolvency or winding-up
legislation then in force, nor landiord's failure or delay to proceed to
litigation or to seek a remedy fool any default against Tenant, any other
Guarantor or any other Person, nor by any other act, omission or event
whatsoever which might otherwise lessen, affect or discharge a surety.
This guarantee is irrevocable by Guarantor and will continue in full force and
effect as long as there exists or may exist any Obligations or any unsatisfied
consequences thereof whether prior to, during or after the expiration of the
Term. Moreover, Guarantor waives notice of the taking effect of and coming into
force of any renewals or extensions of the Term.
This guarantee will be binding upon the Guarantoes successors, legal
representatives and assigns. Furthermore, this guarantee will remain in full
force and effect, notwithstanding any change of name, amalgamation, merger or
change of status of Landlord, Tenant, Guarantor, any other Guarantor, or any
other Person, notwithstanding any juridical acts or facts as a result of which
the entity which is the creditor of any of the Obligations, is or becomes
someone other than landlord and/or Landlord is replaced by any other entity as a
party to the lease and/or any party other than the Tenant or the Guarantor
becomes the debtor of any of the Obligations. Furthermore, if Landlord is
replaced by any other entity as a party to the Lease, then this guarantee will
remain in full force and effect in favour of that entity even as regards
obligations flowing from the Lease, and having their inception after such
replacement.
Guarantor acknowledges and confirms there are no representations, warranties,
inducements or undertakings made or given to it or to Tenant or to any other
Guarantor by Landlord in connection with this guarantee. Moreover, any
alteration or amendment to this guarantee or any future undertaking by
Landlord, in order to be binding upon Landlord, must be made in writing.
1
SCHEDULE "G" (CONT'D) GUARANTEE
This guarantee shall be construed and governed by the laws of the Province of
Ontario. Guarantor hereby elects domicile at the Premises for the purpose of
service of any legal proceedings to be instituted as a consequence of this
guarantee.
TORONTO, THIS 5th DAY OF SEPTEMBER 1997.
Declan French
- ------------------------------------ ------------------------------------
Witness Guarantor
Address: 2045 Lakeshore Blvd.
Etobicoke, Ontario
Tel: 416-255-1277
- ------------------------------------
Witness
Telephone No.:
2
SCHEDULE "L"
LANDLORD'S CLEANING SCHEDULE
FREQUENCY
Daily Weekly Monthly Annually
ENTRANCE, MAIN LOBBY & SERVICE CORRIDORS
Granite floor will be swept with treated dust mop, damp mopped and burnished D
Scrubbed and recoated as necessary to maintain optimal appearance M
Stripped, seated and refinished with durathon finish 2X
All furniture, fixtures, walls, wall hangings, plants and ledges within
reach will be dusted and spot cleaned washed as necessary to maintain
optimal appearance D
Entrance door glass and door frames will be cleaned inside and out D
Glass partitions will be spot cleaned D
All waste containers will be emptied, refined and spot cleaned D
BASEMENT LOBBY & CORRIDORS
Vinyl tile floor will be swept and damp mopped D
Spray buffed 3X
Scrubbed and recoated M
Stripped and refinished as'necessary to maintain optimal appearance
Glass partitions and frames will be spot cleaned D
Ashtrays and waste receptacles will be emptied and cleaned, bright metal polished D
and sand sifted
Walls will be spot cleaned D
ELEVATOR LOBBIES AND CORRIDORS, TENANT FLOORS
Waste containers will be emptied, spot cleaned and_refined if applicable D
Elevator doors and frames will be cleaned and polished on all floors D
Elevator tracks and thresholds will be vacuumed and wiped -D
Baseboards and ledges will be dusted D
All walls will be spot cleaned D
Drinking Mountains will be cleaned and sanitized D
All bright work will be polished D
Fire hose cabinet doors will be cleaned and polished W
Fire hose cabinet doors will be cleaned inside and out M
Cigarette ums will be emptied and cleaned D
