CONSENT TO LEASE ASSIGNMENT
THIS AGREEMENT dated as of this 20th day of APRIL, 1998.
BETWEEN: THE STANDARD LIFE ASSURANCE COMPANY
Western Canada Property Management
0000, 000 - 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X OM9
(THE "LANDLORD")
AND: YELLOWBIRD PRODUCTS LIMITED
0000, 000 - 00xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
(THE "ASSIGNOR")
AND: PURE TECHNOLOGIES INC.
0000, 000 - 00xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
(THE "ASSIGNEE")
WITNESSES that in consideration of the sums of $1.00 now paid by each
party hereto to each other party and for other good and valuable consideration,
the receipt and sufficiency of which each party hereby acknowledges, the
Landlord, the Assignor and the Assignee hereby agree as follows:
1. DEFINITIONS. In this Agreement:
(a) "EFFECTIVE DATE" means April 1st, 1998.
(b) "LEASE" means that certain lease granted by the Landlord or its
predecessor-in-title to the Assignor or its predecessor-in-title dated
as of February 25th, 1997 for certain premises consisting of 3,216
rentable square feet more or less and situated in the building(s) on
the lands described in Schedule "A".
2. CONSENT. The Landlord hereby consents to the assignment of the Lease from
the Assignor to the Assignee, from and after the Effective Date.
3. CONTINUING EFFECT. The Assignor hereby agrees with the Landlord that it will
continue, from and after the Effective Date and for the remainder of the term of
the Lease and any renewal term contemplated by the Lease, to be liable to
observe or perform the tenant obligations under the Lease.
5. ATTORNMENT. From and after the Effective Date, the Assignee will attorn to
and become the tenant to the Landlord under the Lease and will be bound to and
observe or perform all the tenant obligations under the Lease.
6. ENURING EFFECT. This Agreement will enure to the benefit of and be binding
upon the Landlord, the Assignor and the Assignee and their respective heirs,
executors, administrators, successors, and permitted assigns.
IN WITNESS WHEREOF the Landlord, the Assignor and the Assignee have
executed this Agreement as of the day and year first above written.
THE STANDARD LIFE ASSURANCE COMPANY
Per: /s/ Xxxx Xxxxxx
-----------------------
Authorized Signatory
IF THE ASSIGNOR IS A CORPORATION:
The corporate seal of YELLOWBIRD )
PRODUCTS LIMITED was hereunto )
affixed in the presence of: )
) C/S
Per: /s/ Xxxxx X. Xxxxxxx )
------------------------- )
Authorized Signatory )
)
Per: /s/ Xxxxxx X. Xxxxxxxx )
--------------------------- )
Authorized Signatory )
)
)
IF THE ASSIGNEE IS A CORPORATION:
The corporate seal of PURE )
TECHNOLOGIES INC. was hereunto )
affixed in the presence of: )
) C/S
Per: /s/ Xxxxx X. Xxxxxxx )
------------------------- )
Authorized Signatory )
)
Per: /s/ Xxxxxx X. Xxxxxxxx )
--------------------------- )
Authorized Signatory )
SCHEDULE "A"
DESCRIPTION OF LAND:
Legal Description: Plan C, Calgary
Block 84
Lots 44 to 48, inclusive
Municipal Address: 000 - 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
ASSIGNMENT OF LEASE
THIS ASSIGNMENT dated effective the 1st day of April, 1997.
BETWEEN:
YELLOWBIRD PRODUCTS LIMITED
(hereinafter called the "Assignor") AND:
PURE TECHNOLOGIES INC.
(hereinafter called the "Assignee")
AND:
STANDARD LIFE ASSURANCE COMPANY
(hereinafter called the "Landlord")
WHEREAS:
A. By a lease dated as of February 25, 1997 (hereinafter called the
"Lease"), the Landlord leased to the Assignor the lands and premises
consisting of 3216 square feet of Rentable Space located at #1050, 000
- 00 Xxxxxx X.X., Xxxxxxx, Xxxxxxx and more particularly described in
the Lease (hereinafter called the "Premises") for a term of five years
from March 1, 1997 subject to the terms and conditions therein set
forth;
D. The Assignor has requested the Landlord to consent to such assignment.
NOW THEREFORE THIS AGREEMENT WITNESSETH:
1. ASSIGNMENT
In consideration of One Dollar ($1.00) and other valuable consideration
now exchanged between the parties (the receipt of which is hereby acknowledged),
the Assignor hereby assigns to the Assignee the Assignor's interest in the
Premises together with the unexpired residue of the term of years and the Lease
and all benefits to be derived therefrom, subject to the payment of the rent and
observance and performance of the covenants on the part of the lessee (as
defined in the Lease), by the Assignee contained therein.
2. ACCEPTANCE BY ASSIGNEE
The Assignee hereby accepts this Assignment, subject to the terms of
the Lease, of the Assignor's interest in the Premises and the unexpired residue
of the term of years created by the Lease, together with an extension or renewal
thereof (the "term of years"), to be held by the Assignee as tenant of the
Landlord, subject always to the covenants contained herein.
-2-
3. ASSIGNOR'S COVENANTS WITH ASSIGNEE
The Assignor covenants with the Assignee:
(a) that the Lease is a valid and subsisting lease and that the rent
reserved thereby has been duly paid to the 31st day of March,
1997;
(b) that the covenants on the part of the lessee (as defined in the
Lease) have been duly observed and performed up to the date
hereof;
(c) that the Assignor is entitled to assign the Lease, subject only to
the attainment of the consent of the Landlord;
(d) that, subject to the payment of the rent and to the observance and
due performance of the covenants, on the part of the lessee (as
defined in the Lease) under the Lease, the Assignee may enjoy the
Premises for the residue of the term of years without interruption
by the Assignor or by person claiming through it; and
(e) that the Assignor shall at all times hereafter, at the request and
cost of the Assignee, execute such further assurances in respect
of this Assignment as the Assignee may reasonably require.
4. ASSIGNEE'S COVENANTS WITH ASSIGNOR
The Assignee covenants with the Assignor that the Assignee will,
throughout the residue of the term of years pay the rent reserved at the times
and in the manner provided in the Lease and observe and perform the covenants on
the part of the lessee (as defined in the Lease) therein set forth and will
indemnify and save harmless the Assignor from all actions, suits, costs, losses,
damages and expenses in respect of such covenants, including costs on a
solicitor and its own client basis.
5. ASSIGNEE'S COVENANTS WITH LANDLORD
The Assignee agrees with the Landlord that from the date that this
Assignment shall become effective, the Assignee shall become jointly and
severally bound by and be liable for the observation and due performance of all
the terms and conditions on the part of the lessee (as defined in the Lease), as
set forth in the Lease, as if the Assignee were an original party to the Lease.
6. ASSIGNOR'S COVENANTS WITH LANDLORD
The Assignor agrees with the Landlord that the Assignor will remain
jointly and severally liable to the Landlord, as a tenant, for and shall not be
discharged or released from the observation and due performance of any of the
terms and conditions on the part of the lessee (as defined in the Lease) under
the Lease, notwithstanding the Lease has been assigned to the Assignee or may
hereafter be amended, extended, renewed or otherwise modified and
notwithstanding the Landlord grants any forbearance or forgiveness of any breach
of any obligations of the lessee (as defined in the Lease) as set forth in the
Lease.
-3-
7. LANDLORD'S CONSENT
The Landlord hereby consents to the assignment of the Lease from the
Assignor to the Assignee as evidenced by its execution of this Assignment.
Subject to the provisions of paragraph 6 hereof, the Landlord hereby
accepts the Assignee as a party to the Lease as if the Assignee were an original
party thereto.
8. EFFECTIVE DATE
This Assignment shall become effective as of 12:01 a.m. on the 1st day
of April, 1997.
9. POWER TO XXX
The Assignor does hereby irrevocably appoint the Assignee its true and
lawful attorney with full power and authority in the name and on behalf of the
Assignor, its successors and assigns, but at the risk, expense and for the
benefit of the Assignee, its successors and assigns to xxx for, recover and
receive the rights hereby assigned and to give good and sufficient releases
therefor.
10. CAPTIONS
The captions appearing in this Assignment have been inserted as a
matter of convenience and for reference only, and in no way define, limit or
enlarge the scope of meaning of the Lease nor of any provision thereof or
hereof.
11. GOVERNING LAW
This Assignment and any rules or regulations adopted hereunder shall be
governed by the laws of the Province of Alberta.
12. TIME OF ESSENCE
Time is of the essence of these presents.
-4-
ENUREMENT
This Assignment and the terms and provisions hereof shall enure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, subject however to compliance by the Assignee with the
provision of the Lease in respect of assignments thereof.
IN WITNESS WHEREOF the parties hereto have hereunto executed this Assignment by
the hands of their duly authorized officers as of the day and year first above
written.
YELLOWBIRD PRODUCTS LIMITED
Per: /s/ Xxxxx X. Xxxxxxx
---------------------------
/s/ Xxxxxx X. Xxxxxxxx
---------------------------
PURE TECHNOLOGIES INC.
Per: /s/ Xxxxx X. Xxxxxxx
---------------------------
/s/ Xxxxxx X. Xxxxxxxx
---------------------------
STANDARD LIFE ASSURANCE COMPANY
Per:
---------------------------
STANDARD FORM OF OFFICE LEASE
from
THE STANDARD LIFE ASSURANCE COMPANY
to
YELLOWBIRD PRODUCTS LIMITED
for the
000 - 00xx Xxxxxx X.X.
