Exhibit 10.3(c)
LEASE AGREEMENT
Between
SHIPP CORPORATION LIMITED
- and -
DANNIKTEL INC
Term: May 1, 1993 to April 30, 2000
Ten (1 0) Years
THE MUTUAL GROUP CENTRE
THIS LEASE MADE THE 24th day of March, 1993
PURSUANT TO THE SHORT FORMS OF LEASES ACT
B E T W E E N:
SHIPP CORPORATION LIMITED
Acting as Manager for the Owner
a corporation incorporated under
the laws of the Province of Ontario
(the "Landlord")
OF THE FIRST PART;
- and -
DANNIKTEL INC.
a corporation incorporated under
the laws of the Province of Ontario
(the "Tenant")
OF THE SECOND PART
WITNESSETH that in consideration of the rents,
covenants and agreements contained in this Lease the
Landlord and the Tenant @gree as follows:
ARTICLE I
DEFINITIONS
1. DEFINITIONS
The parties hereto agree that, when used in this Lease or in any
Schedule or Appendix attached to this Lease, the following words or expressions
have the meaning hereinafter set forth.
1.01 "Additional Rent" means any and all SUMS of lnjury or
charges required to be paid by Tenant under this Lease, without limitation such
items as the Tenant's Proportionate Share of Taxes and Costs of Operatiqn
(except Basic Rent) whether or not designated as Additional Rent" payable to
Landlord or to any other Person and is deemed to be accruing due on a day-to-day
basis
1.02 'Additional Services" means the services and supervision supplied by
the Landlord and referred to in this Lease as an Additional Service, and any
other services which from time to time the Landlord supplies to the Tenant or
Property other tenant or tenants of the Building, and includes janitorial and
cleaning services in addition to those, normally supplied, the provision of
labour and supervision in connection with deliveries, supervision in connection
with the moving of any furniture or equipment of any tenant and the making of
any repairs or alterations by any tenant and maintenance or other services not
normally furnished to tenants generally;
1.03 "Architect" means the architect from time to time named by Landlord.
The decision of the Architect whenever required hereunder and any certificate
related thereto shall be final and binding on the parties hereto. Where
appropriate, the Landlord may substitute an independent design consultant chosen
by the Landlord in the place of the Architect for the purpose of certifying Net
Area or Gross Area.
1.04 'Basic Rent,' means the annual rent payable by Tenant pursuant to and
in the manner set out in Section 4.02 hereof.
1.05 "Building" means the building situated on the Lands;
1.06 "Building Servicesu means the services defined in Article VI of this
Lease;
1.07 "Business Taxes" means all taxes, rates, duties, charges, levies and
assessments whatsoever, whether federal, provincial, municipal, school or
otherwise, levied, imposed, or assessed in respect of any and every business
carried on in the Premises by the Tenant, subtenants, licensees, or other
occupants of the Premises.
1.08 "Capital Tax" means all taxes, charges, levies or assessments
whatsoever, whether federal, provincial, municipal, school or otherwise, levied,
charged, imposed or assessed against or upon the Landlord, the amount of which
is calculated by reference to, or based upon, the amount of any or all of the
share capital. assets, surpluses, reserves or indebtedness of the Landlord.
1.09 "Claims" means claims, losses, actions, suits, 46 proceedings, causes
of action, demands, damages (direct, indirect, 47 consequential or otherwise),
judgments, executions, liabilities, 48 responsibilities, costs, charges,
payments and expenses including, 49 without limitation, any professional,
consultant and legal fees (on so a solicitor and his own client basis).
1110 "Commencement Date" means the commencement date set out in Section
3.02 of this Lease.
1.11 'Cost of Additional Services" shall mean the Landlord'- total cost of
providing Additional Services to tenants of the Building or any particular
Additional Services to a tenant including salaries, wages and fringe benefits
and material and other direct expenses incurred, the cost of supervision and
other indirec, expenses reasonably allocated thereto and all other out-of-pockeo
expenses made in connection therewith. A certificate of the Landlord's
comptroller as to the amount of any Cost of Additional Services shall be
conclusive;
1.12 "Costs of Operation" means the total of all expenses incurred by or
on behalf of the Landlord in the complete maintenance nd operation of the Lands
and the Building. Costs of Operation without limiting the generality of the
foregoing) shall include the cost of providing cleaning, janitorial,
supervisory, maintenance and other services (including Additional Services). the
cost of operating elevators, cooling and ventilating
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all space including both rentable and non-rentable areas, the cost of
providing hot and cold water and other utilities including electricity and
gas to both rentable and non-rentable areas, the cost of all repairs,
including repairs to the Building or services including elevators, the cost
of replacing lights and ballasts, the cost of window cleaning and providing
security and supervision, the cost of insurance for liability or fire or
other casualties and loss of rental income insurance, accounting costs
incurred in connection with maintenance and operations including computations
required for the imposition of charges to tenants and audit charges required
to be incurred for the conclusive determination of any costs hereunder,
accounting costs incurred in connection with the preparation of statements
and opinions required by this Lease, and the reasonable costs of collecting
and enforcing payment of such charges, the cost of providing and operating a
management office in the Building, and management fees reasonable within the
industry, the amount of all salaries, wages and fringe benefits paid to
employees engaged in the maintenance or operation of the Lands and Building
or the supervision thereof and amounts paid independent contractors for any
services in connection with such maintenance or operation and all indirect
expenses to the extent allocable to the maintenance and operation of the
Lands and the Building and the capital cost (which )tray be amortized
according to generally accepted accounting principles) of such equipment as
may be installed by the Landlord to reduce Costs of Operation or improve the
efficiency of the management of the Building and the Lands and the cost of
consulting fees relating thereto.
In computing Costs of Operation there shall be credited as a
deduction the amounts of proceeds of insurance relating to Insured Damage and
other damage actually recovered, or which should have been recovered by the
Landlord where the cost was included in Costs of Operation, the cost of all
repairs, and replacements required as a result of faulty construction or
inherent defects in the Building, costs which are normally treated in accordance
with generally accepted accounting principles as being of a capital nature, any
sum paid by the Landlord to any tenant in the Building for any tenant allowance,
amounts recovered as a result of direct charges to the Tenant and other tenants
in respect of Additional Services, light bulb, tube and ballast replacement and
insurance premiums, in each case to the extent that the cost thereof was
included in Costs of Operation other than contributions of a Proportionate Share
by the Tenant pursuant to the provisions of this Lease. Any expenses that the
Landlord is not able to determine exactly may be estimated by the Landlord on a
reasonable basis. A certificate of the Landlordts auditor or other licensed
public accountant appointed by the Landlord for the purpose shall be conclusive
as to the amount of Costs of Operation for any period to Thich such certificate
relates.
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1.13 "Gross Area' of any premises and of the Building means the rentable
area as defined in-American National Standard z65.1-1980, computed by measuring
to the inside finished surface of the dominant portion of the permanent outer
Building walls, excluding any major vertical penetrations of the floor and
without any deduction made for columns and projections necessary to the
Building, and as determined by the Architect in a certificate which shall be
conclusive and binding on the Tenant;
1.14 "Insured Damage" means that part of damage occurring to the Premises
of which the entire cost of repair is actually or which should have been
recovered by the Landlord under a policy or policies of insurance from time to
time effected by the Landlord.
1.15 "Injury' means bodily injury, personal discomfort, mental anguish,
shock, sickness, disease, death, false arrest, detention or imprisonment,
malicious prosecution, libel, slander, defamation of character, invasion of
privacy, wrongful entry or eviction and discrimination, or any of them as the
case may be.
1.16 "Landlord" means.- Shipp Corporation Limited, acting as Manager for
the Owner, and its authorized representatives, agents, successors and assigns.
In any Section of this Lease that contains a release or other exculpatory
language in favour of Landlord, the term "Landlord" also means the directors,
officers, servants, employees and agents of Landlord.
1.17 "Lands" means the Lands described in Schedule B attached to this
Lease as such Lands may be changed, rearranged, altered, IIOdified, expanded or
reduced from time to time in accordance with tie terms of this Lease;
1.18 "Land Surveyor" means the accredited land surveyor from time to time
named by Landlord. The decision of the Land Surveyor whenever required hereunder
and any certificate related thereto shall be final and binding on the parties
hereto.
1.19 "Leasehold Improvements" means and includes all fixtures
(excluding Tenant's Trade Fixtures), equipment (excluding furniture and
equipment not in the nature of fixtures), installations, additions and
alterations from time to time made, constructed, erected, or installed by,
for or on behalf of Tenant or any previous occupant of the Premises in, on,
to, for or which serve, the Premises, whether or not easily disconnected or
movable, including, without limitation, all: (a) partitions (including
moveable partitions), doors, safes, vaults and hardware; (h) mechanical,
plumbing, electrical, sprinkler, fire detection, safety, utility, heating,
humidity, ventilating and air-conditioning systems, facilities,
installations, fixtures, controls, fittings and equipment; (c) wall to wall
carpeting, drapes and other floor, wall, ceiling and window coverings and
drapery hardware (d) light fixtures; (e) security or locking devices securing
all or any part of the Premises; (f) counters, cabinets, shelves and built-in
furniture and furnishing; (g) internal stairways, escalators, elevators and
any other transportation equipment or systems; (h) ceilings and ceilings
panels; and (i) items that would not normally be considered to be Tenant's
Trade Fixtures;
1.20 "Mortgagee" means any mortgagee, chargee, encumbrancer, hypothecary,
creditor, secured creditor or debenture holder (including any trustee for bond
holders or pursuant to a trust deed) of the Building or the Lands or any part
thereof.
1.21 "Net Area" of any premises on any floor or level means the "usable
area", defined in American National Standard 2.65.1-1980, computed by measuring
to the finished surface of the office side of the corridor and other permanent
walls, to the centre of partitions that separate the office from adjoining
usable area, and to the inside finished surface of the dominant portion of the
permanent outer building walls, and as determined by the Architect in a
certificate which shall be conclusive and binding on the Tenant;
1.22 "Person" if the context allows, includes any individual, firm,
association, Partnership or corporation, or any group of individuals, firms,
associations, partnerships or corporations or any combination thereof.
1.23 "Premises" means the premises in the Building leased to the Tenant
which are described in Section 3.01 of this Lease;
1.24 "Premises Work means the work described in Section 11.01 of this
Lease.
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1.25 "Proportionate Share, shall mean that share of Taxes and of Costs of
Operation which the Landlord determines on a reasonable basis to be payable by
the Tenant. The Landlord shall base its determination on that fraction the
numerator of which is the Gross Area of the Premises and the denominator of
which is the aggregate of the Gross Areas of all rentable premises in the
Building. The Landlord may also take into account any unusual requirements of
the Tenant or other tenants in the Building for electricity, air conditioning or
other Building Services and adjust the Tenant's Proportionate Share accordingly
and may allocate exclusively to space occupied by the Tenant or a group of
tenants those Taxes and Costs of Operation that the Landlord determines relate
predominantly to the Tenant or group of tenants. The Landlord may, on a
reasonable basis, allocate exclusively to any rentable premises any Costs of
Operation that do not, in the Landlord's reasonable opinion, relate to vacant
rentable space.