All carpets will be vacuumed and spot cleaned D
ELEVATORS
Elevator cab floors will be swept, washed and buffed D
All carpets or carpet mats will be vacuumed and spot cleaned D
Brightwork will be cleaned and polished to remove all finger marks and
smudges. Elevator tracks will be vacuumed and cleaned in cabs and
spot-checked for fitter in elevator lobbies D
Elevator doors and door frames on all floors will be cleaned and polished D
Walls will be spot cleaned D
Walls will be completely washed and polished W
Ceiling will be dusted and spot cleaned W
FREQUENCY
Daily Weekly Monthly Annually
STAIRWAYS AND LANDINGS
Stairwells will be policed for litter and any spills or stains will be removed D
Frequently used portion of the stairways (parking to second floor) will be
swept and spot mopped D
Stairways will be swept and damp mopped from parking to the top floor W
Stairway doors and handrails will be spot cleaned D
Stairway doors and handrails will be wiped W
GENERAL & PRIVATE OFFICE, RECEPTIONS, MEETING ROOMSR
BOARDROOMS, MAIL & COPIER ROOMS, EQUIPMENT ROOMS, AND OTHER
TENANT AREAS
Waste containers will be emptied and spot cleaned and new liners installed
whenever needed D
Cleared office furniture will be dusted D
Exposed cleared office furniture vertical surfaces will be dusted W
Telephones will be Justed D
Telephones will be damp-wiped W
Desk tops will be kept free of finger marks and coffee spills D
Desk tops will be damp wiped and polished where applicable W
Wall hangings, door frames and baseboards will be dusted W
Walls around light switches, doors and door frames will be kept free of
finger marks D
Glass partitioning will be kept free of finger marks. Washed from both sides
2 times peryear W
Upholstered furniture will be whisked W
Upholstered furniture will be vacuumed M
leather, vinyl and leatherette upholstered furniture will be dusted W
Leather, vinyl and leatherette upholstered furniture will be damp-wiped M
Carpeted floor areas will be vacuumed D
Tile floors will be swept and damp mopped D-
Tile floors will be spray buffed W
Tile floors will be scrubbed and recoated 6X
Tile floors will be stripped and refinished y
Computer hardware and special equipment will be dusted only D
Venetian blinds will be dusted M
COMPUTER ROOMS
All cleaning in rooms or areas where sensitive equipment is used or where
regular nightly cleaning is not allowed due to security reasons will be
discussed individually with each particular tenant and cleaning schedules will
be made accordingly.
If no special attention is required while cleaning in those areas, cleaning
specifications for office areas will apply.
2
FREQUENCY
Daily Weekly Monthly Annually
KITCHENS, SERVERY AND COFFEE STATIONS
Waste baskets will be emptied, relined and spot cleaned D
Vinyl tile flooring will be thoroughly dust-mopped with a dust-
preventative method and washed D
flooring will be spray buffed W
Vinyl tile flooring will be scrubbed and recoated M
Vinyl tile flooring will be stripped and refinished 2X
Carpeted areas will be vacuumed and spot cleaned D
Walls and ledges will be kept free of dust and splash marks D
Sinks and counter tops will be cleaned with a germicidal agent and polished D
Finger marks and smudges will be removed from doors, walls, cupboards, etc D
The exterior of appliances will be wiped clean D
Table tops will be wiped clean D
Chairs will be thoroughly wiped or vacuumed depending on finish W
WASHROOMS, PUBLIC AND PRIVATE
Waste paper containers will be emptied, sanitized and new liners installed D
Toilet seats, toilet bowls and wash basins will be cleaned and sanitized D
Vanity counters will be cleaned D
Mirrors, metal dispensers, receptacles, faucets will be polished D
Toilet bowls and urinals will be descaled with non-acid bowl cleaner W
Tile floors will be swept and washed using germicidal detergent D
Tile floors will be machine scrubbed W
Washroom supplies such as toilet tissue, hand soap, hand towels, sanitary
napkins D and sanitary bags will be replenished . supplied by PenYork
Properties Inc.
Doors, kick plates, push plates and door handles will be cleaned D
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