HomeMy WebLinkAboutCS 15-21Report to
Executive Committee
Report Number: CS 15-21
Date: April 6, 2021
From: Brian Duffield
(Acting) Director, Community Services
Subject: Emix Ltd.
-Lease Amendment Agreement
-File: A-1440
Recommendation:
1.That Report CS 15-21 respecting the City of Pickering’s Lease Amendment Agreement with
Emix Ltd. at 1101 Kingston Road, Suite 280, Pickering, be received;
2.That the Mayor and City Clerk be authorized to execute the Lease Amendment Agreement
with Emix Ltd. set out in Attachment 1 to this Report, subject to minor revisions as may be
required by the Director, Community Services and the Director, Corporate Services & City
Solicitor; and,
3.That the appropriate City officials be authorized to take the necessary actions as indicated in
this report.
Executive Summary: The City of Pickering has an existing Lease Agreement with Emix Ltd.
from January 1, 2016 to June 30, 2021 for the use of the commercial office space located at 1101
Kingston Road, Suite 280. The Lease Agreement is for a five year and six month term with the
option for two additional renewal terms of five years (Attachment 2). Culture & Recreation staff
have been occupying the space since July 1, 2016.
The Community Services Department recommends to renew the Lease Agreement for a five year
term beginning July 1, 2021 and ending June 30, 2026, as per the conditions set out in the Lease
Amendment Agreement included as Attachment 1.
Financial Implications: As per the attached Lease Amendment Agreement, the lease at 1101
Kingston Road, Suite 280 is based on 2,853 of rentable square feet.
The recommended lease renewal would obligate the City to pay rent at a rate of $72,815.00 per
year ($6,067.91 per month), plus HST, for the five year term. The yearly basic rental rate will
increase at $0.30 per square foot for the five year term of the Lease.
Discussion: As per Council Resolution #117/15, the City of Pickering entered into a
Lease Agreement with Emix Ltd. for the use of commercial office space located at 1101 Kingston
Road, Suite 280 for a five year and six month term, with the option for two additional renewal
terms of five years. The commercial office space is 2,853 square feet of rentable office space on
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CS 15-21 April 6, 2021
Subject: Emix Ltd. Lease Amendment Agreement Page 2
the 2nd floor of a commercial office tower and features 7 enclosed offices, open space for multiple
workstations, meeting room, reception area, photocopy area, kitchenette and storage room.
Culture & Recreation staff have been occupying the space since July 1, 2016. The current Lease
Agreement is set to expire on June 30, 2021.
The Culture & Recreation staff located at 1101 Kingston Road may be relocated to offices within
City Hall, subject to the timelines of the City Centre project. To better accommodate this
eventuality staff negotiated a favorable term for a five year extension including a six month
termination provision, starting on December 31, 2022. Staff therefore recommend that Council
approve the extension of the Lease Agreement to accommodate the City’s need for space.
The Community Services Department recommends that the Lease Amendment Agreement
included as Attachment 1 to this Report be initiated for a five year term beginning July 1, 2021 and
ending June 30, 2026.
Attachments:
1.Draft Lease Amendment Agreement
2.Emix Ltd. Lease Agreement dated January 1, 2016
Prepared By: Approved/Endorsed By:
Brian Duffield Paul Bigioni
(Acting) Director, Community Services Director, Corporate Services & City Solicitor
BD:as
Recommended for the consideration
of Pickering City Council
Marisa Carpino, M.A.
Chief Administrative Officer
Original Signed By: Original Signed By:
Original Signed By:
LEASE AMENDMENT AGREEMENT
BETWEEN:
EMIX LTD.
(the “Landlord”)
-and -
THE CORPORATION OF THE CITY OF PICKERING
(the “Tenant”)
WHEREAS the Landlord and the Tenant entered into a lease dated January 1, 2016 (the “Lease”) for
2,853 square feet of space known as suite 280 on the second floor of the building municipally known as
1101 Kingston Rd. Pickering, Ontario (the “Building”) and as more particularly described in the Lease;
AND WHEREAS the parties hereto have agreed to extend the Lease for a period of Five (5) years pursuant
to the terms hereof;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the exchange of two
dollars ($2.00), and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. The parties hereto agree that the Lease shall be extended for a period of Five (5) years such that
the Tenant shall have and hold the Premises for and during a term to be computed from and inclusive
of July 1, 2021 and ending on June 30, 2026 (hereinafter the “Extended Term”).
2. During the Extended Term, the Tenant shall pay to the Landlord at the address designated by the
Landlord, in lawful money of Canada, and without deduction, abatement, set-off or prior demand
therefore, rent for the premises as follows:
Year of Term
Price per Sq. Ft. of
Rentable Area per
Annum
Yearly Basic
Rent
Monthly Basic Rent
July 1, 2021 to June 30, 2022 $12.00 $34,236.00 $2,853.00
July 1, 2022 to June 30, 2023 $12.30 $35,091.90 $2,924.33
July 1, 2023 to June 30, 2024 $12.60 $35,947.80 $2,995.65
July 1, 2024 to June 30, 2025 $12.90 $36,803.70 $3,066.98
July 1, 2025 to June 30, 2026 $13.20 $37,659.60 $3,138.30
3. The Tenant shall pay applicable Goods and Services Tax ("GST") and /or Harmonized Sales Tax
(“HST”).
4.For greater certainty and clarification, the Tenant acknowledges and agrees that with respect to
the Extended Term, the Landlord shall have no obligation to pay to the Tenant any allowance or
inducement, or do or perform any work in, on or to the Premises.
Attachment #1 to Report CS 15-21
5.The Address for Service of Notice on landlord shall include:
Emix Ltd.
