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EXHIBIT 10.10
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LEASE AGREEMENT
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TENANT JDA SOFTWARE SERVICE LTD.
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Property: LANSING SQUARE, PHASE II
Building: 0 XXXXXXX XXXXXX, XXXXX 000
Location: CITY OF NORTH YORK, PROVINCE OF ONTARIO
MANULIFE REAL ESTATE [LOGO]
The Manufacturers Life Insurance Company
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INDEX
PAGE
1. LEASED PREMISES............................................. 1
2. TERM
(a) Term.................................................... 1
(b) Delay in Occupancy...................................... 1
(c) Overholding............................................. 2
3. RENT
(a) Basic Rent.............................................. 2
(b) Additional Rent......................................... 2
(i) Taxes.............................................. 2
(ii) Operating Costs.................................... 2
(c) Payment - Additional Rent............................... 2
(d) Accrual of Rent......................................... 3
(e) Recovery of Rent........................................ 3
(f) Limitations............................................. 3
4. SECURITY DEPOSIT............................................ 3
5. GENERAL COVENANTS
(a) Landlord's Covenant..................................... 3
(b) Tenant's Covenant....................................... 3
6. USE AND OCCUPANCY
(a) Use..................................................... 3
(b) Waste, Nuisance, etc.................................... 4
(c) Insurance Risks......................................... 4
(d) Compliance with Law..................................... 4
(e) Environmental Compliance................................ 4
(f) Rules and Regulations................................... 4
7. ASSIGNMENT AND SUB-LETTING
(a) No Assignment Without Consent........................... 4
(b) Assignment or Sub-letting Procedures.................... 4
(c) Assumption of Obligations............................... 5
(d) Tenant's Continuing Obligations......................... 5
8. REPAIR AND DAMAGE
(a) Landlord's Repairs to Building and Property............. 5
(b) Landlord's Repairs to the Leased Premises............... 5
(c) Tenant's Repairs........................................ 5
(d) Indemnification......................................... 5
(e) Damage and Destruction................................. 5
9. INSURANCE AND LIABILITY
(a) Landlord's Insurance.................................... 6
(b) Tenant's Insurance...................................... 6
(c) Limitation of Landlord's Liability...................... 7
(d) Indemnity of Landlord................................... 7
(e) Definition of "Insured Damage".......................... 7
10. EVENTS OF DEFAULT AND REMEDIES
(a) Events of Default and Remedies.......................... 8
(b) Payment of Rent, etc. on Termination.................... 9
(i)
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PAGE
ADDITIONAL PROVISIONS
11. Relocation of Leased Premises............................... 9
12. Subordination and Attornment................................ 9
13. Certificates................................................ 9
14. Inspection of and Access to the Leased Premises............. 10
15. Delay....................................................... 10
16. Waiver...................................................... 10
17. Sale, Demolition and Renovation............................. 10
18. Public Taking............................................... 10
19. Registration of Lease....................................... 11
20. Lease Entire Agreement...................................... 11
21. Notices..................................................... 11
22. Interpretation.............................................. 11
23. Extent of Lease Obligations................................. 11
24. Use and Occupancy Prior to Term............................. 12
25. Schedules................................................... 12
DEFINITIONS OF PRINCIPAL TERMS PARAGRAPH PAGE
Additional Rent............................. 3(b) 2
Additional Services......................... 4(a) D-1
Basic Rent.................................. 3(a) 2
Building.................................... 1 1
Debts, Liabilities & Obligations............ 4 3
Fiscal Period............................... 3(c) 2
Insured Damage.............................. 9(e) 7
Landlord.................................... 1,10
Landlord's Taxes............................ 2(a) C-1
Leased Premises............................. 1 1
Leasehold Improvements...................... 1 F-1
Landlord's Work............................. 5(b) F-2
Operating Costs............................. 5 D-2
Property.................................... 1 1
Public Taking............................... 18 10
Rent........................................ 3(d) 3
Taxes....................................... 2(b) C-1
Tenant...................................... 1
Tenant's Proportionate Share................ 2(d) C-1
Tenant's Proportionate Share................ 7 D-2
Tenant's Taxes.............................. 2(c) C-1
Term........................................ 2(a) 1
(ii)
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THIS AGREEMENT made this 6th day of December, 1995
BETWEEN:
THE MANUFACTURERS LIFE INSURANCE COMPANY,
a body corporate, having its head office in Toronto, Canada,
and having a local office at 00 Xxxxx Xxxxxx Xxxx - Xxxxx 000
in the City of Toronto, Province of Ontario
(hereinafter called the "Landlord")
OF THE FIRST PART,
----and----
JDA SOFTWARE SERVICES LTD.
having an office at
210, 0000 Xxxxxx Xxxxxx XX
in the City
of Calgary, Province of Alberta
(hereinafter called the "Tenant")
OF THE SECOND PART,
In consideration of the rents, covenants and agreements hereinafter
contained, the Landlord and Tenant hereby agree as follows:
1. LEASED PREMISES
Leased Premises
The Landlord does demise and lease to the Tenant the premises (the
"Leased Premises") located in a building (the "Building") having a municipal
address of 0 Xxxxxxx Xxxxxx
in the City of North York, Province of Ontario
and known as Lansing Square
(the Leased Premises, the Building, together with the lands described in
Schedule "A" attached hereto and present and future improvements, additions and
changes thereto being herein called the "Property"), the Leased Premises
consisting of approximately three thousand, three hundred and sixty-nine
(3,369) square feet on the ninth (9th) floor as outlined in red on the plan or
plans marked Schedule(s) "B" attached hereto, excluding the exterior surfaces
of the exterior walls of the Leased Premises.
2. TERM
Term
(a) TO HAVE AND TO HOLD the Leased Premises for and during the term of six (6)
years (the "Term") to be computed from the 1st day of February, 1996, and to be
fully complete and ended on the 31st day of January, 2002 unless otherwise
terminated.
Delay in Occupancy
(b) If the Leased Premises or any part thereof are not ready for occupancy on
the date of commencement of the Term, no part of the "Rent" (as hereinafter
defined) or only a proportionate part thereof, in the event that the Tenant
shall occupy a part of the Leased Premises, shall be payable for the period
prior to the date when the entire Leased Premises are ready for occupancy and
the full Rent shall accrue only after such last mentioned date. The Tenant
agrees to accept any such abatement of Rent in full settlement of all claims
which the Tenant might otherwise have by reason of the Leased Premises not
being ready for occupancy on the date of commencement of the Term, provided
that when the Landlord has completed construction of such part of the Leased
Premises as it is obliged hereunder to construct, the Tenant shall not be
entitled to any abatement of Rent for any delay in occupancy due to the
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LANDLORD TENANT
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Tenant's failure or delay to provide plans or to complete any special
installations or other work required for its purposes or due to any other
reason, nor shall the Tenant be entitled to any abatement of Rent for any delay
in occupancy if the Landlord has been unable to complete construction of the
Leased Premises by reason of such failure or delay by the Tenant. A
certificate of the Landlord as to the date the Leased Premises were ready for
occupancy and such construction as the Landlord is obliged to complete is
substantially completed, or as to the date upon which the same would have been
ready for occupancy and completed respectively but for the failure or delay of
the Tenant, shall be conclusive and binding on the Tenant and Rent in full
shall accrue and become payable from the date set out in the said certificate.
Notwithstanding any delay in occupancy, the expiry date of this Lease shall
remain unchanged.
Overholding
(c) If at the expiration of the Term or sooner termination hereof, the
Tenant shall remain in possession without any further written agreement or in
circumstances where a tenancy would thereby be created by implication of law or
otherwise, a tenancy from year to year shall not be created by implication of
law or otherwise, but the Tenant shall be deemed to be a monthly tenant only,
at 1.5 times "Basic Rent" (as hereinafter defined) payable monthly in advance
plus "Additional Rent" (as hereinafter defined) and otherwise upon and subject
to the same terms and conditions as herein contained, excepting provisions for
renewal (if any) and leasehold improvement allowance (if any), contained
herein, and nothing, including the acceptance of any Rent by the Landlord, for
periods other than monthly periods, shall extend this Lease to the contrary
except an agreement in writing between the Landlord and the Tenant and the
Tenant hereby authorizes the Landlord to apply any moneys received from the
Tenant in payment of such monthly Rent.
3. RENT
Basic Rent
(a) The Tenant shall without deduction or right of offset pay to the
Landlord yearly and every year during the Term as rental (herein called "Basic
Rent"), the sum of SIXTEEN THOUSAND EIGHT HUNDRED FORTY-EIGHT Dollars
($16,848.00) of lawful money of the jurisdiction in which the Leased Premises
are located, in equal monthly installments of ONE THOUSAND FOUR HUNDRED AND
FOUR Dollars ($1,404.00) each in advance on the first day of each month during
the Term, the first payment to be made on the first day of February 1996. The
Basic Rent in this paragraph is subject to adjustment in accordance with the
provisions of Schedule "K-1" attached hereto.
Additional Rent
(b) The Tenant shall, without deduction or right of offset pay to the
Landlord yearly and every year during the Term as additional rental (herein
called "Additional Rent")
(i) the amounts of any Taxes payable by the Tenant to the Landlord pursuant
to the provisions of Schedule "C" attached hereto; and
(ii) the amounts required to be paid to the Landlord pursuant to the
provisions of Schedule "D" attached hereto.
Payment - Additional Rent
(c) Additional Rent shall be paid and adjusted with reference to a fiscal
period of twelve (12) calendar months ("Fiscal Period"), which shall be a
calendar year unless the Landlord shall from time to time have selected a
Fiscal Period which is not a calendar year by written notice to the Tenant.
The Landlord shall advise the Tenant in writing of its estimate of the
Additional Rent to be payable by the Tenant during the Fiscal Period (or broken
portion of the Fiscal Period, as the case may be, if applicable at the
commencement or end of the Term or because of a change in Fiscal Period) which
commenced upon the commencement date of the Term and for each succeeding Fiscal
Period or broken portion thereof which commences during the Term. Such
estimate shall in every case be a reasonable estimate and, if requested by the
Tenant, shall be accompanied by reasonable particulars of the manner in which
it was calculated. The Additional Rent payable by the Tenant shall be paid in
equal monthly instalments in advance at the same time as payment of Basic Rent
is due hereunder based on the Landlord's estimate as aforesaid. From time to
time, the Landlord may re-estimate, on a reasonable basis, the amount of
Additional Rent for any Fiscal Period or broken portion thereof, in which case
the Landlord shall advise the Tenant in writing of such re-estimate and fix new
equal monthly instalments for the remaining balance of such Fiscal Period or
broken portion thereof. After the end of each such Fiscal Period or broken
portion thereof the Landlord shall submit to the Tenant a statement of the
actual Additional Rent payable in respect of such Fiscal Period or broken
portion thereof and a calculation of the amounts by which the Additional Rent
payable by the Tenant exceeds or is less than (as the case may be) the
aggregate instalments paid by the Tenant on account of Additional Rent for such
Fiscal Period.
