EXHIBIT 4.6
THIS LEASE dated as of this 25th day of August. 2004.
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BETWEEN: THE STANDARD LIFE ASSURANCE COMPANY OF CANADA, having its
principal office in Montreal, Quebec, and having an office
at Xxxxx 0000, 000 - 0xx Xxxxxx XX Xxxxxxx, Xxxxxxx X0X OM9
(the "Landlord")
AND: XXXXXXXXXX.XXX XXX.0000 - 00xx Xxxxxx
XX Xxxxxxx, Xxxxxxx X0X 0X0 (the "Tenant")
(the "Guarantor")
WITNESSES that the Landlord leases the Premises to the Tenant and the
Tenant accepts that lease, for the Term, on the following terms and conditions
to which the Landlord and Tenant agree:
PART 1 - INTERPRETATION
1.1 Performance: In exercising its rights and carrying out its obligations, each
of the Landlord and Tenant will act reasonably, prudently, promptly and fairly.
1.2 Rights and Obligations: All the Landlord's and Tenant's rights and
obligations in this lease will apply throughout the Term, and longer if the
Lease so states.
1.3 Consents: If either the Tenant or the Landlord needs the other's consent, it
will obtain that consent in writing before proceeding. Neither party will
unreasonably withhold or delay its consent.
1.5 Fullv Net Lease: This Lease will be a carefree fully net Lease for the
Landlord, except if an item is expressly stated to be for the Landlord's
account. Otherwise, the Tenant will pay all outgoings with respect to the
Premises, their use, occupancy, and contents including its Share of Operating
Costs and Taxes, and the Cost of Additional Services. The Tenant will also pay
its costs of carrying out its obligations under this Lease.
1.6 Entire Agreement: No verbal, written, express or implied representations,
warranties, guarantees, covenants or agreements of either the Landlord or the
Tenant will survive the signing of this Lease except if they are set out in this
Lease. This Lease constitutes the entire agreement between the Landlord and
Tenant. This Lease may only be modified by an express written agreement, made
after the Lease has been executed, which both the Landlord and Tenant have
signed.
1.7 Definitions: In this Lease:
1.7 (a) "Additional Rent" means all money the Tenant must pay under this Lease,
including indemnities, but excluding Basic Rent.
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PART 1 - INTERPRETATION - continued
1.7(b) "Additional Services" mean the services and supervision the Landlord
supplies to the Tenant over and above what the Landlord supplies as the standard
level of services included in Operating Costs and available to Building
occupants generally.
1.7(c) "Basic Rent" means the annual rent the Tenant is to pay under paragraph
3.3 herein.
1.7(d) "Building" means the building, and the common areas, improvements, and
amenities located from time to time on the Land or in the building. 1.7(e)
"Commencement Date" means the )'1 day of October. 2004.
1.7(f) "Cost of Additional Services" means the Landlord's costs of providing
Additional Services, together with a supervisory fee equal to 15% of those
costs.
1.7(g) "Day" or "days" means a calendar day or calendar days.
1.7(h) "End of the Term" means the expiry or earlier termination of the Term.
1.7(i) "Event of Delay" means an event or cause beyond the reasonable control of
the Landlord or the Tenant, as the case may be, including acts of God, labour or
industrial disturbances, civil disturbances, wars, interruptions by Government
Body or court orders, transportation disruptions, or shortages of materials.
1.7(j) "Government Body" means any municipal, provincial, federal, school or
other statutory authority, or department or agency thereof.
1.7(k) "Hazardous Substance" means any contaminant, pollutant, dangerous or
potentially dangerous or noxious or toxic substance, hazardous waste, flammable
or explosive or radioactive material, urea formaldehyde foam insulation,
asbestos, PCB's and substances or any other materials declared or defined to be
hazardous, toxic, contaminants or pollutants in, or which at any time during the
Term are regulated as a threat or are capable or posing a threat to public
health or the environment under or pursuant to, any applicable laws,
regulations, requirements or guidelines in the Province of Alberta, including
any applicable laws, regulations, requirements or guidelines of the Federal
Government of Canada or of the Government of the Province of Alberta or of the
Municipality or of any other lawful governmental authority having jurisdiction
thereto.
1.7(1) "Inherent Structural Defects" mean material defects in the structure of
the Building which an architect or engineer, appointed by the Landlord,
certifies, in his opinion, to be the result of an ascertainable error in design
or workmanship or of the use of substandard building materials.
1.7(n) "Land" means the land described in Schedule D. 1.7(0) "Lease" means this
document and the attached schedules.
1.7(p) "Leasehold Improvements" mean all improvements, alterations, partitions,
or fixtures from time to time installed for or by the Tenant in the Premises,
except for furniture and readily removable trade fixtures and equipment which
are not hard wired or plumbed.
1.7(q) "Operating Costs" mean the total, without duplication, of all costs,
calculated according to Canadian generally accepted accounting principles
consistently applied, which the Landlord incurs directly or indirectly to
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PART 1 - INTERPRETATION - continued
manage, operate, maintain, repair, replace or preserve the Land and the rentable
and non-rentable areas of the Building including, without limitation, the costs
of: (i) complete landscaping, gardening, exterior cleaning, window cleaning (if
any), snow removal, supervisory and maintenance services, (ii) operating
elevators (if any), (iii) costs of maintaining heating, cooling and ventilating
units if such costs are the responsibility of the Landlord, (iv) electricity and
power including lighting and other utilities and services (excluding the
Premises if the Premises are separately metered in which case the Tenant shall
be directly responsible for such metered charges), (v) cleaning, maintaining and
servicing all electric lighting fixtures, and replacing light bulbs, tubes,
relays, starters, and ballasts in any common areas, (vi) repairing and servicing
elevators (if any), (vii) painting, and sanitary control, (viii) security, (ix)
insurance premiums for fire, liability, loss of rent, elevator liability, and
other risks for which the Landlord considers insurance to be necessary, (x)
Capital Tax, being the tax or excise imposed by a Government Body on the
Landlord measured by or based in whole or in part upon the capital employed by
the Landlord, calculated as if the amount of such tax or excise were the amount
due if the Building were the Landlord's only real property, and includes the
amount, if any, of any capital or place of business tax imposed by a Government
Body on the Landlord with respect to the Building, (xi) accounting and audit
charges for calculating Operating Costs, Taxes, and other costs, (xii) salaries,
wages, and fringe benefits paid to Building employees, and amounts paid to
independent contractors, and bona fide expenses of such persons, (xiii) a
management fee equal to 5 % of the aggregate, for each calendar year during the
Term, of all rents and other charges payable to the Landlord by tenants of the
Building, including Operating Costs and Taxes, (xiv) renting or buying signs,
equipment, and supplies, and sales and excise taxes on goods and services, (xv)
interest on expenses which the Landlord incurs and then amortizes for a
reasonable period, which interest will be calculated yearly and will be equal to
the Bank of Canada prime rate of interest in effect on the date the Landlord
incurred the expense, (xvi) managing, operating, maintaining, repairing,
replacing, or preserving the roof, lobbies, hallways, ceilings, washrooms,
elevators, and amenity areas (if any), and (xvii) any additions or modifications
to the Building that are required by any Government Body or that are incurred to
reduce (or to slow the rate of increase of) an Operating Cost; but excluding the
costs of: (i) Taxes, (ii) Landlord's debt service, (iii) correcting inherent
Structural Defects or initial maladjustments to operating equipment, and (iv)
leasing commissions and rental advertising.