164 Bentworth Avenue, Unit A
Toronto, Ontario, M6A 1P7
Attention: Christian Hepfer
with a copy to: chepfer@emixprop.com; pmccluskey@emixprop.com;
leasing@emixprop.com
6.The Tenant shall have a right to terminate the Lease on December 31, 2022 or any time between
January 1, 2023 and June 30, 2026 for any reason, providing that the Tenant submits to the
Landlord, written notice to such effect at least Six (6) months prior to the date of termination. If the
Tenant so terminates this Lease, it shall, deliver to the Landlord vacant possession of the Premises
in accordance with terms and conditions of the Lease.
7.In the event of a conflict between the terms of the Lease and the terms of this agreement, the terms
of this agreement shall prevail. Except as specifically provided herein, all other terms, conditions
and provisos of the Lease as amended shall remain the same and unchanged.
8.Unless otherwise defined, the capitalized terms herein shall have the same meaning as in the
Lease.
9.The recitals at the head of this agreement are true and accurate and form a part hereof.
10.This agreement may be executed in any number of counterparts, and each of such counterparts
shall constitute an original of this agreement and all such counterparts together shall constitute one
and the same agreement. This agreement or counterparts hereof may be executed and delivered
by fax or email, and the parties adopt any signatures provided or received by fax or email as original
signatures of the applicable party or parties.
IN WITNESS WHEREOF the parties hereto have duly executed these presents as of the ____ day of
February, 2021.
SIGNED, SEALED AND DELIVERED
In the presence of:
EMIX LTD.
Per: _______________________
Christian Hepfer, President
THE CORPORATION OF THE CITY OF PICKERING
Per: _______________________
David Ryan, Mayor
Per: _______________________
Name: Susan Cassel
City Clerk
Attachment #2 to Report CS 15-21
Project:
Premises:
EMJXLTD.
-and-
E.\1JX OFFICE
MULTIPLE OCCUPANCY
LANDLORD
THE CORPORATIO:S OF THE CITY OF PICKERING
LEASE
1101 Kingston Road, Pickering
Currently known as Suite 280
TENANT
TABLE OF CONTENTS
ARTICLE L ..................................................................................................................................... 1
l . LEASE SUMMARY ........................................ : .................................................................. 1
1.1 Lease Surnmary .............................. : .................................................................................... .l
ARTICLE II ............. · .................................................................................. · ........................ ··········.3
2. DEFINITIONS .................................................................................................................... .3
ARTICLE ill ................................................................................................................................... 9
3. Thi"TENT OF LEASE ............................................................................................................ 9
3.1 NetLease ...................................... · ....................................................................................... 9
ARTICLE IV ................................................................................................................................. 9
4. LEASE OF PREMISES ....................................................................................................... 9
4.1 Premises ............................................................................................................................... 9
4.2 Term ................................................................................................................................... 9
4 .3 Use Prior to Co=encement Date .................................................................................... 10
4 .4 Acceptance of Premises ..................................................................................................... 1 O
4.5 Licence to Use ConnnonFacilities .................................................................................... 11
4.6 Quiet Enjoyment ................................................................................................................ 11
· ARTICLE V ................................................................................................................................... 11
5. RENT ................................. : .............................................................................................. 11
5.1 Tenant to Pay ............................................................................................. , ....................... 11
S .2 Basic Rent ................................. • ....................................................................................... 11
5.3 Additional Rent ................................... : .............................................................................. 12
5.4 Deemed Rent and Allocation ............................................................................................. 12
Monthly Payments of Additional Rent .............................................................................. 12
5.6 PartialMonthsRent ........................................................................................................... 13
ARTICLE VI .................................................................................................................................. 13
6. TAXES ............................................................................................................................... 13
6.1 Taxes Payable by Tenant ................................................................................................... 13
6.2 Determination of Tenant's Taxes ......... , ..... , .. cc ...... , •• , •• , ........................... , .......................... 13 ·
6.3 Eusiness Taxes and Sales Taxes ........................................................................................ 14
6.4 Tax Bills and Assessment Notices ..................................................................................... 14
6.5 Contest ofRealty Taxes ..................................................................................................... 14
ARTICLE VIl ................................................................................................................................ 15
7. OPERATIONOFPROJECT ............................................................................................. 15
7.1 Operation of Project by Landlord ............................................................... , ...................... 15
7.2 Tenant's Payment of Operating Costs ................................................................................ 15
7 .3 Adjustments to Operating Costs ........................................................................................ 15
7.4 Security (Office only) ......................................................................................................... 15
ARTICLE VIlI ............................................................................................................................... 16
8. USE OF PREMISES .......................................................................................................... 16
8.1 Use ofPremises .................................................................................................................. 16
8.2 Tenantjs Fixtures ·········••u••··························-······•·H••·························· .. ··•·········· ........ M .....•. 11
ii
8.3 Signs .................................................................................................................................. 17
8.4 WasteRemoval .................................................................................................................. 17
8.5 Pest Control ........................................................................................................................ 17
8.6 Waste and Nuisance ........................................................................................................... 18
8.7 Compliance with Laws ....................................................................................................... 19
8.8 Deliveries ........................... ; .............................................................................................. 19
8.9 Wmdow Coverings ............................................................................................................ 19
ARTICLE IX .................................................................................................................................. 19
9. . SERVICES ~'-11) UTILITIES ............................................................................................ 19
9.1 Utilities .............................................................................................................................. 19
9.2 Landlord's Services ..................... , .......................................................................... ; ........... 20
9.3 Non-Liability oflandlord ............ , ..................................................................................... 20
9.4 Landlord's Suspension of Utilities ..................................................................................... 20
9.5 Landlord's Services ............................................................................................................ 21
9 .6 Landlord's Charges for Services ......................................................................................... 21
ARTICLE X ................................................................................................................................... 21
10: MAINTENANCE, REPAIRS AND ALTERATIONS ...................................................... 21
10.1 Maintenance and Repairs of Premises ............................................................................... 21
10.2 Approval ofRepairs and Alterations ................................................................................ .21
10.3 Repair According to Landlord's Notice .............................................................................. 23
10.4 Notice byTenant. ............................................................................................................... 23