Building
TABLE OF CONTENTS
PART 1 - INTERPRETATION
1. Performance 1
2. Rights and obligations 1
3. Consents 1
4. Dispute resolution 1
5. Fully net lease 2
6. Entire agreement 2
7. Definitions 2
(a) Additional Rent 2
(b) Additional Services 2
(c) Basic Rent 2
(d) Building 2
(e) Commencement Date 2
(f) Cost of Additional Services 2
(g) day or days 2
(h) End of the Term 2
(i) Event of Delay 2
(j) Government Body 2
(k) Inherent Structural Defects 2
(l) Insured Damage 3
(m) Land 3
(n) Lease 3
(o) Leasehold Improvements 3
(p) Normal Business Hours 3
(q) Operating Costs 3
(r) Premises 4
(s) Rent 4
(t) Share 4
(u) Taxes 4
(v) Term 4
8. Determining areas 4
9. Currency 4
10. Severability 4
11. Governing law 5
12. Construction 5
PART 2 - EARLY OCCUPANCY AND DELAYS
1. Early possession 5
2. Delay in delivering Premises 5
PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT
1. Deposit 5
2. Paying Rent 5
3. Basic Rent 5
4. Operating Costs 6
5. Cost of Additional Services 6
6. Taxes 7
7. Tenant's taxes and other charges 8
8. Additional Rent 8
9. Interest on arrears 8
10. Irregular periods 8
PART 4 - THE PREMISES
1. Examination of Premises 8
2. Possession and use of Premises 8
3. Insurance increases 9
4. Complying with laws 9
5. Quiet enjoyment 9
6. Regulations 9
7. Tenant's signs 9
- ii -
PART 5 - LANDLORD'S SERVICES AND ADDITIONAL SERVICES
1. Interior climate control 9
2. Elevators 9
3. Repairs and liability 9
4. Access 9
5. Washrooms 10
6. Janitor service 10
7. Water, telephone, and light 10
8. Additional Services 10
9. Energy and security 10
10. Light fixtures 10
PART 6 - DISPOSITIONS
1. Assigning and sub-letting 10
2. Change in control 11
3. Landlord's conveyance 11
4. Mortgaging 11
PART 7 - REPAIRS, RENOVATIONS, DAMAGE AND EXPROPRIATION
1. Landlord's repairs 11
2. Tenant's repairs 11
3. Inspection and access 11
4. Tenant renovations 11
5. Landlord renovations 12
6. Payment for work 12
7. Liens 12
8. Tenant's negligence and liability 12
9. Damage or destruction 12
10. Abatement 12
11. Expropriation 13
PART 8 - SURRENDERING PREMISES AND REMOVING FIXTURES
1. Surrender 13
2. Removal of fixtures 13
3. Survival 13
PART 9 - LIABILITY, INDEMNIFICATION AND INSURANCE
1. Limitation of Landlord's liability 14
2. Indemnification 14
3. Tenant's insurance 14
4. Landlord's insurance 15
PART 10 - PERFORMANCE OF TENANT'S COVENANTS, DEFAULT,
BANKRUPTCY, AND TERMINATION
1. Landlord may perform covenants 15
2. Right of re-entry on default or termination 15
3. Termination and re-entry 16
4. Payment of Rent on termination 16
5. Re-letting 16
6. Method and waiver on re-entry 16
7. Bankruptcy or insolvency 16
8. Distress 16
9. Cumulative remedies 16
10. Waiver and condoning 16
11. Legal fees 16
- iii -
PART 11 - GENERAL PROVISIONS
1. Events of Delay 17
2. Overholding 17
3. Exhibiting Premises 17
4. Subordination 17
5. Certificates 17
6. Notices 17
7. Time of essence 18
8. Registration 18
9. Liability 18
10. Relocation of Premises 18
11. Covenantor's obligations 19
12. Brokerage 19
13. Additional provisions 19
14. Binding effect 19
Execution Page 20
SCHEDULE A TO LEASE - ADDITIONAL PROVISIONS
SCHEDULE B TO LEASE - FLOOR PLAN(S)OF PREMISES
SCHEDULE C TO LEASE - VARIABLE OPERATING COSTS EXAMPLE
SCHEDULE D TO LEASE - REGULATIONS
SCHEDULE E TO LEASE - DESCRIPTION OF LAND
THIS LEASE dated as of this 25th day of February, 1997.
BETWEEN:
THE STANDARD LIFE ASSURANCE COMPANY, having its principal office
in Montreal, Quebec, and having an office at 000, 000 - 0xx
Xxxxxx XX, Xxxxxxx, Xxxxxxx, X0X OS4
(the "Landlord")
AND:
YELLOWBIRD PRODUCTS LIMITED
0000, 000 - 00xx Xxxxxx XX Xxxxxxx,
Xxxxxxx X0X 0X0
(the "Tenant")
WITNESSES that the Landlord leases the Premises to the Tenant and
the Tenant accepts that lease, for the Term, on the following terms and
conditions to which the Landlord and Tenant agree:
PART 1 - INTERPRETATION
PERFORMANCE 1. In exercising its rights and carrying out its
obligations, each of the Landlord and Tenant will act
reasonably, prudently, promptly, and fairly.
RIGHTS AND 2. All the Landlord's and Tenant's rights and
OBLIGATIONS obligations in this Lease will apply throughout the
Term, and longer if the Lease so states.
CONSENTS 3. If either the Tenant or the Landlord needs the
other's consent, it will obtain that consent in writing
before proceeding. Neither party will unreasonably
withhold or delay its consent.
DISPUTE 4. Where the Landlord is obliged to refer any dispute or
RESOLUTION question to an auditor, real estate appraiser or other
expert experienced in assessment appeals, surveyor,
engineer, architect, insurance consultant, or other
professional: (i) the Landlord will select a person who
is at arm's-length from the Landlord, except that the
Landlord may use its external auditor and other
arm's-length persons with whom the Landlord has
dealings, (ii) that person's decision or determination
will
- 2 -
be conclusive and binding on the Landlord and Tenant,
and (iii) each of the Landlord and Tenant will pay 50%
of that person's fees and disbursements.
FULLY NET 5. This Lease will be a carefree fully net Lease for the
LEASE Landlord, except if an item is expressly stated to be
for the Landlord's account. Otherwise, the Tenant will
pay all outgoings with respect to the Premises, their
use, occupancy, and contents including its Share of
Operating Costs and Taxes, and the Cost of Additional
Services. The Tenant will also pay its costs of carrying
out its obligations under this Lease.
ENTIRE 6. No verbal, written, express, or implied
AGREEMENT representations, warranties, guarantees, covenants or
agreements of either the Landlord or the Tenant will
survive the signing of this Lease except if they are set
out in this Lease. This Lease constitutes the entire
agreement between the Landlord and Tenant. This Lease
may only be modified by an express written agreement,
made after the Lease has been executed, which both the
Landlord and Tenant have signed.
7. In this Lease:
(a) "ADDITIONAL RENT" means all money the Tenant
must pay under this Lease, including
indemnities, but excluding Basic Rent.
(b) "ADDITIONAL SERVICES" means the services and
supervision the Landlord supplies to the Tenant
over and above what the Landlord supplies as the
standard level of services included in Operating
Costs and available to Building occupants
generally.
(c) "BASIC RENT" means the annual rent the Tenant is
to pay under paragraph 3 of Part 3.
(d) "BUILDING" means the office building, and the
common areas, improvements, and amenities from
time to time on the Land or in the office
building.
(e) "COMMENCEMENT DATE" means the 1st day of March,
1997.
(f) "COST OF ADDITIONAL SERVICES" means the
Landlord's costs of providing Additional
Services, together with a supervisory fee equal
to 15% of those costs.
(g) "DAY" or "DAYS" means a calendar day or calendar
days.
(h) "END OF THE TERM" means the expiry or earlier
termination of the Term.
(i) "EVENT OF DELAY" means an event or cause beyond
the reasonable control of the Landlord or the
Tenant, as the case may be, including acts of
God, labour or industrial disturbances, civil
disturbances, wars, interruptions by Government
Body or court orders, transportation
disruptions, or shortages of materials.
(j) "GOVERNMENT BODY" means any municipal,
provincial, federal, school, or other statutory
authority, or department or agency thereof.
(k) "INHERENT STRUCTURAL DEFECTS" mean material
defects in the structure of the Building which
an architect or engineer, appointed by the
Landlord, certifies, in his opinion, to be the
result of an ascertainable
- 3 -
error in design or workmanship or of the use of
substandard building materials.
(l) "INSURED DAMAGE" means damage by fire or other
peril to the Building or to the Premises which
the Landlord is responsible for repairing and
for which the Landlord may actually recover the
entire cost of repair under the Landlord's
insurance policies.
(m) "LAND" means the land described in Schedule E.
(n) "LEASE" means this document and the attached
schedules.
(o) "LEASEHOLD IMPROVEMENTS" mean all improvements,
alterations, partitions, or fixtures from time
to time installed for or by the Tenant in the
Premises, except for furniture and readily
removable trade fixtures and equipment which are
not hard wired or plumbed.
(p) "NORMAL BUSINESS HOURS" mean the hours of 7:00
a.m. to 6:00 p.m. Monday to Friday except for
statutory holidays.
(q) "OPERATING COSTS" mean the total, without
duplication, of all costs, calculated according
to Canadian generally accepted accounting
principles consistently applied, which the
Landlord incurs directly or indirectly to
manage, operate, maintain, repair, replace, or
preserve the Land and the rentable and
non-rentable areas of the Building including,
without limitation, the costs of: (i) complete
landscaping, gardening, cleaning, janitorial,
supervisory, and maintenance services, (ii)
operating elevators, (iii) heating, cooling, and
ventilating, (iv) hot and cold water, (v)
electricity and power including lighting and
other utilities and services, (vi) cleaning,
maintaining, and servicing all electric lighting
fixtures, and replacing light bulbs, tubes,
relays, starters, and ballasts, (vii) repairing
and servicing elevators and any interior climate
control system, (viii) window cleaning,
painting, and sanitary control, (ix) security,
(x) insurance premiums for fire, liability, loss
of rent, elevator liability, and other risks for
which the Landlord considers insurance to be
necessary, (xi) Capital Tax, being the tax or
excise imposed by a Government Body on the
Landlord measured by or based in whole or in
part upon the capital employed by the Landlord,
calculated as if the amount of such tax or
excise were the amount due if the Building were
the Landlord's only real property, and includes
the amount, if any, of any capital or place of
business tax imposed by a Government Body on the
Landlord with respect to the Building, (xii)
accounting and audit charges for calculating
Operating Costs, Taxes, and other costs, (xiii)
salaries, wages, and fringe benefits paid to
Building employees, and amounts paid to
independent contractors, and bona fide expenses
of such persons, (xiv) a management fee equal to
Four (4)% of the aggregate, for each calendar
year during the Term, of all rents and other
charges payable to the Landlord by tenants of
the Building, including Operating Costs and
Taxes, (xv) renting or buying signs, equipment,
and supplies, and sales and excise taxes on
goods and services, (xvi) interest on expenses
which the Landlord incurs and then amortizes for
a reasonable period, which interest will be
calculated yearly and will be equal to the Bank
of Canada prime rate of interest in effect on
the date the Landlord incurred the expense,
(xvii) managing,
- 4 -
operating, maintaining, repairing, replacing, or
preserving the roof, lobbies, hallways,
ceilings, washrooms, elevators, and amenity
areas, and (xviii) any additions or
modifications to the Building that are required
by any Government Body or that are incurred to
reduce (or to slow the rate of increase of) an
Operating Cost; but excluding the costs of: (i)
Taxes, (ii) Landlord's debt service, (iii)
correcting Inherent Structural Defects or
initial maladjustments in operating equipment,
and (iv) leasing commissions and rental
advertising.