In calculating Operating Costs there will be a credit for insurance
proceeds for Insured Damage which the Landlord actually recovers, and for
recovery from Building occupants of electricity and light bulbs, and tube and
ballast replacement, to the extent that such items were included in Operating
Costs.
1. 7 (r) "Premises" mean the space identified as Unit 3404 consisting of 9,101
rentable square feet more or less, and outlined in red on the floor plan
attached is Schedule B.
1.7(s) "Rent" means Basic Rent and all Additional Rent.
1.7(t) "Share" means 15.7795%, being the Tenant's portion of Operating Costs and
Taxes, and being the proportion that the rentable area of the Premises bears to
the rentable area of the Building.
1.7(u) "Taxes" mean all taxes, duties, rates, levies, assessments, or charges
including those for local improvements, education, and schools levied, imposed,
or assessed from time to time by any Government Body against the Land, the
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PART 1 - INTERPRETATION - continued
Building, or the Landlord in respect thereof, including all taxes which the
Landlord is obliged to pay to any Government Body with respect to goods and
services which are supplied or provided to or for the benefit of the Land or
Building, or the tenants, together with legal and other professional fees and
interest and penalties on deferred payments which the Landlord incurs in good
faith to contest or appeal the amount or validity of various charges. "Taxes"
will not include tax or license fees on businesses carried on by Building
occupants, or corporate income, profits, or excess profits tax upon the
Landlord's income to the extent tax is not levied in lieu of the various
charges.
1.7(v) "Term" means the term of Five (5) years and Zero (0) months starting on
the Commencement Date and ending on September 3dh, 2009, and any renewal of the
Term and any period of permitted overholding.
1.8 Determine Areas: The Landlord shall determine the rentable area of the
Premises and the rentable area of the Building.
1.9 Currency: All references to money are to lawful currency of Canada.
1.10 Severability: If any provision of this Lease is unenforceable, it will be
severed.
1.11 Governing Law: This lease will be governed by the laws of the Province of
Alberta.
1.12 Construction: Singulars will include plurals and masculines will include
feminines and neuters, and vice-versa. If the word "including" is used, the
words "without limiting the generality of the foregoing" will be deemed to
follow. Headings are for convenience of reference only.
PART 2 - EARLY OCCUPANCY AND DELAYS
2.1 Earlv Possession: If the Tenant uses or occupies the Premises before the
Commencement Date, the provisions of this Lease and any further provisions in
Schedule C will apply.
2.2 Delav in Delivering Premises: If the Premises are not ready for occupancy by
the Tenant on the Commencement Date because a prior overholding occupant has
unlawfully refused to leave or because of an Event of Delay, the Landlord will
not be liable for loss or damage resulting from the delay, and the Term will
start on the Commencement Date, but the Tenant need not pay Rent until the
Landlord gives it occupancy. In any such case, the Landlord will provide
occupancy to the Tenant as quickly as possible.
PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT
3.1 Deposit: On or prior to signing this Lease, the Tenant will give the
Landlord a deposit in the sum of $51.933.52 on account of the first Six (6)
months of Basic Rent and the last Two (2) months of Basic Rent including G.S.T.
Such deposit will not bear interest.
3.2 Paying Rent: The Tenant will pay Rent duly and punctually to The Standard
Life Assurance Company of Canada. Suite 1550. 639 - 5th Avenue S.W .o Calgary.
Alberta T2P OM9, or to such other person or place of which the Landlord gives
notice to the Tenant. The Tenant will pay Rent without deduction, abatement, or
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PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT - continued
set-off, except as permitted by paragraphs 3.4 and 3.6 herein. The Tenant's
obligation to pay Rent due during the Term will survive the End of the Term.
3.3 Basic Rent: The Tenant will pay basic rent at the rate of $8.00 per rentable
square foot per annum, as follows:
3.3(b)
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Year(s) From To $ Per Rentable $ Per Month $ Per Annum
Square Foot Per
Annum
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1 - 5 October 1, 2004 September 30,2009 $8.00 $6,067.33 $72,808.00
-------------------------------------------------------------------------------------------
3.4 Operational Costs: The Term will consist of fiscal periods of 12 I
consecutive months, each ending on December 31st, except that the first and last
fiscal periods may be shorter. The Landlord may change the date on which the
fiscal periods end by giving the Tenant at least 60 days' advance notice. In any
such case, the then current fiscal period will be extended or shortened so that
it ends on the new date. Before the Term starts and before each fiscal period
starts, the Landlord may give the Tenant an estimate of its monthly Share of
Operating Costs for the then existing fiscal period or the coming fiscal period.
The Tenant will pay that estimated Share or, if no estimate is given, the same
Share it was paying for the previous fiscal period, monthly on the same dates
and in the same manner that it pays Basic Rent.
After the Landlord has completed its accounting for each fiscal period, the
Landlord will give the Tenant a statement of the Operating Costs for that fiscal
period. If the statement shows a shortfall between the estimated Share of
Operating Costs the Tenant has paid for that fiscal period and its actual Share,
the Tenant will pay that shortfall within 30 days after it receives the
statement. If the statement shows that the Tenant has paid too much, the Tenant
will receive a credit for the difference. If the Tenant questions any Operating
Cost, it may examine the Landlord's books and records with regard to the
Building.
3.5 Cost of Additional Services: The Tenant will pay to the Landlord, in the
same manner it pays its Share of Operating Costs or in such other manner as the
Landlord may request, the Landlord's extra costs in respect of any extra
services or materials which result from the Tenant's activities, or requests,
over and above those normally provided to Building occupants. Paragraph 3.4
above will apply to those extra costs so far as applicable.
3.6 Taxes: The Term will consist of tax periods of twelve (12) consecutive
months, each ending on December 31st, except that the first and last tax periods
may be shorter. The Landlord may change the date on which the tax periods end by
giving the Tenant at least 60 days' advance notice. In any such case, the then
current tax period will be extended or shortened so that it ends on the new
date. If the Premises or any property or rights specific to the Tenant are
assessed separately in respect of any tax period by the relevant Government
Body, the Landlord will calculate the Tenant's share of Taxes on that separate
basis. If Taxes are greater than they would normally be because of the Tenant's
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PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT - continued
constitution, ownership, or use of the Premises, school support, assessment by
the relevant Government Body using an income approach, or other reason specific
to the Tenant, the Landlord may determine that greater amount and include it in
the estimate of the Tenant's Share of Taxes. The Tenant may contest or appeal
the amount or validity of any separate or higher assessment if the Tenant pays
such assessment as required, gives the Landlord a copy of the appeal, and pays
all appeal costs. Before the Term starts and before each tax period starts, the
Landlord may give the Tenant an estimate of its monthly Share of Taxes and any
further share of Taxes payable under this paragraph 3.6 for the then existing
tax period or the coming tax period. The Tenant will pay that estimated Share
or, if no estimate is given, the same Share it was paying for the previous
fiscal period, monthly on the same dates and in the same manner that it pays
Basic Rent. After each tax period ends, the Landlord will give the Tenant a
statement of the actual Taxes due from that Tenant for that tax period which
will include any separate or higher Taxes due. If the statement shows a
shortfall between the estimated Share of Taxes and any further share of Taxes
payable under this paragraph 3.6 which the Tenant has paid for that tax period
and its actual Share and any further share, the Tenant will pay that shortfall
within 30 days after it receives the statement. If the statement shows that the
Tenant has paid too much, the Tenant will receive a credit for the difference.