10.5 Ownership of Leasehold Improvements .................................................................. ~ ......... 23
10.6 ConstructionLiens ............................................................................................................ .23
10. 7 Landlord's Repairs ............................................................................................................. .24
ARTICLE XL ............................................................................................................................... 24
11. END OF TERM ...................... , .......................................................................................... 24
11.1 VacatingofPossession ...................................................................................................... 24
11.2 Removal of Trade Fixtures ............................................................................................... .24
11.3 Removal of Leasehold Improvements ........................................ : ........ : ............................. 24
11.4 Overholdiug by Tenant ...................................................................................................... 25
ARTICLE XlI ..................................................................................... : ......................................... .25
.1:2. DAMAGEAND.DESTRUCTION ............................................................................. .,"'···25
12.1 Insured Damage to Premises ............................................................................................. .25
12.2 Uninsured Damage and Last Two Years ........................................................................... 26
12.3 Damage to Project ............................................................................................................... 27
12.4 Restoration of Premises or Project. .................................................................................... 27
12.5 Determination ofMatters .................................................................................................. .27
ARTICLE Xlil .............................................................................................................................. .27
13. JNSURA""1CE Ai"'l"D INDEMNITY ........ , ................................. ,. ............ : .......................... 27
13.1 Landlord's Insurance ........... : ............................................................................................. 27
13.2 Tenant's Effect On Other Insurance ................................................................................... 28
13.3 Tenant's Insurance .............................................................................................................. 28
13.4 Landlord's Right to Place Tenant's Insurance ................................................................... .30
13.5 . Landlord's Non-Liability .................................................................................................... 30
13.6 lndemnityofLandlord .......................................................................................... : ..... : ...... 31
iii
13. 7 Landlord's Employees and Agent$ .................................................................................... .31
ARTICLE XIV ............................................................................................................................... 31
14. ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL ................................. .31
14 .1 Consent Required ............................................................ : .................................................. 31
14.2 Obtaining Consent ........................................................................................ ,. ................... .32
14.3 Landlord's Option .............................................................................................................. .32
14.4 Terms ofConsent ............. : ................................................................................................ .33
14.5 Effect of Transfer .............................................................................................................. .33
14.6 No Advertising ofPremi.ses ............................................................................................... 34
14.7 Mortgage ofLease ............................................................................................................. .34.
14.8 Corporate Tenant .............................................................................................................. .34
14.9 Assignment by Landlord ................................................................................................... .34
ARTICLE XV ............................................................................................................................... .34
15. STATUS A.'ND SUBORDINATION OF LEASE ............................................................. .34
15.1 Status Statement.. ................................................................................................... : .......... .34
15.2 Subordination andAttornment .......................................................................................... .35
15 .3 Tenant's Failure to Comply ............................................................................................... .35
15.4 Registration ........................................................................................................................ 35
ARTICLE XVI .............................................................................................. · .............................. .35
16. . DEFAULT AND REMEDIES ....................... , .................................................................. .35
16.1 Default and Remedies ....................................................................................................... .35
16.2 Interest ................................................ · .......................................................................... 37
16.3 Coots ...................................................................................... _ ........................................... .37
• 16.4 Distress and Tenant's Property ........................................................................................... 38
16.5 Security Deposit ................................................................................................................ .38
16.6 Remedies to Subsist .......................................................................................................... .39
16.7 Impossibility of Performance ............................................... , ............................................ .39
ARTICLE XVII ............................................................................................................................. ,9
17. CONTROL OF PROJECT ........................................................................... · ..................... .39
17.1 Landlord's Control ....................................................................... , ..................................... 39
17.2 Alterations oftheProject ...................................................... , ........................................... .40
.17.3 .. CQJ:®1011 Fa&.ilitfosand Parking ....................... : ................................................................. 40-
17.4 Rules and Regulations ..................................................................................... : .................. 41
17.5 Access to Premises ............................................................................................................ .41
17.6 Expropriation ......... · ........................................................................................................... 41
17. 7 If the whole or any part of the Project shall be expropriated ........................................... ..42
17.8 Landlord's Consent.. ........................................................................................................... 42
17.9 Telecommunications Carrier's Access ............................................................................. ..42
17.10 Wireless Frequencies ..................................................................................................... 43
.ARTICLE XVIlI ............................. : .............................................................................................. 44
rn. :MISCELLANEOUS .......................................................................................................... 44
18.1 Notices ............................................................................................................................... 44
18.2 Complete Agreement ......................................................................................................... 44
18 .3 Time of the Essence ........................................................................................................... 44
18.4 Applicable Law .................................................................................................................. 44
1V
18.5 Severability ............................................................................. · ....... : ............................ 44
18.6 Section Numbers and Headings .................... : ................................................................... .45
18. 7 Interpretation....................................................................................................................45
18.8 Successors ............................................................................. : ........................................... .45
ARTICLE XIX .............................................................................................................................. .45
19. INDEMNITY ....................................................................................................... : ............. 45
Schedules
Schedule A LEGAL DESCRIPTION OF PRE1:ITSES
Schedule B OUTI,INE PLAN OF PREMISES
Schedule C LANDLORD'S WORK
Schedule·D ROLES A.ND REGULATIONS
Schedule E OPTION TO Ra"EW
THIS LEASE dated the 1st day of January, 2016
BETWEEN:
EMIXLID.
(hereinafter called "Landlord")
-and-
, EMIX OFFICE
MULTIPLE OCCUPANCY
OF TIIB FIRST PART
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called "Tenant'~
OF TIIB SECOND PART
ARTICLE!