In calculating Operating Costs there will be a
credit for insurance proceeds for Insured Damage
which the Landlord actually recovers, and for
recovery from Building occupants of electricity
and light bulbs, and tube and ballast
replacement, to the extent that such items were
included in Operating Costs.
(r) "PREMISES" mean the office space located on the
10th floor(s) of the Building consisting of
3,216 rentable square feet more or less, and
outlined in red on the floor plan attached as
Schedule B.
(s) "RENT" means Basic Rent and Additional Rent.
(t) "SHARE" means 2.6651%, being the Tenant's
portion of Operating Costs and Taxes, and being
the proportion that the rentable area of the
Premises bears to the rentable area of the
Building.
(u) "TAXES" mean all taxes, duties, rates, levies,
assessments, or charges including those for
local improvements, education, and schools
levied, imposed, or assessed from time to time
by any Government Body against the Land, the
Building, or the Landlord in respect thereof,
including all taxes which the Landlord is
obliged to pay to any Government Body on goods
and services which are supplied or provided to
or for the benefit of the Land or Building, or
the tenants, together with legal and other
professional fees and interest and penalties on
deferred payments which the Landlord incurs in
good faith to contest or appeal the amount or
validity of those various charges. "Taxes" will
not include tax or licence fees on businesses
carried on by Building occupants, or corporate
income, profits, or excess profits tax upon the
Landlord's income to the extent that such tax is
not levied in lieu of the various charges.
(v) "TERM" means the term of Five (5) years and Zero
(0) months starting on the Commencement Date and
ending on February 28th, 2002, and any renewal
of the Term and any period of permitted
overholding.
DETERMINING 8. If the demising walls of the Premises have not been
AREAS constructed when this Lease is signed or if either the
Landlord or Tenant dispute at any time the rentable area
of the Premises or the rentable area of the Building,
the Landlord will appoint a land surveyor or architect
to determine the applicable rentable area according to
industry (BOMA, if applicable) standards.
CURRENCY 9. All references to money are to lawful currency of
Canada.
SEVERABILITY 10. If any provision of this Lease is unenforceable, it
will be severed.
- 5 -
GOVERNING 11. This Lease will be governed by the laws of the
LAW jurisdiction where the Land is located.
CONSTRUCTION 12. Singulars will include plurals and masculines will
include feminines and neuters, and vice-versa. If the
word "including" is used, the words "without limiting
the generality of the foregoing" will be deemed to
follow. Headings are for convenience of reference only.
PART 2 - EARLY OCCUPANCY AND DELAYS
EARLY 1. If the Tenant uses or occupies the Premises before
POSSESSION the Commencement Date, the provisions of this Lease and
any further provisions in Schedule D will apply.
DELAY IN 2. If the Premises are not ready for occupancy by the
DELIVERING Tenant on the Commencement Date because a prior
PREMISES overholding has unlawfully refused to leave or because
of an Event of Delay, the Landlord will not be liable
for loss or damage resulting from the delay, and the
Term will start on the Commencement Date, but the Tenant
need not pay Rent until the Landlord gives it occupancy.
In any such case, the Landlord will provide occupancy to
the Tenant as quickly as possible.
PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT
PAYING RENT 2. The Tenant will pay Rent duly and punctually to THE
STANDARD LIFE ASSURANCE COMPANY at 200, 640 - 6th Avenue
SW, Calgary. Alberta. T2P 084 or to such other person or
place of which the Landlord gives notice to the Tenant.
The Tenant will pay Rent without deduction, abatement,
or set-off, except as permitted by paragraphs 4 and 6 of
Part 3. The Tenant's obligation to pay Rent due during
the Term will survive the End of the Term.
BASIC RENT 3. The Tenant will pay basic rent, as follows:
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Years(s) From To $ Per Rentable $ Per Month $ Per Annum
Square Foot
Per Annum
-----------------------------------------------------------------------------------------------
1 - 2 Mar-01-1997 Feb-28-1999 $5.00 $1,340.00 $16,080.00
-----------------------------------------------------------------------------------------------
3 Mar-01-1999 Feb-28-2000 $5.50 $1,474.00 $17,688.00
-----------------------------------------------------------------------------------------------
4 - 5 Mar-01-2000 Feb-28-2002 $6.00 $1,608.00 $19,296.00
-----------------------------------------------------------------------------------------------
- 6 -
OPERATING 4. The Term will consist of fiscal periods of 12
COSTS consecutive months, each ending on October 31st, except
that the first and last fiscal periods may be shorter.
The Landlord may change the date on which the fiscal
periods end by giving the Tenant at least 60 days'
advance notice. In any such case, the then current
fiscal period will be extended or shortened so that it
ends on the new date. Before the Term starts and before
each fiscal period starts, the Landlord may give the
Tenant an estimate of its monthly Share of Operating
Costs for the then existing fiscal period or the coming
fiscal period. The Tenant will pay that estimated Share
or, if no estimate is given, the same Share it was
paying for the previous fiscal period, monthly on the
same dates and in the same manner that it pays Basic
Rent.
Operating Costs may be either fixed or variable.
Fixed Operating Costs are not affected by the Building's
occupancy level. Three typical examples of fixed
Operating Costs are: exterior window washing, fire alarm
monitoring, and exterior landscaping maintenance. The
Tenant's share of fixed Operating Costs will be based on
the actual amount of fixed Operating Costs.
Variable Operating Costs are affected by the
Building's occupancy level. Three typical examples of
variable Operating Costs are: janitorial cleaning,
management fee, and heating. To ensure the equitable
allocation of variable Operating Costs between the
Landlord and tenants, if the Building's average
occupancy level is less than ninety-five per cent for
any fiscal period, the Landlord may adjust the actual
variable Operating Costs to an amount applicable to a
ninety-five per cent occupancy level. The sole purpose
of such adjustment is to ensure that the Landlord will
pay that portion of variable Operating Costs applicable
to vacant space, and the tenants will pay that portion
applicable to occupied space. (See example in Schedule
C.) The Tenant's share of variable Operating Costs will
be based on the actual or adjusted amount of variable
Operating Costs, as the case may be.
After the Landlord has completed its accounting for
each fiscal period, the Landlord will give the Tenant a
statement of the Operating Costs for that fiscal period.
If the statement shows a shortfall between the estimated
Share of Operating Costs the Tenant has paid for that
fiscal period and its actual Share, the Tenant will pay
that shortfall within 30 days after it receives the
statement. If the statement shows that the Tenant has
paid too much, the Tenant will receive a credit for the
difference. If the Tenant questions any Operating Cost,
it may examine the Landlord's books and records with
regard to the Building. Either the Landlord or the
Tenant may give notice to the other, within 90 days
after the Tenant receives that statement, correcting or
disputing the calculation, or allocation, of any
Operating Cost. If the Landlord and Tenant cannot agree
on the correction or resolve the dispute within 10 days
after the notice is given, the Landlord will give such
notice to an auditor who will determine the correction
or dispute. If the auditor's decision requires an
adjustment in what the Tenant has paid, it will be made
in the same manner as actual Operating Costs
adjustments.
COST OF 5. The Tenant will pay to the Landlord, in the same
ADDITIONAL manner it pays its Share of Operating Costs or in such
SERVICES other manner as the Landlord may request, the Landlord's
extra costs in respect of the Tenant's use of the
Premises outside of Normal Business Hours or in respect
of extra interior climate control, electrical, or other
services, or materials, which result from the Tenant's
activities, or requests, over and above those normally
provided to Building occupants or outside of Normal
Business Hours. Paragraph 4 of Part 3 will apply to
those
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extra costs so far as applicable. The Landlord may
install meters, at the Tenant's cost, to check the
Tenant's consumption of utilities.
TAXES 6. The Term will consist of tax periods of 12
consecutive months, each ending on December 31st, except
that the first and last tax periods may be shorter. The
Landlord may change the date on which the tax periods
end by giving the Tenant at least 60 days' advance
notice. In any such case, the then current tax period
will be extended or shortened so that it ends on the new
date. If the Premises or any property or rights specific
to the Tenant are assessed separately in respect of any
tax period by the relevant Government Body, the Landlord
will calculate the Tenant's share of Taxes on that
separate basis. If Taxes are greater than they would
normally be because of the Tenant's constitution,
ownership, or use of the Premises, school support,
assessment by the relevant Government Body using an
income approach, or other reason specific to the Tenant,
the Landlord may determine that greater amount and
include it in the estimate of the Tenant's Share of
Taxes. The Tenant may contest or appeal the amount or
validity of any separate or higher assessment if the
Tenant pays such assessment as required, gives the
Landlord a copy of the appeal, and pays all appeal
costs. Before the Term starts and before each tax period
starts, the Landlord may give the Tenant an estimate of
its monthly Share of Taxes and any further share of
Taxes payable under this paragraph 6 for the then
existing tax period or the coming tax period. The Tenant
will pay that estimated Share or, if no estimate is
given, the same Share it was paying for the previous
fiscal period, monthly on the same dates and in the same
manner that it pays Basic Rent. After each tax period
ends, the Landlord will give the Tenant a statement of
the actual Taxes due from that Tenant for that tax
period which will include any separate or higher Taxes
due. If the statement shows a shortfall between the
estimated Share of Taxes and any further share of Taxes
payable under this paragraph 6 which the Tenant has paid
for that tax period and its actual Share and any further
share, the Tenant will pay that shortfall within 30 days
after it receives the statement. If the statement shows
that the Tenant has paid too much, the Tenant will
receive a credit for the difference. Either the Landlord
or the Tenant may give notice to the other, within 90
days after a tax period ends, correcting or disputing
the calculation, or allocation of any Taxes. If the
Landlord and Tenant cannot agree on the correction or
resolve the dispute within 10 days after the notice is
given, the Landlord will give such notice to a real
estate appraiser or other expert experienced in
assessment appeals who will determine the correction or
dispute. If the decision of such appraiser or other
expert requires an adjustment in what the Tenant has
paid, it will be made in the same manner as adjustments
of actual Taxes. Subject to the Tenant's obligation to
pay its Share of Taxes, the Landlord will pay the Taxes,
except that the Landlord may defer payment if deferment
is lawful. Except as set out in this paragraph 6, the
Tenant may not contest or appeal the amount or validity
of Taxes. The Landlord may contest or appeal the amount
or validity of Taxes but will not be obliged to do so.