Where the Tenant has in the Landlord's opinion unusual requirements
for Building Services, the Landlord may install at the Tenant's expense such
meters or other equipment as may be reasonable in the circumstances to assist
with the determination of the Tenant's Proportionate Share.
1.26 "Rent" means all Basic Rent and Additional Rent payable pursuant to
this Lease.
1.27 "Rental Year' means a period of time, the first Rental Year
commencing on the first day of the Term hereof, and ending on the last day of
the month of December immediately following. Each Rental Year thereafter shall
consist of consecutive periods of twelve (12) calendar months, but the last
Rental Year of the Term shall terminate on the expiration or earlier termination
of this Lease. If, however, Landlord considers it necessary or convenient for
Landlord's purposes, Landlord may at any time and from time to time, by written
notice to Tenant, specify a date from which each subsequent Rental Year is to
commence, and in such event, the then current Rental Year shall terminate on the
day immediately preceding the commencement of such new Rental Year, and the
appropriate adjustments shall be made between the parties.
1.28 "Rules and Regulations" means the rules and regulations
attached hereto as Schedule C, adopted and promulgated by Landlord from time to
time.
1.29 "Security Deposit" means the security deposit paid by the Tenant
pursuant to Section 4.03 of this Lease.
1.30 'Storage Areas" means those areas designated by Landlord from time to
time as Storage Areas.
1.31 'Taxes" means all real property taxes, rates, duties, charges, levies
and assessments (including without limitation, local improvements, water, snow
and sewer rates) whether extraordinary general or special, foreseen or
unforeseen that are levied, rated, imposed or assessed (collectively "imposed")
against the Lands and the Building or upon the Landlord in respect thereof from
time to time by any taxing authority whether federal, provincial municipal,
school (including any taxes imposed by reason of t@e Tenant's religion) or
otherwise including those imposed for education, schools and local governments,
and including any portion of any Capital Tax reasonably allocable to the Lands
and Building and including all costs and expenses (including legal and other
professional fees and interest and penalties on deferred payments) incurred by
the Landlord in good faith in contesting, resisting or appealing any taxes,
rates, duties, charges, levies or assessments, but excluding taxes and license
fees in respect of any business carried on by tenants and occupants of the
Building and income or profit taxes upon the income of the Landlord to the
extent such taxes are not levied in lieu of taxes, rates, duties, charges,
levies and assessments against the Lands and Building or upon the Landlord in
respect thereof. Taxes shall include without limiting the above the reasonable
cost to the Landlord of making payments to any taxing authority in advance of
receipt from the Tenant of reimbursement for such taxes;
1.32 'Tenant" means the party of the Second Part and includes its
successors and assigns as permitted by this Lease and any Person mentioned as
Tenant in this Lease, whether one or more.
1.33 "Term" means the term of this Lease as more particularly described in
Section 3.02 of this Lease and any period of permitted overholding;
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1. 34 "Trade Fixtures" means the personal chattels installed by or on
behalf of the Tenant, in, on or which serve, the Premises, for the sole
purpose of Tenant carrying on its trade in the Premises pursuant to Section
7.01 hereof and which Trade Fixtures Tenant is permitted to remove only to
the extent permitted by the terms of this Lease, but Trade Fixtures do not
include Leasehold Improvements or any inventory of Tenant,
ARTICLE II
INTENT AND INTERPRETATION
2.01 Net Lease
(a) This Lease is a completely net lease to the Landlord.
Except as stated in this Lease, the Landlord is not
responsible for costs, charges, or expenses relating
to the Premises, their use and occupancy, their
contents, or the business carried on in them, and the
Tenant will pay the charges, impositions, costs and
expenses relating to the Premises except as stated
in this Lease. This Section will not be interpreted
to make the Tenant responsible for ground rentals
that may be payable by the Landlord, payments to
Mortgagees or, subject to Article IX, the Landlord's
income taxes. Capital Tax as defined in Section 1.08
is not considered as income tax.
(b)' Despite any other Section or clause of this Lease,
the Tenant shall pay to the Landlord an amount equal
to any and all goods and services taxes, sales taxes,
value added taxes, business transfer taxes, or any
other taxes imposed on the Landlord in respect of
Rent payable by the Tenant to the Landlord under this
Lease, or in respect of the rental of space under
this Lease, or in respect of any services or
Additional Services provided by the Landlord under
this Lease whether characterized as a goods and
services tax, sales tax, value added tax, business
transfer tax, or otherwise (herein called "Sales
Taxes"), it being the intention of the parties that
the Landlord shall be fully reimbursed by the Tenant
with respect to any and all Sales Taxes payable by
the Landlord. The amount of the Sales Taxes so
payable by the Tenant shall be calculated by the
Landlord in accordance with the applicable
legislation and shall be paid to the Landlord at the
same time as the amounts to which such Sales Taxes
!apply are payable to the Landlord under the terms of
this Lease or upon demand at such other time or times
as the Landlord from time to time determines.
Despite any other Section or clause in this Lease,
the amount payable by the Tenant under this paragraph
shall be deemed not to be Rent , but the Landlord
shall have all of the same remedies for and rights
of recovery of such amount as it has for recovery of
Rent under this Lease.
2.02 Landlord to Act in Good Faith
The Landlord, in making a determination, designation,
adulation, estimate, conversion, or allocation under this Lease,
will act reasonably and in good faith.
2.03 Entire Agreement
The Lease includes the Schedules and Appendices attached
to it and the Rules and Regulations adopted under Section 7.06.
There are no covenants, promises, agreements, conditions or
understandings, whether oral or written, between the parties
concerning this Lease, the Premises, the Building, the Lands or any
matter related to all or any of them, except those that are set out
in this Lease. No alteration, amendment, change or addition.to this
Lease is binding upon the Landlord unless it is in writing and
signed by the Tenant and two authorized representatives of the
Landlord.
2.04 General Matters of Intent and Interpretation
(a) Each obligation under this Lease is a covenant.
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(b) The captions, section numbers, article numbers and Table
of Contents do not define, limit, construe or describe
the scope or intent of the sections or articles.
(c) The use of the neuter singular pronoun to refer to the
Landlord or the Tenant is a proper reference even though
the Landlord or the Tenant is an individual, a
partnership, a corporation or a group of two or more
individuals, partnerships or corporations. The
grammatical changes needed to make the provisions of
this Lease apply in the plural sense when there is more
than one Landlord or Tenant, to corporations,
associations, partnerships or individuals, males or
females, are implied.
(d) If a part of this Lease or the application of it to a
person or circumstance, is to any extent held or
rendered invalid, unenforceable or illegal, the part:
is independent of the remainder of the Lease and
is severable from it, and its invalidity,
unenforceability or illegality does not affect,
impair or invalidate the remainder of this
Lease; and
(ii) continues to be applicable to and enforceable to
the fullest extent permitted by law against any
Person and circumstance except those as to which
it has been held or rendered invalid,
unenforceable or illegal.
No part of this Lease will be enforced against a Person,
'r to the extent that by doing so, the Person is
made to brppch a law, rule, regulation or enactment.
(e) This Lease will be construed in accordance with the laws
of Canada and the Province where the Lands are situate.
(f) Time jQ of the essence of this Lease.
(g) This Lease will not be registered by either.the Landlord
or the Tenant, but nevertheless if the Tenant desires to
register at its cost a notice of this Lease the Landlord
agrees to execute a notice or acknowledgement sufficient
for the purpose in such form as the Landlord shall have
approved
(h) In this Lpase, "hereinll,'Ihereofll,llhereby",
'hereunder", "hereto",'Ihereafter" and similar
expressions refer to this Lease and not to any
particular paragraph, clause or other portion thereof,
unless there is something in the subject matter or
context inconsistent therewith; "business day', means
any of the days from Monday to Friday inclusive of each
week unless such day is a holiday, and such additional
days as may be designated by the Landlord;
ARTICLE III
GRANT AND TERM
3.01 Lease
The Landlord hereby demises and leases to the Tenant the
Premises containing an area of approximately 1,610.51 square feet of Net Area,
being approximately 1,855 square feet of Gross Area. The approximate Net Area of
the Premises is as indicated in yellow on the floor plan attached to this Lease
as Schedule A, and the Premises are located on the Fifth (5th) Floor of The
Mutual Group Centre, 3300 Bloor Street West, West Tower, Etobicoke, Ontario (the
"Building').
3.02 Term
The Tenant shall have and hold the Premises for and during the Term which shall
be (unless sooner terminated pursuant to the other provisions hereof), the
period of ten (10) years, from and including the first day of May, 1993 to and
including the thirtieth day of April, 2003.
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3.03 Access
The Landlord agrees to permit the Tenant and its employees and
invitees to have the use in common with others entitled thereto of the common
entrances, lobbies, stairways and corridors of the Building giving access to the
Premises (subject to the Rules and Regulations attached to this Lease as
Schedule C and such other reasonable limitations as the Landlord may from time
to time impose).
3.04 Storage Areas
Clause intentionally deleted.
3.05 Parking SDaces
The Landlord will provide the Tenant with up to six (6) undercover
parking spaces. The Tenant shall pay as Additional Rent for the parking spaces
at a rate of $60.00 per space per month for years one (1) to three (3) and
$75.00 for years four (4) and five (5). Parking for years six (6) through ten
(10) will be at market rent and may be adjusted by the Landlord on an annual
basis provided that the Tenant will not be charged more than the going rate for
parking in the Building at the time for tenants in general.
The Tenant acknowledges that all Tenant employee parkings provided
solely during normal business hours and is not to be used for the purpose of
overnight parking, extended parking or the storage of vehicles.
ARTICLE IV
RENT
4.01 Covenant to Pay
The Tenant covenants and agrees to pay when due, all Rent in
accordance with the terms of this Lease in lawful money of Canada to the
Landlord at the address of the Landlord set out in Article
XVIII of this Lease.
4.02 Basic Rent
The Tenant shall pay without any prior demand therefor and without
any set off whatsoever as Basic Rent the sum of $26.897.50. payable in equal
consecutive monthly instalments in advance of $2,241.46 each on the first day of
each and every month during years one (1) to five (5) of the Term and the sum of
$34,317.50, payable in equal consecutive monthly instalments in advance of
$2,859.79 each on the first day of each and every month during years six (6) to
ten (10). Basic Rent is calculated on an annual rate of $14.50 er sq'uare foot
of Gross Area for years one (1) to five (5) and 18.50 per square foot of Gross
Area for years six (6) to ten (10). Gross Area is measured in accordance with
Section 3.01 hereof. If the Gross Area is certified by the Architect the Basic
Rent and Additional Rent shall, if necessary be adjusted accordingly as of the
Commencement Date. If the Term commences on any day other than the first day of
a month or ends on any day other than the last day of a month, rent for such
fraction of a month shall be adjusted on a per diem basis, based upon a period
of 365 days.
The Landlord agrees to provide the Tenant with Basic Rent @ree as
follows:
Six (6) months from May 1, 1993 to October 31, 1993;
Six (6) months from May 1, 1994 to October 31, 1994;
Six (6) months from May 1, 1995 to October 31, 1995;
Six (6) months from May 1, 1996 to October 31. 1996;
Six (6) months from May 1, 1997 to October 31, 1997;
Three (3) months from May 1, 1998 to July 31, 1998.
During this Basic Rent Free Period the Tenant shall pay only
Additional Rent.