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Within thirty (30) days after the submission of such statement either
the Tenant shall pay to the Landlord any amount by which the amount found
payable by the Tenant with respect to such Fiscal Period or broken portion
thereof exceeds the aggregate of the monthly payments made by it on account
thereof during such Fiscal Period or broken portion thereof, or the Landlord
shall pay to the Tenant any amount by which the amount found payable as
aforesaid is less than the aggregate of such monthly payments.
Accrual of Rent
(d) Basic Rent and Additional Rent (herein collectively called "Rent")
shall be considered as accruing from day to day, and Rent for an irregular
period of less than one year or less than one calendar month shall be
apportioned and adjusted by the Landlord for the Fiscal Periods of the Landlord
in which the tenancy created hereby commences and expires. Where the
calculation of Additional Rent for a period cannot be made until after the
termination of this Lease, the obligation of the Tenant to pay Additional Rent
shall survive the termination hereof and Additional Rent for such period shall
be payable by the Tenant upon demand by the Landlord. If the Term commences or
expires on any day other than the first or the last day of a month, Rent for
such fraction of a month shall be apportioned and adjusted as foresaid and paid
by the Tenant on the commencement date of the Term.
Recovery of Rent
(e) Rent and any other amounts required to be paid by the Tenant to the
Landlord under this Lease shall be deemed to be and be treated as rent and
payable and recoverable as rent, and the Landlord shall have all rights against
the Tenant for default in any payment of rent and other amounts as in the case
of arrears in rent.
Limitations
(f) The information set out in statements, documents or other writings
setting out the amount of Additional Rent submitted to the Tenant under or
pursuant to this Lease shall be binding on the Tenant and deemed to be accepted
by it and shall not be subject to amendment for any reason unless the Tenant
gives written notice to the Landlord within sixty (60) days of the Landlord's
submission of such statement, document, or writing identifying the statement,
document, or writing and setting out in reasonable detail the reason why such
statement, document or writing should not be binding on the Tenant.
4. SECURITY DEPOSIT
Security Deposit
The Tenant shall pay to the Landlord on execution of this Lease by the
Tenant the sum of TEN THOUSAND ONE HUNDRED FIFTY-THREE Dollars and SIXTY Cents
Dollars ($10,153.60) as a deposit to the Landlord for the first two(2) months
gross rent including G.S.T.
5. GENERAL COVENANTS
Landlord's Covenant
(a) The Landlord covenants with the Tenant:
(i) for quiet enjoyment; and
(ii) To observe and perform all the covenants and obligations of the
Landlord herein.
Tenant's Covenant
(a) The Tenant covenants with the Landlord:
(i) to pay Rent; and
(ii) To observe and perform all the covenants and obligations of the
Tenant herein.
6. USE AND OCCUPANCY
Use
The Tenant covenants with the Landlord:
(a) not to use the Leased Premises for any purpose other than an office for
the conduct of the Tenant's business which is the general offices of a software
and systems development company, in keeping with the first-class nature of
other uses in the Building;
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LANDLORD TENANT
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WASTE NUISANCE, ETC
(b) not to commit, or permit, any waste, injury or damage to the Property
including the Leasehold Improvements and any trade fixtures therein, any
loading of the floors thereof in excess of the maximum degree of loading as
determined by the Landlord acting reasonably, any nuisance therein or any use
or manner of use causing annoyance to other tenants and occupants of the
Property or to the Landlord;
INSURANCE RISKS
(c) not to do, omit or permit to be done or omitted to be done upon the
Property anything which would cause to be increased the Landlord's cost of
insurance or the costs of insurance of another tenant of the Property against
perils as to which the Landlord or such other tenant has insured or which shall
cause any policy of insurance on the Property to be subject to cancellation;
COMPLIANCE WITH LAW
(d) to comply at its own expense with all governmental laws, regulations
and requirements pertaining to the occupation and use of the Leased Premises,
the condition of the Leasehold Improvements, trade fixtures, furniture and
equipment installed by or on behalf of the Tenant therein and the making by the
Tenant of any repairs, changes or improvements therein;
ENVIRONMENTAL COMPLIANCE
(e) (i) to conduct and maintain its business and operations at the
Leased Premises so as to comply in all respects with common law and with all
present and future applicable federal, provincial/state, local, municipal,
governmental or quasi-governmental laws, by-laws, rules, regulations, licenses,
orders, guidelines, directives, permits, decisions or requirements concerning
occupational or public health and safety or the environment and any order,
injunction, judgment, declaration, notice or demand issued thereunder,
("Environmental Laws").
(ii) not to permit or suffer any substance which is hazardous or is
prohibited, restricted, regulated or controlled under any Environmental Law to
be present at, on or in the Leased Premises, unless it has received the prior
written consent of the Landlord which consent may be arbitrarily withheld.
RULES AND REGULATIONS
(f) to observe and perform, and to cause its employees, invites and others
over whom the Tenant can reasonably be expected to exercise control to observe
and perform, the Rules and Regulations contained in Schedule "E" hereto, and
such further and other reasonable rules and regulations and amendments and
additions therein as may hereafter be made by the landlord and notified in
writing to the Tenant, except that no change or addition may be made that is
inconsistent with this Lease unless as may be required by governmental
regulation or unless the Tenant consents thereto. The imposition of such Rules
and Regulations shall not create or imply any obligation of the Landlord to
enforce them or create any liability of the Landlord for their non-enforcement
or otherwise.
7. ASSIGNMENT AND SUB-LETTING
NO ASSIGNMENT AND SUB-LETTING
(a) The Tenant covenants that it will not assign this Lease or sub-let the
Leased Premises in whole or in part without the prior written consent of the
Landlord, which consent the Landlord covenants not to withhold unreasonably
(i) as to any assignee or sub-lessee who is in a satisfactory financial
condition, agrees to use the Leased Premises for those purposes permitted
hereunder, i.e. general office use in keeping with the first class nature of
other uses in the Building; but not limited to software companies and is
otherwise satisfactory to the Landlord, acting reasonably, and (ii) as to any
portion of the Leased Premises which, in the Landlord's sole judgement, is a
proper and rational division of the Leased Premises, subject to the Landlord's
right of termination arising under this paragraph. Without limitation, the
Tenant shall for the purpose of this paragraph be considered to assign or
sub-let in any case where it permits the Leased Premises or any portion thereof
to be, or the Leased Premises or any portion thereof are, occupied by persons
other than the Tenant, its employees and others engaged in carrying on the
business of the Tenant, whether pursuant to assignment, sub-letting, license or
other right, or where any of the foregoing occurs by operation of law.
ASSIGNMENT OR SUB-LETTING PROCEDURES
(b) The Tenant shall not assign this Lease or sub-let the whole or any part
of the Leased Premises unless:
(i) it shall have received or procured a bona fide written offer to
take an assignment or sub-lease which is not inconsistent with this Lease, and
the acceptance of which would not breach any provision of this Lease if this
paragraph is complied with and which the Tenant has determined to accept
subject to this paragraph being complied with, and
(ii) it shall have first requested and obtained the consent in writing
of the Landlord thereto.
Any request for consent shall be in writing and accompanied by a copy of the
offer certified by the Tenant to be true, and complete, and the Tenant shall
furnish to the Landlord all information available to the Tenant and requested by
the Landlord as to the responsibility, financial standing and business of the
proposed assignee or sub-tenant. Notwithstanding the provisions of sub-paragraph
(a), within twenty (20) days after the receipt by the Landlord of such request
for consent and of all information which the Landlord shall have requested
hereunder, the Landlord shall have the right upon written notice of termination
submitted to the Tenant, if the request is to assign this Lease or sub-let the
whole of the Leased Premises, to cancel and terminate this Lease, or if the
request is to sub-let the whole of the Leased Premises only, to cancel and
terminate this Lease with respect to such part, in each case as of a termination
date to be stipulated in the notice of
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LANDLORD TENANT
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termination which shall be not less than sixty (60) days or more than ninety
(90) days following the giving of such notice. In such event the Tenant shall
surrender the whole or part, as the case may be, of the Leased Premises in
accordance with such notice of termination and Basic Rent and Additional Rent
shall be apportioned and paid to the date of surrender and, if a part only of
the Leased Premises is surrendered, Basic Rent and Additional Rent shall after
the date of surrender xxxxx proportionately. If such consent shall be given the
Tenant shall assign or sub-let, as the case may be, only upon the terms set out
in the offer submitted to the Landlord as aforesaid and not otherwise.
ASSUMPTION OF OBLIGATIONS
(c) No assignment or sub-letting of this Lease shall be effective unless the
assignee or sub-lessee shall execute an assumption agreement on the Landlord's
form, assuming all the obligations of the Tenant hereunder, and shall pay to
the Landlord its reasonable fee for processing the assignment or sub-letting.
TENANT'S CONTINUING OBLIGATIONS
(d) The Tenant agrees that any consent to an assignment or sub-letting of this
Lease or Leased Premises, shall not thereby release the Tenant of its
obligations hereunder.
8. REPAIR & DAMAGE
LANDLORD'S REPAIRS TO BUILDING & PROPERTY
(a) The Landlord covenants with the Tenant to keep in a good and reasonable
state of repair and decoration:
(i) those portions of the Property consisting of the entrance, lobbies,
stairways, corridors, landscaped areas, parking areas, and other
facilities from time to time provided for use in common by the Tenant
and other tenants of the Building or Property, and the exterior
portions (including foundations and roofs) of all buildings and
structures from time to time forming part of the Property and
affecting its general appearance;
(ii) the Building (other than the Leased Premises and premises of other
tenants) including the systems for interior climate control, the
elevators and escalators (if any), entrances, lobbies, stairways,
corridors and washrooms from time to time provided for use in common
by the Tenant and other tenants of the Building or Property and the
systems provided for use in common by the Tenant and other tenants of
the Building or Property and the systems provided for bringing
utilities to the Leased Premises.