Either the Landlord or the Tenant may give notice to the other, within 90 days
after a tax period ends, correcting or disputing the calculation, or allocation
of any Taxes. If the Landlord and Tenant cannot agree on the correction or
resolve the dispute within 10 days after the notice is given, the Landlord will
give such notice to a real estate appraiser or other expert experienced in
assessment appeals who will determine the correction or dispute. If the decision
of such appraiser or other expert requires an adjustment in what the Tenant has
paid, it will be made in the same manner as adjustments of actual Taxes. Subject
to the Tenant's obligation to pay its Share of Taxes, the Landlord will pay the
Taxes, except that the Landlord may defer payment if deferment is lawful. Except
as set out in this paragraph 3.6, the Tenant may not contest or appeal the
amount or validity of Taxes. The Landlord may contest or appeal the amount or
validity of Taxes but will not be obliged to do so. If the Landlord has so
contested or appealed, the Landlord may compromise, waive, or settle without
reference to the Tenant. If the Landlord receives a reduction in the Taxes and
if the Tenant has paid its Share of the Taxes which are reduced, the Tenant will
receive a credit for its Share of the reduction. The Tenant will pay its Share
of any increase in Taxes as a result of such contest or appeal. If the Landlord
cannot obtain from the appropriate Government Body or public or private utility
an allocation of Taxes or of any other taxes, duties, rates, levies,
assessments, or charges which the Tenant is obliged to pay, which is sufficient
to calculate the Tenant's Share or portion, the Landlord will make that
allocation.
3.7 Tenant's Taxes and Other Charges: The Tenant will pay, as and when due, to
the appropriate Government Body or public or private utility all license fees,
taxes, rates, duties, levies, assessments, or other charges imposed, assessed,
or levied by any Government Body or public or private utility from time to time,
whether imposed on the Landlord or the Tenant, in respect of: (i) the personal
property, fixtures, business, franchise, income, occupancy, use, or sales of the
Tenant or other occupant of the Premises, (ii) Leasehold Improvements, fixtures,
or machinery installed in the Premises by or for the Tenant, (iii) other space
used by the Tenant in the Building, (iv) utilities and services used in or
supplied to the Premises, to the extent that the Landlord has not included them
in Operating Costs. In this regard, the Landlord may, at its option, install
meters, at the Tenant's cost, in which case, the Tenant shall be directly
responsible to the supplier of such utilities for all charges incurred by the
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PART 3 - DEPOSIT, RENT AND ADDITIONAL RENT - continued
Tenant, and (v) tax on goods and services which the Landlord provides or causes
to be provided to or for the benefit of the Tenant or the Premises. If any such
charges are not allocated separately for the Premises, the Landlord will make
that allocation and if utilities or services are not sub-metered, the allocation
will be on a connected load and usage or other equitable basis. Upon request by
the Landlord, the Tenant will give the Landlord evidence that the Tenant has
paid those charges as required.
3.8 Additional Rent: The Tenant will pay all Additional Rent upon demand by the
Landlord unless other times for its payment are expressly set out in this Lease.
If the Tenant fails to pay any Additional Rent, as and when due, the Landlord
will have the same remedies for its collection as it has for recovering Basic
Rent in arrears. If the Tenant fails to pay any sum which the Tenant is obliged
to pay, then subject to paragraph 7.7, the Landlord may pay it and it will then
be a debt owing by the Tenant to the Landlord.
3.9 Interest on Arrears: When any Rent, or any interest accrued thereon, is in
arrears, it will bear interest at 1.5% per month compounded monthly, from the
date such Rent became due to and including the date of payment. The Landlord
will have all remedies for its collection as it has for recovering Basic Rent in
arrears.
3.10 Irregular Periods: If the Term begins or ends other than on the first or
last day of a month or if the first or last fiscal period or tax period is less
than months, Rent for any broken month or broken period will be pro rated at a
rate per day equal to 1/365 of the Rent applicable in that calendar year.
PART 4 - THE PREMISES
4.1 Examination of Premises: The Tenant will inspect the Premises before taking
possession and will give the Landlord notice of any problems. If the Tenant does
not give notice, the Premises will be deemed to be satisfactory, except for
Inherent Structural Defects.
4.2 Possession and Use of Premises: The Tenant will: (i) take possession of the
Premises on the Commencement Date, (ii) not allow anyone except for its
employees, customers, other persons lawfully having business with the Tenant, or
permitted sub-tenants, to use or occupy the Premises, (iii) use the Premises
only for sales. administration. assembly and distribution of promotional
products unless the Landlord consents to another use, (iv) not let the Premises
remain vacant for more than five (5) consecutive days, (v) not do anything in
the Premises which is noxious, dangerous or offensive in any manner or which
would be a nuisance or disturb other Building occupants, (vi) not overload the
Premises floor without the Landlord's consent beyond a capacity of three hundred
pounds per square foot, (vii) not cause any waste or damage to the Premises,
(viii) not let the Premises become untidy or unsightly, and at the end of each
business day leave them in such a condition that they are clean, and (ix) not
store any dangerous, environmentally hazardous or flammable substances in the
Premises.
4.3 Insurance Increases: The Tenant will not do or omit to do anything in the
Premises which would result in any increase in the Landlord's insurance premiums
but, if the Landlord's premiums are increased, the Tenant will pay the increase
to the Landlord. The Landlord, by its representatives, may at any time enter the
Premises to remove any article or remedy any condition which, in the Landlord's
opinion, would be likely to lead to cancellation of any insurance policy. Such
entry by the Landlord will not be deemed a re-entry or a trespass. If any
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PART 4 - THE PREMISES - continued
insurance policy of the Landlord is subject to cancellation or is cancelled by
reason of the Tenant's use of the Premises, the Landlord may terminate this
Lease by giving 10 days' notice to the Tenant, except if the Tenant has cured
the problem within that 10 day period. In such case, Paragraph 12.1 will not
apply.
4.4 Complying! with Laws: The Tenant will comply with all lawful requirements of
Government Bodies and insurance companies who hold policies which affect the
Land or Building, with respect to its operation and use of the Premises, the
condition of the Tenant's Leasehold Improvements, trade fixtures, furniture and
equipment, and any repairs or renovations the Tenant makes or is obliged to make
to the Premises.
4.5 Quiet Enjoyment: If the Tenant duly and punctually pays the Rent and
complies with its obligations, the Tenant will be entitled to peaceably possess
and enjoy the Premises during the Term.
4.6 Regulations: The Tenant will comply with the regulations attached as
Schedule C and with any amendments to them or any new regulations which the
Landlord makes in connection with the use, occupancy, repair, maintenance, or
operation of the Land or the Building. The regulations will form part of this
Lease.