4.03 Security Deposit
Landlord acknowledges receipt from Tenant of $7.500.00 ('Security
Deposit,,) to be held by Landlord without interest and will shall be applied on
account of the rent first due as outlined in Section 4.02.
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4.04 Delay In Occupancy
If the Premises or any part thereof are not ready for occupancy
by the Tenant on the date of commencement of the Term due solely to the fault
of the Landlord and not as an act of force majeure, no portion of the Rent
hereby reserved, or only the proportionate part thereof if the Tenant shall
occupy a part of the premises, shall be payable for the period prior to the
date when the whole of the Premises are ready for occupancy, and the full
rental shall accrue only after such last mentioned date. The Tenant shall
have no claim for any damages as a result of such delay.
4.05 Landlord's Estimates
Prior to the commencement of each Rental Year, the Landlord
shall estimate the amount of the Tenant's Proportionate Share of the total of
all Costs of Operation and Taxes accrued, paid or payable or attributable
whether by or on behalf of the Landlord, for the ensuing Rental Year or, if
applicable, broken portion thereof and notify the Tenant in writing of such
estimate. For the purpose of determining Proportionate Share of Taxes the
Landlord shall take into account any separate assessments of the Premises which
Taxes are payable by the Tenant pursuant to Section 9.02. The amount so
estimated shall be paid by the Tenant with out set-off as Additional Rent in
equal monthly instalments in lawful money of Canada in advance over the Rental
Year (or broken portion thereof) in'question, each such instalment being payable
on the same day as the monthly payments of Basic Rent. From time to time during
a Rental Year the Landlord may re-estimate the amount of the Tenant's
roportionate Share of Costs of Operation or Taxes for such Rental @ear or broken
portion thereof, in which event the Landlord shall notify the Tenant in writing
of such re-estimate and re-adjusted monthly instalments shall be paid by the
Tenant.
4.06 Landlord's Final Determination
As soon as practicable after the expiration of each Rental Year
for which payments have been made in accordance with Section 4.05 the
Landlord shall provide a statement showing the Tenant7s Proportionate Share
of Costs of Operation and Taxes for such Rental Year or (if applicable)
broken portion thereof and shall notify the Tenant and the parties shall make
the appropriate re-adjustment in the following manner. If the amount the
Tenant has paid is less than the amount due the Tenant shall pay to the
Landlord the amount of such deficiency within fifteen (15) days of receipt of
a notice setting out the amount of such deficiency. If the Tenant has paid in
excess of the amount due, the Landlord shall have the option to apply the
excess against Rent payable or becoming payable by the Tenant. The Tenant may
not claim a re-adjustment in respect of the Tenant's Proportionate Share of
Costs of Operation or Taxes based upon any error of estimation, determination
or calculation thereof unless claimed in writing prior to the expiration nf
one year after the Rental Year to which the Costs of Operation uLoeaxes
@-wat-6-@ Notices by the Landlord stating the amount of any estimate, re -
estimate or determination of Tenant's Proportionate Share of Costs of
Operation and Taxes need not include particulars of Taxes, Costs of Operation
or the calculation of Tenant's Proportionate Share. The Tenant shall be
entitled however upon a specific request being made therefore to inspect a
statement disclosing in reasonable detail particulars of Taxes, Costs of
Operation and the calculation of Tenant's Proportionate Share.
4h.07 Leasehold Allowance
The Landlord agrees to pay the Tenant an allowance of $25.00 per
square foot of Gross Area as a contribution towards the improvel,ant of the
Premises. All improvements must be approved by the Landlord prior to
installation and comply with The Mutual Group Centre's Design Criteria Manual.
All tiiuriIL-@ f=rp, the Lan-(]],or,@ T-T.ill be payable upon completion of
construction pursuant to thf
"Completion,' clause on page 5 of the Design Criteria Manual.
ARTICLE V
COVENANTS
5.01 Landlord's Covenants
The Landlord covenants with the Tenant
(a) for quiet enjoyment; and
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(b) to observe and perform all covenants and obligations
of the Landlord herein.
5.02 Tenant's Covenants
The Tenant covenants with the Landlord to pay Rent and to
observe and perform all covenants and obligations of the Tenant
herein.
ARTICLE VI
BUILDING SERVICES
The Landlord covenants with the Tenant:
6.01 Air Conditioning and Ventilation
To provide to the Premises during hours to be determined by the
Landlord (but to be at least the hours from 7:30 a.m. to 7:00 p.m. from
Monday to Friday inclusive with the exception of public holidays) processed
air in such quantities, at such temperatures and of such humidity as shall
maintain in the Premises conditions of reasonable temperature and comfort in
accordance with good standards of interior climate control generally
pertaining at the date of this Lease applicable to normal occupancy of
premises for office purposes and consistent with the general standards of
first- class office buildings in the vicinity of the Building in the City of
Mississauga, but the Landlord shall have no responsibility for ny inadequacy
of performance of the said system if the Premises Gepart from the design
criteria for such system, namely that the occupancy will 'not exceed one
person for every 100 square feet of floor area, that the electrical power
consumed in the Premises for any purposes shall not exceed 3.5 watts per
square foot of floor area and that the Tenant shall not have installed
partitions or other installations in locations which interfere with the
proper operation of the said system. If the use of the Premises does not
accord with the said design criteria and changes in the systems are feasible
and desirable to accommodate such use the Landlord may, upon the written
request of the Tenant, make such changes and the entire expense of such
changes will be reimbursed by the Tenant to the Landlord plus a sum equal to
fifteen percent (15Z) of the cost thereof representing Landlord's overhead,
shall be paid to the Landlord as Additional Rent on demand. Upon reasonable
notice the Landlord shall provide as an Additional Service air conditioning
and ventilation to the Premises at the request of the Tenant during hours
which it is not otherwise obliged to provide such services under this Section.
6.02 Elevator Services
Subject to the supervision of the Landlord, to furnish for use
by the Tenant and its employees and invitees in common with other persons
entitled thereto passenger elevator service to the Premises, and to furnish for
the use of the Tenant in common with @thers entitled thereto at reasonable
intervals and at such hours aIs the Landlord may select, freight elevator
service to the Premises for the carriage of furniture, equipment, deliveries and
supplies,
6.03 Washrooms
To provide for the use of the Tenant and its employees and
invitees, in common with others entitled thereto, washrooms on each floor in
the Building upon which any part of the Premises (other than below-grade
Storage Areas and parking, if any) is located.
6.04 Janitor Service
To provide janitor and cleaning services to the Premises and to
the Building consisting of the services more particularly described in
Schedule D attached to this Lease to be rendered substantially in accordance
with the standards of modern office buildings of a similar type in the
vicinity of the Building at the date of this Lease; it being agreed by the
Tenant that any janitor or cleaning service which the Landlord shall arree to
provide to the Tenant in excess of those above specified (including those
extra services which the Landlord shall make available by demand or special
arrangement) shall be an Additional Service.
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6.05 Telephone and Water
To furnish appropriate facilities for bringing telephone services
to the Premises and hot and cold water to washrooms (if any) in the Premises
and to washrooms available for the Tenant's use in common with others
entitled thereto.
6.06 Electricity and Lighting
To furnish electricity to the Premises twenty-four (24) hours a
day for lighting and for office equipment capable of operating from the high
or low voltage circuits available and standard for the Building. The Landlord
shall Furnish lighting to the Premises during hours 4o be determined by the
@@ndlord (but to be at least the hours from 7:-tit-l :i m. t(, 7--,00 P.m
from Monday to Friday inclusive with the exception of holidays'. At the
request of the Tenant and upon reasonable notice the Landlord shall provide
as an Additional Service electricity to the Premises during the hours which
it is not otherwise obliged to provide such service under this Section.
6.07 Additional Services
The Landlord, if it shall from time to time so elect, shall have
the exclusive right, by way of Additional Services, to provide or have its
designated agents or contractors provide any janitor or cleaning services to
the Premises required by the Tenant which are additional to those required to
be provided by the Landlord under Section 6.04, and to supervise the moving
of urniture or equipment of the Tenant and the making of repairs or
Alterations conducted within the Premises, and to supervise or make
deliveries to the Premises. The Cost of Additional Services provided to the
Tenant shall be paid to the Landlord by the Tenant from time to time promptly
upon receipt of invoices therefore from the Landlord.
ARTICLE VII
USE AND OCCUPANCY OF LEASED PREMISES
The Tenant covenants with the Landlord:
7.01 Permitted Use
To use the Premises only for the purpose of an office for the
conduct of the Tenant's business, and Tenant will not use or permit or suffer
the use of the Premises or any part thereof for any other business or purpose.
7.02 Waste and Nuisance
Not to commit or permit, any waste or injury to the ?remises
including the Leasehold Improvements and trade fixtures therein, any
overloading of the floors thereof, any nuisance therein or any use or manner
of use causing annoyance to other tenants and occupants of the Building.
7.03 Energy Conservation
To comply with all reasonable requests of the Landlord in
conserving energy of all types in the Building, including complying at the
Tenant's own cost with all reasonable requests and demands @of thp Landlord
with the view to energy conservation. The Tenant agrees that any reasonable
capital expenditures made by the Landlord in ari effort to promote energy
conservation shall be amortized according to accepted accounting principles
and amortized amounts ,-6,ed to Costs of Operation in the relevant years.
7.04 Condition
Not to permit the Premises to become untidy, unsightly or
hazardous or permit unreasonable quantities of waste or refuse to accumulate
therein, and at the end of each business day to leave the Premises in a
condition such as reasonably required to facilitate the performance of the
Landlord's janitor and cleaning services described in Schedule D to this Lease.
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7.05 Compliance with Laws
To comply
(a) at its own expense with all municipal, federal, provincial,
sanitary, fire and safety laws, regulations and requirements
pertaining to the Premises, the Tenant's operation and use of
the Premises, the conduct of business in the Premises, the
condition of the Leasehold Improvements, trade fixtures,
furniture and equipment installed by the Tenant therein and the
making by the Tenant of any repairs, changes or improvements
therein; and
(b) with statutes, regulations, ordinances or other governmental
requirements relating to its ability to enter into and comply
with this Lease.
7.06 Rules and Regulations
To observe, and to cause its employees, invitees and others'-over
whom the Tenant can reasonably be expected to exercise control to observe,
the Rules and Regulations attached as Schedule S to this Lease, and such
further and other reasonable rules and regulations and amendments and changes
therein as may hereafter he made by the Landlord and applied to tenants in
general.
7.07 Parking
The Tenant shall be permitted to park automobiles Belonging to
the Tenant, its servants, agents and invitees on the Lands in the parking
spaces designated in Section 3.05.
7.08 Signs and Directory
Not to paint, display, inscribe, place or affix any sign, symbol,
notice or lettering of any kind anywhere outside the Premises (whether on the
outside or the inside of the Building) or within the Premises so as to be
visible from the outside of the Premises, without the written permission of
the Landlord. Building standard identification signs and a single line
directory listing shall be provided by the Landlord as an Additional Service.
The Landlord shall allow the Tenant, at its cost, to erect a
building standard sign on the outside of the Leased Premises provided that
the sign shall be in a design, size, location, and in all other respects
satisfactory to the Landlord and all Municipal and Governmental Authorities.