LANDLORD'S REPAIRS TO THE LEASED PREMISES
(b) The Landlord covenants with the Tenant to repair, so far as reasonably
feasible, and as expeditiously as reasonably feasible, defects in standard
demising walls or in structural elements, exterior walls of the Building,
suspended ceiling, electrical and mechanical installations standard to the
Building installed by the Landlord in the Leased Premises (if and to the extent
that such defects are sufficient to impair the Tenant's use of the Leased
Premises while using them in a manner consistent with this Lease) and "Insured
Damage" (as herein defined). The Landlord shall in no event be required to make
repairs to Leasehold Improvements made by the Tenant, or by the Landlord on
behalf of the Tenant or another tenant or to make repairs to wear and tear
within the Leased Premises.
TENANT'S REPAIRS
(c) The Tenant covenants with the Landlord to repair, maintain and keep at the
Tenant's own cost, except insofar as the obligation to repair rests upon the
Landlord pursuant to this paragraph, the Leased Premises, including Leasehold
Improvements in good and substantial repair, reasonable wear and tear excepted,
provided that this obligation shall not extend to structural elements or to
exterior glass or to repairs which the Landlord would be required to make under
this paragraph but for the exclusion therefrom of defects not sufficient to
impair the Tenant's use of the Leased Premises while using them in a manner
consistent with this Lease. The Landlord may enter the Leased Premises during
the Tenant's business hours upon not less than two (2) business days prior
notice with the exception of emergencies times and view the condition thereof
and the Tenant covenants with the Landlord to repair, maintain and keep the
Leased Premises in good and substantial repair according to notice in writing,
reasonable wear and tear excepted. If the Tenant shall fail to repair as
aforesaid after reasonable notice to do so, the Landlord may effect the repairs
and the Tenant shall pay the reasonable cost thereof to the Landlord on
demand. The Tenant covenants with the Landlord that the Tenant will at the
expiration of the Term or sooner termination thereof peaceably surrender the
Leased Premises and appurtenances in good and substantial repair and condition,
reasonable wear and tear excepted.
INDEMNIFICATION
(d) If any part of the Property becomes out of repair, damaged or destroyed
through the negligence of, or misuse by, the Tenant or its employees, agents,
invitees or others under its control, the Tenant shall pay, to the extent such
damage does not constitute Insured Damage the Landlord on demand the expense of
repairs or replacements, including the Landlord's reasonable administration
charge thereof, necessitated by such negligence or misuse.
DAMAGE AND DESTRUCTION
(e) It is agreed between the Landlord and the Tenant that:
(i) In the event of damage to the Property or to any part thereof, if the
damage is such that the Leased Premises or any substantial part
thereof is rendered not reasonably capable of use and occupancy by the
Tenant for the purposes of its business for any period of time in
excess of ten (10) days, then
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LANDLORD TENANT
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(e) (i) (1) unless the damage was caused by the fault or
negligence of the Tenant or its employees, agents,
invitees or others under its control, from the
date of occurrence of the damage and until the
Leased Premises are again reasonably capable for
use and occupancy as aforesaid, the Rent payable
pursuant to this Lease shall xxxxx from time to
time in proportion to the part or parts of the
Leased Premises not reasonably capable of such use
and occupancy, and
(2) unless this Lease is terminated as hereinafter
provided, the Landlord or the Tenant as the case
may be (according to the nature of the damage and
their respective obligations to repair as provided
in sub-paragraphs (a), (b) and (c) of this
paragraph) shall repair such damage with all
reasonable diligence, but to the extent that any
part of the Leased Premises is not reasonably
capable of such use and occupancy by reason of
damage which the Tenant is obligated to repair
hereunder, any abatement of Rent to which the
Tenant would otherwise be entitled hereunder shall
not extend later than the time by which, in the
reasonable opinion of the Landlord, repairs by the
Tenant ought to have been completed with
reasonable diligence; and
(ii) if the Leased Premises are substantially damaged or
destroyed by any cause and if in the reasonable opinion
of the Landlord given in writing within thirty (30) days
of the occurrence the damage cannot reasonably be
repaired within one hundred and eighty (180) days after
the occurrence thereof, than the Lease shall terminate,
in which event neither the Landlord nor the Tenant shall
be bound to repair as provided in sub-paragraphs (a), (b)
and (c) of this paragraph, and the Tenant shall instead
deliver up possession of the Leased Premises to the
Landlord with reasonable expedition and Rent shall be
apportioned and paid to the date of the occurrence; and
(iii) if premises whether of the Tenant or other tenants of the
Property comprising in the aggregate half or more of the
total number of square feet of rentable office area in
the Property or half or more of the total number of
square feet of rentable office area in the Building (as
determined by the Landlord) or portions of the Property
which affect access or services essential thereto, are
substantially damaged or destroyed by any cause and if in
the reasonable opinion of the Landlord the damage cannot
reasonably be repaired within one hundred and eighty
(180) days after the occurrence thereof, then the
Landlord may, by written notice to the Tenant given
with-in thirty (30) days after the occurrence of such
damage or destruction, terminate this Lease, in which
event neither the Landlord nor the Tenant shall be bound
to repair as provided in sub-paragraphs (a) (b) and (c)
of this paragraph, and the Tenant shall instead deliver
up possession of the Leased Premises to the Landlord with
reasonable expedition but in any event within sixty (60)
days after delivery of such notice of termination, and
Rent shall be apportioned and paid to the date upon which
possession is so delivered up (but subject to any
abatement to which the Tenant may be entitled under
sub-paragraph (e) (i) of this paragraph).
9. INSURANCE AND LIABILITY
LANDLORD'S INSURANCE
(a) The Landlord shall take out and keep in force during the Term
insurance with respect to the Property except for the "Leasehold
Improvements" (as hereinafter defined) in the Leased Premises. The
insurance to be maintained by the Landlord shall be in respect of
perils and to amounts and on terms and conditions which from time to
time are insurable at a reasonable premium and which are normally
insured by reasonable prudent owners of properties similar to the
Property, all as from time to time determined at reasonable intervals
by insurance advisors selected by the Landlord, and whose opinion shall
be conclusive. Unless and until the insurance advisors shall state that
any such perils are not customarily insured against by owners of
properties similar to the Property, the perils to be insured against by
the Landlord shall include, without limitation, public liability,
boilers and machinery, fire and extended perils and may include at the
option of the Landlord losses suffered by the Landlord in its capacity
as Landlord through business interruption. The insurance to be
maintained by the Landlord shall contain a waiver by the insurer of any
rights of subrogation or indemnity or any other claim over which the
insurer might otherwise be entitled against the Tenant or the agents or
employees of the Tenant.
TENANT'S INSURANCE
(b) The Tenant shall take out and keep in force during the Term:
(i) comprehensive general public liability insurance all on an
occurrence basis with respect to the business carried on in
or from the Leased Premises and the Tenant's use and
occupancy of the Leased Premises and of any other part of
the Property, with coverage for any one occurrence or claim
of not less than One Million Dollars ($1,000,000) or such
other amount as the Landlord may reasonably require upon not
less than one (1) month notice at any time during the Term,
which insurance shall include the Landlord as a named
insured and shall protect the Landlord in respect of claims
by the Tenant as if the Landlord were separately insured;
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(b) (ii) insurance in respect of fire and such other perils as are
from time to time in the usual extended coverage
endorsement covering the Leasehold Improvements, trade
fixtures, and the furniture and equipment in the Leased
Premises for not less than 80% of the full replacement
cost thereof, and which insurance shall include the
Landlord as a named insured as the Landlord's interest
may appear; and
(iii) insurance against such other perils and in such amounts
as the Landlord may from time to time reasonably require
upon not less than ninety (90) days' written notice, such
requirement to be made on the basis that the required
insurance is customary at the time for prudent tenants of
properties similar to the Property.
All insurance required to be maintained by the Tenant shall be on terms
and with insurers satisfactory to the Landlord. Each policy shall
contain a waiver by the insurer of any rights of subrogation or
indemnity or any other claim over to which the insurer might otherwise
be entitled against the Landlord or the agents or employees of the
Landlord, and shall also contain an undertaking by the insurer that no
material change adverse to the Landlord or the Tenant will be made, and
the policy will not lapse or be cancelled, except after not less than
thirty (30) days' written notice to the Landlord of the intended change,
lapse or cancellation. The Tenant shall furnish to the Landlord, if and
whenever requested by it, certificates or other evidences acceptable to
the Landlord as to the insurance from time to time effected by the
Tenant and its renewal or continuation in force, together with evidence
as to the method of determination of full replacement cost of the
Tenant's Leasehold Improvements, trade fixtures, furniture and
equipment, and if the Landlord reasonably concludes that the full
replacement cost has been underestimated, the Tenant shall forthwith
arrange for any consequent increase in coverage required under
sub-paragraph (b). If the Tenant shall fail to take out, renew and keep
in force such insurance, or if the evidences submitted to the Landlord
are unacceptable to the Landlord (or no such evidences are submitted
within a reasonable period after request therefor by the Landlord), then
the Landlord may give to the Tenant written notice requiring compliance
with this sub-paragraph and specifying the respects in which the Tenant
is not then in compliance with this sub-paragraph. If the Tenant does
not within forty-eight (48) hours provide appropriate evidence of
compliance with this sub-paragraph, the Landlord may (but shall not be
obligated to) obtain some or all of the additional coverage or other
insurance which the Tenant shall have failed to obtain, without
prejudice to any other rights of the Landlord under this Lease or
otherwise, and the Tenant shall pay all premiums and other reasonable
expenses incurred by the Landlord to the Landlord on demand.
LIMITATION OF LANDLORD'S LIABILITY
(c) The Tenant agrees that the Landlord shall not be liable for any
bodily injury or death of, or loss or damage to any property belonging
to, the Tenant or its employees, invitees or licensees or any other
person in, on or about the Property unless resulting from the actual
wilful misconduct or gross negligence of the Landlord or its own
employees. In no event shall the Landlord be liable for any damage
which is caused by steam, water, rain or snow or other thing which may
leak into, issue or flow from any part of the Property or from the
pipes or plumbing works, including the sprinkler system (if any)
therein or from any other place or for any damage caused by or
attributable to the condition or arrangement of any electric or other
wiring or of sprinkler heads (if any) or for any damage caused by
anything done or omitted by any other tenant.
INDEMNITY OF LANDLORD
(d) Except with respect to claims or liabilities in respect of any
damage which is Insured Damage or resulting from negligence of the
Landlord or others for whom the Landlord is responsible, the Tenant
agrees to indemnify and save harmless the Landlord in respect of:
(i) all claims for bodily injury or death, property damage or
other loss or damage arising from the conduct of any work or
any act or omission of the Tenant or any assignee,
sub-tenant, agent, employee, contractor, invitee or licensee
of the Tenant, and in respect of all costs, expenses and
liabilities incurred by the Landlord in connection with or
arising out of all such claims, including the expenses of
any action or proceeding pertaining thereto; and
(ii) any loss, cost, (including, without limitation, lawyers' fees
and disbursements), expense or damage suffered by the
Landlord arising from any breach by the Tenant of any of its
covenants and obligations under this Lease.