If the Landlord has so contested or appealed, the
Landlord may compromise, waive, or settle without
reference to the Tenant. If the Landlord receives a
reduction in the Taxes and if the Tenant has paid its
Share of the Taxes which are reduced, the Tenant will
receive a credit for its Share of the reduction. The
Tenant will pay its Share of any increase in Taxes as a
result of such contest or appeal. If the Landlord cannot
obtain from the appropriate Government Body or public or
private utility an allocation of Taxes or of any other
taxes, duties, rates, levies, assessments, or charges
which the Tenant is obliged to pay, which is sufficient
to calculate the Tenant's Share or portion, the Landlord
will make that allocation.
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TENANT'S 7. The Tenant will pay, as and when due, to the
TAXES AND appropriate Government Body or public or private utility
OTHER CHARGES all licence fees, taxes, rates, duties, levies,
assessments, or other charges imposed, assessed, or
levied by any Government Body or public or private
utility from time to time, whether imposed on the
Landlord or the Tenant, in respect of: (i) the personal
property, fixtures, business, franchise, income,
occupancy, use, or sales of the Tenant or other occupant
of the Premises, (ii) Leasehold Improvements, fixtures,
or machinery installed in the Premises by or for the
Tenant, (iii) other space used by the Tenant in the
Building, (iv) utilities and services used in or
supplied to the Premises, to the extent that the
Landlord has not included them in Operating Costs, and
(v) tax on goods and services which the Landlord
provides or causes to be provided to or for the benefit
of the Tenant or the Premises. If any such charges are
not allocated separately for the Premises, the Landlord
will make that allocation and if utilities or services
are not sub-metered, the allocation will be on a
connected load and usage or other equitable basis. Upon
request by the Landlord, the Tenant will give the
Landlord evidence that the Tenant has paid those charges
as required.
ADDITIONAL 8. The Tenant will pay all Additional Rent upon demand
RENT by the Landlord unless other times for its payment are
expressly set out in this Lease. If the Tenant fails to
pay any Additional Rent, as and when due, the Landlord
will have the same remedies for its collection as it has
for recovering Basic Rent in arrears. If the Tenant
fails to pay any sum which the Tenant is obliged to pay,
then subject to paragraph 7 of Part 7, the Landlord may
pay it and it will then be a debt owing by the Tenant to
the Landlord.
INTEREST ON 9. When any Rent, or any interest accrued thereon, is in
ARREARS arrears, it will bear interest at 1.5% per month
compounded monthly, from the date such Rent became due
to and including the date of payment. The Landlord will
have all remedies for its collection as it has for
recovering Basic Rent in arrears.
IRREGULAR 10. If the Term begins or ends other than on the first
PERIODS or last day of a month or if the first or last fiscal
period or tax period is less than 12 months, Rent for
any broken month or broken period will be pro rated at a
rate per day equal to 1/365 of the annual Rent.
PART 4 - THE PREMISES
EXAMINATION 1. The Tenant will inspect the Premises before taking
OF PREMISES possession and will give the Landlord notice of any
problems. If the Tenant does not give notice, the
Premises will be deemed to be satisfactory, except for
Inherent Structural Defects.
POSSESSION 2. The Tenant will: (i) take possession of the Premises
AND USE OF on the Commencement Date, (ii) not allow anyone except
PREMISES for its employees, customers, other persons lawfully
having business with the Tenant, or permitted
sub-tenants, to use or occupy the Premises, (iii) use
the Premises only for general office use, unless the
Landlord consents to another use, (iv) not let the
Premises remain vacant for more than 5 consecutive days,
(v) not do anything in the Premises which is noxious,
dangerous, or offensive or which would be a nuisance or
disturb other Building occupants, (vi) not overload the
Premises floor without the Landlord's consent beyond a
capacity of Fifty Pounds (50 lbs) Per Square Foot, (vii)
not cause any waste or damage to the Premises, (viii)
not let the Premises become untidy or unsightly, and at
the end of each business day leave them in such a
condition that they can be cleaned, and (ix) not store
any dangerous or inflammable substances in the Premises.
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INSURANCE 3. The Tenant will not do or omit to do anything in the
INCREASES Premises which would result in any increase in the
Landlord's insurance premiums but, if the Landlord's
premiums are increased, the Tenant will pay the increase
to the Landlord. The Landlord, by its representatives,
may at any time enter the Premises to remove any article
or remedy any condition which, in the Landlord's
opinion, would be likely to lead to cancellation of any
insurance policy. Such entry by the Landlord will not be
deemed a re-entry or a trespass. If any insurance policy
of the Landlord is subject to cancellation or is
cancelled by reason of the Tenant's use of the Premises,
the Landlord may terminate this Lease by giving 10 days'
notice to the Tenant, except if the Tenant has cured the
problem within that 10 day period. In such case,
Paragraph 1 of Part 11 will not apply.
COMPLYING 4. The Tenant will comply with all lawful requirements
WITH LAWS of Government Bodies and insurance companies who hold
policies which affect the Land or Building, with respect
to its operation and use of the Premises, the condition
of the Tenant's Leasehold Improvements, trade fixtures,
furniture and equipment, and any repairs or renovations
the Tenant makes or is obliged to make to the Premises.
QUIET 5. If the Tenant duly and punctually pays the Rent and
ENJOYMENT complies with its obligations, the Tenant will be
entitled to peaceably possess and enjoy the Premises
during the Term.
REGULATIONS 6. The Tenant will comply with the regulations attached
as Schedule D and with any amendments to them or any new
regulations which the Landlord makes in connection with
the use, occupancy, repair, maintenance, or operation of
the Land or the Building. The regulations will form part
of this Lease.
TENANT'S 7. The Tenant will not place or affix any signs,
SIGNS symbols, or lettering outside the Premises, inside the
Premises if visible from outside, or inside or outside
the Building, except for a building standard
identification sign at or near the Premises entrance and
a directory listing in the Building's main lobby, both
of which will be subject to the Landlord's consent as to
design, colour, size, and location. The Landlord
reserves the right to install such signs as an
Additional Service.
PART 5 - LANDLORD'S SERVICES AND ADDITIONAL SERVICES
INTERIOR 1. The Landlord will provide to the Premises, during
CLIMATE Normal Business Hours, by means of a system for heating,
CONTROL cooling, filtering and circulating air, processed air in
quantities and at temperatures which will keep the
Premises comfortable for normal office purposes based on
normal occupancy, to building standards for comparable
buildings in the vicinity. However, the Landlord will
not be responsible for any inadequacy in the system if
the Premises depart from the design criteria set out in
the regulations.
ELEVATORS 2. The Landlord will furnish elevator service, if
installed, to the Premises for use by the Tenant and its
invitees, in common with others, but under the
Landlord's supervision and subject to the regulations.
REPAIRS AND 3. If, in the Landlord's opinion, the interior climate
LIABILITY control system or the elevators need repair,
replacement, or alteration, the Landlord may interrupt
or reduce service, but will so repair, alter, or replace
within a reasonable time.
ACCESS 4. The Tenant and its invitees, in common with others,
may use the common entrances, lobbies, stairways, and
corridors of the Land and Building to gain access to the
Premises, subject to the regulations.
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WASHROOMS 5. The Tenant and its invitees, in common with others,
may use the washrooms on the floor(s) on which the
Premises are located.
JANITOR 6. The Landlord will provide cleaning services,
SERVICE generally by external janitorial contract, to the
Premises and the Building in accordance with modern
building standards for comparable buildings in the
vicinity. The Landlord will use reasonable efforts, as a
prudent owner, to ensure a good standard of service and
conduct from cleaning personnel.
WATER, 7. The Landlord will provide building standard ducts to
TELEPHONE, bring telephone services to the Premises, hot and cold
AND LIGHT water to building standard washrooms, and reasonable
lighting to the Premises and to Building common areas.
ADDITIONAL 8. The Landlord will have the exclusive right, by way of
SERVICES Additional Services, to provide to the Premises
extra cleaning services requested by the Tenant, and to
supervise the moving of the Tenant's furniture or
equipment, and the Tenant's repairs or alterations in
the Premises. If the Landlord provides Additional
Services, by right or by agreement with the Tenant, the
Tenant will pay the Cost of Additional Services to the
Landlord.
ENERGY AND 9. The Tenant will co-operate with the Landlord to
SECURITY conserve energy and to maintain security.
LIGHT 10. The Landlord will have the exclusive right to
FIXTURES install, repair, maintain, clean, relamp, and
destaticize fluorescent fixtures at competitive rates.
PART 6 - DISPOSITIONS
ASSIGNING AND 1. The Tenant will not assign this Lease or sub-let or
SUB-LETTING part with possession of the whole or any part of the
Premises for the whole or any part of the Term, without
a bona fide written offer and without the Landlord's
consent. If the Tenant wants the Landlord's consent, it
will give the Landlord a true copy of the offer and any
information the Landlord may require with regard to the
reputation, financial standing, and business of the
proposed assignee, sub-tenant, or occupant. Within 10
days after the Landlord receives the last of that
information, or within 10 days after it receives the
request for consent if it has not asked for any
information, the Landlord will advise the Tenant that
the Landlord: (i) consents, (ii) refuses to consent
(with the reasons for such refusal) , or (iii) wishes,
if the request is to assign this Lease or to sub-let or
part with possession of the whole Premises, to terminate
this Lease or wishes, if the request is to sub-let or
part with possession of part of the Premises, to
terminate this Lease with respect to such part. If the
Landlord consents, then the Tenant may complete its
transaction only on the terms set out in the offer and
only if it does so within 60 days after it receives the
Landlord's consent. If the Landlord wishes to terminate
this Lease, in whole or in part, the Tenant may withdraw
its request within 10 days after it receives the
Landlord's advice. If the Tenant does not withdraw its
request, then this Lease will be terminated, in whole or
in part, on a date required by the Landlord which will
be not less than 30 nor more than 60 days after the
later of the date the Landlord receives the Tenant's
request for consent or the date the Landlord receives
the last of the requested information from the Tenant.
If the Tenant surrenders only part of the Premises, Rent
will xxxxx thereafter proportionately. Despite any such
assigning, sub-letting, or parting with possession, the
Tenant will remain liable for the Tenant's obligations.
If the Landlord gives its consent to an assignment, the
Landlord may require the Tenant to obtain the assignee's
direct covenant with the Landlord to
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comply with the Tenant's obligations, as a condition of
the consent. The Tenant will not advertise the Premises
for assignment or sub-letting except if the Landlord has
approved the proposed text. In no event will the rental
rate appear in any advertisement.
CHANGE 2. If the Tenant is a private company, any sale or other
IN CONTROL disposition of its shares or securities resulting in a
change of control or beneficial ownership will be deemed
to be an assignment under paragraph 1 of Part 6.
LANDLORD'S 3. If the Landlord sells the Landand Building, it will
CONVEYANCE have no further obligation to the Tenant except for then
existing defaults by the Landlord.