ARTICLE VIII
REPAIR AND D^GE
8.01 Landlord's Repair and Maintenance
The Landlord covenants with the Tenant:
(a) to maintain and keep in a good and reasonable state of repair,
the Building consistent with the general standards of first-class
office buildings in the vicinity of the Building in the City of
Mississauga, but subject to Section 8.04 of this Lease and with the
exception of reasonable wear and tear and damage caused by the act
or omission of the Tenant;
(b) to repair so far as reasonably feasible and as expeditiously as
reasonably feasible defects in construction performed or
installations made by the Landlord in the Premises and Insured
Damage therein : The Landlord shall in no event be required to make
repairs to Leasehold Improvements, except where installed by the
Landlord.
8.02 Tenants Repair and Maintenance
The Tenant covenants with the Landlord:
(a) at Tenant7s expense, at all times during the Term, to continuously,
actively and diligently keep, operate and maintain the Premises, as
would a careful and prudent owner, in a good and reasonable state of
repair as determined by the Landlord, and consistent with the
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general standards of first-class office buildings in the vicinity of
the Building, and promptly make, using first quality new material,
all needed repairs to the Premises including all Leasehold
Improvements and all trade fixtures therein and all glass therein
other than glass portions of exterior walls thereof, but with the
exception of structural members or elements of the Premises and
defects in construction performed by or installations made by the
Landlord:
(b) that the Landlord may enter and view the state of repair, and that
the Tenant will repair according to notice in writing, but failure
to give notice shall not relieve the Tenant from its obligation
contained in this Section 8.02;
(c) that notwithstanding any other terms, conditions and covenants
contained in this Lease, if any part of the Building including
without limitation the systems for interior climate control and for
the provision of utilities or any equipment, machinery, facilities
or improvements contained therein or made thereto require, repair,
replacement or alteration or become damaged or destroyed through
the negligence, misuse, fault, carelessness, neglect, omission,
misconduct or default of the Tenant or its employees, or those
for whom it is in law responsible, the expense of repairs or
replacements thereto, necessitated thereby, shall be reimbursed to
the Landlord promptly upon demand, (plus a sum equal to fi-fteen
percent (15Z) of the cost thereof representing -cxie Landoeordx
-o@head), shall be paid to the Landlord as Additional Rent on demand
save in respect of Insured -Damage.
8.03 Surrender of the Premises
At the expiration or sooner termination of the Term, the Tenant
shall at its expense peaceably surrender and yield up vacant possession of
the Premises to Landlord in as good condition and repair as Tenant is
required to maintain the Premises throughout the Term, surrender all keys for
the Premises to Landlord at the place then fixed for the payment of Basic
Rent and inform Landlord of all combinations of all locks, safes and vaults
of any kind in the Premises. If the Premises are not surrendered at the time
and in the manner set out in this Section 8.03, Tenant shall promptly
indemnify and hold harmless Landlord from and against any and all Claims
resulting from the delay by Tenant in so surrendering the Premises,
including, without limitation, any Claims made by any succeeding tenant or
occupant founded on such delay. Tenant's obligation to observe and perform
the provisions of this Section 8.03 shall survive the expiration or earlier
termination of this Lease.
8.04 Abatement and Termination
It is agreed between the Landlord and the Tenant that:
(a) in the event of damage to the Premises or to the Building or
to other portions of the Lands affecting access or services
essential to the Premises, and if the damage is such that the
Premises or any substantial part thereof is rendered not
reasonably capable of use and occupancy by the Tenant for the
purposes of its business for any one period of time in excess
of ten (10) days, then
(i) unless the damage was caused by the fault or negligence
of the Tenant or its employees, agents, invitees or
others under its control, from the occurrence of the
damage and until the Premises are again reasonably
capable of use and occupancy as aforesaid, Rent shall
abate in proportion to the part or parts of the Premises
not reasonably capable of such use and occupancy, and
(ii) unless this Lease is terminated as hereinafter provided,
the Landlord or the Tenant, as the case may be
(according to the nature of the damage and their
respective obligations to repair as provided in
Article VIII of this Lease) shall repair such damage
with all reasonable diligence, but to the extent that
any part of the Premises is not reasonably capable of
such use and occupancy
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by reason of damage which the Tenant is obligated to
repair hereunder, any abatement of Rent to which the
Tenant is otherwise entitled hereunder shall not extend
later than the time by which, in the reasonable opinion
of the Landlord, repairs by the Tenant ought to have
been completed with reasonable diligence; and
(b) if
(i) the Premises; or
(ii) premises whether of the Tenant or other tenants of the
Building comprising in the aggregate half or more of the
Net Area of the Building; or
(iii) portions of the Lands which effect access or services
essential thereto;
are substantially damaged or destroyed by any cause other than by
reason of the act of omission of the Tenant. To the extent that
in the reasonable opinion of the Landlord the damage cannot be
repaired within one hundred and eighty (180) days after the
occurrence of the damage or destruction, the Landlord may at its
option, exercisable by written notice to the Tenant given within
thirty (30) days of the occurrence of such damage or destruction,
terminate this Lease, in which event neither-the Landlord nor the
Tenant shall be bound to repair as provided in this Article VIII,
and the Tenant shall instead deliver up possession of the
Premises to the Landlord with reasonable expedition, but in any
event within sixty (60) days after delivery of such notice of
termination, and Rent shall be apportioned and paid +'o the date
upon which possession is so delivered up but subject to any
abatement to which the Tenant may 'Se entitled under Section 8.04
(a) of this Lease), but otherwise the Landlord and Tenant shall
repair according to their respective obligations.
ARTICLE IX
TAXES
9.01 Taxes Payable by Landlord
The Landlord covenants with the Tenant to pay all Taxes which are
imposed against the Lands or Building or any part thereof promptly when due
to the taxing authority or authorities having jurisdiction. However the
Landlord may defer payment of any Taxes, or defer compliance with any
statute, law, by-law, regulation or ordinance in connection with the levying
of any Taxes in each case to the fullest extent permitted by law, so long as
it diligently prosecutes any contest or appeal of any Taxes.
9.02 Taxes Payable by Tenant
The Tenant covenants with the Landlord:
(a) to pay promptly when due to the taxing authority or authorities
having jurisdiction all Business Taxes, including licence fees; and
(b) to pay promptly to the relevant taxing authority when due and when
requested deliver to the Landlord receipts for payments of all
taxes, rates, duties, charges, levies and assessments whatsoever
charged in respect of the facilities, Leasehold Improvements, Trade
Fixtures and all furniture and equipment made, owned or installed by
or on behalf of the Tenant in the Premises or on account of its
ownership of or interest in any of them; and
(c) for each Rental Year the Tenant's Proportionate Share of all Taxes
charged for the Lands and Building which do not relate to rentable
areas.
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9.03 Postponement of Payment of Taxes
The Landlord may postpone payment of any Taxes payable by it
pursuant to the Lease to the extent permitted by law and if prosecuting in good
faith any appeal against the imposition thereof.
9.04 Landlord's Determination
For all purposes of this Article IX, where the determination of
any Taxes depends upon an assessment or an apportionment of an assessment which
has not been made by the taxing authority or authorities having jurisdiction,
the Landlord acting reasonably may determine the same, and any determination so
made by the Landlord shall be binding upon the Tenant.
9.05 Tenant's Responsibility
The Tenant will:
(a) on the Landlord's request, promptly deliver to the
Landlord,
(i) receipts for payment of all Business Taxes payable
by the Tenant;
(ii) notices of any assessments for Taxes or Business
Taxes or other assessments received by the Tenant
that relate to the Premises or the Building; and
(iii) whatever other information relating to Taxes and
Business Taxes the Landlord reasonably requests from
time to time.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.01 Consent Required
(a) In this Article "Transfer" means, (i) an assignment, a
sublease, a mortgage, charge or debenture (floating or
otherwise) or other encumbrance of this Lease or the Premises
or any part of them, (ii) a parting with or sharing of
possession of all or part of the Premises, and (iii) a
transfer or issue by sale, assignment, bequest, inheritance,
operation of law or other disposition, or by subscription of
all or part of the corporate shares of the Tenant or an
"affiliate" (as the term is defined on the date of this Lease
under the Canada Business Corporations Act) of the Tenant
which results in a change in the effective voting control of
the Tenant. In this Article "Transferor" and "Transferee' have
meanings corresponding to the definition of "Transfer" set out
above, (it being nderstood that for a Transfer described in
clause (iii) Mthe Transferor is the Person that has effective
voting control before the Transfer and the Transferee is the
Person that has effective voting control after the Transfer.)
-(b, The Tenant will not effect or permit a Transfer without the
consent of the Landlord wfiich consent will not be
unreasonably withheld. The Tenant will not assign, sublet or
part with all or any portion of the demised premises to an
existing tenant or subtenant in the lands and buildings known
as Mississauga Executive Centre, Mississauga, Ontario. In
deciding whether to give its consent to a Transfer, the
Landlord may refuse to give its consent if:
(i) covenants, restrictions or commitments given by the
Landlord to other tenants in the Building or to the
Mortgagees, or other parties regardless of when
given, prevent or inhibit,the Landlord from giving
its consent to the Transfer;
(ii) the Transferee, (1) does not have a history of
successful business operation in the business to be
conducted in the Premises, (2) does not have a good
credit rating and a substantial net worth, or (3)is
not able to finance the Trartsferee's acquisition of
its interest in the Premises and its operations in
the Premises without a material risk of defaulting
14
under this Lease and in a manner that will enable the
Transferee to carry on business successfully in the
Premises throughout the Term;
(iii) there is a history of defaults under commercial
leases by the Transferee, or by companies or
partnerships that the Transferee was a principal
shareholder of or partner in at the time of the
defaults;
(iv) the Transfer is a mortgage, charge, debenture
(floating or otherwise) of, or in respect of, this
Lease or the Premises or any part of them.
Without limitation, the Tenant shall for purposes of this
Article X be considered to Transfer in any case where it permits the
Premises or any portion thereof to be occupied by persons other that the Tenant,
its employees and others engaged in carrying on the business of the Tenant, and
shall also include any case where any of the foregoing occurs by operation of
law. The Tenant shall also be considered to assign or sublet if the Tenant is a
corporation of which this Lease is, in the reasonable opinion of the Landlord, a
material asset or a material liability, and control of such corporation changes,
and the Tenant (if a corporation) covenants to notify the Landlord of any
proposed change of control.
10.02 Conditions of Consent
The Tenant shall not Transfer this Lease or the whole or qla-fl
part of the Premises unless it shall have received a bona fide yrDltten offer to
take an assignment or sublease, and it shall have first requested and obtained
the consent in writing of the Landlord thereto. Any request for such consent
shall be in writing and accompanied by a copy of such offer, and the Tenant
shall furnish to the Landlord all information available to the Tenant and
requested by the Landlord as to the responsibility, reputation, financial
standing and business of the proposed Transferee. Within fifteen (15) days after
the receipt by the Landlord of such request for consent and of all information
which the Landlord shall have requested hereunder the Landlord shall have the
right upon written notice to the Tenant, if the request is to assign this Lease
or sublet the whole of the Premises, to cancel and terminate this
Lease, or if the request is to sublet a part of the Premises only, to cancel and
terminate this Lease with respect to such part, in each case as of a termination
date to be stipulated in the notice 3f termination which shall be not less than
sixty (60) days or more than ninety (90) days following the receipt by the
Landlord of such request for consent, and in such event the Tenant shall
surrender the whole or part as the case may be of the Premises in accordance
with such notice and Rent shall be apportioned and paid to the date of surrender
and if a part only of the Premises is surrendered, Rent payable under Section
4.02 and 4.05 shall thereafter abate proportionately. The foregoing shall be
subject to the exception that the Tenant may, by notice delivered to the
Landlord within fourteen (14) days after receipt from the Landlord of a notice
of termination pursuant to the provisions of this Section 10.02, elect to
continue this Lease as to all of the Premises and not to assign or sublet, in
which event the notice of termination shall be void.