1. LEASE SL"MMARY
LI Lease Summary
The following is a summary of some of the basic terms of this Lease, which are elaborated upon
i.n the balance of this Lease.
( a) Premises: The suite currently known as Suite 280 on the 2nd floor of the building
municipally know as 1101 Kingston Road, Pickering and as shown outlined on Schedule
"'B" attached hereto;
(b) Term: Five (5) years and Six (6) months;
(c) Commencement Date:
( d) Expiry Date:
(e) Basic Rent'
Year of Term
January I, 2016
June 30, 2021
Price per sq.ft. of
the Rentable Area
of the Leased
: Premises per
\ annum{$)
Januarv 1, 2016 to June 30, 2017 ! $10.00
Julv 1, 2017-June 30, 2018 • $10.50
July 1, 2018-June 30, 2019 $11.00
, July 1, 2019-June 30, 2020 $11.50
July 1, 2020-June 30, 2021 Sl2.00
Yearly Basic J Monthly
Rent($) : Basic Rent
($)
!
$28,530.00 $2,377.50
$29.956.50 $2,496.38
i $31,383.00 $2,615.25
I $32,809.50 $2,734.13
j $34,236.00 $2,853.00
2
(f) Rentable A.rea of Premises: approximately 2,853 square feet;
(g) Deposits:
(i)
.
Prepaid Rent to be paid by certified cheque to Landlord on
or before execution and delivery of this Lease (to be held
without interest and applied on account of the first months'
Basic Rent and Additional Rent
andGST):
(ii) Security Deposit to be paid by certified cheque to Landlord
on or before execution and delivery of this Lease (1D be
held without interest and applied to damages suffered by
Landlord as a result of Tenant's default of its covenants and
obligations hereunder including but not limited to its
obligations to deliver vacant possession of the Premises at
the expiry or earlier termination of the term in first-class
appearance and condition in accordance with the provisions
in Article XJ) and in the event of any bankruptcy,
insolvency, winding up or other creditor's proceeding, the
· Security Deposit shall be the absolute property of the
Landlord and shall be deemed to have been automatically
applied against Basic Rent and any other amounts payable
hereunder in respect of the period at what would have been
the end of the Term, but for any disclaimer, repudiation or
termination of the Lease pursuant
to such proceeding:
Total:
$ 6,447.78
$7,500.00
$13.947.78
(h) Use of Premises:-·· · Standard office use for typical and normal City of Pickering
administrntion and operational uses;
(i) Address for Service ofNotice on Tenant and/or Indemnifier:
One The Esplanade, Pickering ON LIV 6K7
Address for Service of Notice on tan·dlord:
cio Emix Ltd.
l 004 Eglinton Ave West
Toronto, ON M6C 2C5
telecopier No. 416-352-6021
v,rith a copy to chepfer@.entixprop.com
3
or such other address as the Landlord may advise from time to time
(j) Special Provisions:
(i) The Landlord shall install at the Landlord's expense, standard building signage on
the Directory Board in the lobby of the Building and at the entrance to the
Premises.
(ii) The Landlord will complete the work outlined on Schedule C at its own expense,
in a good and workma:olike maru;ier. The Landlord &hall make every reasonable
effort to complete the Landlord's Work on or before the Co=encement Date.
Other than the Landlord's work, the Tenant accepts and the Landlord shall deliver
the Premises in "as is" condition;
(iii) The Tenant shall be entitled to occupy the Premises for a period ofup to.six
months on an Additional Rent-free basis for the period from January 1, 2016 to
the earlier of (i) the date on which the Tenant's staff begins to occupy the
Premises and (ii) June 30, 2016 (the "Additional Rent-Free Period"); the Tenant
shall not be responsible for Additional Rent during the Additional Rent-Free
Period but shall be responsible for payment of Basic Rent
(iv) The Tenant and its employees, suppliers and other persons not customers having
business \Vith the Tenant, shall park their cars only in those portions of the
parking area designated for that purpose by the Landlord The Landlord shall have
the right to assign parking spaces and to restrict fue Tenant to the use of 11
patking spaces during the term of the Lease and any renewal thereof.
(v) Vvithout in any way limiting the provisions of Article 17 of this Lease, Tenant
shall not itself and shall not permit any of its employees, servants, agents,
contractors, invitees or persons having business with Tenant, to drive or park any
truck or other commercial vehicle on, in or adjacent to any portion of the Project,
including the Common-Facilities other than such areas as e;xpressly authorized by
Landlord in writing, which authorization may be unreasonably withheld
Landlord shall have the right, at Tenant's expense payable on demand, to remove
any such truck or other commercial vehicle, without any liability for any damage
caused thereby.
ARTICLE II
2. DEFINITIONS
2.1 Definitions
\\'here used in this Lease, the following words or phrases shall have the meanings set
forth in the balance of this Axticle.
4
"Additional Rent" shall have the meaning given to it in section 5.3.
2.3 "Architect" means a professionally accredited architect, engineer or, surveyor appointed
by the Landlord from time to time. Any certificate provided by the Architect and called
, for by the terms of this Lease shall be final and binding on the parties hereto
2.4 "Basic Rent" shall have the meaning given to itin section 5.2.
2.5 "Building" means the building in which the Premises are located.