MORTGAGING 4. The Tenant will not mortgage or charge its leasehold
interest in the Premises, fixtures, chattels, furniture,
or equipment, without the Landlord's consent.
PART 7 - REPAIRS, RENOVATIONS, DAMAGE AND EXPROPRIATION
LANDLORD'S 1. The Landlord will keep the Building in a good and
REPAIRS reasonable state of repair and maintenance, consistent
with the standards for comparable buildings in the
vicinity, except for the non-structural elements of the
Premises and other premises and reasonable wear and
tear, and will repair Insured Damage except if the Lease
is terminated under paragraph 9 of this Part 7.
TENANT'S 2. The Tenant will keep the Premises, its Leasehold
REPAIRS Improvements, its trade fixtures, and any plate or other
glass in the Premises or in the exterior walls of the
Premises in a good and reasonable state of repair and
maintenance, consistent with the standards for
comparable offices in the vicinity, except for the
structural elements of the Premises, reasonable wear and
tear, and Insured Damage, and except if the Lease is
terminated under paragraph 9 of Part 7. Paragraph 4 of
this Part 7 will apply to Tenant repairs. The Tenant
will repair according to notice from the Landlord.
INSPECTION 3. The Landlord, by its representatives, may enter the
AND ACCESS Premises at all reasonable times and during any
emergency to: (i) inspect or supervise repair,
maintenance, or renovation, (ii) do its own repairs,
maintenance, or renovations, (iii) gain access to
utilities and services (including underfloor or overhead
ducts and access panels), and (iv) determine electric
light, power and water consumption by the Tenant in the
Premises. In doing its repairs or renovations, the
Landlord may bring equipment and material into the
Premises. The Tenant will not be entitled to
compensation for any inconvenience, nuisance, or
discomfort caused by the Landlord's work in the
Premises, but the Landlord will disturb the Tenant's use
and enjoyment of the Premises as little as reasonably
possible.
TENANT 4. The Tenant will not construct, install, or alter
RENOVATIONS anything in the Premises without the Landlord's consent.
When requesting that consent, the Tenant will give the
Landlord a copy of reasonably detailed drawings and
specifications for the proposed work. The Tenant will do
such work in a good and workmanlike manner, in
accordance with the drawings and specifications the
Landlord has approved, and in accordance with the
Landlord's reasonable requirements. The Tenant will use
contractors and subcontractors to whom the Landlord has
consented, except that the Landlord may designate the
contractors and subcontractors to be used for
mechanical, structural, or electrical design and work
and except that the labour union affiliations of workers
must be compatible with those of workers employed by the
Landlord or its contractors. The Landlord's consent,
inspection, and supervision with
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respect to any such work will be Additional Services.
Upon completing any work, the Tenant will deliver to the
Landlord a full set of as-built drawings which the
Landlord may keep.
LANDLORD 5. The Landlord may alter the Building from time to time
RENOVATIONS including constructing additional floors, altering the
Building's size, or altering the location, dimensions,
or specifications of utilities, common areas, or
mechanical systems so long as the physical dimensions of
the Premises are not materially altered as a result. The
Tenant waives and renounces all claims which may result
from any such alteration. If such alteration results in
additional land being added to the Land or being used to
service the Building, such additional land will be
deemed to form part of the Land. If such alteration
results in a change in the rentable area of the
Building, the Landlord may modify the Tenant's Share
accordingly.
PAYMENT FOR 6. The Tenant will pay all accounts for its renovations
WORK and repairs as and when due, except as set out in
paragraph 7 of this Part 7.
LIENS 7. The Tenant will discharge any builder's or other lien
filed against the Tenant's leasehold interest or against
the Land, by reason of work, labour, services, or
materials provided or alleged to have been provided to
the Tenant, as soon as it comes to the Tenant's notice.
If the Tenant gives the Landlord notice that it wants to
contest in good faith any lien and if the Tenant
deposits with the Landlord or pays into Court the amount
of the lien claim plus an amount for costs satisfactory
to the Landlord or the Court, as the case may be, then
the Tenant may defer paying the lien claim while it
contests the claim with due diligence, except that if
the Tenant's leasehold interest or the Land thereby
becomes liable, in the Landlord's judgement, to
forfeiture or sale, the Landlord may discharge any such
lien. In that case, the Tenant will reimburse the
Landlord for the amount of the lien and its costs of so
discharging.
TENANT'S 8. If any part of the Building, including the interior
NEGLIGENCE climate control and utilities systems, needs repair or
AND LIABILITY replacement by reason of the fault or negligence of the
Tenant or its invitees or licensees, the Tenant will be
liable therefor and for resulting or consequential
injury, loss, or damage.
DAMAGE OR 9. If the Premises or the Building are materially
DESTRUCTION damaged by any cause, the Landlord, within 10 days after
the damage occurs, will appoint an architect or engineer
to determine, within 30 days, the extent of the damage
and how long he estimates the damage will take to
repair. The Landlord will give the Tenant a copy of the
architect's or engineer's report. If the report
indicates that the Premises or Building will take more
than 180 days from the date of the report to repair,
then either the Landlord or the Tenant may give notice
to the other, within 10 days after receipt of the
report, terminating this Lease. If the Lease is so
terminated, the termination date will be the l0th day
after the date the Landlord or the Tenant receives such
notice from the other, and in such case neither the
Landlord nor the Tenant will be obliged to repair. If
the Lease is not so terminated, each of the Landlord and
Tenant will repair the damage to the extent it is
obliged to do so under paragraph 1 or paragraph 2 of
this Part 7.
ABATEMENT 10. If the Premises are not reasonably capable of use
and occupancy by the Tenant for its business for more
than 10 days as a result of any damage, Rent will xxxxx,
from the date of the damage, in proportion to the part
or parts of the Premises not reasonably capable of use
and occupancy until the Premises are again reasonably
capable of such use and occupancy or, with respect to
the Tenant's repairs after such
- 13 -
damage, until such time as, in the Landlord's opinion,
those repairs ought to have been completed. If the
Landlord and Tenant disagree on the extent or time of
the abatement, the Landlord will ask an architect or
engineer to determine the dispute.
EXPROPRIATION 11. If a Government Body expropriates all or part of the
Land or Building, the Landlord, within 60 days after it
receives the notice of expropriation, may give the
Tenant not less than 30 days' notice terminating the
Lease. If a Government Body expropriates all or part of
the Premises such that any remainder is not reasonably
capable of use and occupancy, the Tenant, within 60 days
after it receives the notice of expropriation, may give
the Landlord not less than 30 days' notice terminating
the Lease. If the Lease is so terminated, neither the
Landlord nor Tenant will have any claim against the
other with respect to the expropriation. Each of the
Landlord and Tenant may claim against the Government
Body for compensation for loss of its interest and may
retain any compensation awarded to it. Each of the
Landlord and Tenant will co-operate with the other in
pursuing its respective claim. If the Landlord receives
a compensation award which specifically includes an
award to the Tenant, the Landlord will remit the
Tenant's portion to it. If the Lease is not so
terminated then paragraph 9 of this Part 7 will apply to
any repairs which are necessary as a result of the
expropriation and paragraph 10 of this Part 7 will apply
to abatement of Rent during any repair period. After the
later of the date of expropriation or the repair period,
if any, Rent will be adjusted so that it will bear the
same proportion to the original Rent as the area of the
remaining Premises bears to the area of the Premises
immediately before the expropriation, and the Tenant's
Share will be adjusted in the same manner.
PART 8 - SURRENDERING PREMISES AND REMOVING FIXTURES
SURRENDER 1. At the End of the Term, the Tenant will surrender
possession of the Premises and the Tenant's Leasehold
Improvements to the Landlord, without compensation, in
the condition in which the Tenant was obliged to keep
them during the Term. The Tenant's Leasehold
Improvements will remain the Landlord's property, except
for those the Tenant is obliged to remove under
paragraph 2 of this Part 8. At the End of the Term, the
Tenant will give the Landlord a surrender of this Lease,
which will be in form acceptable for registration if
applicable.
REMOVAL OF 2. During the Term, the Tenant will not remove from the
FIXTURES Premises its Leasehold Improvements, trade fixtures,
furniture or equipment, except for furniture and
equipment which, in the normal course of its business,
is no longer needed or is being replaced by furniture or
equipment of equal or better quality and except as set
out in this paragraph. At the End of the Term, the
Tenant will remove from the Premises: (i) its trade
fixtures, (ii) its furniture and equipment, and (iii)
those Leasehold Improvements which the Landlord requires
it to remove, except that, if the Tenant is then in
default under the Lease, the Tenant will not remove any
of those items unless the Landlord expressly requires it
to do so. The Tenant will repair any damage to the
Premises caused by the removal of those items. If the
Tenant does not remove any such items, the Landlord may
do so and the Tenant will pay the Landlord's removal and
storage charges.
SURVIVAL 3. The Tenant's obligations in this Part 8 will survive
the End of the Term.
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PART 9 - LIABILITY, INDEMNIFICATION AND INSURANCE
LIMITATION OF 1. The Landlord will not be liable for any bodily injury
LANDLORD'S or death of, or loss or damage to any property belonging
LIABILITY to, the Tenant or its employees, invitees, or licensees
or any other person in or about the Land or Building
unless resulting from the Landlord's gross negligence,
but in no event will the Landlord be liable for: (i) any
damage, except for Insured Damage, caused by smoke,
steam, water, ice, rain, snow, or fumes which may leak
into, issue or flow from any part of the Building or
from the plumbing works, or from any other place, or
caused by the condition or arrangement of any wiring,
(ii) any damage caused by any other Building occupant,
(iii) any act or omission (including theft, malfeasance,
or negligence) of any person the Landlord has employed
or contracted with to perform janitor, security, or
other work in the Building, (iv) any loss or damage,
however caused, to money, securities, negotiable
instruments, papers, or other valuables of the Tenant or
its employees, invitees, or licensees, or (v) failure to
supply or maintain interior climate control or elevator
services, or indirect or consequential damages for
personal discomfort or illness resulting from failure to
supply or maintain such services.
INDEMNIFICATION 2. Except for the Landlord's gross negligence, the
Tenant will indemnify and save the Landlord harmless
from all claims, actions, liabilities, judgements,
damage, costs, or expense which the Landlord may suffer
or incur in connection with or arising from: (i) bodily
injury or death, or property or other loss or damage, in
or about the Land or Building, as a result of any act or
omission of the Tenant, or (ii) any breach by the Tenant
of its obligations under this Lease. This indemnity will
survive the End of the Term.