DEFINITION OF "INSURED DAMAGE"
(e) For purposes of this Lease, "Insured Damage" means that part of
any damage occurring to the Property of which the entire cost of repair
(or the entire cost of repair other than a deductible amount properly
collectable by the Landlord as part of the Additional Rent) is actually
recovered by the Landlord under a policy or policies of insurance from
time to time effected by the Landlord pursuant to sub-paragraph (a)
Where an applicable policy of insurance contains an exclusion for
damages recoverable from a third party, claims as to which the
exclusion applies shall be considered to constitute Insured Damage only
if the Landlord successfully recovers from the third party.
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10. EVENTS OF DEFAULT AND REMEDIES
Event of Default and Remedies
(a) In the event of the happening of any one of the following events:
(i) the Tenant shall have failed to pay an installment of
Basic Rent or of Additional Rent or any other amount
payable hereunder when due, and such failure shall be
continuing for a period of more than ten (10) days after
the date such installment or amount was due:
(ii) there shall be a default of or with any condition,
covenant, agreement or other obligation on the part of the
Tenant to be kept, observed or performed hereunder (other
than a condition, covenant, agreement, or other obligation to
pay Basic Rent, Additional Rent or any other amount of money)
and such default shall be continuing for a period of more than
fifteen (15) days after written notice by the Landlord to the
Tenant specifying the default and the Tenant having failed to
commence rectification of such default within fifteen (15) days
and requiring that it discontinue;
(iii) if any policy of insurance upon the Property or any part thereof
from time to time effected by the Landlord shall be cancelled or
about to be cancelled by the insurer by reason of the use or
occupation of the Leased Premises by the Tenant or any assignee,
sub-tenant or licensee of the Tenant or anyone permitted by the
Tenant to be upon the Leased Premises and the Tenant after
receipt of notice in writing from the Landlord shall have failed
to take such immediate steps in respect of such use or occupation
as shall enable the Landlord to reinstate or avoid cancellation
(as the case may be) of such policy of insurance,
(iv) the Leased Premises shall, without the prior written consent of
the Landlord, be used by any other persons than the Tenant or its
permitted assigns or sub-tenants or for any purpose other than
that for which they were leased or occupied or by any persons
whose occupancy is prohibited by this Lease,
(v) the Leased Premises shall be vacated or abandoned, or remain
unoccupied without the prior written consent of the Landlord for
fifteen (15) consecutive days or more while capable of being
occupied,
(vi) the balance of the Term of this Lease or any of the goods and
chattels of the Tenant located in the Leased Premises, shall at
any time be seized in execution or attachment, or
(vii) the Tenant shall make any assignment for the benefit of creditors
or become bankrupt or insolvent or take the benefit of any
statute for bankrupt or insolvent debtors or, if a corporation,
shall take any steps or suffer any order to be made for its
winding-up or other termination of its corporate existence; or a
trustee, receiver or receiver-manager or agent or other like
person shall be appointed of any of the assets of the Tenant,
the Landlord shall have the following rights and remedies all of which are
cumulative and not alternative and not to the exclusion of any other or
additional rights and remedies in law or equity available to the Landlord by
statute or otherwise;
(A) to remedy or attempt to remedy any default of the Tenant, and in
so doing to make any payments due or alleged to be due by the
Tenant to third parties and to enter upon the Leased Premises to
do any work or other things therein, and in such event all
reasonable expenses of the Landlord in remedying or attempting to
remedy such default shall be payable by the Tenant to the
Landlord on demand;
(B) with respect to unpaid overdue Rent, to the payment by the Tenant
of the Rent and of interest (which said interest shall be deemed
included herein in the term "Rent") thereon at a rate equal to
the lesser of three percent (3%) above the prime commercial loan
rate charged to borrowers having the highest credit rating from
time to time by the Landlord's principal bank from the date upon
which the same was due until actual payment thereof and the
maximum amount allowed under the laws of the jurisdiction in
which the Building is located;
(C) to terminate this Lease forthwith by leaving upon the Leased
Premises or by affixing to an entrance door to the Leased
Premises notice terminating the Lease and to immediately
thereafter cease to furnish any services hereunder and enter into
and upon the Leased Premises or any part thereof in the name of
the whole and the same to have again, re-possess and enjoy as of
its former estate, anything in this Lease contained to the
contrary notwithstanding; and
(D) to enter the Leased Premises as agent of the Tenant and as such
agent to re-let them and to receive the rent therefor and as the
agent of the Tenant to take possession of any furniture or other
property thereon and upon giving ten (10) days' written notice
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to the Tenant to store the same at the expense and risk of the Tenant or to
sell or otherwise dispose of the same at public or private sale without further
notice and to apply the proceeds thereof and any rent derived from re-letting
the Leased Premises upon account of the Rent due and to become due under this
Lease and the Tenant shall be liable to the Landlord for the deficiency if any.
Payment of Rent, etc. on Termination
(b) Upon the giving by the Landlord of a notice in writing terminating this
Lease under sub-paragraphs (a)(C) of this paragraph, this Lease and the term
shall terminate, Rent and any other payments for which the Tenant is liable
under this Lease shall be computed, apportioned and paid in full to the date of
such termination forthwith, and there shall immediately become due and payable
forthwith in one lump sum as liquidated damages and not a penalty the aggregate
of Basic Rent and Additional Rent (as estimated by the Landlord acting
reasonably), for a period of one year, being the estimated time required for
re-leasing the Leased Premises or, if less than one year remains of the Term,
the aggregate of basic Rent and Additional Rent (as estimated by the Landlord
acting reasonably) for the unexpired portion of the Term. Upon termination of
this Lease and the Term, the Tenant shall immediately deliver up possession of
the Leased Premises to the Landlord, and the Landlord may forthwith re-enter
and take possession of them.
(c) The Tenant shall pay to the Landlord on demand all costs and expenses,
including lawyers' fees, incurred by the Landlord in enforcing any of the
obligations of the Tenant under this Lease.
ADDITIONAL PROVISIONS
Subordination and Attornment
12. This Lease and all rights of the Tenant hereunder are subject and
subordinate to all under-lying leases and charges, or mortgages now or
hereafter existing (including charges, and mortgages by way of debenture, note,
bond, deeds of trust and mortgage and all instruments supplemental thereto)
which may now or hereafter affect the Property or any part thereof and to all
renewals, modifications, consolidations, replacements and extensions thereof
provided the lessor, chargee, mortgagee or trustee agrees to accept this Lease
if not in default; and in recognition of the foregoing the Tenant agrees that
it will, whenever requested, attorn to such lessor, chargee, mortgagee as a
tenant upon all the terms of this Lease. The Tenant agrees to execute promptly
whenever requested by the Landlord or by the holder of any such lease, charge,
or mortgage an instrument of subordination or attornment, as the case may be,
as may be required of it.
Certificates
13. The Tenant agrees that it shall promptly whenever requested by the
Landlord from time to time execute and deliver to the Landlord, and if required
by the Landlord, to any lessor, chargee, or mortgagee (including any trustee)
or other person designated by the Landlord, an acknowledgment in writing as to
the then status of this Lease, including as to whether it is in full force and
effect, is modified or unmodified, confirming the Basic Rent and Additional
Rent payable hereunder and the State of the accounts between Landlord and the
Tenant, the existence or non-existence of defaults, and any other matters
pertaining to this Lease as to which the Landlord shall request an
acknowledgment.
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INSPECTION OF AND ACCESS TO THE LEASED PREMISES
14. The Landlord shall be permitted during the Tenant's business hours upon
not less than two (2) business days prior written notice except in emergencies
to enter and to have its authorized agents, employees and contractors enter the
Leased Premises for the purposes of inspection, window cleaning, maintenance,
providing janitor service, making repairs, alterations or improvements to the
Leased Premises or the Property, or to have access to utilities and services
(including all ducts and access panels (if any), which the Tenant agrees not to
obstruct) and the Tenant shall provide free and unhampered access for the
purpose, and shall not be entitled to compensation for any inconvenience,
nuisance or discomfort caused thereby. The Landlord and its authorized agents
and employees shall be permitted entry to the Leased Premises for the purpose
of exhibiting them to prospective tenants. The Landlord in exercising its
rights under this paragraph shall do so to the extent reasonably necessary so
as to minimize interference with the Tenant's use and enjoyment of the
Leased Premises provided that in an emergency the Landlord or persons
authorized by it may enter the Leased Premises without regard to minimizing
interference.
DELAY
15. Except as herein otherwise expressly provided, if and whenever and to
the extent that either the Landlord of the Tenant shall be prevented, delayed
or restricted in the fulfillment of any obligation hereunder in respect of the
supply or provision of any service or utility, the making of any repair, the
doing of any work or any other thing (other than the payment of moneys required
to be paid by the Tenant to the Landlord hereunder) by reason of:
(a) strikes or work stoppages;
(b) being unable to obtain any material, service, utility or labour
required to fulfill such obligation;
(c) any statute, law or regulation of, or inability to obtain any
permission from any government authority having lawful jurisdiction
preventing, delaying or restricting such fulfillment; or
(d) other unavoidable occurrence,
the time for fulfillment of such obligation shall be extended during the period
in which such circumstance operates to prevent, delay or restrict the
fulfillment thereof, and the other party to this Lease shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned;
provided that nevertheless the Landlord will use its best efforts to maintain
services essential to the use and enjoyment of the Leased Premises and provided
further that if the Landlord shall be prevented, delayed or restricted in the
fulfillment of any such obligation hereunder by reason of any of the
circumstances set out in sub-paragraph (c) of this paragraph 15 and to fulfill
such obligation could not, in the reasonable opinion of the Landlord, be
completed without substantial additions to or renovations of the Property, the
Landlord may on sixty (60) days' written notice to the Tenant terminate this
Lease.
WAIVER
16. If either the Landlord or the Tenant shall overlook, excuse, condone or
suffer any default, breach, non-observance, improper compliance or
non-compliance by the other of any obligation hereunder, this shall not operate
as a waiver of such obligation in respect of any continuing or subsequent
default, breach, or non-observance, and no such waiver shall be implied but
shall only be effective if expressed in writing.