10.03 Assignment Effective
No assignment of the Lease shall be effective unless the
Transferee shall execute an appropriate instrument directly with the Landlord
assuming, as to the assigned premises, all the obligations of the Tenant
hereunder.
10.04 No Release
No assignment or subletting of this Lease shall release the
Tenant from its obligations under this Lease.
10.05 No Advertising
The Tenant shall not advertise the Premises, or any part of the
Premises, as being available for assignment or subletting unless the written
permission of the Landlord first having been obtained. In no event shall any
such advertising contain details of the amount of the Rent or other sums payable
by the Tenant in terms of this Lease.
10.06 Tenant's Obligation to Lease
In the event that this Lease is disaffirmed, disclaimed or
terminated by any trustee in bankruptcy of a Transferee, the
15
original Tenant named in this Lease will be deemed upon notice by the Landlord
given within thirty (30) days of such disaffirmation, disclaimer, or termination
to have entered into a lease with the Landlord containing the same terms and
conditions as in this Lease with the exception of the Term which shall expire on
the date on which this Lease would have expired had such disaffirmation,
disclaimer or termination not occurred.
10.07 Publicly Traded Companies
Section 10.01 does not apply to a Transfer which occurs when the
Tenant is a corporation whose shares are traded and listed on a stock exchange
in Canada or the United States or is a subsidiary of such a corporation.
ARTICLE XI
TRADE FIXTURES AND LEASEHOLD IMPROVEMENTS
11.01 Alterations and Installations
The Tenant will not make, erect, install or alter any Leasehold
Improvements or Trade Fixtures in the Premises ("Premises Work") without the
Landlord's prior written approval. The Landlord shall not unreasonably withhold
its approval to any such request, but approval will not be unreasonably
withheld, if the Tenant complies with the design criteria established by the
Landlord from time to time for the Building. The Tenant's request for any
approval hereunder shall be in writing and accompanied by an dequate description
of the contemplated work and, where Xppropriate, working drawings and
specifications thereof. Any out of pocket expense incurred by the Landlord in
connection with any such request for approval shall be deemed incurred by way of
an Additional Service. All work to be performed in the Premises shall be
performed by competent contractors and subcontractors of whom the )Landlord
shall have approved (such approval not to be unreasonably withheld, but provided
that the Landlord may require that the Landlord's contractors and subcontractors
be engaged for any mechanical or electrical work) and by workmen whose labour
union affiliations are compatible with those of workmen employed in the Building
by the Landlord and its contractors and subcontractors.
All such work shall be subject to inspection by and the reasonable supervision
of the Landlord as an Additional Service at a fee of ive (5Z) percent of the
total construction cost thereof and shall be performed in accordance with any
reasonable conditions or regulations imposed by the Landlord and shall be
completed in a good and workmanlike manner in accordance with the description of
the work approved by the Landlord.
11.02 Construction Liens
In connection with the making, erection, installation or
alteration of Leasehold Improvements and Trade Fixtures and all and other work
or installations made by and for the Tenant on the Premises, the Tenant shall
comply with all the provisions of the Construction Lien Act and other statutes
from time to time applicable thereto and except as to any holdback permitted by
law shall promptly pay all accounts relating thereto. The Tenant will not create
any mortgage, conditional sale agreement or other encumbrance in respect of its
Leasehold Improvements or Trade Fixtures or permit any such mortgage,
conditional sale agreement or other encumbrance including any lien to attach to
the Premises, or to the Lands or Building or any part thereof and the Tenant
shall within twenty (20) days after receipt of notice of registration of any
such encumbrance or lien procure the discharge of any such liens or encumbrances
failing which the Landlord may make such payments as may be required to secure
the discharge, which payments shall be reimbursed by the Tenant, and the
Landlord's right to reimbursement shall not be affected or impaired if the
Tenant shall then or subsequently establish or claim that any lien or
encumbrance so discharged was without merit or excessive or subject to any
abatement, set-off or defence.
11.03 Landlord's Property
All Leasehold Improvements in or upon the Premises shall
immediately upon their placement be and become the Landlord's property without
compensation therefor to the Tenant and shall become part of the Premises.
Except to the extent otherwise expressly agreed by the Landlord in writing, no
Leasehold Improvements, Trade Fixtures, furniture or equipment shall be removed
by the Tenant from the Premises either during or at the expiration or sooner
termination of the Term except that (1) the
16
Tenant may at the end of the Term remove its Trade Fixtures; (2) the Tenant
shall at the end of the Term remove such of its Leasehold Improvements and Trade
Fixtures as the Landlord shall require to be removed, and (3) the Tenant may
remove its furniture and equipment at the end of the Term, and also during the
Term in the usual and normal course of its business. The Tenant shall, in the
case of every removal either during or at the end of the Term, make good any
damage caused to the Premises by the installation and removal.
ARTICLE XII
INSURANCE
12.01 Landlord's Insurance
The Landlord shall insure the Building. The insurance to be
maintained by the Landlord shall be in respect of perils and in amounts and on
terms and conditions which from time to time are insurable at a reasonable
premium and which are normally insured by reasonably prudent owners of
properties similar to the Building, as from time to time determined at
reasonable intervals (but which need not be determined more often than annually
and shall not be determined less often than every three years) by insurance
advisors selected by the Landlord, and whose written opinion shall be
conclusive. Unless and until the insurance advisors shall state that any such
perils are not customarily insured against by owners of properties similar to
the Building, and located in the vicinity of the Building, the perils to be
insured against by the Landlord shall include, without limitation, public
liability, boilers and machinery, fire and extended perils and losses suffered
by the Landlord in its capacity as Landlord through business interruptions but
shall not include any Leasehold Improvements in the Building. The Tenant shall
be entitled at reasonable times upon reasonable notice to the Landlord to
inspect copies of the relevant portions of all policies of insurance in effect
and a copy of any relevant opinions of the Landlord's insurance advisors.
12.02 Insurance Risks
The Tenant covenants not to do, omit or do-or permit to be done
or omitted to be done upon the Premises anything which would
cause the Landlord's cost of insurance (whether fire or liability) covering the
Lands and the Building to be increased or which shall cause any policy of
insurance covering the Lands and the Building to be subject to cancellation.
Should any such policy be subject to cancellation by reason of the Tenant's use
or occupation of the Premises, the Landlord shall be entitled to terminate this
Lease forthwith by leaving notice thereof on the Premises. If there is any
increase in premiums for the insurance carried from time to time by the Landlord
with respect to the Lands and/or the Building, the Tenant shall pay any such
increases as Additional Rent forthwith after invoices for such additional
premiums are rendered by the Landlord. In determining whether increased premiums
are caused by or result from the use or occupancy of the Premises, a schedule
issued by the organization computing the insurance rates for the Lands and/or
Buildings showing the various components of such rate shall be conclusive
evidence of the several items and charges which make up such rate.
12.03 Tenant's Insurance
(a) The Tenant shall take out comprehensive insurance of the type commonly
called general public liability which shall include coverage for
personal injury, blanket contractual liability, tenants legal
liability, non-owned automobile liability, bodily injury, broad form
property damage, death and property damage all on an occurrence basis
with respect to the business carried on, in or from the Premises and
in, on or from any other part of the Building, with coverage for any
one occurrence or claim of not less that $3,000,000 or such other
amount as the Landlord may reasonably require upon not less than one
(1) month's notice atlany time during the Term. which insurance shall
include the Landlord as a named Insured and shall protect the Landlord
in respect of c i aims Dy lane Tenant as if the Landlord were
separately insured and shall contain cross liability clauses;
(b) The Tenant shall purchase and maintain insurance on the Tenant's Trade
Fixtures and the furniture and equipment of the Tenant and all
Leasehold Improvements of the Tenant. Such insurance will also cover
all property of others which the Tenant has assumed responsibility for.
17
This coverage shall be written on an All Risk blanket basis for not
less than eighty (80Z) percent of the full replacement cost. The
Landlord be named as a named insured with respect to Leasehold
Improvements and provided that any proceeds recoverable in the event of
loss to Leasehold Improvements shall be payable to the Landlord (but
the Landlord agrees to make available such proceeds toward the repair
or replacement of the insured property if this Lease is not terminated
pursuant to any other provision hereto);
(c) The Tenant shall take out insurance against such other perils and in
such amount as the Landlord may from time to time reasonably require
upon not less than ninety (90) days written notice such requirements to
be made on the basis that the required insurance is customary at the
time for prudent tenants of properties similar to the Building in the
vicinity of the Building.
12.04 Terms of Insurance
All insurance required to be maintained by the Tenant hereunder
shall be on terms and with insurers to which the Landlord has no reasonable
objection. Each policy shall contain a waiver by the insurer of any rights of
subrogation or indemnity or any other claim to which the insurer might otherwise
be entitled against the Landlord or the agents or employees of the Landlord and
shall also contain an undertaking by the insurer that no material change adverse
to the Landlord or the Tenant will be made, and the policy will not lapse or be
cancelled except after not less than thirty 30) days written notice to the
Landlord of the intended change, @apse or cancellation. The Tenant shall furnish
to the Landlord, if and whenever requested by it, certificates or other
evidences acceptable to the Landlord as to the insurance from time to time
effected by the Tenant and its renewal or continuation in force together with
evidence as to the method of determination of full replacement cost of the
Tenant's Leasehold Improvements, Trade Fixtures, furniture and equipment and if
the Landlord reasonably concludes that the full replacement cost has been
underestimated, the Tenant shall forthwith arrange for any consequent increase
in coverage required under this Lease, If the Tenant shall fail to take out,
renew and keep in force such Insurance, or if the evidence
submitted to the Landlord pursuant to the preceding sentence is unacceptable to
the Landlord (or no such evidence is submitted within a reasonable period after
request therefor by the Landlord), then the Landlord may give to the Tenant
written notice requiring compliance with this Article XII and specifying the
respects in which the Tenant is not then in compliance with this Article. If the
Tenant does not within seventy-two (72) hours (or such lesser period as the
Landlord may reasonably require having regard to the urgency of the situation)
provide appropriate evidence of compliance with this Article XII, the Landlord
may (but shall not be obliged to) obtain some or all of the additional coverage
or other insurance which the Tenant shall have failed to obtain without
prejudice to any other rights of the Landlord under this Lease or otherwise, and
the Tenant shall pay all premiums and other expenses incurred by the Landlord in
that connection as Additional Rent pursuant to Section 4.05 of this Lease.