2.6 "Commencement Date" shall have the meaning given to it in section 1. L
2.7 "Common Facilities" means the Project, excluding only Lea.sable Areas, and including,
without limitation: (i) all areas, facilities, systems, improvements, furniture, fixtures and
equipment in or on the Project; and (ii) the lands forming part of the Project, including
parking areas and facilities. Common Facilities shall include those areas, facilities,
utilities, improvements, equipment and installations in the Project which from time to
time are not designated or intended by the Landlord to be leased to teoants of the Project,
and those areas, facilities, utilities, improvements, equipment and installations which
serve or are for the benefit of the Project whether or not located in,,.adjacent to or near the
Project and which are designated from time to time by the Landlord as part of the
Common Facilities. Without limiting the geJ;).erality of the foregoing, Common Facilities
includes all parking areas and parking garages, all entrances and exits thereto and all
structural elements thereof, employee parking areas; access roads, track courts,
driveways, truckways, delivery passages, the roof, exterior weather v.ralls, exterior and
interior structural elements and bearing walls in the building and improvements
comprising the Project, package pick-up stations, loading and related areas, pedestrian
sidewalks, landscaped and planted areas, bus kiosks, if any, roadways and stops, signs,
equipment and fixmres, stairways, ramps, electrical, telephone, meter, valve, mechanical
mail storage service and janitor rooms and galleries, fire prevention, security and
commlinication:systems,-columns, pipes, electrical, plumbing, drainage, any central
system for the provision of heating, ventilating or air conditioning to leasable premises or
any enclosed Common Facilities and all other installations, equipment or services located
therein or related thereto as well as the structures housing the same.
2,8 "Fiscal Year" means the twelve (12) month period used by Landlord for fiscal pUiposes in
respect of the Project. Unless otherwise determined by Landlord by written notice to
Tenant at any time or times, each Fiscal Year shall be a calendar year, In the event of a
change in the Fiscal Year, or with respect to a partial Fiscal Year at the beginning or end
of the Tenn, all appropriate adjustments resulting from a Fiscal Year being shorter or
longer than twelve (12) months shall be made.
2.9 "Laws" means all statutes, regulations, by-law-s, orders, rules, requirements and directions
of all governmental authorities havingjurisdiction.
5
2.10 "Landlord's Work" means any leasehold improvements·which Landlord is required, by a
previous written agreement with Tenant, to make to the Premises prior to the
Commencement Date.
2.11 "Lease Year" shall mean each consecutive period of three hundred and sixty-five (365)
days, the first Lease Year commencing on the Commencement Date, or ou the fust day of
the next month if the Commencement Date is not the first day of a month, and each
successive Lease Year commencing on the anniversary of the first day of the first Lease
Year.
2.12 "Leasable Areas" means all areas and spaces of the Project to the extent designated or
intended from time to time by Landlord to be leased to tenants, whether leased or not, but
excluding parking areas.
2.13 (a) "Operating Costs" means the aggregate of all expenses and costs of every
kind for each Fiscal Year designated by Landlord, as determined without·
duplication, incurred by or on behalf of Landlord with respectto the operation,
maintenance, repair, replacement and management of the Project, and all
insurance relating to the Project, calculated as if the Project was fully completed,
fully occupied and fully operational by tenants for the whole of such Fiscal Year.
Without in any way limiting the generality of the foregoing, Operating Costs shall
include all costs in respect of the following:
(i) all remuneration _of employees directly engaged in the operation,
maintenance, repair and management of the Project;
(ii) heating, ventilating, air-conditioning and humidity control, if any, of the
Project;
(iii) . cleaning and janitorial services in respect of the Co~on Facilities,
including, without limitation, exterior-cleaning, parking lot sweeping,
window cleaning, waste removal, landscaping, grass cutting, snow and ice
clearing and removal and salting;
(iv) all utilities, including water, gas, electricity and sewer charges, excluding
those charged directly to tenants of the Project;
(v) depreciation or amortization, over a reasonable period of time in
accordance with generally accepted accounting principles, of all costs,
including capital costs, of all improvements, furnishings, fixtures,
equipment, machinery, systems and facilities constructed or installed in or
used in connection with the Project, which by their nature require periodic
or substantial repair or replacement, or which are constructed or installed
or used primarily to reduce the cost of other items included in Operating
6
Costs, whether or not such other costs are in fact reduced, and interest on
the undepreciated cost of all items in respect of which depreciation or
amortization is included herein.at two (2%) percent in excess of the prime
rate of interest charged by Landlord's bank at Toronto from time to time;
(vi) all insurance which Landlord obtains and the cost of any deductJ.ole
arno=ts payable by Landlord in respect of any insured risk or claim;
(vii) policing, supervision, security and traffic control;
(viii) maintenance, repairs and replacements in respect. of the Project;
(ix) all costs in the ual.ure of Operating Costs in respect of areas, services and
facilities outside the Project, such as sidewalks and boulevards, off-site
utilities and other service connections, and in respect of areas, services and
facilities shared by users of the Project and users of any other property, to
the extent Landlord perfunns or contributes to the same as a result of its
ownership of the Project, the cost of providing additional parking or other
Co=on Facilities for the benefit of the Project, whether such costs be
land rent, Taxes or other type of costs;
(x) engineering, accounting, legal and other consulting a:nd professional
services related to Co=on Facilities;
(xi) holiday decorating;
(xii) Intentionally deleted;
(xiii) capital costs incurred for any of the above, provided that such costs are to
be depreciated or amortized, over a reasonable period of time in
accordance with generally accepted accounting principles, of all such costs
and interest-On the undepreciated · cost of aJl. items in respect of which
depreciation or amortization is included herein at two (2%) percent in
excess of the prime rate of interest charged by Landlord's bank at Toronto
from time to time;
(xiv) Sales Taxes payable by Landlord on the purchase of goods and services
included in Operating Costs ( excluding any such Sales Taxes which are
available to a:nd claimed by Landlord as a credit or refund in determining
Landlord's net tax liability on account of Sales Taxes, but only to the
extent that such Sales Taxes are included in Operating Costs;
(xv) repairs or replacements to the non-structural portions of the Building,
including, without limitation, roof membrane but not the roof deck and
7
other parts of the roof or any the weight-bearing portions of the structure
such as foundations, columns, beams and weight bearing slabs and walls;
(xvi) costs incurred on behalf of the Landlord to contest the establishment of
any future competitive or detrimental entity or project 'which in the
Landlord's opinion would be detrimental to the Project or any of the
Tenant's therein; and
(:xvii) an administration and management fee of fifteen percent (15%) of the total
of all of the above Operating Costs ( exclusive of this clause (xvii) and
interest on undepreciated or unamortized costs), Realty Taxes and utilities
not paid directly by the Tenant
(b) Operating Costs, however, shall be reduced by the following to the extent actually
received by Landlord:
(i) proc~ of insurance and damages received by Landlord from third
parties to the extent of costs otherwise included in Operating Costs;
(ii) contributions from parties other than tenants of the Project, if any, in
respect of Operating Costs, such as contributions made by parties for
sharing the use of Common Facilities, but not including rent or fees
charged directly for the use of any Common Facilities such as parking fees
and rent for Storage Areas; and
(iii) amounts in the nature of Excess Costs, as defined in subsection 7.3(a), to
the extent received by Landlord from tenants of the Project
( c) Operating Costs, however, shall exclude the following:
(i) Realty Taxes;
(ii) expenses incurred by Landlord in respect of other tenants' leasehold
improvements;
(1ii) capital costs except to the extent included as set forth above;
(iv) depreciation, except to the extent included as set forth above;
(v) repairs or replacements to the extent that the cost of the same is recovered
by Landlord pursuant to originsl construction warranties; and
2.14 "Premises" shall have the meaning given to it in section 4.1.