SALE, DEMOLITION AND RENOVATION
17. (a) The term "Landlord" as used in this Lease, means only the owner
for the time being of the Property, so that in the event of any
sale or sales or transfer or transfers of the Property, or the
making of any lease or leases thereof, or the sale or sales or
the transfer or transfers or the assignment or assignments of
any such lease or leases, previous landlords shall be and
hereby are relieved of all covenants and obligations of
Landlord hereunder. It shall be deemed and construed without
further agreement between the parties, or their successors in
interest, or between the parties and the transferee or
acquiror, at any such sale, transfer or assignment, or lessee
on the making of any such lease, that the transferee, acquiror
or lessee has assumed and agreed to carry out any and all of
the covenants and obligations of Landlord hereunder to
Landlord's exoneration, and Tenant shall thereafter be bound to
and shall attorn to such transferee, acquiror or lessee, as the
case may be, as Landlord under this Lease;
(b) Notwithstanding anything contained in this Lease to the
contrary, in the event the Landlord intends to demolish or to
renovate substantially all the Building, then the Landlord,
upon giving the Tenant two (2) years written notice, shall have
the right to terminate this Lease and this Lease shall
thereupon expire on the expiration of two (2) years from the
date of the giving of such notice without compensation of any
kind to the Tenant.
PUBLIC TAKING
18. The Landlord and Tenant shall co-operate, each with the other, in
respect of any Public Taking of the Leased Premises or any part thereof so that
the Tenant may receive the maximum award to which it is entitled in law for
relocation costs and business interruption and so that the Landlord may
receive the maximum award for all other compensation arising from or relating to
such Public Taking (including all compensation for the value of the Tenant's
leasehold interest subject to the Public Taking) which shall be the property of
the Landlord, and the Tenant's rights
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to such compensation are hereby assigned to the Landlord. If the whole or any
part of the Leased Premises is Publicly Taken, as between the parties hereto,
their respective rights and obligations under this Lease shall continue until
the day on which the Public Taking authority takes possession thereof. If the
whole or any part of the Leased Premises is Publicly Taken, the Landlord shall
have the option, to be exercised by written notice to the Tenant, to terminate
this Lease and such termination shall be effective on the day the Public Taking
authority takes possession of the whole or the portion of the Property Publicly
Taken. Rent and all other payments shall be adjusted as of the date of such
termination and the Tenant shall, on the date of such Public Taking, vacate the
Leased Premises and surrender the same to the Landlord, with the Landlord
having the right to re-enter and re-possess the Leased Premises discharged of
this Lease and to remove all persons therefrom. In this paragraph, the words
"Public Taking" shall include expropriation and condemnation and shall include
a sale by the Landlord to an authority with powers of expropriation,
condemnation or taking, in lieu of or under threat of expropriation or taking
and "Publicly Taken" shall have a corresponding meaning.
REGISTRATION OF LEASE
19. The Tenant agrees with the Landlord not to register this Lease in any
recording office and to register notice of this Lease only in such form as the
Landlord shall have approved and upon payment of the Landlord's reasonable fee
for same and all applicable transfer or recording taxes or charges. The Tenant
shall remove and discharge at Tenant's expense registration of such a notice or
caveat at the expiry or earlier termination of the Term, and in the event of
Tenant's failure to so remove or discharge such notice or caveat after ten (10)
days' written notice by Landlord to Tenant, the Landlord may in the name and on
behalf of the Tenant execute a discharge of such a notice or caveat in order to
remove and discharge such notice of caveat and for the purpose thereof the
Tenant hereby irrevocably constitutes and appoints any officer of the Landlord
the true and lawful attorney of the Tenant.
LEASE ENTIRE AGREEMENT
20. The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions express or implied, collateral or
otherwise forming part of or in any way affecting or relating to this Lease
save as expressly set out in this Lease and Schedules attached hereto and that
this Lease and such Schedules constitute the entire agreement between the
Landlord and the Tenant and may not be modified except as herein explicitly
provided or except by agreement in writing executed by the Landlord and the
Tenant.
NOTICES
21. Any notice, advice, document or writing required or contemplated by any
provision hereof shall be given in writing and if to the Landlord, either
delivered personally to an officer of the Landlord or mailed by prepaid mail
addressed to the Landlord at the said local office address of the Landlord
shown above, and if to the Tenant, either delivered personally to the Tenant
(or to an officer of the Tenant, if a corporation) or mailed by prepaid mail
addressed to the Tenant at the Leased Premises, with a copy to the President of
the Tenant at address of the Tenant shown in the description of the Tenant
above. Every such notice, advice, document or writing shall be deemed to have
been given when delivered personally, or if mailed as aforesaid, upon the fifth
day after being mailed. The Landlord may from time to time by notice in
writing to the Tenant designate another address as the address to which notices
are to be mailed to it, or specify with greater particularity the address and
persons to which such notices are to be mailed and may require that copies of
notices be sent to an agent designated by it. The Tenant may, if an address of
the Tenant is shown in the description of the Tenant above, from time to time
by notice in writing to the Landlord, designate another address as the address
to which notices are to mailed to it, or specify with greater particularity the
address to which such notices are to be mailed.
INTERPRETATION
22. In this Agreement "herein," "hereof", "hereby", "hereunder," "hereto",
"hereinafter" and similar expressions refer to this Lease and not to any
particular paragraph, clause or other portion thereof, unless there is
something in the subject matter or context inconsistent therewith; and the
parties agree that all of the provisions of this Lease are to be construed as
covenants and agreements as though words importing such covenants and
agreements were used in each separate paragraph hereof, and that should any
provision or provisions of this Lease be illegal or not enforceable it or they
shall be considered separate and severable from the Lease and its remaining
provisions shall remain in force and be binding upon the parties hereto as
though the said provision or provisions had never been included, and further
that the captions appearing for the provisions of this Lease have been inserted
as a matter of convenience and for reference only and in no way define, limit
or enlarge the scope or meaning of this Lease or of any provisions hereof.
EXTENT OF LEASE OBLIGATIONS
23. This Agreement and everything herein contained shall enure to the
benefit of and be binding upon the respective heirs, executors, administrators,
successors, assigns and other legal representatives, as the case may be, of
each and every of the parties hereto, subject to the granting of consent by the
Landlord to any assignment or sublease, and every reference herein to any party
hereto shall include the heirs, executors, administrators, successors, assigns
and other legal representatives of such party, and where there is more than one
tenant or there is a male or female party the provisions hereof shall be read
with all grammatical changes thereby rendered necessary and all covenants shall
be deemed joint and several.
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USE AND OCCUPANCY PRIOR TO TERM
24. If the Tenant shall for any reason use or occupy the Leased Premises in
any way prior to the commencement of the Term without there being an existing
lease between the Landlord and Tenant under which the Tenant has occupied the
Leased Premises, then during such period use or occupancy the Tenant shall be a
Tenant of the Landlord and shall be subject to the same covenants and
agreements in this Lease mutatis mutandis.
SCHEDULES
25. The provisions of the following Schedules attached hereto shall form part
of this Lease as if the same were embodied herein.
Schedule "A" - Legal Description of Property
Schedule "B" - Outline of Leased Premises
Schedule "C" - Taxes payable by Landlord and Tenant
Schedule "D" - Services and Costs
Schedule "E" - Rules and Regulations
Schedule "F" - Leasehold Improvements
Schedule "G" - Not Applicable
Schedule "H" - Option to Renew
Schedule "I" - Not Applicable
Schedule "J" - Not Applicable
Schedule "K" - Occupancy Prior to Commencement of Term
Schedule "K-1"- Increase in Basic Rental
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
I/We have the authority to bind the corporation.
Landlord:
THE MANUFACTURERS LIFE
INSURANCE COMPANY
by Signature: /s/ XXXXXXX X. XXXXXXXX
-------------------------
Title: XXXXXXX X. XXXXXXXX
/s/ X. XXXXXX DIRECTOR, TORONTO REAL ESTATE
---------------------------------
Witness as to signing by Landlord
Tenant:
JDA SOFTWARE SERVICES LTD.
by Signature: /s/ X. XXXXXX
-------------------------
Title: President
/s/ XXX XXXXXXX
---------------------------------
Witness as to signing by
Tenant or officer(s) of Tenant
by Signature: /s/ XXXX XXXXXXXX
------------------------
Title: Financial Manager
12
16
SCHEDULE "A"
(Legal Description of Lands)
That part of Xxx 00 xx Xxxxxxxxxx 0 Xxxx xx Xxxxx Xxxxxx in the City of North
York located at the southwest corner of Xxxxxxxx Avenue East and Xxxxxxxx Xxxx
Avenue, more particularly described in the Office of Land Titles at Toronto as
Parcel 13-8 in the Register for Section Y-16.
Property Name : LANSING SQUARE
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SCHEDULE "B"
(Plan of Leased Premises outlined in red)
0 XXXXXXX XXXXXX
XXXXXXX XXXXX
Xxxxx 000
Approximately 3,369 rentable square feet
BUILDING NAME: LANSING SQUARE
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SCHEDULE "B-1"
[XXXXX & ASSOCIATES LTD. LETTERHEAD]
[MAP OF OFFICE BUILDING]
JDA SOFTWARE SERVICES LTD.
0 XXXXXXX XXXXXX
0XX XXXXX
FEASIBILITY PLAN NO. 2
3,369 S.F. RENTABLE
NOVEMBER 24, 1995
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SCHEDULE "C"
TAXES PAYABLE BY LANDLORD AND TENANT
TENANT'S TAXES
1. (a) The Tenant covenants to pay all Tenant's Taxes, as and when the
same become due and payable. Where any Tenant's Taxes are payable
by the Landlord to the relevant taxing authorities, the Tenant
covenants to pay the amount thereof to the Landlord.
(b) The Tenant covenants to pay the Landlord the Tenant's
Proportionate Share of the amount of the Landlord's Taxes in each
Fiscal Period.
(c) The Tenant covenants to pay to the Landlord the Tenant's
Proportionate Share of the costs and expenses (including legal and
other professional fees and interest and penalties on deferred
payments) incurred in good faith by the Landlord in contesting,
resisting or appealing any of the Taxes.
LANDLORD'S TAXES
(d) The Landlord covenants to pay all Landlord's Taxes subject to the
payments on account of Landlord's Taxes required to be made by the
Tenant elsewhere in this Lease. The Landlord may appeal any
official assessment or the amount of any Taxes or other taxes
based on such assessment and relating to the Property. In
connection with any such appeal, the Landlord may defer payment of
any Taxes or other taxes, as the case may be, payable by it to the
extent permitted by law, and the Tenant shall co-operate with the
Landlord and provide the Landlord with all relevant information
reasonably required by the Landlord in connection with any such
appeal.