4.7 Tenant's Signs: The Tenant will not place or affix any signs, symbols, or
lettering outside the Premises, inside the Premises if visible from outside, or
inside or outside the Building, except for an identification sign at or near the
Premises entrance, which will be subject to the Landlord's consent as to design,
colour, size, and location. The Landlord reserves the right to install such
signs as an Additional Service.
PART 5 - LANDLORD'S SERVICES AND ADDITIONAL SERVICES
5.1 Access: The Tenant and its invitees, in common with others, may use the
common entrances, lobbies, stairways, and corridors of the Land and Building to
gain access to the Premises, subject to the regulations.
5.2 Washrooms: The Tenant and its invitees, in common with others, may use the
washrooms on the floor(s) on which the Premises are located.
5.3 Water, Telephone and Light: The Landlord will provide building standard
ducts to bring telephone services to the Premises, hot and cold water to
building standard washrooms, and reasonable lighting to the Building common
areas.
5.4 Energy and Security: The Tenant will co-operate with the Landlord to
conserve energy and to maintain security. 5.5 Light Fixtures: The Landlord will
have the exclusive right to install, repair, maintain, clean, revamp, and
destaticize fluorescent fixtures within all common areas at reasonable rates.
PART 6 - DISPOSITIONS
6.1 Assignments and Subletting: The Tenant will not assign this Lease or sub-let
or part with possession of the whole or any part of the Premises for the whole
or any part of the Term, without a bona fide written offer and without the
Landlord's consent. If the Tenant wants the Landlord's consent, it will give the
Landlord a true copy of the offer and any information the Landlord may require
with regard to the reputation, [financial standing, and business of the proposed
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PART 6 - DISPOSITIONS - continued
assignee, sub-tenant, or occupant. Within 10 days after the Landlord receives
the last of that information, or within 10 days after it receives the request
for consent if it has not asked for any information, the Landlord will advise
the Tenant that the Landlord: (i) consents, (ii) refuses to consent (with the
reasons for such refusal), or (iii) wishes, if the request is to assign this
Lease or to sub-let or part with possession of the whole Premises, to terminate
this Lease or wishes, if the request is to sub-let or part with possession of
part of the Premises, to terminate this Lease with respect to such part. If the
Landlord consents, then the Tenant may complete its transaction only on the
terms set out in the offer and only if it does so within 60 days after it
receives the Landlord's consent. If the Landlord wishes to terminate this Lease,
in whole or in part, the Tenant may withdraw its request within 10 days after it
receives the Landlord's advice. If the Tenant does not withdraw its request,
then this Lease will be terminated, in whole or in part, on a date required by
the Landlord which will be not less than 30 nor more than 60 days after the
later of the date the Landlord receives the Tenant's request for consent or the
date the Landlord receives the last of the requested information from the
Tenant. If the Tenant surrenders only part of the Premises, Rent will xxxxx
thereafter proportionately. Despite any such assigning, sub-letting, or parting
with possession, the Tenant will remain liable for the Tenant's obligations. If
the Landlord gives its consent to an assignment, the Landlord may require the
Tenant to obtain the assignee's direct covenant with the Landlord to comply with
the Tenant's obligations, as a condition of the consent. The Tenant will not
advertise the Premises for assignment or sub-letting except if the Landlord has
approved the proposed text. In no event will the rental rate appear in any
advertisement.
6.2 Change in Control: If the Tenant is a private company, any sale or other
disposition of its shares or securities resulting in a change of control or
beneficial ownership will be deemed to be an assignment under paragraph 6.1.
6.3 Landlord's Conveyance: If the Landlord sells the Land and Building, it will
have no further obligation to the Tenant except for then existing defaults by
the Landlord.
6.4 Mortgaging: The Tenant will not mortgage or charge its leasehold interest in
the Premises, fixtures, chattels, furniture, or equipment, without the
Landlord's consent.
PART 7 - REPAIRS, RENOVATIONS, DAMAGE AND EXPROPRIATION
7.1 Landlord's Repairs: The Landlord will keep the Building in a good and
reasonable state of repair and maintenance, consistent with the standards for
comparable buildings in the vicinity, except for the non-structural elements of
the Premises and other premises and reasonable wear and tear, and will repair
Insured Damage except if the Lease is terminated under paragraph 7.9.
7.2 Tenant's Repairs: The Tenant will keep the Premises, its Leasehold
Improvements, its trade fixtures, all heating, ventilation and air conditioning
units, lighting fixtures and any plate or other glass in the Premises or in the
exterior walls of the Premises in a good and reasonable state of repair and
maintenance, consistent with the standards for comparable premises in the
vicinity, except for the structural elements of the Premises, reasonable wear
and tear, and Insured Damage, and except if the Lease is terminated under
paragraph 7.9. Paragraph 7.4 will apply to Tenant repairs. The Tenant will
repair according to notice from the Landlord.
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PART 7 - REPAIRS, RENOVATIONS, DAMAGE AND EXPROPRIATION - continued
7.3 Inspection and Access: The Landlord, by its representatives, may enter the
Premises at all reasonable times and during any emergency to: (i) inspect or
supervise repair, maintenance, or renovation, (ii) do its own repairs,
maintenance, or renovations, (iii) gain access to utilities and services
(including underfloor or overhead ducts and access panels), and (iv) determine
electric light, power and water consumption by the Tenant in the Premises. In
doing its repairs or renovations, the Landlord may bring equipment and material
into the Premises. The Tenant will not be entitled to compensation for any
inconvenience, nuisance, or discomfort caused by the Landlord's work in the
Premises, but the Landlord will disturb the Tenant's use and enjoyment of the
Premises as little as reasonably possible.
7.4 Tenant's Renovations: The Tenant will not construct, install or alter
anything in the Premises without the Landlord's consent. When requesting that
consent, the Tenant will give the Landlord a copy of reasonably detailed
drawings and specifications for the proposed work. The Tenant will do such work
in a good and workmanlike manner, in accordance with the drawings and
specifications the Landlord has approved, and in accordance with the Landlord's
reasonable requirements. The Tenant will use contractors and subcontractors to
whom the Landlord has consented, except that the Landlord may designate the
contractors and subcontractors to be used for mechanical, structural, or
electrical design and work and except that the labour union affiliations of
workers must be compatible with those of workers employed by the Landlord or its
contractors. The Landlord's consent, inspection, and supervision with respect to
any such work will be Additional Services. Upon completing any work, the Tenant
will deliver to the Landlord a full set of as-built drawings which the Landlord
may keep.
7.5 Landlord's Renovations: The Landlord may alter the Building from time to
time including constructing additional floors, altering the Building's size or
altering the location, dimensions or specifications of utilities, common areas
or mechanical systems so long as the physical dimensions of the Premises are not
materially altered as a result. The Tenant waives and renounces all claims which
may result from any such alteration. If such alteration results in additional
land being added to the Land or being used to service the Building, such
additional land will be deemed to form part of the Land. If such alteration
results in a change in the rentable area of the Building, the Landlord may
modify the Tenant's Share accordingly.
7.6 Payment for Work: The Tenant will pay all accounts for its renovations and
repairs as and when due, except as set out in paragraph 7.7.