TENANT'S 3. The Tenant will obtain and maintain in good standing:
INSURANCE
(a) liability insurance against claims for personal
injury, death or property damage occurring
upon, in or about the Premises and the
Building, including personal liability,
liability assumed by contract, Tenant's legal
liability, and non-owned automobile liability.
Such insurance will: (i) have a limit of not
less than $3,000,000.00 in respect of any one
occurrence and not less than $1,000,000.00 in
respect of injury or death to a single person
and not less than $500,000.00 in respect of any
single instance of property damage, (ii) be
primary insurance and will not call into
contribution any other insurance available to
the Landlord or its mortgagee, which means that
the Tenant's insurance will cover any loss
before the Landlord's or other insurance, and
(iii) provide for cross-liability and
severability of interest, which means that each
named insured on the policy can xxx each other
named insured under the terms of the policy;
(b) insurance upon the Tenant's property normally
located within the Building, and any property
which is repaired at the Tenant's expense under
this Lease, including stock in trade,
inventory, furniture, fittings, Leasehold
Improvements, and Tenant's fixtures in an
amount equal to the full replacement cost
thereof, against at least the perils of fire,
sprinkler leakage, theft, vandalism, riot,
civil commotion, impact of aircraft, water
damage, earthquake, flood, and any perils not
mentioned above which are included in normal
"all risks" coverage;
(c) insurance against all explosion, rupture or
failure of boilers, pressure vessels or
equipment within or serving the Premises
exclusively; and
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(d) such other types of insurance as a prudent
tenant would obtain from time to time.
The Tenant will obtain all such insurance in at least
those amounts set out in paragraph 3(a) of this Part 9
and otherwise in those amounts a prudent tenant of
comparable space in a comparable building in the
vicinity would obtain and maintain from time to time.
All such insurance policies will: (i) include the
Tenant, any mortgagee of the Tenant if applicable, the
Landlord, and any mortgagee of the Landlord if
applicable, as named insureds, which means a person,
firm, or corporation which is specifically designated by
name as an insured under a policy, (ii) contain a waiver
of any right of subrogation or recourse by the Tenant's
insurer against the Landlord or its employees, agents,
contractors, or mortgagees, whether or not any loss is
caused by the act, omission or negligence of the
Landlord or its employees, agents, contractors, or
mortgagees. (Subrogation means the legal process by
which an insurance company seeks recovery of the amount
it pays to a policy holder from a third party who may
have caused the loss.), (iii) provide that the insurer
will give the Landlord (and any of the Landlord's
mortgagees of which it has received notice) 30 days'
prior written notice of cancellation of, material
alteration in, or lapse of, any policy, and (iv) provide
that such policies will not be invalidated as respects
the interest of the Landlord or the Landlord's
mortgagees by reason of any breach or violation of any
warranties, representations, declarations, or conditions
contained in the policies. The Tenant will effect all
such policies with insurers and upon terms satisfactory
to the Landlord. The Tenant will give the Landlord
certified copies of its insurance policies evidencing
all such insurance and its renewal. The Tenant will pay
the premium for each policy. If the Tenant fails to
obtain or maintain any such insurance, the Landlord may
do so as the Tenant's agent and at the Tenant's cost.
The Tenant will review all its policies annually to
ensure that they are up to date.
LANDLORD'S 4. The Landlord will obtain and maintain fire and
INSURANCE extended coverage insurance on the Building and other
insurance it considers necessary in amounts and on terms
and conditions which a prudent owner of a comparable
building in the vicinity would obtain and maintain from
time to time.
PART 10 - PERFORMANCE OF TENANT'S COVENANTS, DEFAULT,
BANKRUPTCY, AND TERMINATION
LANDLORD MAY 1. If the Tenant defaults in complying with any of its
PERFORM obligations, the Landlord, in addition to its other
COVENANTS rights and remedies under this Lease or at law or at
equity, may remedy or attempt to remedy any such default
and for such purpose may enter the Premises. No such
entry will be deemed to be a re-entry or trespass. The
Tenant will reimburse the Landlord for the Landlord's
costs of so remedying or attempting to remedy. The
Landlord will not be liable to the Tenant for any act or
omission in so remedying or attempting to remedy unless
such act or omission amounts to intentional misconduct
or gross negligence.
RIGHT OF 2. If and whenever: (i) the Tenant fails to pay any Rent
RE-ENTRY ON after it is due and after 5 days' notice from the
DEFAULT OR Landlord, or (ii) the Tenant defaults in observing or
TERMINATION performing any of its obligations and fails to cure that
default within 30 days after the Landlord gives the
Tenant notice specifying the nature of the default, or
(iii) this Lease is terminated under any provision
hereof, or (iv) the Landlord has become entitled to
terminate this Lease then, in any such case, the
Landlord
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thereafter may enter into the Premises or any part
thereof in the name of the whole to repossess the
Premises and enjoy as of its former estate, despite
anything in this Lease to the contrary.
TERMINATION 3. If the Landlord is entitled to re-enter the Premises
AND RE-ENTRY under this Lease or at law or at equity, the Landlord,
in addition to its other rights and remedies, may
terminate this Lease forthwith by leaving notice of such
termination in the Premises.
PAYMENT OF RENT 4. If the Landlord gives the Tenant, or leaves in the
ON TERMINATION Premises, notice of termination, this Lease and the Term
will end, Rent will be apportioned on a daily basis to
the End of the Term (except if it has abated, in whole
or in part, under paragraph 10 of Part 7), the Tenant
will pay that apportioned Rent on demand by the
Landlord, the Tenant will immediately give possession of
the Premises to the Landlord, and the Landlord may
re-enter and take possession of the Premises if it has
not then done so. RE-LETTING 5. If the Landlord is
entitled to re-enter the Premises under this Lease or at
law or at equity, the Landlord, in addition to its other
rights and remedies, may enter the Premises, as the
Tenant's agent, and re-let them and receive the basic
rent and additional rent from that re-letting, and, as
the Tenant's agent, take possession of any personal
property in the Premises, or any place to which it has
been removed, and sell it at public or private sale
without notice to the Tenant, and apply the proceeds and
any basic rent or additional rent received from the
re-letting on account of the Rent due or to become due,
and the Tenant will be liable to the Landlord for any
deficiency.
METHOD AND 6. If the Landlord re-enters the Premises then, in
WAIVER ON addition to its other rights and remedies, it may expel
RE-ENTRY the Tenant and those claiming through or under the
Tenant, remove any property in the Premises, and force
or change the locks, without being guilty of trespass.
The Tenant waives and renounces the benefit of any
present or future law requiring the Landlord to serve
notice or begin legal action in order to re-enter.
BANKRUPTCY OR 7. If the Tenant becomes bankrupt or insolvent or takes
INSOLVENCY steps, steps or allows an order to be made, to end its
corporate existence then, in any such case, the
Landlord, at its option, may terminate this Lease by
leaving notice of termination in the Premises and, in
that case, all arrears of Rent, the current month's Rent
and the next ensuing 3 months' Rent will immediately
become due and be paid by the Tenant.
DISTRESS 8. The Tenant waives and renounces the benefit of any
present or future law taking away or limiting the
Landlord's right of distress, and agrees that none of
the Tenant's personal property will be exempt from levy
by distress for Rent in arrears.
CUMULATIVE 9. The Landlord may use any or all of the rights and
REMEDIES remedies available to it under this Lease or at
law or at equity if the Tenant defaults in observing or
performing its obligations or if the Landlord is
entitled to terminate the Lease. Those remedies will be
cumulative and not alternative.
WAIVER AND 10. Only written waivers of Tenant's defaults will bind
CONDONING the the Landlord. No condoning, excusing, or overlooking
by the Landlord of any default by the Tenant will
operate as a waiver of the Landlord's rights or remedies
on any subsequent default.
LEGAL FEES 11. If either the Landlord or the Tenant exercises any
of its rights or remedies as a result of the other's
default, the defaulting party will pay the other's
reasonable costs and
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out-of-pocket expenses of so exercising, including
complete legal costs.
PART 11 - GENERAL PROVISIONS
EVENTS OF DELAY 1. If either the Landlord or the Tenant is unable to
provide any service, utility, work, or repair by reason
of an Event of Delay, the time for performing the
obligation will be extended by that period of time which
is equal to the length of the delay, and the Landlord or
the Tenant, as the case may be, will use all reasonable
efforts to overcome any such Event of Delay. Neither the
Landlord nor the Tenant will be entitled to compensation
for any inconvenience, nuisance, or discomfort caused by
such an Event of Delay, or to cancel this Lease.
OVERHOLDING 2. This Lease will terminate at the End of the Term
without notice or demand. If the Tenant stays in the
Premises after the End of the Term without a further
written agreement with the Landlord, such holding over
will not constitute a renewal of this Lease. In such
case, the Landlord, at its option, may elect to treat
the Tenant as one who has not vacated at the End of the
Term and to exercise all its remedies in that situation,
or may elect to construe such holding over as a tenancy
from month to month subject to all the terms of this
Lease, except: (i) for Term, (ii) for basic rent which
will be equal to two times the Basic Rent payable in
respect of the last year before the End of the Term, or
the last renewal term, as the case may be, payable in
advance in monthly instalments on the first day of each
month, and (iii) that there will be no inducements or
allowances, renewal rights, rent abatements, rights of
refusal, rights to additional space or other like
concessions or rights.
EXHIBITING 3. The Landlord, during Normal Business Hours, may
PREMISES exhibit the Premises to prospective tenants during the
last 6 months of the Term and, at all reasonable times,
to the Landlord's prospective purchasers and lenders,
but, in so doing, will disturb the Tenant as little as
possible.
SUBORDINATION 4. This Lease and the Tenant's rights will be
subordinated and postponed to all mortgages and other
financial charges which now or hereafter charge the Land
or the Building, and to all renewals, modifications,
consolidations, replacements, or extensions of same,
notwithstanding the respective dates of execution or
registration. The Tenant, at the Landlord's cost, will
execute any instrument confirming such subordination and
postponement and any instrument confirming that the
Tenant will attorn as tenant to the holder of any such
mortgage or other financial charge on the same terms as
are set out in the Lease, which the Landlord or the
Landlord's lender may request, provided that the lender
who receives any such instrument agrees to recognize
this Lease and the Tenant's right to possession of the
Premises under the terms of the Lease.
CERTIFICATES 5. Either the Landlord or the Tenant, at the other's
request and cost, will deliver to the other or to any
other person a certificate setting out: (i) whether the
Lease is in full force and effect, (ii) whether it has
been modified or assigned, (iii) confirming the Rent and
the state of accounts between the Landlord and Tenant,
(iv) to the best of its knowledge, the existence of any
defaults, and (v) any other reasonable information which
is requested.