SEPARATE ALLOCATION
(e) In the event that the Landlord is unable to obtain from the taxing
authorities any separate allocation of Landlord's Taxes, Tenant's
Taxes or assessment as required by the Landlord to make
calculations of Additional Rent under this Lease, such allocation
shall be made by the Landlord acting reasonably and shall be
conclusive.
INFORMATION
(f) Whenever requested by the Landlord, the Tenant shall deliver to it
receipts for payment of all the Tenant's Taxes and furnish such
other information in connection therewith as the Landlord may
reasonably require.
TAX ADJUSTMENT
(g) If the Building has not been taxed as a completed and fully
occupied building for any Fiscal Period, the Landlord's Taxes will
be determined by the Landlord as if the Building had been taxed as
a completed and fully occupied building for any such Fiscal
Period.
DEFINITION
2. In this lease:
(a) "Landlord's Taxes" shall mean the aggregate of all Taxes
attributable to the Property, the Rent or the Landlord in respect
thereof and including, any amounts imposed, assessed, levied or
charged in substitution for or in lieu of any such Taxes, but
excluding such taxes as capital gains taxes, corporate income,
profit or excess profit taxes to the extent such taxes are not
levied in lieu of any of the foregoing against the Property or the
Landlord in respect thereof;
(b) "Taxes" shall mean all taxes, rates, duties, levies, fees, charges,
local improvement rates, capital taxes (shall be calculated as if
the Property were the only asset of the landlord and shall exclude
any additional capital taxes payable as a result of the
refinancing) rental taxes and assessments whatsoever including
fees, rents, and levies for air rights and encroachments on or
over municipal property imposed, assessed, levied or charged by
any school, municipal, regional, state, provincial, federal,
parliamentary or other body, corporation, authority, agency or
commission provided that "Taxes" shall not include any special
utility, levies, fees or charges imposed, assessed, levied or
charged which are directly associated with the initial
construction of the Property;
(c) "Tenant's Taxes" shall mean the aggregate of:
(i) all Taxes (whether imposed upon the Landlord or the Tenant)
attributable to the personal property, trade fixtures,
business, income, occupancy or sales of the Tenant or any
other occupant of the Leased Premises, and to any Leasehold
Improvements or fixtures installed by or on behalf of the
Tenant within the Leased Premises, and to the use by the
Tenant of any of the Property; and
(ii) the amount by which Taxes (whether imposed upon the Landlord
or the Tenant) are increased above the Taxes which would have
otherwise been payable as a result of the Leased Premises or
the Tenant or any other occupant of the Leased Premises being
taxed or assessed in support of separate schools; and
(d) "Tenant's Proportionate Share" shall mean zero decimal eight three
-------------------------------- percent (0.83%) subject to
adjustment, as determined solely by the common Landlord and
notified to the Tenant in writing for physical increases or
decreases in the total rentable area of the Property provided that
total rentable area of the Property and the rentable area of the
Leased Premises shall exclude areas designated (whether or not
rented) for parking and for storage.
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SCHEDULE "D"
SERVICES AND COSTS
INTERIOR CLIMATE CONTROL
1. The Landlord convenants with the Tenant:
(a) To maintain in the Leased Premises conditions of reasonable
temperature and comfort in accordance with good standards
applicable to normal occupancy of premises for office purposes
subject to governmental regulations during hours to be determined
by the Landlord (but to be at least the hours from 8:00 a.m.
to 6:00 p.m. from Monday to Friday inclusive with the exception
of holidays, Saturdays and Sundays), such conditions to be
maintained by means of a system for heating and cooling,
filtering and circulating air; the Landlord shall have no
responsibility for any inadequacy of performance of the said
system if the occupancy of the Leased Premises or the electrical
power or other energy consumed on the Leased Premises for all
purposes exceeds reasonable amounts as determined by the Landlord
or the Tenant installs partitions or other installations in
locations which interfere with the proper operation of the system
of interior climate control or if the window covering on exterior
windows is not kept fully closed.
JANITOR SERVICE
(b) To provide janitor and cleaning services to the Leased Premises
and to common areas of the Building consisting of reasonable
service in accordance with the standards of similar office
buildings:
ELEVATORS, LOBBIES, ETC.
(c) To keep available the following facilities for use by the Tenant
and its employees and invitees in commmon with other persons
entitled thereto:
(i) passanger and freight elevator service to each floor upon
which the Leased Premises are located provided such service
is installed in the Building and provided that the Landlord
may prescribe the hours during which and the procedures
under which freight elevator service shall be available and
may limit the number of elevators providing service outside
normal business hours;
(ii) common entrances, lobbies, stairways and corridors giving
access to the Building and the Leased Premises, including
such other areas from time to time which may be provided
by the Landlord for common use and enjoyment within the
Property:
(iii) the washrooms as the Landlord may assign from time to time
which are standard to the Building, provided that the
Landlord and the Tenant acknowledge that where an entire
floor is leased to the Tenant or some other tenant the
Tenant or such other tenant, as the case may be, may exlcude
others from the washrooms thereon.
ELECTRICITY
2. (a) The Landlord covenants with the Tenant to furnish electricy to
the Leased Premises (except Leased Premises which have separate
meters) for normal office use for lighting and for office
equipment capable of operating from the circuits available to the
Leased Premises and standard to the Building during hours to be
determined by the Landlord (but to be at least the hours from
8:00 a.m. to 6:00 p.m. from Monday to Friday inclusive with the
exception of holidays, Saturdays and Sundays) and during such
other hours that the Tenant elects at its sole cost and expense
subject to governmental regulations;
(b) The amount of electricity consumed on the Leased Premises in
excess of electricity required by the Tenant for normal office
use shall be as determined by the Landlord acting reasonably or
by a metering device installed by the Tenant at the Tenant's
expense. The Tenant shall pay the Landlord for any such excess
electricity on demand.
3. The Landlord shall maintain and keep in repair the facilities required
for the provision of the interior climate control, elevator (if installed in
the Building), and other services referred to in sub-paragraph (a) and (c) of
paragraph 1 and sub-paragraph (a) of paragraph 2 of this Schedule in accordance
with the standards of office buildings similar to the Building but reserves the
right to stop the use of any of these facilities and the supply of the
corresponding services when necessary by reason of accident or breakdown or
during the making of repairs, alterations or improvements, in the reasonable
judgment of the Landlord necessary or desirable to be made, until the repairs,
alterations or improvements shall have been completed to the satisfaction of
the Landlord.
ADDITIONAL SERVICES
4. (a) The Landlord may (but shall not be obliged) on request of the
Tenant supply services or materials to the Leased Premises and
the Property which are not provided for under this Lease and
which are used by the Tenant (the "Additional Services")
including, without limitation,
(i) replacement of tubes and ballasts;
(ii) carpet shampooing;
(iii) drapery cleaning;
(iv) locksmithing;
(v) removal of bulk garbage;
(vi) picture hanging; and
(vii) special security arrangement.
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(b) When Additional Services are supplied or furnished by the
Landlord, accounts therefor shall be rendered by the Landlord
and shall be payable by the Tenant to the Landlord on demand.
In the event the Landlord shall elect not to supply or furnish
Additional Services, only persons with prior written approval
by the Landlord (which approval shall not be unreasonably
withheld) shall be permitted by the Landlord or the Tenant to
supply or furnish Additional Services to the Tenant and the
supplying and furnishing shall be subject to the reasonable
rules fixed by the Landlord with which the Tenant undertakes to
cause compliance and to comply.
OPERATING CHARGES PAYABLE
5. (a) The Tenant covenants to pay to the Landlord the Tenant's
Proportionate Share of the amount of the Operating Costs in
each Fiscal Period;
(b) Subject to the other terms and conditions of this Lease, the
Landlord shall not be responsible during the Term for any
costs, charges, expenses and outlays of any nature whatsoever
arising from or relating to the Leased Premises and the Tenant
shall pay all charges, impositions, costs and expenses of every
nature and kind relating to the Leased Premises and the amounts
included as Additional Rent whether or not specifically
provided for herein and the Tenant covenants with the Landlord
accordingly;
(c) In this Lease "Operating Costs" shall include all costs without
duplication incurred or which will be incurred by the Landlord
in the maintenance, operation, administration and management of
the Property including without limitation:
(i) cost of heating, ventilating and air-conditioning;
(ii) cost of water and sewer charges;
(iii) cost of electricity, fuel or other forms of energy
which are not separately metered and recovered or paid
by tenants;
(iv) costs of insurance carried by the Landlord pursuant to
paragraph 9(a) of this Lease and cost of any
deductible amount paid by the Landlord in connection
with each claim made by the Landlord under such
insurance;
(v) cost of building office expenses, including telephone,
rent, stationery and supplies;
(vi) costs of all elevator and escalator (if installed in
the Building) maintenance and operation;
(vii) costs of on site operating staff, management staff and
other administrative personnel, including salaries,
wages, and fringe benefits;
(viii) cost of providing security;
(ix) cost of providing janitorial services, window cleaning,
garbage and snow removal and pest control;
(x) cost of supplies and materials;
(xi) cost of decoration of common areas;
(xii) cost of landscaping;
(xiii) cost of maintenance and operation of the parking area;
(xiv) cost of consulting, and professional fees including
expenses;
(xv) cost of repairs, replacements, additions and
modifications unless otherwise included under Operating
Costs under subparagraph (xvi), and cost of repair and;
(xvi) costs in respect of each Major Expenditure (as
hereinafter defined) as amortized over the period of
the Landlord's reasonable estimate of the economic life
of the Major Expenditure, but not to exceed fifteen
(15) years, using equal monthly installments of
principal and interest at ten percent (10%) per annum
compounded semi-annually. For the purpose hereof
"Major Expenditure" shall mean any expenditure
incurred during or subsequent to the Fiscal Period in
which the Term commences for replacement of machinery,
equipment, building elements, systems or facilities
forming a part of or used in connection with the
Property or for modifications, upgrades or additions to
the Property or facilities used in connection
therewith, provided that, in each case, such
expenditure was more than ten percent (10%) of the
total Operating Costs for the immediately preceding
Fiscal Period.
(d) In this Lease there shall be excluded from Operating Costs the
following:
(i) interest on debt and capital retirement of debt;
(ii) such of the Operating Costs as are recovered from
insurance proceeds: and
(iii) costs as determined by the Landlord of acquiring
tenants for the Property.
6. In calculating Operating Costs for any Fiscal Period, if less than one
hundred percent (100%) of Building is occupied by tenants, then the amount of
such Operating Costs shall be deemed for the purposes of this Schedule to be
increased to an amount equal to the like Operating Costs which normally would
be expected by the Landlord to have been incurred had such occupancy been one
hundred percent (100%) during such entire period.