7.7 Liens: The Tenant will discharge any builder's or other lien filed against
the Tenant's leasehold interest or against the Land, by reason of work, labour,
services, or materials provided or alleged to have been provided to the Tenant,
as soon as it comes to the Tenant's notice. If the Tenant gives the Landlord
notice that it wants to contest in good faith any lien and if the Tenant
deposits with the Landlord or pays into Court the amount of the lien claim plus
an amount for costs satisfactory to the Landlord or the Court, as the case may
be, then the Tenant may defer paying the lien claim while it contests the claim
with due diligence, except that if the Tenant's leasehold interest or the Land
thereby becomes liable, in the Landlord's judgement, to forfeiture or sale, the
Landlord may discharge any such lien. In that case, the Tenant will reimburse
the Landlord for the amount of the lien and its costs of so discharging.
7.8 Tenant's Negligence and Liability: If any part of the Building, including
the interior climate control and utilities systems, needs repair or replacement
by reason of the fault or negligence of the Tenant or its invitees or licensees,
10
PART 7 - REPAIRS, RENOVATIONS, DAMAGE AND EXPROPRIATION - continued
the Tenant will be liable therefore and for resulting or consequential injury,
loss or damage.
7.9 Damage or Destruction: If the Premises or the Building are materially
damaged by any cause, the Landlord, within 10 days after the damage occurs, will
appoint an architect or engineer to determine, within 30 days, the extent of the
damage and how long he estimates the damage will take to repair. The Landlord
will give the Tenant a copy of the architect's or engineer's report. If the
report indicates that the Premises or Building will take more than 180 days from
the date of the report to repair, then either the Landlord or the Tenant may
give notice to the other, within 10 days after receipt of the report,
terminating this Lease. If the Lease is so terminated, the termination date will
be the 10th day after the date the Landlord or the Tenant receives such notice
from the other, and in such case neither the Landlord nor the Tenant will be
obliged to repair. If the Lease is not so terminated, each of the Landlord and
Tenant will repair the damage to the extent it is obliged to do so under
paragraph 7.1 or paragraph 7.2 above.
7.10 Abatement: If the Premises are not reasonably capable of use and occupancy
by the Tenant for its business for more than 10 days as a result of any damage,
Rent will xxxxx, from the date of the damage, in proportion to the part or parts
of the Premises not reasonably capable of use and occupancy until the Premises
are again reasonably capable of such use and occupancy or, with respect to the
Tenant's repairs after such damage, until such time as, in the Landlord's
opinion, those repairs ought to have been completed. If the Landlord and Tenant
disagree on the extent or time of the abatement, the Landlord will ask an
architect or engineer to determine the dispute.
7.11 Expropriation: If a Government Body expropriates all or part of the Land or
Building, the Landlord, within 60 days after it receives the notice of
expropriation, may give the Tenant not less than 30 days' notice terminating the
Lease. If a Government Body expropriates all or part of the Premises such that
any remainder is not reasonably capable of use and occupancy, the Tenant, within
60 days after it receives the notice of expropriation, may give the Landlord not
less than 30 days' notice terminating the Lease. If the Lease is so terminated,
neither the Landlord nor Tenant will have any claim against the other with
respect to the expropriation. Each of the Landlord and Tenant may claim against
the Government Body for compensation for loss of its interest and may retain any
compensation awarded to it. Each of the Landlord and Tenant will coordinate with
the other in pursuing its respective claim. If the Landlord receives a
compensation award which specifically includes an award to the Tenant, the
Landlord will remit the Tenant's portion to it. If the Lease is not so
terminated then paragraph 7.9 will apply to any repairs which are necessary as a
result of the expropriation and paragraph 7.10 will apply to abatement of Rent
during any repair period. After the later of the date of expropriation or the
repair period, if any, Rent will be adjusted so that it will bear the same
proportion to the original Rent as the area of the remaining Premises bears to
the area of the Premises immediately before the expropriation, and the Tenant's
Share will be adjusted in the same manner.
11
PART 8 - SURRENDERING PREMISES AND REMOVING FIXTURES
8.1 Surrender: At the End of the Term, the Tenant will surrender possession of
the Premises and the Tenant's Leasehold Improvements to the Landlord, without
compensation, in the condition in which the Tenant was obliged to keep them
during the Term. The Tenant's Leasehold Improvements will remain the Landlord's
property, except for those the Tenant is obliged to remove under paragraph 8.2.
At the End of the Term, the Tenant will give the Landlord a surrender of this
Lease, which will be in form acceptable for registration if applicable.
8.2 Removal of Fixtures: During the Term, the Tenant will not remove from the
Premises its Leasehold Improvements, trade fixtures, furniture or equipment,
except for furniture and equipment which, in the normal course of its business,
is no longer needed or is being replaced by furniture or equipment of equal or
better quality and except as set out in this paragraph. At the End of the Term,
the Tenant will remove from the Premises: (i) its trade fixtures, (ii) its
furniture and equipment, and (iii) those Leasehold Improvements which the
Landlord requires it to remove, except that, if the Tenant is then in default
under the Lease, the Tenant will not remove any of those items unless the
Landlord expressly requires it to do so. The Tenant will repair any damage to
the Premises caused by the removal of those items. If the Tenant does not remove
any such items, the Landlord may do so and the Tenant will pay the Landlord's
removal and storage charges.
8.3 Survival: The Tenant's obligations in this Part 8 will survive the End of
the Term.
PART 9 - LIABILITY, INDEMNIFICATION AND INSURANCE
9.1 Limitation of Landlord's Liability: The Landlord will 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 or about
the Land or Building unless resulting from the Landlord's gross negligence, but
in no event will the Landlord be liable for: (i) any damage, except for Insured
Damage, caused by smoke, steam, water, ice, rain, snow, or fumes which may leak
into, issue or flow from any part of the Building or from the plumbing works, or
from any other place, or caused by the condition or arrangement of any wiring,
(ii) any damage caused by any other Building occupant, (iii) any act or omission
(including theft, malfeasance, or negligence) of any person the Landlord has
employed or contracted with to perform security or other work in the Building,
(iv) any loss or damage, however caused, to money, securities, negotiable
instruments, papers, or other valuables of the Tenant or its employees,
invitees, or licensees, or (v) failure to supply or maintain interior climate
control or elevator services, or indirect or consequential damages for personal
discomfort or illness resulting from failure to supply or maintain such
services.
9.2 Indemnification: The Tenant will indemnify and save the Landlord harmless
from all claims, actions, liabilities, judgments, damage, costs, or expense
which the Landlord may suffer or incur in connection with or arising from: (i)
bodily injury or death, or property or other loss or damage, in or about the
Land or Building, as a result of any act or omission of the Tenant, or (ii) any
breach by the Tenant of its obligations under this Lease. This indemnity will
survive the End of the Term.