8
2.15 "Project" means those lands described in Schedule "A" hereto as such lands and premises
may be altered, expanded or reduced from time to time, and all buildings, structures,
improvements, equipment and facilities of any kind erected or located thereon from time
to time, as such lands, buildings, structures, improvements, equipment and facilities may
be expanded, reduced or otherwise altered by Landlord in its sole discretion from time to
time, including, without limitation, the expansion of any parking :facilities, whether or not
located in, adjacent to or near the Project .
2.16 "Proportionate Share" means a fraction which has as its numerator the Rentable Area of
the Premises and which has as its denominator the aggregate of rented Leasable Areas
within the Project
2.17 "Realty Taxes" means all taxes, rates, duties, levies, fees, charges, local improvement
rates, levies and assessments whatever ("Taxes''), whether municipal, provincial, federal
or otherwise, which maybe levied, assessed or charged against or in respect of the Project
-or any part thereof or any fixtures, equipment or improvements therein, or against
Landlord in respect of any of the same or in respect of any rental or other compensation
receivable by Landlord in respect of the same, and including all taxes which may be
incurred by or imposed upon Landlord or the Project in lieu of or in addition to the
foregoing including, ,;vithout limitation, any Taxes on real property rents or receipts as
_ such (as opposed to a tax on such rents as part of the income of Landlord), any Taxes
based, in whole or in part, on the value of the Project, and any licence fee measured by
rents or other charges payable by occupants of space in the Project
2.18 "Rent" shall have the meaning given to it in section 5.1.
2.19 "Rentable Area" when applied to the Premises or any Leasable Areas means the aggregate
of (i) the area measured from the exterior face of exterior walls and windows, from the
exterior face of all walls and windo,vs dividing any Leasable Areas from Common
Facilities, and from the ce:ritre line of all interior walls separating any Leasable Areas
from other Leasable Areas, all ·without deduction for any space occupied by structures,
columns, beams, .conduits, -ducts or projections of any kind, and all without-deduction for
the recessing of any entrance way or boundary wall from the lease line ( sometimes -
referred to as the "Usable Area") plus (ii) a Pro Rata share, of the floor area of those areas
in the Project not leased to anyone, including without limitation. hallways, elevators,
lobbies, washrooms, janitor closets, electrical closets, telephone, air conditioning and fan
rooms, but excluding parking areas. For the pmposes of this clause, ''Pro Rata" means the
proportion of the amount which the total Usable Area of the Premises is of the total
Usable Area of all premises in the Project (including the Premises). Every Rentahle Area
shall be as determined by the Architect or by a surveyor, or space llll:asuring company or
other qualified person appointed by Landlord from time to time, or measured and ·
calculated by the Landlord's architect in accordance Vvith the most recent
B.O.M.A.standards, as the landlord may decide.
9
2.20 "Sales Taxes" means. all business transfer, multi-stage sales, sales, use, consumption,
value-added or other similar taxes imposed by any federal, provincial or municipal
government upon Landlord ·or Tenant or in respect of this Lease, or the payments made by
Terumt hereunder or the goods and services provided by Landlord hereunder including,
without limitation, the rental of the Premises and the provision of admin:istrative services
to Tenant hereunder.
2.21 "Term" sh.all have the meaning given to it in section 4.2.
ARTICLEID
3. nrrEN10FLEASE
3.1 NetLease
It is 1he intent of the parties hereto that, except as expressly herein set out, this Lease be
absolutely net to Landlord, and Landlord not be responsible for any expenses or obligations of
any kind whatsoever ln respect of the Premises or. the Project.
ARTICLE IV
4. LEASE OF PREMISES
4.1 Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord those premises
("Premises") being part of the Project and shown outlined on the plan attached hereto as
Schedule "B". The pw:pose of Schedule "B" is to show the approximate location of the Premises
and its contents are not intended as a representation a~ to the precise size or dimensions of the
Premises or any other aspects of the Project The Premises shall extend from the upper surface
of fue structural sub floor to the lower surface of the structural ceiling within the bouridaties of
the Premises determined: as providedin section 2.19. -subjecno·section 10:1, tbe Premises shall -
exclude 1he exterior faces of all exterior and interior walls and windows, notwithstanding the
manner in which Rentable Area is measured_
4.2 Term
· (a) Toe tetm of this Lease (the "Term") shall be for the period descnbed as the T= in section
l .1 hereof, commencing on the Commencement Date and ending on 1he Expiry Date, both
dates as descnbed in section 1. 1.