7. In this Lease, "Tenant's Proportionate Share" shall mean zero decimal
eight three percent (0.83%) subject to adjustment as determined solely by the
Landlord and notified to the Tenant in writing for physical increases or
decreases in the total rentable area of the Property provided that total
rentable area of the Property and the rentable area of the Leased Premises
shall exclude areas designated (whether or not rented) for parking and for
storage.
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LANDLORD TENANT
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SCHEDULE "E"
RULES AND REGULATIONS
1. The sidewalks, entry passages, elevators (if installed in the Building)
and common stairways shall not be obstructed by the Tenant or used for any other
purpose than for ingress and egress to and from the Leased Premises. The
Tenant will not place or allow to be placed in the Building corridors or public
stairways any waste paper, dust, garbage, refuse or anything whatever.
2. The washroom plumbing fixtures and other water apparatus shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, ashes or other substances shall be thrown therein.
The expense of any damage resulting by misuse by the Tenant shall be borne by
the Tenant.
3. The Tenant shall permit window cleaners to clean the windows of the
Leased Premises during normal business hours.
4. No birds or animals shall be kept in or about the Property nor shall
the Tenant operate or permit to be operated any musical or sound-producing
instruments or device or make or permit any improper noise inside or outside
the Leased Premises which may be heard outside such Leased Premises.
5. No one shall use the Leased Premises for residential purposes, or for
the storage of personal effects or articles other than those required for
business purpose.
6. All persons entering and leaving the Building at any time other than
during normal business hours shall register in the books which may be kept by
the Landlord at or near the night entrance and the Landlord will have the right
to prevent any person from entering or leaving the Building or the Property
unless provided with a key to the premises to which such person seeks entrance
and a pass in a form to be approved by the Landlord. Any persons found in the
Building at such times without such keys and passes will be subject to the
surveillance of the employees and agents of the Landlord.
7. No dangerous or explosive materials shall be kept or permitted to be
kept in the Leased Premises.
8. The Tenant shall not permit any cooking in the Leased Premises. The
Tenant shall not install or permit the installation or use of any machine
dispensing goods for sale in the Leased Premises without the prior written
approval of the Landlord. Only persons authorized by the Landlord shall be
permitted to deliver or to use the elevators (if installed in the Building) for
the purpose of delivering food or beverages to the Leased Premises.
9. The Tenant shall not bring in or take out, position, construct, install
or move any safe, business machine or other heavy office equipment without
first obtaining the prior written consent of the Landlord. In giving such
consent, the Landlord shall have the right in its sole discretion, to prescribe
the weight permitted and the position thereof, and the use and design of
planks, skids or platforms to distribute the weight thereof. All damage done
to the Building by moving or using any such heavy equipment or other office
equipment or furniture shall be repaired at the expense of the Tenant. The
moving of all heavy equipment or other office equipment or furniture shall
occur only at times consented to by the Landlord and the persons employed to
move the same in and out of the Building must be acceptable to the Landlord.
Safes and other heavy office equipment will be moved through the halls and
corridors only upon steel bearing plates. No freight or bulky matter of any
description will be received into the Building or carried in the elevators (if
installed in the Building) except during hours approved by the Landlord.
10. The Tenant shall give the Landlord prompt notice of any accident to or
any defect in the plumbing, heating, air-conditioning, ventilating, mechanical
or electrical apparatus or any other part of the Building.
11. The parking of automobiles shall be subject to the charges and the
reasonable regulations of the Landlord. The Landlord shall not be responsible
for damage to or theft of any car, its accessories or contents whether the same
be the result of negligence or otherwise unless through the gross negligence of
the Landlord.
12. The tenant shall no xxxx, drill into or in any way deface the walls,
ceilings, partitions, floors or other parts of the Leased Premises and the
Building.
13. Except with the prior written consent of the Landlord, no tenant shall
use or engage any person or persons other than the janitor or janitorial
contractor of the Landlord for the purpose of any cleaning of the Leased
Premises.
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The Landlord acting reasonably will allow the Tenant's approved, qualified
tradesmen to install electrical and communications wiring.
14. If the Tenant desires any electrical or communications wiring, the
Landlord reserves the right to direct qualified persons as to where and how the
wires are to be introduced, and without such directions no borings or cutting
for wires shall take place. No other wires or pipes of any kind shall be
introduced without the prior written consent of the Landlord.
15. The Tenant shall not place or cause to be placed any additional locks upon
any doors of the Leased Premises without the approval of the Landlord and
subject to any conditions imposed by the Landlord. Additional keys may be
obtained from the Landlord at the cost of the Tenant.
16. The Tenant shall be entitle to have its name shown upon the directory
board of the Building and at one of the entrance doors to the Leased Premises,
all at the Tenant's expense, but the Landlord shall in its sole discretion
design the style of such identification and allocate the space on the directory
board for the Tenant.
17. The Tenant shall keep the sun drapes (if any) in a closed position at all
times. The Tenant shall not interfere with or obstruct any perimeter heating,
air-conditioning or ventilating units.
18. The Tenant shall not conduct, and shall not permit any, canvassing in the
Building.
19. The Tenant shall take care of the rugs and drapes (if any) in the Leased
Premises and shall arrange for the carrying-out of regular spot cleaning and
shampooing of carpets and dry cleaning of drapes in a manner acceptable to the
Landlord.
20. The Tenant shall permit the periodic closing of lanes, driveways and
passages for the purpose of preserving the Landlord's rights over such lanes,
driveways and passages.
21. The Tenant shall not place or permit to be placed any sign, advertisement,
notice or other display on any part of the exterior of the Leased Premises or
elsewhere if such sign, advertisement, notice or other display is visible from
outside the Leased Premises without the prior written consent of the Landlord
which may be arbitrarily withheld. The Tenant, upon request of the Landlord,
shall immediately remove any sign, advertisement, notice or other display which
the Tenant has placed or permitted to be placed which, in the opinion of the
Landlord, is objectionable, and if the Tenant shall fail to do so, the Landlord
may remove the same at the expense of the Tenant.
22. The Landlord shall have the right to make such other and further
reasonable rules and regulations and to alter the same as in its judgment may
from time to time be needful for the safety, care, cleanliness and appearance
of the Leased Premises and the Building and for the preservation of good order
therein, and the same shall be kept and observed by the tenants, their
employees and servants. The Landlord also has the right to suspend or cancel
any or all of these rules and regulations herein set out.
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LANDLORD TENANT
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SCHEDULE "F"
Leasehold Improvements
DEFINITION OF LEASEHOLD IMPROVEMENTS
1. For purposes of this Lease, the term "Leasehold Improvements" includes,
without limitation, all fixtures, improvements, installations, alterations and
additions from time to time made, erected or installed by or on behalf of the
Tenant, or any previous occupant of the Leased Premises, in the Leased
Premises and by or on behalf of other tenants in other premises in the Building
(including the Landlord if an occupant of the Building), including all
partitions, doors and hardware however affixed, and all mechanical, electrical
and utility installations and all carpeting and drapes with the exception only
of furniture and equipment not of the nature of fixtures. Leasehold
Improvements do not include the Tenant's computer and other trade or business
equipment.
INSTALLATION OF IMPROVEMENTS AND FIXTURES
2. The Landlord shall include in the Leased Premises the "Landlord's Work" (as
hereinafter defined). The Tenant shall not make, erect, install or alter any
Leasehold Improvements in the Leased Premises without having requested and
obtained the Landlord's prior written approval. The Landlord's approval shall
not, if given, under any circumstances be construed as a consent to the
Landlord having its estate charged with the cost of work. The Landlord shall not
unreasonably withhold its approval to any such request, but failure to comply
with the Landlord's reasonable requirements from time to time for the Building
shall be considered sufficient reason for refusal. In making, erecting,
installing or altering any Leasehold Improvements the Tenant shall not, without
the prior written approval of the Landlord, alter or interfere with any
installations which have been made by the Landlord or others and in no event
shall alter or interfere with the window coverings (if any) or other light
control devices (if any) installed in the Building. The Tenant's request for
any approval hereunder shall be in writing and accompanied by an adequate
description of the comtemplated work and, where appropriate, working drawings
and specifications thereof. If the Tenant requires from the Landlord drawings
or specifications of the Building in connection with Leasehold Improvements,
the Tenant shall pay the cost thereof to the Landlord on demand. Any reasonable
costs and expenses incurred by the Landlord in connection with the Tenant's
Leasehold Improvements shall be paid by the Tenant to the Landlord on demand.
All work to be performed in the Leased Premises shall be performed by competent
contractors and sub-contractors of whom the Landlord shall have approved in
writing prior to commencement of any work, such approval not to be unreasonably
withheld (except that the Landlord may require that the Landlord's contractors
and sub-contractors be engaged for any mechanical or electrical work) and by
workmen who have labour union affiliations that are compatible with those
affiliations (if any) of workmen employed by the Landlord and its contractors
and sub-contractors. All such work including the delivery, storage and removal
of materials shall be subject to reasonable supervision of the Landlord, shall
be performed in accordance with any reasonable conditions or regulations
imposed by the Landlord including, without limitation, payment on demand of a
reasonable fee of the Landlord for such supervision, and shall be completed in
good and workmanlike manner in accordance with the description of the work
approved by the Landlord and in accordance with all laws, regulations and
by-laws of all requlatory authorities. Copies of required building permits or
authorizations shall be obtained by the Tenant at its expense and copies
thereof shall be provided to the Landlord. No locks shall be installed on the
entrance doors or in any doors in the Leased Premises that are not keyed to the
Building master key system.
LIENS AND ENCUMBRANCES ON IMPROVEMENTS AND FIXTURES
3. In connection with the making, erection, installation or alteration of
Leasehold Improvements and all other work or installations made by or for the
Tenant in the Leased Premises the Tenant shall comply with all the provisions
of the mechanics' lien and other similar statutes from time to time applicable
thereto (including any proviso requiring or enabling the retention by way of
holdback of portions of any sums payable) and, except as to any such holdback,
shall prompltly pay all accounts relating thereto. The Tenant will not create
any mortgage, conditional sale agreement or other encumbrance in respect of its
Leasehold Improvements or, without the written consent of the Landlord, with
respect to its trade fixtures nor shall the Tenant take any action as a
consequence of which any such mortgage, conditional sale agreement or other
encumbrance would attach to the Property or any part thereof. If and whenever
any mechanics' or other lien for work, labour, services or materials supplied
to or for the Tenant or for the cost of which the Tenant may be in any way
liable or claims therefor shall arise or be filed or any such mortgage,
conditional sale agreement or other encumbrance shall attach, the Tenant shall
within twenty (20) days after submission by the Landlord of notice thereof
procure the discharge thereof, including any certificate of action registered
in respect of any lien, by payment or giving security or in such other manner as
may be required or permitted by law, and failing which the Landlord may avail
itself of any of its remedies hereunder for default of the Tenant and may make
any payments or take any steps or proceedings required to procure the discharge
of any such liens or
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encumbrances, and shall be entitled to be repaid by the Tenant on demand
for any such payments and to be paid on demand by the Tenant for all
costs and expenses in connection with steps or proceedings taken by the
Landlord and the Landlord's right to reimbursement and to payment shall
not be affected or impaired if the Tenant shall then or subsequently
establish or claim that any lien or encumbrances so discharged was
without merit or excessive or subject to any abatement, set-off or
defence. The Tenant agrees to indemnify the Landlord from all claims,
costs and expenses which may be incurred by the Landlord in any
proceedings brought by any person against the Landlord alone or with
another or others for or in respect of work, labour, services or
materials supplied to or for the Tenant.