NOTICES 6. Any notice, request, or demand required or permitted
to be given must be in writing and will be sufficiently
given if personally served or mailed by prepaid
registered post as follows:
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(a) to the Landlord:
THE STANDARD LIFE ASSURANCE COMPANY 000, 000 -
0xx Xxxxxx XX Xxxxxxx, Xxxxxxx
X0X OS4
Attention: Property Administrator
(b) to the Tenant
YELLOWBIRD PRODUCTS LIMITED
0000, 000 - 00xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X. Xxxxxxx
Any notice, request, or demand will be presumed, if
mailed, to have been received 5 business days after the
day on which it is mailed and, if delivered, upon
receipt, except that if, between the time of mailing and
actual receipt, there is an actual or reasonably
anticipated mail strike, slowdown, or labour dispute
which might affect delivery, the notice will be
effective only if actually delivered. Either the
Landlord or Tenant will give notice to the other
changing its address for service.
TIME OF ESSENCE 7. Time will be of the essence of this Lease.
REGISTRATION 8. If the Tenant wishes to register this Lease, the
Tenant will pay the registration costs including the
cost of a registrable plan of leasehold, except if the
Landlord has such a plan in which case the Tenant may
use it. If a short form of lease can be registered, then
the Tenant will register only a short form.
LIABILITY 9. If two or more persons, corporations, partnerships,
or other business associations execute this Lease as
Tenant or as Covenantor, as the case may be, the
liability of each to observe or perform the Tenant's
obligations will be deemed to be joint and several. If
the Tenant or Covenantor, as the case may be, named in
this Lease is a partnership or other business
association, the members of which by law are subject to
personal liability, the liability of each such member
will be deemed to be joint and several. The Tenant will
cause the Tenant's employees, invitees, licensees, and
other persons over whom the Tenant may reasonably be
expected to exercise control to comply with the Tenant's
obligations under this Lease, and any failure to so
comply will be deemed to be a default by the Tenant. The
Tenant will be liable to the Landlord for the negligent
or wilful acts or omissions of any such employees,
invitees, licensees, or other persons over whom the
Tenant may reasonably be expected to exercise control.
RELOCATION OF 10. The Landlord may give the Tenant 60 days' prior
PREMISES notice that it will relocate the Tenant to other
premises in the Building (the "New Premises"). The New
Premises will contain at least the same rentable area as
the Premises. The Landlord will provide, at its expense,
Leasehold Improvements in the New Premises equal to the
standard of the Leasehold Improvements in the Premises
which have been completed or which the Landlord is
obliged to provide in the Premises. The Landlord will
pay for any reasonable cost of moving the Tenant's trade
fixtures and
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furnishings from the Premises to the New Premises. As
full compensation for all other costs, expenses, and
damages which the Tenant may incur in connection with
the relocation, including disruption and loss of
business, Basic Rent for the New Premises for the first
month of occupancy will xxxxx. Basic Rent and the
Tenant's Share of Operating Costs and Taxes for the New
Premises will be no greater than what they were for the
Premises, even if the New Premises contain a greater
rentable area. All other terms and conditions of this
Lease will apply to the New Premises for the balance of
the Term except if they are inconsistent with this
paragraph 10.
BROKERAGE 12. The Landlord is responsible for any fees/commissions
owing to its agents/brokers. The Tenant is responsible
for any fees/commissions owing to its agents/brokers.
ADDITIONAL 13. Those provisions, if any, set out in
Schedule A will PROVISIONS form part of this Lease.
BINDING EFFECT 14. This Lease will enure to the benefit of and be
binding upon the Landlord, and the Tenant, and each of
their respective heirs, executors, administrators,
successors, and permitted assigns.
- 20 -
IN WITNESS WHEREOF the Landlord and Tenant have executed this Lease as
of the day and year first above written.
THE STANDARD LIFE ASSURANCE COMPANY
per: /s/ Xxxx Xxxxxx
-------------------------------
Authorized Signatory
Xxxx Xxxxxx
If the tenant is a corporation:
The corporate seal of the )
Tenant was hereunto affixed )
in the presence of: )
YELLOWBIRD PRODUCTS LIMITED )
)
per: /s/ Xxxxx X. Xxxxxxx )
------------------------------- )
Authorized Signatory ) c/s
Xxxxx X. Xxxxxxx )
Vice-President )
)
per: /s/ Xxxxxx X. Xxxxxxxx )
------------------------------- )
Xxxxxx X. Xxxxxxxx )
Secretary-Treasurer )
SCHEDULE A
ADDITIONAL PROVISIONS:
1. IMPROVEMENTS TO PREMISES - BY LANDLORD
(a) The Landlord will co-ordinate the design, supervision, and construction
of the improvements (all of which is herein called the "Improvements")
to the Premises.
(b) The Landlord will contribute a maximum of $2.05 per rentable square
foot of the Premises toward the Improvements (the estimated total
Landlord contribution being $6,592.80).
(c) If the Landlord's full contribution is not required to complete the
Improvements, the saving will accrue to the Landlord and the Landlord
will not be obliged to pay same to the Tenant. (d) If the total cost of
the Improvements exceeds the Landlord's maximum contribution, the
Tenant will be obliged to pay the excess directly to the contractor(s)
in a timely manner.
(e) The Landlord will carryout the Improvements in accordance with the
design plan and specifications attached as Schedule "F" and in
accordance with the lawful requirements of all Government Bodies having
jurisdiction.
(f) The Landlord will not be obliged to commence the Improvements, except
for any preliminary layout design which the Landlord has authorized in
writing, until the Lease has been fully and unconditionally executed
and delivered by all parties.
2. PARKING - FOR TERM
During the Term, the Landlord (directly, or through its parking agent) will
provide the Tenant with automobile parking on the following terms:
(a) parking lot address: 000- 00xx Xxxxxx X.X., Xxxxxxx;
(b) quantity, type and classification of stalls (1, 2 or ?; COVERED, OPEN;
RESERVED, RANDOM) : Three (3) underground. reserved;
(c) monthly rent per stall (by type/classification) : $ll0.00 plus G.S.T.;
(d) RATE. The Landlord may adjust the monthly rent per stall from time to
time to reflect then current market rates;
(f) USE. The Tenant will use the parking stall(s) assigned to it only for
the purpose of parking standard passenger model automobiles. The Tenant
will keep any automobile parked in a stall in a state of reasonable
repair and cleanliness, and will not allow the automobile to leak any
oil, gas or other fluids. The Tenant will pay to the Landlord on demand
any costs
- 2 -
which the Landlord incurs to clean or repair the surface of the parking
area caused by the leakage of any such fluids;
(g) REASSIGNMENT. The Landlord reserves the right to reassign any reserved
stall on thirty (30) days' prior written notice to the Tenant;
(h) PARKING DECAL. If the Tenant is assigned a parking decal, the Tenant
will display the decal in such a manner that it is clearly visible
through the front windshield of the automobile. Failure to display the
appropriate valid decal may result in the automobile being ticketed
and/or impounded at the Tenant's expense; and
(i) LOSS OR DAMAGE. The Landlord will not be responsible for any loss or
damage to the Tenant's automobile(s), or to the contents or accessories
thereof, arising from theft, fire, vandalism or any other cause. The
Tenant will use the stall(s) at its own risk absolutely.
3. RIGHT OF REFUSAL TO LEASE
The Landlord hereby grants to the Tenant a right of refusal ("Tenant's
Right") to lease all or part of that area on the 10th floor of the Building
outlined in green on Schedule "B" and consisting of 1,246 rentable square
feet more or less (the "Additional Premises"), on the following terms. If
all or part (the "Relevant Portion") of the Additional Premises becomes
vacant, and are available for lease, and if the Landlord receives an offer
to lease (the "Offer") the Relevant Portion from a third party which the
Landlord is prepared to accept, the Landlord will deliver to the Tenant
forthwith a copy of the Offer. The Tenant may exercise this Tenant's Right
by delivering notice to that effect to the Landlord on or before 4:00 p.m.
(Calgary, Alberta time) on the third business day from and including the
day upon which the Tenant receives the Offer. Within a reasonable time
after the Tenant exercises its Tenant's Right, the Landlord will deliver to
the Tenant three copies of a new lease or of a modification to the Lease
incorporating the terms of the Offer. Within 10 calendar days after receipt
thereof, and, in any event, prior to any construction or construction
related expenditures (except for the demising walls of the Relevant Portion
and Landlord authorized layout design) and prior to taking possession of
the Relevant Portion, the Tenant will execute and deliver to the Landlord
all copies of the document. Forthwith thereafter the Landlord will execute
the document and will deliver one copy thereof to the Tenant. This Tenant's
Right will automatically terminate and have no further force or effect upon
the earliest to occur of: (i) the Tenant receiving an Offer but not
exercising the Tenant's Right at the time and in the manner herein set
forth, (ii) the Tenant defaulting in observing or performing any of its
obligations under the Lease, (iii) the Tenant vacating the Premises, or
(iv) February 28th, 2002. If the Tenant properly exercises its Tenant's
Right for part of the Additional Premises then, subject to the preceding
sentence, the Tenant's Right will remain in effect with respect to the
remainder of the Additional Premises. The Tenant's Right herein granted is
subject to any existing agreements, rights of refusal or options to lease
all or part of the Additional Premises.
4. OPTION TO RENEW
If the Tenant pays its Rent and observes or performs all its obligations
under the Lease, duly, regularly and promptly throughout the Term, and if
the Tenant delivers to the Landlord written notice exercising its option to
renew at least six months prior to the expiry of the Term, the Tenant will
have the option to renew the Lease for a further term of Five (5) years on
the same terms as are contained in the Lease, except for: (i) Basic Rent,
(ii) this
- 3 -
option to renew, and (iii) tenant inducements or allowances, rent
abatements, rights of refusal, or rights to additional space, or like
concessions or rights, except to the extent that such concessions or rights
are specifically stipulated in the Lease to apply during any renewal term.
Annual basic rent for the renewal term will be based upon fair market basic
rent for equivalent, developed space at the time of renewal, except that
the annual basic rent will not be less than the Basic Rent which the Tenant
was obliged to pay during the last year of the Term. The time for
determining annual basic rent for the renewal term will be the four month
period immediately preceding the expiry of the Term. If the Landlord and
Tenant are unable to agree on such rent at least 30 days prior to the
expiry of the Term, either of them may refer the determination of such
annual basic rent to arbitration under the arbitration statute of the
Province where the Land is located. The arbitrator's determination will be
conclusive and binding on the Landlord and Tenant. The arbitration costs
will be awarded in the arbitrator's discretion. Until the arbitrator has
determined such annual basic rent, the Tenant will continue to pay monthly
instalments of basic rent in the same amount it was paying prior to the
expiry of the Term. Forthwith after the arbitrator's determination, the
Tenant will pay to the Landlord the difference, if any, between the basic
rent instalments which it has then paid to date and the basic rent
instalments pursuant to such determination.