(b) Landlord shall make every reasonable effort to obtain vacant possession of the Premises and
to have any Landlord's Work substantially complete by the Commencement Date, but if
Landlord is unable to do so then the Commencement Date may be deferred by Landlord for
a reasonable period or periods of time, not exceeding a total of ninety (90) days.
10
Notwithstanding any other provision of this Lease, the Landlord shall not be deemed in
default if it is unable to give possession of the Premises on the date fixed for
cmnmencement of the Term because repairs, improvements or decorations of the Premises
or of the Building are not completed, or for any reason other than the Landlord's wilful act
. or neglect In such circumstances, the Rent will not commence until possession of the
Premises is given to the Tenant or the Premises are available for fixtnring by the Tenant,
and no failure to give possession of the Premises on the date fixed for co=encement of
the T= shall in any way affect the validity of this Lease or the obligations of the Tenant
under this Lease or the Terms or conditions of this Lease, nor shall it extend the Term. The
Landlord shall diligently exercise its rights to obtain completion of the Premises as soon as
reasonably possible. There shall be no abatement of Rent for any delay in occupancy due to
the Tenant's failure to complete all or any installations or other work required to be
completed by the Tenant in accordance with the provisions of this Lease or required for the .
purpose of carrying on its business operations in the Premises. The Tenant shall not be
entitled to any abatement of Rent where the Landlord's failure to complete or deliver vacant
possession of the Premises on the Co=encement Date is due to any act or omission on the
part of the Tenant The decision of the Landlord's Architect shall be final and binding on
the parties hereto as to whether or not the Premises are ready for oq:upancy by the Tenant,
and as to the extent to which any delay in completion of the Premises or in the delivery of
vacant possession is due to any act or omission of the Tenant or its agents, servants or
contractors. The Tenant shall, promptly on the request by the Landlord, execute an
acknowledgement of the date on which complete and vacant possession of the Premises is
delivered to the Tenant. If the Landlord has not delivered possession of the Premises within
90 days of the date or"this Lease, the Landlord shall have the right and option at any time to
cancel this Lease and any money or security deposited with the Landlord under or on
account of this Lease shall be returned to the Tenant and neither party shall have any
liability to the other.
43 Use Prior to Co=encement Date
If Tenant uses or occupies the whole or any part of the Premises in any way prior to the
Commencement Date without entering into a lease with Landlmd inrespectof such use or
occupancy, then during that period Tenant shall be a tenant of Landlord subject to all the terms
and conditions contained in this Lease, provided that the inclusion of this section shall not be
deemed to authorize or permit Tenant to use or occupy the whole or any portion of the Premises
in any way prior to the Co=encement Date.
4 .4 Acceptance of Premises
Tenant accepts the Premises in the state and condition in which they are received from
Landlord and, except only to the extent of any deficiency in the Landlord's Work, if any,
particularly set out in a written list given by Tenant to Landlord within thirty (30) days after
Tenant takes possession of the Premises, Tenant's entering into possession of the Premises shall
be conclusive evidence of the acceptance by Tenant of the condition and state of repair of the
Premises.
11
4.5 Licence to Use Co=on Facilities
Subject to all otherrelevant provisions of this Lease, Landlord grants to Tenant the non-
exdusive licence during the Term to use for their intended pUiposes, in co=on with others·
entitled thereto, such portions of the.Common Facilities as are reasonably required for the use
and occupancy of the Premises.
4.6 Quiet Enjoyment
Subject to Tenant's complying with all of the terms of this Lease, Tenant may peaceably
possess and enjoy the Premises for the Term without interruption by Landlord or any person
claiming through Landlord.
ARTICLEV
5. RENT
5.1 Tenant to Pay
Tenant shall pay in lawful money of Canada at such address as shall be designated from
time to time by Landlord Basic Rent and Additional Rent ( all of which is herein sometimes
referred to collectively as "Rent") as herein provided without any deduction, set-off or abatement
whatsoever, Tenant hereby agreeing to waive any set-off rights it may have under any statute or
at law. On the Commencement Date and the first day of each Fiscal Year thereafter and at any
time during any Fiscal Year when required by Landlord, Tenant shall deliver to Landlord as
requested by Landlord post-dated cheques for all payments of Basic Rent and estimates by
Landlord of Additional Rent or any portions thereof payable during .the ba).ance of such Fiscal
Year.
5 .2 Basic Rent
Co=encing on the Commencement Date Tenant shall pay to Landlord a fixed minimum
annual rent ("Basic Rent") for each Year of the Term in the annual amount(s) described as Basic
Rent in section 1.1., to be paid in equal monthly instalments, as described as Basic Rent in section
1.1, in advance on the first day of each month during the Term. On the Co=encement Date, if
it is other than the first day of a calendar month, Tenant shall pay to Landlord for such partial
month Basic Rent computed on a per diem basis. 1f an amount per square foot is specified in the
description of Basic Rent in section 1. 1, then the Basic Rent is intended to be such amount per
square foot ofRentable Area of the Premises per annum, and the Basic Rent shall be subject to
adjustment based upon the certificate of Rentable Area of the Premises to be delivered pursuant
to section 2.19. Within thirty (30) days after delivery of such certificate all necessary
adjustments will be made and Tenant shall pay to Landlord any deficiency in previous payments
12
of Basic Rent and Additional Rent, and if Tenant is not in default under the terms of this Lease
the amount of any overpayment by Tenant of Basic Rent and Additional Rent shall be paid to
Tenant or credited to the account of Tenant. Notwithstanding the forgoing, in the event of an
overpayment by Tenant of Basic Rent and Additional Rent, the Landlord shall b.e required to
repay such overpayment to Tenant only with regard to the one year period innnediately preceding
the issnance of the certificate ofRentable Area of the Premises delivered pursuant to section
2.19.