9.3 Tenant's Insurance: The Tenant will obtain and maintain in good standing:
9.3(a) liability insurance against claims for personal injury, death or property
damage occurring upon, in or about the Premises and the Building, including
12
PART 9 - LIABILITY, INDEMNIFICATION AND INSURANCE - continued
personal liability, liability assumed by contract, Tenant's legal liability, and
non-owned automobile liability. Such insurance will: (i) have a limit of not
less than $3,000,000.00 in respect of any one occurrence or injury or death to a
single person or property damage, (ii) be primary insurance and will not call
into contribution any other insurance available to the Landlord or its
mortgagee, which means that the Tenant's insurance will cover any loss before
the Landlord's or other insurance, and (iii) provide for cross-liability and
severability of insurance, which means that each named insured on the policy can
xxx each other named insured under the terms of the policy;
9.3(b) insurance upon the Tenant's property normally located within the
Building, and any property which is repaired at the Tenant's expense under this
Lease, including stock in trade, inventory, furniture, fittings, Leasehold
Improvements, and Tenant's fixtures in an amount equal to the full replacement
cost thereof, against at least the perils of fire, sprinkler leakage, theft,
vandalism, riot, civil commotion, impact of aircraft, water damage, earthquake,
flood, and any perils not mentioned above which are included in normal "all
risks" coverage;
9.3(c) insurance against all explosion, rupture or failure of boilers, pressure
vessels or equipment within or serving the Premises exclusively, and
9.3(d) such other types of insurance as a prudent tenant would obtain from time
to time.
The Tenant will obtain all such insurance in at least those amounts set out in
paragraph 9.3(a) and otherwise in those amounts a prudent tenant of comparable
space in a comparable building in the vicinity would obtain and maintain from
time to time. All such insurance policies will: (1) include the Tenant, any
mortgagee of the Tenant if applicable, the Landlord, and any mortgagee of the
Landlord if applicable, as named insureds, which means a person, firm, or
corporation which is specifically designated by name as an insured under a
policy, (ii) contain a waiver of any right of subrogation or recourse by the
Tenant's insurer against the Landlord or its employees, agents, contractors, or
mortgagees, whether or not any loss is caused by the act, omission or negligence
of the Landlord or its employees, agents, contractors, or mortgagees
(Subrogation means the legal process by which an insurance company seeks
recovery of the amount it pays to a policy holder from a third party who may
have caused the loss), (iii) provide that the insurer will give the Landlord
(and any of the Landlord's mortgagees of which it has received notice) 30 days'
prior written notice of cancellation of, material alteration in, or lapse of,
any policy, and (iv) provide that such policies will not be invalidated as
respects the interest of the Landlord or the Landlord's mortgagees by reason of
any breach or violation of any warranties, representations, declarations, or
conditions contained in the policies. The Tenant will effect all such policies
with insurers and upon terms satisfactory to the Landlord. The Tenant will give
the Landlord copies of certificates of insurance evidencing all such insurance
and its renewal. The Tenant will pay the premium for each policy. If the Tenant
fails to obtain or maintain any such insurance, the Landlord may do so as the
Tenant's agent and at the Tenant's cost. The Tenant will review all its policies
annually to ensure that they are up to date.
13
PART 10 - PERFORMANCE OF TENANT'S COVENANTS, DEFAULT, BANKRUPTCY AND
TERMINATION
10.1 Landlord May Perform Covenants: If the Tenant defaults in complying with
any of its obligations, the Landlord, in addition to its other rights and
remedies under this Lease or at law or at equity, may remedy or attempt to
remedy any such default and for such purpose may enter the Premises. No such
entry will be deemed to be a re-entry or trespass. The Tenant will reimburse the
Landlord for the Landlord's costs of so remedying or attempting to remedy. The
Landlord will not be liable to the Tenant for any act or omission in so
remedying or attempting to remedy unless such act or omission amounts to
intentional misconduct or gross negligence.
10.2 Right of Re-entry on Default or Termination: If and whenever: (i) the
Tenant fails to pay any Rent after it is due, or (ii) the Tenant defaults in
observing or performing any of its other obligations and fails to cure that
default within 30 days after the Landlord gives the Tenant notice specifying the
nature of the default, or (iii) this Lease is terminated under any provision
hereof, or (iv) the Landlord has become entitled to terminate this Lease then,
in any such case, the Landlord thereafter may enter into the Premises or any
part thereof in the name of the whole to repossess the Premises and enjoy as of
its former estate, despite anything in this Lease to the contrary.
10.3 Termination and Re-entry: If the Landlord is entitled to re-enter the
Premises under this Lease or at law or at equity, the Landlord, in addition to
its other rights and remedies, may terminate this Lease forthwith by leaving
notice of such termination in the Premises.
10.4 Payment of Rent on Termination: If the Landlord gives the Tenant, or leaves
in the Premises, notice of termination, this Lease and the Term will end, Rent
will be apportioned on a daily basis to the End of the Term (except if it has
abated, in whole or in part, under paragraph 7.10), the Tenant will pay that
apportioned Rent on demand by the Landlord, the Tenant will immediately give
possession of the Premises to the Landlord, and the Landlord may re-enter and
take possession of the Premises if it has not then done so.
10.5 Re-letting: If the Landlord is entitled to re-enter the Premises under this
Lease or at law or at equity, the Landlord, in addition to its other rights and
remedies, may enter the Premises, as the Tenant's agent, and re-let them and
receive the basic rent and additional rent from that re-letting, and, as the
Tenant's agent, take possession of any personal property in the Premises, or any
place to which it has been removed, and sell it at public or private sale
without notice to the Tenant, and apply the proceeds and any basic rent or
additional rent received from the re-letting on account of the Rent due or to
become due, and the Tenant will be liable to the Landlord for any deficiency.
10.6 Method and Waiver on Re-entry: If the Landlord re-enters the Premises then,
in addition to its other rights and remedies, it may expel the Tenant and those
claiming through or under the Tenant, remove any property in the Premises, and
force or change the locks, without being guilty of trespass. The Tenant waives
and renounces the benefit of any present or future law requiring the Landlord to
serve notice or begin legal action in order to re-enter.
10.7 Bankruptcy or Insolvency: If the Tenant becomes bankrupt or insolvent or
takes steps, or allows an order to be made to end its corporate existence then,
in any such case, the Landlord, at its option, may terminate this Lease by
leaving notice of termination in the Premises and, in that case, all arrears of
Rent, the current month's Rent and the next ensuing 3 months' Rent will
immediately become due and be paid by the Tenant.
14
PART 10 - PERFORMANCE OF TENANT'S COVENANTS, DEFAULT, BANKRUPTCY AND
TERMINATION - continued
10.8 Distress: The Tenant waives and renounces the benefit of any present or
future law taking away or limiting the Landlord's right of distress, and agrees
that none of the Tenant's personal property will be exempt from levy by distress
for Rent in arrears.
10.9 Cumulative Remedies: The Landlord may use any or all of the rights and
remedies available to it under this Lease or at law or at equity if the Tenant
defaults in observing or performing its obligations or if the Landlord is
entitled to terminate the Lease. Those remedies will be cumulative and not
alternative.
10.10 Waiver and Condoning: Only written waivers of Tenant's defaults will bind
the Landlord. No condoning, excusing, or overlooking by the Landlord of any
default by the Tenant will operate as a waiver of the Landlord's rights or
remedies on any subsequent default.
10.11 Legal Fees: If either the Landlord or the Tenant exercises any of its
rights or remedies as a result of the other's default, the defaulting party will
pay the other's reasonable costs and out-of-pocket expenses of so exercising,
including complete legal costs.