SCHEDULE B
Attach floor plan of Premises.
[GRAPHIC OF
PLAN OF LEASE AREAS
"340 - 12TH AVENUE S.W."
CALGARY, ALTA.
10TH FLOOR]
SCHEDULE C
VARIABLE OPERATING COSTS EXAMPLE
A building's occupancy level fluctuates from time to time, but cleaning
is normally performed only for occupied space. So, cleaning is a variable
Operating Cost.
If:
(a) the building's rentable area is 50,000 square feet;
(b) average occupancy is 30,000 square feet (60%);
(c) average vacancy is 20,000 square feet (40%);
(d) actual cleaning cost is $40,000; and
(e) 95% of rentable area is 47,500 square feet;
and if the cleaning cost is not adjusted to a 95% level, then the Landlord would
be obliged to pay $16,000 (40% of $40,000), even though vacant space is not
normally cleaned, and the tenants would be obliged to pay $24,000 (60% of
$40,000), even though the tenants receive most of the advantage from cleaning.
However, given those same facts, if the cleaning cost of $40,000 is
adjusted to $63,334 ($40,000 divided by 30,000 square feet x 47,500 square feet)
then the tenants would be obliged to pay $38,000 (60% of $63,334) and the
Landlord would be obliged to pay $2,000 (being the actual cost of $40,000 less
the $38,000 paid by the tenants). This calculation results in a more equitable
allocation, as the tenants are now paying most of the cost of the service they
are consuming and the Landlord is paying for any cleaning that may occasionally
be required for vacant space.
SCHEDULE D
REGULATIONS
DEFINITIONS 1. Initially capitalized terms in these regulations will
have the same meanings as in the Lease except if
otherwise defined herein.
ACCESS AND EXIT 2. Tenants or occupants in the Building ("Tenants") will
not obstruct or use the sidewalks, driveways, entries,
corridors, elevators, or staircases except for accessing
or exiting to or from their premises. The Landlord
reserves control of all parts of the Building used for
the common benefit of Tenants, as it may deem advisable,
but will not unduly impair accessing or exiting to or
from premises. Tenants will shut off lights when leaving
their premises after normal business hours.
FIRE EXITS 3. Tenants will not use the fire exits except in case of
emergency, except if the Landlord designates same as
normal exits.
FIRE EVACUATION 4. Tenants will comply with all fire safety and
PROCEDURES AND evacuation procedures the Landlord
imposes from time to FIRE DOORS time. The Landlord from
time to time may install doors in the exterior walls of
premises necessary to comply with the lawful
requirements of any Government Body. The Tenants and the
Landlord may use such doors in case of emergency.
SECURITY 5. The Landlord may lock the Building entrance doors
except during Normal Business Hours. All persons
entering or leaving the Building except during Normal
Business Hours will register, if required, in the book
kept by the Landlord at or near the night entrance. The
Landlord may prevent any person from so entering or
leaving unless that person has a key or card access pass
to the elevator and/or the premises to which he seeks
entrance and a pass in a form approved by the Landlord.
Any persons found in the Building except during Normal
Business Hours without such keys and passes may be
subject to surveillance by the Landlord's employees and
agents and may be required to leave the Building.
Tenants will be responsible for securing their premises
and, if required, for locking Building entrance and exit
doors when entering or leaving the Building.
WINDOWS 6. Windows that reflect or admit light into the premises
of Tenants will not be covered or obstructed, and no
awning will be put up over any window without the
Landlord's consent. Tenants will permit window cleaners
to clean office windows during or after Normal Business
Hours. Tenants will not place anything on the Building
windows or projections, and will not throw anything out
of the windows or doors or down the passages or
skylights of the Building. The lining of all window
coverings facing the interior surface of exterior
windows will be subject to the Landlord's consent as to
colour, material and type. Tenants will not hang, and
will remove, any window coverings which, in the
Landlord's opinion, do not conform to a uniform scheme
of window coverings established for the Building.
WASHROOMS 7. Tenants will not use washrooms, plumbing or other
apparatus for any purpose except those for which they
were constructed, and will not put any sweepings,
rubbish, rags, ashes, or other substances therein. Each
of the Tenants will
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pay the cost of any damage resulting thereto from misuse
by it. Tenants will not let water run unless in actual
use.
DIRECTORY BOARD 8. Tenants, at their cost, may have their names shown
upon the Building's directory board, but the Landlord
may design the style and regulate the content of such
identification and allocate the space on the directory
board for each of the Tenants.
MAIL 9. Tenants may use mail chutes and mail boxes in the
Building at their own risk. The Landlord will not be
liable for any loss or damage resulting from such use.
USE OF PREMISES 10. Tenants will not permit any person to use their
premises for sleeping apartments, for residential or any
immoral or unlawful purpose, or to store personal
effects or articles not required for business purposes.
COOKING 11. Tenants will not permit any cooking in their
premises without the Landlord's consent.
FOOD SERVICES 12. Tenants will not grant any concession, licence, or
permission to sell or to take orders for food, services,
or merchandise and will not install or permit the
installation or use of any machine or equipment for
dispensing merchandise, food, or beverages, and will not
permit the preparation, serving, distribution, or
delivery of food or beverages in their premises or the
Building without the Landlord's consent, and then only
in accordance with arrangements the Landlord may
prescribe. Only persons approved by the Landlord will be
permitted to serve, distribute, or deliver food and
beverages within the Building or to use any public area
for that purpose.
PETS AND 13. Tenants will not bring into or keep in their
BICYCLES premises or the Building any bicycles, vehicles,
animals, birds, or other pets.
SOLICITING 14. Canvassing, soliciting, and peddling in the Building
are prohibited, and Tenants will co-operate with the
Landlord to prevent same.
EQUIPMENT, 15. Tenants will not bring in or take out, position,
SAFES, construct, install, or move any safe, large business
MECHANICAL machine, or other heavy office equipment without the
DEVICES Landlord's consent. In giving such consent, the Landlord
AND FREIGHT may prescribe the permitted weight and position of such
safes, business machines, or equipment, and the use and
design of planks, skids, or platforms to distribute the
weight. Tenants will move heavy equipment in and out of
their premises only after giving notice to the Landlord
and only as required by the Landlord. The Landlord may
inspect any freight. Except for electric typewriters,
small adding machines, and small personal computers,
Tenants, without the Landlord's consent, will not keep
or install any machines in their premises which are
driven by electricity or which generate any heat.
FURNITURE AND 16. Tenants will not bring into or remove from their
EFFECTS premises any furniture, effects, or supplies, except at
such times, in such manner and by such routes as the
Landlord may approve.
HAND TRUCKS 17. Any hand trucks, carryalls, or similar appliances
used in the Building will be equipped with rubber tires,
side guards, and such other safeguards as the Landlord
may require.
ELECTRICAL 18. Tenants will not obstruct or interfere with access
to CLOSETS AND ducts or janitor and electrical closets
in their premises. HVAC If Tenants have carpeted over
the ducts, or otherwise obstructed access to same, they
will pay the Landlord's costs of providing access to the
ducts. Tenants will not leave anything on any radiator
or induction unit.
- 3 -
WIRING 19. Tenants will not xxxx, paint, drill into, or in any
way deface the walls, ceilings, partitions, floors,
wood, stone or ironwork. Boring, cutting, coring, or
stringing wires or pipes will not be permitted, except
with the Landlord's consent, and as it may direct. If
any of the Tenants desire telegraphic or telephonic
connections, the Landlord reserves the right to direct
electricians as to where and how the wires are to be
introduced, and the type of wires, and without such
directions no borings, cutting or coring for wires will
occur. No other wires or pipes of any kind will be
introduced without the Landlord's consent. MUSIC AND 20.
Tenants will not operate any musical or sound-producing
SOUND instruments or devices outside their premises or
inside their premises which may be heard outside.
Tenants will not install any radio or television
antennae, loud speakers, sound amplifiers, or similar
devices on the roof or exterior walls of the Building.
GLASS, LOCKS 21. Tenants will keep whole all glass, locks, and
AND TRIMMINGS trimmings in or upon the doors or windows affording
access to or admitting light into their premises.
Whenever any part thereof is broken, Tenants will
immediately cause the same to be replaced or repaired,
by some person or persons approved by the Landlord, to
the Landlord's satisfaction, and the Tenants responsible
will pay the cost of such replacement.
LOCKS/ACCESS 22. Tenants will not place or keep on any door leading
CARDS into or inside their premises any lock or bolt except
such locks or bolts which permit all doors to be on the
Landlord's master or sub-master key or access card
system. Tenants will not change locks or their
mechanisms without the Landlord's consent. Tenants will
give the Landlord a key and access card to all locks.
Tenants will report the loss of any key or access card
to the Landlord without delay. On request, Tenants will
give the Landlord a list of any people who have keys or
access cards. Tenants will not give keys or access cards
to any persons except staff members.
CARETAKING 23. Tenants will permit the janitor, caretaker, or such
other person or persons as the Landlord may designate,
to take charge of and clean their premises before 8:00
a.m. and after 5:00 p.m.
INTERIOR 24. The design criteria for the interior climate control
CLIMATE CONTROL system will be based on the normal criteria for
DESIGN CRITERIA comparable systems in comparable buildings, including
normal occupancy per square foot and normal distribution
of offices per square foot, the electric power consumed,
the installation of partitions or other separations only
in locations which do not interfere with the proper
operation of the climate control system, and the closing
of window coverings on exterior windows while such
windows are exposed to direct sunlight.
ADDITIONAL 25. Any services or supervision the Landlord provides
SERVICES under these regulations to specific Tenants will be
Additional Services. The Landlord's costs thereof and
any costs specific Tenants are obliged to pay under
these regulations will be included in the Cost of
Additional Services to those specific Tenants.
NAME OF 26. Tenants will use the Building name which the
BUILDING Landlord designates from time to time, but not for any
purpose except their business address.
SCHEDULE E
Description of Land:
Legal Description: Plan C, Calgary
Block 84
Lots 44 to 48, inclusive
Municipal Address: 000 - 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
SCHEDULE "F"
[GRAPHIC OF
PART OF 10TH FLOOR PLAN
000 - 00XX XXXXXX X.X.
1997 EXPANSION AND RENOVATION FOR:
YELLOWBIRD
PRODUCTS LIMITED]