ARTICLE XIII
LIABILITY
13.01 Landlord's-Liability
The Tenant agrees that the Landlord shall not be liable for any
bodily injury or death of, or loss or damage to any property belonging to, the
Tenant or its employees, invitees or licensees or any other persons in, or about
the Building and without limiting the foregoing the Landlord shall not be liable
for any damage which is caused by steam, water, rain, or snow which may leak
into, issue or flow from part of the Building or from the pipes or plumbing
works thereof, or from any other place or quarter or for any damage caused by or
attributable to the condition or arrangement of any electric or other wiring,
unless resulting from the negligence of the Landlord, and in no event shall the
Landlord be liable;
(a) for any damage caused by anything done or omitted to be done by any
other tenant;
(b) for any act or omission (including theft, malfeasance or negligence)
on the part of any agent, contractor or person from time to time
employed by it to perform janitor
18
services, security services, supervision or any other work in or about
the Premises or the Building; or
(c) for loss or damage, however caused, to money securities, negotiable
instruments, papers or other valuables of the Tenant; and
13.02 Failure to SuT)ply Building Services
The Landlord shall have no responsibility or liability for the
failure to supply any Building Services when prevented from doing so by strikes,
the necessity of repair, any order or regulation of any body having
jurisdiction, the failure of the supply of any utility required for the
operation thereof or any other cause beyond the Landlord's reasonable control.
13.03 Release of Tenant
The Landlord releases the Tenant from all claims or liabilities
in respect of any damage which is Insured Damage, to the extent of the cost of
repairing such damage, but not from injury, loss or damage which arises
therefrom where the Tenant is negligent or otherwise at fault.
13.04 Tenant's Indemnification of Landlord
Except as provided in Section 13.03, the Tenant agrees to
indemnify and save harmless the Landlord in respect of all claims for bodily
injury or death, property damage or other loss or damage arising from the
conduct of any work by or any act or omission of he Tenant or any assignee,
subtenant, agent, employee, contractor, tnvitee or licensee of the Tenant, and
in respect of all costs, expenses and liabilities incurred by the Landlord in
connection with or arising out of all such claims, including the expenses of any
action or proceeding pertaining thereto, and in respect of any loss, cost,
expense or damage suffered or incurred by the Landlord arising from any breach
by the Tenant of any of its covenants and obligations under this Lease; and this
indemnity shall survive the expiry or earlier termination of this Lease, in
respect of any of the foregoing circumstances arising during the Term.
13.05 Notification of Landlord
The Tenant shall notify the Landlord promptly and in writing of
any accident or damage to or defect in the Premises, the Lands, the Building, or
any part thereof.
ARTICLE XIV
SUBORDINATION, ATTORNMENT AND CERTIFICATES
14.01 Subordination
The Tenant agrees that this Lease and all the rights of the
Tenant hereunder are subject and subordinate to all mortgages now or hereafter
existing (including deeds of trust and all instrument supplemental thereto)
which may now or hereafter affect the Lands and the Building and to all
renewals, modifications, consolidations, replacements and extensions thereof and
the Tenant whenever requested by any mortgagee or by the Landlord shall attorn
to such Mortgagee as a tenant upon all the terms of this Lease. The Tenant
agrees to execute promptly whenever requested by the Landlord or by such
Mortgagee an instrument of subordination or attorrunent, as the case may be, as
may be required of it; and
14.02 Execution of Certificates
The Tenant shall promptly whenever requested by the Landlord
from time to time execute and deliver to the Landlord and if required by the
Landlord, to any Mortgagee designated by the Landlord a certificate in writing
as to the then status of this Lease, including as to whether it is in full force
and effect, is modified or unmodified, confirming the rental payable hereunder
and the state of the accounts between Landlord and Tenant, the existence or
non-existence of defaults, and any other matters pertaining to this Lease as to
which the Landlord shall request a certificate.
14.03 Non-Disturbance Agreements
The Landlord agrees to use its reasonable, best efforts to
provide to the Tenant an acknowledgement of non-disturbance from every Mortgagee
to which this Lease has been subordinated upon a specific request therefore
being made by the Tenant.
19
ARTICLE XV
ACCESS, FIRE DRILLS AND FORGE MAJEURE
15.01 Access of Landlord to Premises
The Landlord shall be permitted at any time and from time to
time to enter and to have its authorized agents, employees and contractors enter
the Premises for the purposes of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements to the
Premises or the Building or to have access to utilities and services and the
Tenant shall provide free and unhampered access for the purpose, and shall not
be entitled to compensation for any inconvenience, nuisance or discomfort caused
thereby, but the Landlord in exercising its rights hereunder shall proceed so as
to minimize interference with the Tenant. The Landlord and its authorized agents
and employees shall be permitted entry to the Premises during the last six (6)
months of the Term during normal business hours for the purpose of exhibiting
them to prospective tenants.
15.02 Fire and Safety Drills
The Tenant acknowledges that it may be or become desirable or
necessary for the Landlord to organize and co-ordinate arrangements within the
Building for the safety of all tenants and occupants in the event of fire or
similar event, and the Tenant, it employees, servants, agents, and invitees
shall co-operate and anticipate in any fire drill, evacuation drill, and similar
@xercise as may be arranged or organized by the Landlord from time to time, and
agrees to hold the Landlord harmless from any personal or material loss, damage
or injury arising therefrom.
15.03 Force Majeure
Except as herein otherwise expressly provided, if and whenever
and to the extent that either the Landlord or the Tenant shall be prevented,
delayed or restricted in the fulfillment of any obligation hereunder in respect
of the supply or provision of any service or utility, the making of any repair,
the doing of any work or any other thing (other than the payment of Rent or
other moneys due) by reason of strikes or work stoppages, or being unable to
obtain any material, service, utility or labour required to fulfil such
obligation or by reason of any statute, law or regulation or inability to obtain
any permission from any governmental authority having lawful jurisdiction
preventing, delaying or restricting such fulfillment, or by reason of other
unavoidable occurrence, the time for fulfillment of such obligation shall be
extended during the period in which such circumstance operates to prevent, delay
or restrict the fulfillment thereof, and the other party to this Lease shall not
be entitled to compensation for any inconvenience, nuisance or discomfort
thereby occasioned and the Lease shall remain in full force and effect, but
nevertheless the Landlord will use its best efforts to maintain services
essential to the use and enjoyment of the Premises.
ARTICLE XVI
REMEDIES OF LANDLORD ON TENANTS DEFAULT
16.01 Landlord's Remedies
The Landlord shall:
(a) have the right at all times to remedy or attempt to remedy
any default of the Tenant, and in so doing may make any
payments due or alleged to be due by the Tenant to third
parties and may enter upon the Premises upon reasonable
notice to do any work or other things therein, and in such
event all expenses of the Landlord in remedying or
attempting to remedy such default shall be payable by the
Tenant to the Landlord as Additional Rent forthwith upon
demand; and
(b) have the same rights and remedies in the event of any non-
payment by the Tenant of any amounts payable by the Tenant
under any provision of this Lease as the Landlord would
have in the case of a non-payment of Basic Rent; and
20
(c) if the Tenant fails to pay any Basic Rent, Additional Rent
or other amount from time to time payable by it to the
Landlord hereunder promptly when due, the Landlord shall
he entitled, if it shall demand it, to interest thereon
at a rate three percent (3%) per annum in excess of the
minimum lending rate to prime commercial borrowers from
time to time current at The Toronto-Dominion Bank in
Ontario from the date upon which the same was due until
actual payment thereof.
16.02 Non-compliance by Tenant
The Landlord may from time to time resort to any or all of the
rights and remedies available to it under this Lease or arising from statute or
general law in the event of any default hereunder by the Tenant or improper
compliance or non-compliance with any obligation arising under any provision of
this Lease, all of which rights and remedies are intended to be cumulative and
not alternative, and the express provisions hereunder as to certain rights and
remedies are not to be interpreted as excluding any other or additional rights
and remedies available to the Landlord by statute or the general law.
16.03 Landlord's Re-entry
It is expressly agreed by the Tenant that if and whenever the
Basic Rent or Additional Rent hereby reserved or other moneys payable by the
Tenant or any part thereof shall not be paid within five (5) days of the day
appointed for payment thereof, whether @lawfully demanded or not, or if the
Tenant shall breach or fail to observe and perform any of the covenants,
agreements, provisoes, conditions, rules or regulation and other obligations on
the part of the Tenant to be kept, observed or performed hereunder or if any
policy on the Building or any part thereof is cancelled or about to be cancelled
by the insurer by reason of the use or occupation of the Premises, then and in
every such case it shall be lawful for the Landlord to enter into and upon the
Premises or any part thereof in the name of the whole and to have again,
repossess and enjoy the Premises as of its former state, without terminating
this Lease, anything in this Lease contained to the contrary notwithstanding.
16.04 Termination
If and whenever the Landlord becomes entitled to re-enter the
Premises under any provision of this Lease the Landlord, in addition to all
other rights and remedies shall have the right to terminate this Lease forthwith
by leaving on the Premises notice in writing of such termination. Upon such
termination, Rent and other payments due under this Lease shall be computed,
apportioned and paid in full to the date of such termination and the Tenant
shall immediately deliver up possession of tne Premises to the Landlord.
16.05 Reletting Premises
Whenever the Landlord becomes entitled to re-enter the Premises
under any provision of this Lease the Landlord, in addition to all other rights
it may have, shall have the right as agent of the Tenant to enter the Premises
azid re-let them and to receive the rent therefor and as the agent of the Tenant
to take possession of any furniture or other property thereon and to sell the
same at public or private sale without lotice and to apply the proceeds thereof
and any rent derived from re-letting the Premises upon account of the Rent due
and to become due under this Lease and the Tenant shall be liable to the
Landlord for the deficiency if any. If the Landlord adopts this course of
action, the Tenant shall be liable for and the Landlord may recover the expenses
of re-letting the Premises, including but riot limited to the cost of recovering
possession of the Premises, expenses of re-letting, including real estate
commission, cost of renovations and legal fees.
16.06 Waiver of Distress
The Tenant waii;.es and renounces the benefit of any present or
future statute taking away or limiting the Landlord's right of distress, and
covenants and agrees that notwithstanding any such statute none of the goods and
chattels of the Tenant on the Premises at any time during the Term shall be
exempt from levy by distress for rent in arrears
21
ARTICLE XVII
ABANDONMENT OF PREMISES AND BANKRUPTCY OF TENANT
17.01 If the Premises shall be vacated or abandoned, or remain
unoccupied for fifteen (15) days or more while capable of being occupied, or if
any of the goods and chattels of the Tenant shall at anytime be seized in
execution or attachment, or if the Tenant shall make any assignment for the
benefit of creditors or any bulk sale, become bankrupt or insolvent or take the
benefit of any statute now or hereafter in force for bankrupt or insolvent
debtors or (if a corporation) shall take any steps or suffer any order to be
made for its winding-up or other termination of its corporate existence, then in
addition to the payment by the Tenant of Basic Rent and Additional Rent and
other payments for which the Tenant is liable under this Lease, Bqsic Rent and
Additional Rent for the current month and the rext ensuing three (3) months'
shall immediately become due and oe paid by the Tenant. In addition, if any of
the above-mentioned eventualities should occur the Landlord shall have the right
to terminate this Lease by leaving notice of such termination on the Premises.