REMOVAL OF IMPROVEMENTS AND FIXTURES
4. All Leasehold Improvements in or upon the Leased Premises shall
immediately upon their placement be and become the Landlord's property
without compensation therefor to the Tenant. Except to the extent
otherwise expressly agreed by the Landlord in writing, furniture or
equipment shall be removed by the Tenant from the Leased Premises
either during or at the expiration or sooner termination of the Term
except that :
(a) the Tenant shall, prior to the end of the Term, remove such of
the trade fixtures in the Leased Premises as the Landlord shall
require to be removed;and
(b) the Tenant may, at the times appointed by the Landlord and
subject to availability of elevators (if installed in the
Building), remove its furniture and equipment at the end of the
Term, and also during the Term in the usual and normal course
of its business where such furniture or equipment has become
excess for the Tenant's purposes or the Tenant is substituting
therefor new furniture and equipment.
The Tenant shall, in the case of every removal, make good at the
expense of the Tenant any damage caused to the Property by the
installation and removal. In the event of the Non-removal by the end of
the Term, or sooner termination of this Lease, of such trade fixtures
required by the Landlord of the Tenant to be removed, the Landlord
shall have the option, in addition to its other remedies under this
Lease to declare to the Tenant that such trade fixtures are the
property of the Landlord and the Landlord upon such a declaration may
dispose of such trade fixtures and retain any proceeds of disposition
as security for the Debts, Liabilities and Obligations and the Tenant
shall be liable to the Landlord for any expenses incurred by the
Landlord.
5. For the purpose of this Lease,
(a) the term "Tenant's Work" shall mean all work required to be
done to complete the Leased Premises for occupancy by the
Tenant excluding the "Landlord's Work" (as hereinafter
defined).
(b) the term "Landlord's Work" shall mean:
See Schedule "F-3" attached.
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6. (a) In addition to the Landlord's Work, the Landlord agrees to
finish and construct in the Leased Premises in accordance with
a Space Study prepared by Xxxxx and Associates hereto attached
as schedule "B-1". All materials and finishing shall be in
accordance with the specifications hereto attached as Schedule
"B-3". Any changes or additions to the space study require
written authorization executed by the Tenant or the Tenant's
authorized representative and approval by the Landlord. Any
approval by the Landlord does not constitute approval of any
municipality or other authority having jurisdiction. Any delay
resulting from any change to the space study shall be deemed a
delay caused by the Tenant. In the event a change or addition
in the space study results in an increased cost to construct
space, the Tenant shall reimburse the Landlord, on demand, the
cost for such change or addition.
(b) It is understood and agreed that the Landlord shall not be
liable for any delay which may be the result of strikes,
shortages, delay in the availability or the unavailability of
materials, permits, labour or any other factors beyond the
reasonable control of the Landlord.
(c) Following receipt of a Lease fully executed by both parties,
Landlord shall cause to be prepared Working Drawings for the
Leased Premises as shown in the space study. These Drawings
will include specifications for telephone, electrical,
plumbing, special air conditioning and sound attenuation, and
Tenant shall at the same time provide finish specifications for
inclusion in the Working Drawings. Those items may include wall
covering, floor finishes and millwork.
(d) Upon completion of the Working Drawings, Landlord shall
immediately make application to the appropriate regulatory
authorities for the required permits and approvals. Any delay
in receiving permits or approval shall not be considered a
delay caused by the Landlord.
(e) Within five (5) days after Tenant's receipt of the Working
Drawings, Tenant or Tenant's authorized representative shall
approve and sign one (1) copy of the Working Drawings and
return this signed copy to the Landlord. Upon receipt of a
signed copy of the Working Drawings and the required permits
and approval from the City of Toronto, Landlord will commence
construction.
(f) Should Tenant fail to meet the time period outlined above, or
should Tenant be responsible for any delay in the completion of
the work, it is understood that the Landlord may, at Landlord's
option, charge rent in full for those days of delay which
Landlord can reasonably demonstrate delayed the date on which
the term would otherwise have commenced.
(g) Landlord and Tenant hereby agree that Landlord shall construct
Tenant's Work, based on the attached Space Plan and
Specification Sheet.
Any and all amounts in excess of the value allowed for the cost
of constructing the Tenant's work (based on Tenant changes)
shall be paid by the Tenant within thirty (30) days from
Landlord's written notice.
(h) It is understood and agreed Landlord will not be responsible
for the timely installation of materials specified by the
Tenant, delivery of which may be delayed.
(i) Any costs and expenses incurred by the Landlord for consulting
services provided to it in connection with the construction of
Tenant's Work will be included in the cost of Tenant's Work
except in such cases where the Tenant institutes changes which
require additional financial outlays.
(j) Tenant's Work shall be designed in accordance with the
Landlord's Tenant's Work Building Standards and specifications
established for this Building from time to time and as changed
from time to time.
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SCHEDULE "H"
OPTION TO RENEW
---------------
(a) The Landlord covenants with the Tenant that if the Tenant duly and
regularly pays the Rent and any and all amounts required to be paid pursuant to
this Lease and performs each and every covenant, proviso and agreement on the
part of the Tenant to be paid, rendered, observed and performed herein, the
Landlord will at the expiration of the then expiring term on written notice by
the Tenant to the Landlord given by the Tenant not more than nine (9) months
prior to the expiration of the then expiring term and received by the Landlord
not less than six (6) months prior to the expiration of the then expiring term
grant to the Tenant a first renewal of lease of the Leased Premises (the "First
Renewal Term") on the same terms and conditions as contained in this Lease
then, at the commencement of the First Renewal Term, being used by the Landlord
for the Building save and except the right of further renewal, Landlord's Work
(if any), Basic Rent, tenant improvement allowance (if any) and Basic Rent Free
Period (if any).
(b) The Basic Rent for the First Renewal Term shall be determined by
negotiations between the parties hereto, and it is agreed that during such
negotiations in respect of Basic Rent, they will be guided by fair market
rental levels for similar premises in similar buildings in the Consumers Road
area of North York prevailing at the beginning of the First Renewal Term. If
the parties hereto are unable to agree in writing as to the Basic Rent for the
First Renewal Term prior to ninety(90) days ----- before the expiry of the
Term, the Basic Rent shall, on notice begin given by either party to the other,
be submitted to and be determined by arbitration as provided herein.
(c) Where arbitration is called for under the terms of this Schedule, the
Landlord and Tenant agree to submit such matters to arbitration in the following
manner:
(i) The Landlord and Tenant shall each appoint one arbitrator and both
such arbitrators shall be appointed within fifteen (15) days of
the date of the notice of such appointment being given by one
party to the other;
(ii) The two arbitrators so appointed shall, within fifteen (15) days
of the date of the appointment of the last appointed arbitrator
agree upon and appoint a third arbitrator;
(iii) The three arbitrators shall, within thirty (30) days of the
appointment of the third arbitrator, reach a decision and
notify the Landlord and Tenant thereof;
(iv) The decision of the majority of the three arbitrators shall be
binding upon the Landlord and Tenant;
(v) In the event of the Landlord or the Tenant failing to appoint an
arbitrator within the time limited in (i) above, the arbitrator
appointed by one of them shall reach a decision, notify the
Landlord and Tenant thereof and his decision shall be binding
upon the Landlord and Tenant;
(vi) In the event of the two arbitrators failing to agree upon and
appoint a third arbitrator, both arbitrators shall be dismissed
and the matter to be decided shall forthwith be submitted to
arbitration under the provisions of the arbitrations act of the
jurisdiction in which the Building is located or any similar act
then in force in such jurisdiction and any statutory modification
or re-enactment thereof:
(vii) The cost of arbitration shall be paid by the Tenant and the
Landlord equally.
(d) The Tenant agrees to execute the Landlord's standard lease amendment
then, at the commencement of the First Renewal Term, being used by the Landlord
for the Building to give effect to this First Option to Renew if excercised by
the Tenant. The Tenant shall execute such agreement prior to the commencement
date of the First Renewal Term.
(e) Notwithstanding the above, in the event the Tenant does not exercise the
First Option to Renew in accordance with Schedule "H" then this First Option to
Renew is null and void.
28
SCHEDULE "K"
OCCUPANCY PRIOR TO COMMENCEMENT OF TERM
Upon execution of the Lease; payment of Deposit and completion of Landlord's
Work
The tenant may enter the Leased Premises prior to commencement of the Term for
the sole purpose of installing Leasehold Improvements (the "Improvement
Period"), Landlord and Tenant mutually acknowledge and agree that the
Improvement Period precedes and is not part of Basic Rent Free Period, if any,
provided for in this Lease.
Tenant's occupancy of the Leased Premises during the Improvement Period shall
be upon and subject to the following conditions:
1. During the Improvement Period the Tenant, its servants, agents, employees,
contractors, subcontractors, officers and directors shall be subject to and
bound by all of the terms and conditions of this Lease including without
limiting the generality of the foregoing insurance and idemnification subject
only to the following:
(a) During Improvement Period the Tenant shall not be obligated to pay
Rent.
29
SCHEDULE "K-1"
INCREASE IN BASIC RENTAL
Commencing on the 1st day of February, 1999 and continuing until the 31st day
of January, 2002 the Basic Rent shall be increased to
---------------------TWENTY THOUSAND TWO HUNDRED AND TWENTY---------------------
dollars ($20,220.00) per annum of lawful money of the jurisdiction in which the
Leased Premises are located payable in equal monthly installments of ONE
THOUSAND SIX HUNDRED EIGHTY-FIVE dollars ($1,685.00) each in advance on the
first day of each month during the term, the first payment to be made on the
1st day of February, 1999.