PARTI 1-HAZARDODS SUBSTANCES
11.1 Hazardous Substances: The Tenant shall not bring or permit or suffer to be
brought into the Premises, and shall not use in any way, or permit or suffer the
use of the Premises or any part thereof to either directly or indirectly
prepare, produce, use, generate, manufacture, refine, treat, transport, store,
maintain, handle, dispose of, transfer, process, release or permit any other
dealing with, any Hazardous Substances unless it has received the prior written
consent of the Landlord, which may be arbitrarily withheld. Any substance which
the Landlord permits the Tenant to treat, store, transfer or dispose of must be
dealt with in strict compliance with all applicable laws and environmental
permits. The Tenant shall not release and shall not permit the release of any
Hazardous Substances into any soil, water courses, culverts, drains or sewers
except in accordance with all applicable laws and environmental permits. At its
own cost, risk and expense, the Tenant shall comply with all applicable laws and
environmental permits from time to time in force regulating the manufacture,
use, storage, transportation, disposal, release or other dealing with Hazardous
Substances by the Tenant to which the Landlord has consented.
11.2 Hazardous Substances Property of Tenant: If any Hazardous Substance is
brought onto the Premises or created upon the Premises during the term of the
Lease, such Hazardous Substance shall be the sole and exclusive property of the
Tenant and not of the Landlord, notwithstanding the degree of affixation of the
Hazardous Substances or the goods containing the Hazardous Substances to the
Premises and notwithstanding the expiry or sooner termination of this Lease.
11.3 Removal of Hazardous Substances: On or before the expiration or sooner
termination of this Lease, the Tenant will remove all Hazardous Substances which
have been brought onto or created upon the Premises during the Term of the
Lease, whether by the Tenant or any other person, other than the Landlord,
including without limitation any Hazardous Substances which may have been
released or deposited into the soil.
11.4 Notice of Hazardous Substances: The Tenant will advise the Landlord
forthwith of any release of any Hazardous Substances on the Premises or any
other part of the Land and the Building or any adjacent property and will
15
PARTI 1-HAZARDODS SUBSTANCES - continued
provide the Landlord with all information, notices, reports and other documents
it has regarding such release and the remediation steps being undertaken by the
Tenant with respect to the release or as may reasonably be required by the
Landlord of the Tenant.
11.5 Restoration After Contamination: If the presence of any Hazardous Substance
or any other substance on the Premises results in any contamination of the
Premises or the Land and/or Building, the Tenant shall promptly take all actions
at its sole risk and expense as are necessary to return the Premises and the
Property to the condition existing prior to the introduction of any such
Hazardous Substance or other substance on the Premises or the Land and the
Building.
11.6 Cleanup Costs Indemnity: In addition to any other indemnity found in this
Lease, the Tenant will be completely liable for and will and does hereby
indemnify and save harmless the Landlord from all cleanup costs and remediation
charges, fees, penalties or damages, whether civil or criminal, and any expense
with respect thereto, required by any decree, directive or order from any
Government Body relating to the treatment, storage, disposal or transportation
of Hazardous Substances on or from the Premises by the Tenant, its employees,
agents, contractors or others whom the Tenant permits to enter onto the Premises
or for whom the Tenant is responsible in law. The Tenant's obligations to
observe or perform the covenants in this Part 11 shall survive the expiration or
other termination of this Lease and any limitation periods prescribed by
applicable law.
11.7 Records: The Landlord may at any time and from time to time on five days
prior written notice to the Tenant have the Premises, any records reasonably
considered to be relevant for the purpose of identifying the existence, nature
and extent of any Hazardous Substance on the Premises and the Tenant's use,
storage and disposal of such Hazardous Substance, inspected by a duly qualified
independent environmental auditor, and the Tenant agrees to co-operate with the
auditor in its performance of each such inspection. In exercising such right of
inspection, neither the Landlord nor its auditor shall unreasonably interfere
with the Tenant's use and occupation of the Premises. If the auditor, acting
reasonably, determines following any such inspection that further testing or
investigation is required in order to monitor the Tenant's compliance with all
applicable law relating to the use, storage and disposal of any Hazardous
Substance, the Landlord may at its own option require the Tenant, at the
Tenant's expense, to arrange for such testing or investigation itself, in which
case the Landlord's reasonable costs of any such testing or investigation shall
be paid by the Tenant to the Landlord within 30 days after receipt of any
invoice on account thereof.
11.8 Cleanup Plans: If any Government Body shall require the clean up of any
Hazardous Substance held, released, spilled, abandoned or placed upon the
Premises or the Property or any other lands or released, spilled, leaked,
pumped, poured, emitted, emptied, discharged, injected, escaped, leached,
disposed or dumped into the environment by the Tenant in the course of the
Tenant's business or as a result of the Tenant's use or occupancy of the
Premises, then the Tenant shall, at its own risk and expense, prepare all
necessary studies, plans and proposals and submit same for approval, shall
provide all bonds and other security required by Government Body and shall carry
out the work required and keep the Landlord fully informed and shall provide to
the Landlord full information with respect to proposed plans and comply with the
Landlord's reasonable requirements with respect to such plans. The Tenant
further agrees that if the Landlord determines, acting reasonably, that the
Building, the Land, the Landlord or the Landlord's reputation is placed in any
16
PARTI 1-HAZARDODS SUBSTANCES - continued
jeopardy by the requirements for any such work, the Landlord may itself
undertake such work or any part thereof at the reasonable cost and expense of
the Tenant which cost shall be paid by the Tenant within 30 days after receipt
of an invoice on account thereof.
11.9 Indemnity to Landlord: The Tenant hereby indemnifies and saves harmless the
Landlord, its directors, officers, employees and agents and the successors and
permitted assigns of the Landlord from and against all loss and expense and from
and against all claims, demands, actions, suits or other proceedings, judgments,
damages, penalties, fines, costs and liabilities, including, without limitation,
any reduction in the market value of the Premises or the Land and the Building,
damages for loss or restriction in use of leasable or useable space or of any
amenity of the Premises or the Land and the Building, damages arising from any
adverse impact on marketing of space and sums paid in settlement of claims,
legal fees, consultants' fees and experts' fees which arise during or after the
Term and are in any manner based upon, arise out of or are connected with the
presence or suspected presence of any Hazardous Substance in, upon, above or
under the Land and the Building and any other contamination which exists on or
under the Premises or which has escaped from the Premises including, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean up, remedial, removal or restoration work required by
any Government Body including that resulting from waste, unhealthful, hazardous
or dangerous conditions caused by, contributed to or aggravated by the Tenant or
any permitted transferees, violation of any applicable law or environmental
permits pertaining to Hazardous Substances. In addition, without limitation, the
Tenant further expressly agrees to compensate the Landlord for any and all costs
incurred for the removal of any Hazardous Substance from the Premises even in
the absence of an order requiring such removal and notwithstanding that such
Hazardous Substance may be stored on the Premises in compliance with all
applicable law or environmental permits. The Tenant hereby expressly agrees that
this indemnification shall survive the expiration or earlier termination of this
Lease and that any statutory limitation periods on actions to enforce these
obligations shall not be deemed to commence until the Landlord actually
discovers any such circumstances as may give rise to their enforcement and the
Tenant hereby knowingly and voluntarily waives the benefits of any shorter
limitation period. Upon the default of the Tenant under this Part 11, the
Landlord shall be entitled to terminate this Lease and/or recover from the
Tenant any and all loss and expense associated with the said default, in
addition to any other rights and remedies of the Landlord.