ARTICLE XVIII
NOTICES
@8.01 Any notice required or contemplated by any provision of this
Lease shall be given in writing, and if to the Landlord, either a.plivered to an
executive officer of the Landlord or mailed by prepaid registered mail addressed
to the Landlord at Four Robert Speck Parkway, Suite 1600, Mississauga, Ontario,
L4Z 1S1 and if to thA Tenant delivered to the Tenant personally (or to a partner
or officer of the Tenant if the Tenant is a firm or corporation) or mailed by
prepaid registered mail addressed to the Tenant at the Premises, Every such
notice shall be deemed to have been given when delivered or, if mailed as
aforesaid, on the fourth business day next following the date of mailing. The
Landlord may-from time to time, by notice in writing to the Tenant, designate
another address in Canada as the address to which notices are to be mailed to
it.
ARTICLE XIX
OVERHOLDING
19.01 The Tenant shall, not less than six months before the expiration
of the Term of this Lease, give to the Landlord notice in writing of its
intention to vacate the Premises at the end of the Term. If no such notice is
given, the Landlord shall assume that the Tenant intends to vacate the Premises
at the expiration of the term of this Lease.
If the Tenant has not given notice of its intentions to vacate
six months before the expiration of the Term, and shall continue to occupy all
or part of the Premises after the expiration of this Lease without the consent
of the Landlord, and without any further written agreement, then the Tenant
shall be deemed to be overholding without any right to do so and the Landlord
may take immediate action to recover possession of the Premises and it will be
lawful for the Landlord to enter into and upon the Premises or any part thereof,
in the name of the whole and to have again, repossess and enjoy the Premises as
of its former state, anything in the Landlord and Tenant Act SRO 1990 or any
other statute or in this Lease contain to the contrary notwithstanding.
If the Tenant remains in possession of all or any part of the
Premises after the expiry of the Term with the consent of the Landlord and
without any further written agreement, or without the consent of the Landlord,
there shall be no deemed renewal or extension of this Lease and, despite any
statutory provision or legal presumption to the contrary, the Tenant shall be
deemed conclusively to be occupying the Premises as a monthly Tenant at will if
the Landlord consents to the Tenant remaining in possession or as a Tenant at
will if the Landlord did not consent to the Tenant remaining in possession, in
either case, on the same terms as set forth in this Lease including the payment
of all additional rents and percentage rents if applicable, so far as such terms
would be applicable to a monthly tenancy except that the monthly basic minimum
rent shall be equal to one sixth (1/6th) of the annual rent payable during the
last year of this Lease; one sixth (1/6th) of the amount of Additional Rents
and charges payable for the last year of this Lease and one sixth (116th) of
the annual Percentage Rent if any payable for the lease year immediately
proceeding the last year of this Lease and all, except as to link the tenancy.
The Tenant shall promptly indemnify and hold harmless the
Landlord from and against any and all claims incurred by the Landlord as a
result of the Tenant remaining in possession of all or any part of the Premises
after the expiry of the Term. The Tenant shall not interpose or raise any
counterclaim in any summary or other proceedings based on overholding by the
Tenant, and the Landlord shall be entitled to damages from the Tenant if the
Landlord suffers as a result of the Tenant's overholding, without setoff.
ARTICLE XX
RELOCATION
20.01 The Landlord may at any time during the Term of this Lease or
any extensions thereof, relocate the Tenant to substantially equivalent space
(the "New Premises") anywhere within the Building provided that
(a) Neither the Net Area nor the Gross Area of the New
Premises differ substantially from that of the Premises.
and
(b) The Landlord improves the New Premises at its expense to
a standard of fixturing and finishing that is at least as
good as the fixturing and finishing of the Premises, and
(n) The Landlord minimizes any interruption of the Tenant's
business during the relocation and pays reasonable
compensation in respect thereof and pays the Tenant's
reasonable business costs associated with the relocation,
and
(d) The Tenant shall be given at least 90 days notice of the
relocation, and
(e) For the purposes of this Article XX, the term "Building"
shall be deemed to include any building located within the
centre of which the Building forms a part.
ARTICLE XXI
WAIVER
21.01 If either the Landlord or the Tenant shall overlook excuse,
condone or suffer any default, breach or non-observance by the other of any
obligation hereunder, this shall not operate as a waiver of such obligation in
respect of any continuing or subsequent default, breach or non-observance, and
no such waiver shall be implied but shall only be effective if expressed in
writing.
ARTICLE XXII
EXTENT OF LEASE OBLIGATION
22.01 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 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 of such party, and where there is more than one tenant or there
is a male or female party the provisions hereof shall be read with all
grammatical changes thereby rendered necessary and all covenants shall be deemed
joint and several.
23
IN WITNESS WHEREOF the parties have executed this Lease under
seal as of the day and year first above written.
SHIPP CORPORATION LIMITED
Acting as Manager for the Owner
Richard N. Thorlacius
President and Chief operating Officer
DANNIKTEL INC.
signature
print name and title
24
SCHEDULE A
FLOOR PLAN
SCHEDULE B
THE LANDS
THE MUTUAL GROUP CENTRE - WEST AND CENTRE TOWERS
3300 BLOOR STREET WEST - ETOBICOKE
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the City of Etobicoke in the Municipality of
Metropolitan Toronto and Province of Ontario and being composed of the
whole of Lots, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 61, 62, 63, 64, 65,
66, 67, 68, 69, 70 and 71 and parts of Lots 57, 58, 59, 60 as shown on Plan
1922 registered in the Land Registry Office for the Registry Division of
Toronto Boroughs (No. 64).
SCHEDULE C
RULES AND REGULATIONS
1. The Tenant shall not permit any cooking in the Premises without the written
consent of the Landlord.
2. The sidewalks, entries, passages, elevators and staircases 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 Premises. The Landlord reserves entire control of all parts of the
Building employed for the common benefit of the tenants and without
restricting the generality of the foregoing, the sidewalks,
entries, corridors and passages not within the Premises, washrooms,
lavatories, air-conditioning closets, fan rooms, janitor's closets,
electrical closets and other closets, stairs, elevator shafts, flues,
stacks, pipe shafts and ducts and shall have the right to place such signs
and appliances therein as it may deem advisable, provided that ingress to
and egress from the Premises is not unduly impaired thereby.
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 repaired at the expense of the
Tenant. The moving of all heavy equipment or other office equipment or
furniture shall occur only between 6:00 p.m. and the following 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 freight or bulky
matter of any description will be received into the Building or carried in
the elevators, except during hours approved by the Landlord.
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 night entrance and the Landlord will have the right to prevent
any person from entering or leaving the Building unless provided with a key
and access card to the Premises to which such persons seek entrance or a
pass in a form to be approved by the Landlord. 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 Premises without the approval of the Landlord and subject
to any conditions imposed by the Landlord. Additional keys may be obtained
from the Landlord at the cost of the Tenant.
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 by misuse shall be borne by the Tenant by whom or by whose
agents, servants, or employees the same is caused. Tenants 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 Premises for sleeping apartments or residential
purposes, or for the storage of personal effects or articles other than
those required for business purposes.
8. The Tenant shall permit window cleaners to clean the windows of the
Premises during normal business hours.
9. Canvassing, soliciting and peddling in the Building are prohibited.
10. Any hand trucks, carryalls or similar appliances used in the Building shall
be equipped with rubber tires, sideguards and such other safeguards as the
Landlord shall require.
11. No animals or birds shall be brought into the Building 77 without the
express written consent of the Landlord.
12. Subject to the provisions of the Lease, the Tenant shall not install or
permit the installation or use of any machine dispensing goods for sale in
the Premises or the Building or permit the delivery of any food or beverage
to the Premises without the 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 Premises.
13. The Tenant acknowledges, and will so inform all of their employees, that
all of the common areas, corridors, washrooms, stair-wells, elevator
lobbies and all areas of the parking garage have been designated by the
Landlord as no smoking areas and smoking is not permitted.
2
SCHEDULE D
SHIPP CORPORATION LIMITED
JANITORIAL AND CLEANING SERVICE SCHEDULE
PART 1 - MAIN ENTRANCE
Description of Service Interval
1. Dust all horizontal services. Nightly
2. Spot clean all walls, light
switches and doors. Nightly
3. Dust mop all hard surface floors
with treated dust mop. Nightly
4. Using wet mop, mop entire area. Nightly
5. Using a high speed machine spray
buff all tile areas. Nightly
6. Dust all high reach areas. Weekly
7. Dust all low reach areas. Weekly
8. Spot clean all walls, doors, partitions glass,
kick and push plates, and all other vertical
surfaces removing fingerprint and smudges,
paying particular attention to areas around
light switches, door knobs,
and door frames. Weekly
9. Machine scrub hard surface floor and apply one
coat of polish.
Allow to dry then buff. Monthly
10. Strip and refinish with three coats
of floor finish. Annually
11. Clean both sides of all glass doors. Nightly
12. Spat clean all partition glass. Nightly
PART 2 - ELEVATOR LOBBIES & CORRIDORS
Description of Service Interval
1. Empty and damp wipe ashtrays and
waste receptacles. Nightly
2. Dust all horizontal surfaces. Nightly
3. Spot clean all horizontal and vertical surfaces
removing finger-
prints, smudges, and stains. Nightly
4. Dust mop all hard surface floors
with treated dust mop. Nightly
5. Fully vacuum all carpets and walk
off mats. Nightly
6. Using wet mop, mop entire area. Nightly
7. Using a high speed machine spray
buff all tile areas. Nightly
8. Dust all high reach areas. Weekly
9. Dust all low reach areas. Weekly
1
Lower Two Flights - Radial Rubber Flooring Main Lobby to
Lower Lobby.
Description of Service Interval
1. Dust mop with treated mop. Nightly
2. Using west mop, mop entire area. Nightly
3. Scrub floor and apply one coat of
polish, allow to dry and then buff. Monthly
4. Lay one coat of floor finish. 3/week
5. Strip and refinish with three coats
of floor finish. Semi-annually
PART 7 - RECEIVING AREA
Description of Service Interv-al
1. Dust mop all hard surface floors with
treated dust mop. Nightly
2. Using wet mop, mop entire area. Nightly
4
10. Spot clean all walls, doors, partitions, glass,
kick and push plates, and all other vertical
surfaces removing fingerprints and smudges,
paying particular attention to areas around
light switches, door
knobs, and door frames. Weekly
11. Machine scrub hard surface floor and apply one
coat of polish.