PART 12 - GENERAL PROVISIONS
12.1 Events of Delav: If either the Landlord or the Tenant is unable to provide
any service, utility, work, or repair by reason of an Event of Delay, the time
for performing the obligation will be extended by that period of time which is
equal to the length of the delay, and the Landlord or the Tenant, as the case
may be, will use all reasonable efforts to overcome any such Event of Delay
provided however that nothing herein will relieve the Tenant from its obligation
to pay Rent at the times herein provided. Neither the Landlord nor the Tenant
will be entitled to compensation for any inconvenience, nuisance or discomfort
caused by such an Event of Delay, or to cancel this Lease.
12.2 Overholdin2: This Lease will terminate at the End of the Term without
notice or demand. If the Tenant stays in the Premises after the End of the Term
without a further written agreement with the Landlord, such holding over will
not constitute a renewal of this Lease. In such case, the Landlord, at its
option, may elect to treat the Tenant as one who has not vacated at the End of
17
PART 12 - GENERAL PROVISIONS - continued
the Term and to exercise all its remedies in that situation, or may elect to
construe such holding over as a tenancy from month to month subject to all the
terms of this Lease, except: (i) for Term, (ii) for basic rent which will be
equal to two times the Basic Rent payable in respect of the last year before the
End of the Term, or the last renewal term, as the case may be, payable in
advance in monthly installments on the first day of each month, and (iii) that
there will be no inducements or allowances, renewal rights, rent abatements,
rights of refusal, rights to additional space or other like concessions or
rights.
12.3 Exhibitin2 Premises: The Landlord may exhibit the Premises to prospective
tenants during the last 6 months of the Term and, at all reasonable times, to
the Landlord's prospective purchasers and lenders, but, in so doing, will
disturb the Tenant as little as possible.
12.4 Subordination: This Lease and the Tenant's rights will be subordinated and
postponed to all mortgages and other financial charges which now or hereafter
charge the Land or the Building, and to all renewals, modifications,
consolidations, replacements, or extensions of same, notwithstanding the
respective dates of execution or registration. The Tenant, at the Landlord's
cost, will execute any instrument confirming such subordination and postponement
and any instrument confirming that the Tenant will attorn as tenant to the
holder of any such mortgage or other financial charge on the same terms as are
set out in the Lease, which the Landlord or the Landlord's lender may request,
provided that the lender who receives any such instrument agrees to recognize
this Lease and the Tenant's right to possession of the Premises under the terms
of the Lease.
12.5 Certificates: Either the Landlord or the Tenant, at the other's request and
cost, will deliver to the other or to any other person a certificate setting
out: (i) whether the Lease is in full force and effect, (ii) whether it has been
modified or assigned, (iii) confirming the Rent and the state of accounts
between the Landlord and Tenant, (iv) to the best of its knowledge, the
existence of any defaults, and (v) any other reasonable information which is
requested.
12.6 Notices: Any notice, request, or demand required or permitted to be given
must be in writing and will be sufficiently given if personally served or mailed
by prepaid registered post as follows:
12.6(a) to the Landlord:
The Standard Life Assurance Company of Canada Xxxxx 0000,000 - 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X OM9
Attention: Manager
12.6(b) to the Tenant
Xxxxxxxxxx.xxx Inc. 0000 - 00xx Xxxxxx XX Xxxxxxx, Xxxxxxx
X0X lYl
Attention:
12.6(c) to any Guarantor, if applicable:
Attention:
Any notice, request, or demand will be presumed, if mailed, to have been
received 5 business days after the day on which it is mailed and, if delivered,
18
PART 12 - GENERAL PROVISIONS - continued
upon receipt, except that if, between the time of mailing and actual receipt,
there is an actual or reasonably anticipated mail strike, slowdown, or labour
dispute which might affect delivery, the notice will be effective only if
actually delivered. Either the Landlord or Tenant will give notice to the other
changing its address for service.
12.7 Time of the Essence: Time will be of the essence of this Lease.
12.8 Registration: The Tenant shall not register a copy of this Lease but shall
be entitled to register a caveat, at its sole cost and expense, provided that
such caveat does not disclose the Rent due hereunder.
12.9 Liability: If two or more persons, corporations, partnerships, or other
business associations execute this Lease as Tenant or as Guarantor, as the case
may be, the liability of each to observe or perform the Tenant's obligations
will be deemed to be joint and several. If the Tenant or Guarantor, as the case
may be, named in this Lease is a partnership or other business association, the
members of which by law are subject to personal liability, the liability of each
such member will be deemed to be joint and several. The Tenant will cause the
Tenant's employees, invitees, licensees, and other persons over whom the Tenant
may reasonably be expected to exercise control to comply with the Tenant's
obligations under this Lease, and any failure to so comply will be deemed to be
a default by the Tenant. The Tenant will be liable to the Landlord for the
negligent or willful acts or omissions of any such employees, invitees,
licensees or other persons over whom the Tenant may reasonably be expected to
exercise control.
12.10 Relocation of Premises: The Landlord may give the Tenant 60 days' prior
notice that it will relocate the Tenant to other premises in the Building (the
"New Premises"). The New Premises will contain at least the same rentable area
as the Premises. The Landlord will provide, at its expense, Leasehold
Improvements in the New Premises equal to the standard of the Leasehold
Improvements in the Premises which have been completed or which the Landlord is
obliged to provide in the Premises. The Landlord will pay for any reasonable
cost of moving the Tenant's trade fixtures and furnishings from the Premises to
the New Premises. As full compensation for all other costs, expenses, and
damages which the Tenant may incur in connection with the relocation, including
disruption and loss of business, Basic Rent for the New Premises for the first
month of occupancy will xxxxx. Basic Rent and the Tenant's Share of Operating
Costs and Taxes for the New Premises will be no greater than what they were for
the Premises, even if the New Premises contain a greater rentable area. All
other terms and conditions of this Lease will apply to the New Premises for the
balance of the Term except if they are inconsistent with this paragraph 12.10.
Upon the later of execution of the Lease, Commencement of the Lease and the
Tenant taking possession 0f the Premises, a fee in the amount of $0,90 cents per
square foot per year shall be paid by Standard Life to X.X. Xxxxxxxx Calgary
Inc, for the five (5) year Term.
12.13 Additional Provisions: Those provisions, if any, set out in Schedule A
will form part of this Lease.
12.14 Binding Effect: This Lease will enure to the benefit of and be binding
upon the Landlord, the Tenant, and any Guarantor and each of their respective
heirs, executors, administrators, successors, and permitted assigns.
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IN WITNESS WHEREOF the Landlord and Tenant and any Guarantor have executed this
Lease as of the day and year first above written.
/s/ /s/
---------------------------------- ---------------------------------
THE STANDARD LIFE ASSURANCE COMPANY XXXXXXXXXX.XXX INC.
OF CANADA
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