Allow to dry then buff. Monthly
12. Strip and refinish with three
coats of floor finish. Annually
13. Directory board glass to be cleaned,
exterior only. Nightly
14. Drinking fountains to be cleaned. Nightly
15. Elevator threshold: - a) vacuum Nightly
b) wash Weekly
c) spillage Nightly
(if required)
PART 3 - ELEVATOR CABS
Description of Service Interval
1. VAT floors will be dust mopped,
washed and/or spray buffed. Nightly
2. Carpeted floors will be thoroughly
vacuumed. Nightly
3. Clean and polish elevator bright
work, walls, and doors. Nightly
4. Elevator door tracks vacuumed. Nightly
5. Ceilings of cabs to be vacuumed. Monthly
PART 4 - LEASED PREMISES
Description of Service Interval
1. Empty all waste receptacles, empty and damp wipe
ashtrays, dust all horizontal surfaces with a
chemically treated cloth. Spot clean all walls,
light switches, glass doors and frames. Nightly
2. Damp wipe waste baskets. Monthly
3. Dust all furniture, fixtures, equipment
and accessories. Nightly
4. Dust mop all hard surface floors with
treated dust mop. Nightly
5. Mop all stains and spills especially
coffee and drink spills from tile floors. Nightly
6. Using a high speed machine spray buff
and tile areas. Twice/week
7. Dust all chair and table legs and rungs,
baseboards, ledge moldings and other
low reach areas. Weekly
8. Clean and sanitize all telephone. Weekly
9. Clean and polish all bright metal work. Weekly
10. Dust all surfaces above normal reach
including sills, ledge molding, shelves,
door frames, pictures, and vents. Monthly
11. Dust all vertical surfaces (sides of
desks, tables, chairs, filing cabinets). Monthly
2
12. Machine scrub hard surface floors and apply
one coat of polish. Allow to dry
then buff. Monthly
13. Strip and refinish hard surface floors
with three coats of floor finish. Annually
14. All carpeted traffic lanes will be
vacuumed and the balance of the carpeted
areas will be policed. Nightly
15. Collect and remove all trash. Nightly
COMPUTER VAT
Description of Service Interval
1. Empty and damp wipe ashtrays. Nightly
2. Empty all waste receptacles. Nightly
3. Dust all horizontal surfaces. Nightly
4. Dust all low reach areas. Weekly
5. Dust all high reach areas. Weekly
6. Clean and sanitize all telephones. Weekly
7. Dust mop all hard surface floors
with treated dust mop. Nightly
8. Mop all stains and spills especially
coffee and drink spills. Nightly
9. Using a damp mop, mop entire hard
surface area. Weekly
10. Machine scrub hard surface floor and apply
one coat of polish. Allow to
dry then buff. Annually
PART 5 - WASHROOMS
Description of Services Interval
1. Clean and sanitize all restroom units
including; toilets, urinals (including
undersides), sinks, damp wipe and polish
mirrors, polish chrome, wipe counters, sweep
and damp mop floors using a germicidal
cleaner. Refill all dispensers and empty
trash Nightly
2. Cubicle partitions and doors will be
spot cleaned Nightly
3. Wash all restroom partitions on both
sides and walls. Monthly
4. Machine scrub all hard surface floors
using mild detergent. Monthly
5. Dust and clean all return air vents. Monthly
PART 6 STAIRS AND LANDINGS
Description of Service Interval
1. Police stairs for litter. Nightly
2. Dust mop and clean stairs. Weekly
3. Wet mop and clean stairs. Weekly
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SCHEDULE E
TENANTTS RIGHT TO EXTEND THE TERM
ONE ADDITIONAL FIVE YEAR PERIOD
The Tenant shall have the right at its option to extend the Term
for one further consecutive period of 5 years (herein called
"Extended Term"), such Extended Term commencing upon the date
following the date of expiration of the Term as provided in Section
3.02 of the Lease and ending upon the fifth anniversary of such date
of expiration, subject to the following terms and conditions;
(a) This option shall be exercised by notice in writing
given to the Landlord not less than six (6) months
nor more than twelve (12) months prior to the
expiration of the Term, provided that such notice
shall be validly given only if at the time it is
given the Tenant shall not be in breach of any of its
obligations under the Lease.
(b) The extension of the Term upon the exercise of the
Extended Term shall be upon the same terms and
subject to all the provisions of this Lease except
that:
(i) There shall be no further right to extend the
Term beyond the expiration of this Extended
Term, and
(il@) The Extended Term shall be as provided, and
(iii) The Basic Rent to be paid by the Tenant during
the Extended Term shall be the fair annual
rental value of the Premises as then
constituted, determined in accordance with sub-
paragraph (d) provided that it shall not be
less than the Basic Rent payable by the Tenant
in the last year of the Term, and
(iv) The Lease will be amended to include whatever
changes may have been made to the terms of the
Larldlord's standard form of lease subsequent
to the execution of this Lease.
(c) When this option has been exercised and the Basic
Rent to be paid by the Tenant during the Extended
Term has been determined, the Landlord and the
Tenant, shall enter into a Supplementary Lease
modifying this Lease and extending the Term as
provided.
(d) The expression of "fair annual rental value", for the
purposes of this paragraph, shall mean the annual
rental which could reasonably be obtained by the
Landlord for the Premises from a willing tenant
dealing at arms-length with the Landlord in the
market prevailing at a date six (6) months prior to
the date upon which the Extended Term is to commence,
having regard to all relevant circumstances including
the size and location of the Premises, the facilities
afforded, the terms of the intended lease thereof
(including its provisions for payments and other
contributions by the Tenant additional to rent) the
condition of the Premises and the value of
improvements therein (except that if the Tenant has
failed to repair in accordance with its obligations
under the Lease or has made- improvements in excess
of those which it was required to make at the
commencement of the Term, the disrepair and the
Improvements, and also the value of all the Tenant's
fixtures, shall be disregarded), and having regard
also to rentals currently being obtained for space
similarly located in the locality, and in particular
to any leases currently being made or recently made
by the Landlord of comparable space in the Building.
If the Landlord and Tenant have not agreed as to the
fair annual rental value of the Premises by a date three
(3) months prior to the date upon which the Extended
Term is to commence the fair annual rental value shall
be determined by arbitration and the following
provisions shall apply thereto; promptly upon this
provision for arbitration becoming applicable each of
the Landlord and Tenant shall give written notice to the
other appointing an arbitrator on behalf of the party
giving the notice. In the event that either party shall
fail to give such written notice within ten (10) days
the arbitrator named in the notice given by the other
party shall be the sole arbitrator. If the two
arbitrators are duly appointed they shall jointly
appoint a third, but if such appointment has not been
made by them within the (10) days after the appointment
of whichever of the two arbitrators was last appointed,
either party may on notice to the other apply to a Judge
of the District Court for the Judicial District where
the Premises are located, who shall have jurisdiction to
appoint a third arbitrator. The arbitrators or sole
arbitrator (as the case may be) appointed hereunder
shall govern their or its own proceedings and the
decisions of any two arbitrators (if three have been
appointed) or the sale arbitrator as the fair annual
rental value shall be conclusive and binding on the
parties. Each party shall pay the fees of the arbitrator
appointed by it, and the parties shall share eq 'ually
all other costs of the arbitration. In the event that
the fair annual rental value of the Premises has not
been determined by the date upon which rent therefor
commences to be payable by the Tenant, pending such
determination the Tenant shall pay rent therefor as
determined according to Article XIX of this Lease and
the parties shall readjust as of the date when rent
commenced to be payable promptly upon such determination
being made.
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SHIPP CORPORATION LIMITED
OFFICE LEASE
TABLE OF CONTENTS
ARTICLE I Definitions 1 to 5
ARTICLE II Intent and Interpretation
Section 2.01 Net Lease 5
Section 2.02 Landlord to Act in Good Faith 5
Section 2.03 Entire Agreement 5
Section 2.04 General Matters of Intent and
Interpretation 5
ARTICLE III Grant and Term
Section 3.01 Lease 6
Section 3.02 Term 6
Section 3.03 Access 7
Section 3.04 Storage Areas 7
Section 3.05 Parking Spaces I 7
ARTICL@ IV Rent
Section 4.01 Covenant to Pay 7
Section 4.02 Basic Rent 7
Section 4.03 Security Deposit 7
Section 4.04 Delay in Occupancy 8
Section 4.05 Landlord's Estimates 8
Section 4.06 Landlord's Final Determination 8
Section 4.07 Leasehold Allowance 8
ARTICLE V Covenants
Section 5.01 Landlord's Covenants 8
Section 5.02 Tenant's Covenants98
ARTICLE VI - Building Services
Section 6.01 Air Conditioning and Ventilation 9
Section 6.02 Elevator Services 9
Section 6.03 Washrooms 9
Section 6.04 Janitor Service 9
Section 6.05 Telephone and Water 10
Section 6.06 Electricity and Lighting 10
Section 6.07 Additional Services 10
ARTICLE VII - Use and Occupancy of Leased Premises
Section 7.01 Permitted Use 10
Section 7.02 Waste and Nuisance 10
Section 7.03 Energy Conservation 10
Section 7.04 Condition 10
Section 7.05 Compliance with Laws 11
Section 7.06 Rules and Regulations 11
Section 7.07 Parking 11
Section 7.08 Signs and Directory 11
ARTICLE VIII - Repair and Damage
Section 8.01 Landlord's Repair and Maintenance 11
Section 8.02 Tenant's Repair and Maintenance 11
Section 8.03 Surrender of the Premises 12
Section 8.04 Abatement and Termination 12
ARTICLE IX Taxes
Section 9.01 Taxes Payable by Landlord 13
Section 9.02 Taxes Payable by Tenant 13
Section 9.03 Postponement of Payment of Taxes 14
Section 9.04 Landlord's Determination 14
Section 9.05 Tenant's Responsibility 14
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ARTICLE X Assignment and Subletting
Section 10.01 Consent Required 14
Section 10.02 Conditions of Consent III 15
Section 10.03 Assignment Effective 15
Section 10.04 No Release 15
Section 10.05 No Advertising 15
Section 10.06 Tenant's Obligation to Lease 15
Section 10.07 Publicly Traded Companies 16
ARTICLE XI - Trade Fixtures and Leasehold Improvements
Section 11.01 Alterations and Installations 16
Section 11.02 Constructions Liens 16
Section 11.03 Landlord's Property 16
ARTICLE XII - Insurance
Section 12.01 Landlord's Insurance 17
Section 12.02 Insurance Risks 17
Section 12.03 Tenant's Insurance 17
Section 12.04 Terms of Insurance 18
ARTICLE XIII - Liability
Section 13.01 Landlord's Liability 18
Section 13.02 Failure to Supply Building
Services 19
Section 13.03 Release of Tenant 19
Section 13.04 Ter-ant's Indemnification
of Landlord 19
Section 13.05 Notification of Landlord 19
ARTICLE XIV Subordination, Attornment and Certificates
Section 14.01 Subordination 19
Section 14.02 Execution of Certificates 19
Section 14.03 Non-Disturbance Agreements 19
ARTICLE XV - Access, Fire Drills and Force Majeure
Section 15.01 Access of Landlord to Premises 20
Section 15.02 Fire and Safety Drills 20
Section 15.03 Force Majeure I.I 20
ARTICLE XVI - Remedies of Landlord on Tenant's Default
Section 16.01 Landlord's Remedies 20
Section 16.02 Non-compliance by Tenant 21
Section 16.03 Landlord's Re-entry I 21
Section 16.04 Termination 21
Section 16.05 Reletting Premises 21
Section 16.06 Waiver of Distress 21
ARTICLE XVII - Abandonment of Premises and Bankruptcy
of Tenant 22
ARTICLE XVIII - Notices 22
ARTICLE XIX . Overholding 22
ARTICLE XX . Relocation 23
ARTICLE XXT . Waiver 23
ARTICLE XXII . Extent of Lease Obligation 23
SCHEDULE A . FLOOR PLAN
SCHEDULE B - THE LANDS
SCHEDULE C - RULES AND REGULATIONS
SCHEDULE D - JANITORIAL AND CLEANING SERVICE SCHEDULE
SCHEDULE E - ONE ADDITIONAL FIVE YEAR PERIOD
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