5 .3 Additional Rent
In addition to Basic Rent Tenant shall pay to Landlord, or as Landlord shall direct, all
other amounts as and when the same shall be due and payable pursnant to the provisions of this
Lease or pursuant to any other obligation in respect of the Premises, all of which shall be deemed
to accrue on a per diem basis; all of such amounts are herein sometimes referred to as
"Additional Rent". Tenant shall promptly deliver to Landlord upon request evidence of due
payment of all payments of Additional Rent required to be paid by Tenant hereunder.
5.4 Deemed Rent and Allocation
1f Tenant defaults in payment of any Rent (whether to Landlord or otherwise) as and
when the same is due and payable hereunder, Landlord shall have the same rights and remedies
against Tenant upon such default as if such sum or sums were rent in arrears under this Lease.
Landlord may allocate payments received from Tenant among items of Rent then due and
payable by Tenant. No acceptance by Landlord of payment by Tenant of any amount less than
the full amount payable to Landlord, and no endorsement or direction on any cheque or other
written instruction or statement respecting any payment by Tenant shall be deemed to constitute
payment in full or an accord and satisfaction of any obligation of Tenant.
5.5 Monthly Payments of Additional Rent
Landlord may from time to time by written notice to Tenant estimate or re-estimate any
amount( s) payable by Tenant to Eandlord hereunder including without limitation; -amounts in
respect of Operating Costs, Realty Taxes and utilities, for the then current or next following
fiscal period used by Landlord in respect of each of the said amounts. The fiscal period used by
Landlord may correspond to a shorter period within any twelve month period where an item, for
example Realty Taxes, is payable in full by Landlord over such shorter period. The amounts so
estimated shall be payable by Tenant in advance in equal monthly instalments over the fiscal
period on the same days as the monthly payments of Basic Rent. Landlord may, from time to
time, alter the fiscal period selected in each case. As soon as practicable after the expiration of
each Fiscal Year, Landlord shall furnish to Tenant a statement of the actual amounts payable by
Tenant in respect of Operating Costs, Taxes, utilities and any other relevant provisions hereof for
such Fiscal Year .. 1f the amount determined to be payable by Tenant as aforesaid shall be greater
or less than the payments on account thereof previously made by Tenant, then the appropriate
adjustments will be made and Tenant shall pay any deficiency to Landlord within thirty (30) days
after delivery of such statement and if Tenant is·not in default under the terms of the Lease, the
13
amount of any overpayment shall be paid to or credited to the account of Tenant within thirty
(30) days after the delivery of such sta:temenl Such statement of Landlord shall be final and
binding and Tenant shall have no right to dispute the accuracy or propriety of any amounts or
calculations included therein, except to the extent that Tenant shall, within sixty (60) days after
being given such statement, have demonstrated to the satisfaction of Landlord any error in such
statement.
5.6 Partial Months Rent
If the Co=encement Date is a day other than the first day of a calendar month, the Tenant shall
pay all Basic Rent and Additional Rent calculated on a per diem basis, from the Commencement
Date to the last day of the month in which the Co=encement Date occurs and thereafter all
payments of Rent shall be made on the first day of each month throughout the Term unless
otherwise specified herein.
ARTICLE VI.
6. TAXES
6.1 Taxes Payable by Tenant
Commencing on the Co=encement Date and thereafter throughout the Term, Tenant
shall pay to Landlord as and when due all Realty Taxes and other taxes, if any, levied, corifirmed,
imposed, assessed or charged (herein referred to as "charged") against or in respect of the
Premises and all fixtures, equipment, improvements and alterations in the Premises, and
including any such Realty Taxes and other taxes charged against or in respect of the Premises in
respect of any Co=on Facilities. In addition, Tenant shall pay the Proportionate Share of
Realty Taxes, if any, separately charged against Co=on Facilities. To the extent of Realty
Taxes received by Landlord from Tenant, Landlord shall pay same to the taxing authority. For
clarity, nothing in this Lease shall require the Tenant to pay income taxes or capital tax
associated with the Landlord's ownership of the Project.
6.2 Determination of Tenant's Taxes
Tenant's obligation to pay Realty Taxes charged against or in respect of the Premises shall
be determined on the basis of a separate bill if available. If the relevant taxing authority does not
issue a separate bill for the Premises then Tenant's obligation in respect thereof shall be
computed by applying the relevant tax rate to a separate assessment of the Premises, if any. If
there is neither a separate bill for Realty Taxes for the Premises nor a separate assessment of the
Premises for any period of time, then for such period the Realty Taxes charged against or in
respect of the Premises shall be determined by Landlord, acting reasonably, on the basis of :the
then ·current established principles of assessment used by the relevant assessing authorities and
on the same basis as the assessment actually obtained for the Project as a whole or the part
thereof in which the Premises are locaied. Provided that Tenant shall be solely responsible for
any increase in Realty Taxes resulting from any act or election of Tenant or from any fixtures or
14
improvements in the Premises, and Tenant shall not be responsible for any such increase
resulting from any act or election of Landlord or any other occupant of the Project or any fixtures
or improvements in other Leasable Areas. Any amounts payable by Tenant on account of Realty
_ _ Taxes shall be adjusted on a per diem basis in respect of any period not falling wholly within the
Term.
6.3 Business Taxes and Sales Taxes
(a) Tenant shall pay to the relevant taxing authority as and when the same are due and
payable all taxes charged in respect of any business conducted on, or any use or
occupancy of, the Premises.
(b) Tenant shall pay to Landlord when due all Sales Taxes imposed on Landlord or
Tenant with respect to Rent payable by Tenant hereunder or in respect of the rental
of space under this Lease.
6.4 Tax Bills and Assessment Notices
Tenant shall deliver to Landlord forthwith upon Tenant's receiving the same copies of all
assessment notices, tax-bills, receipts and other documents received by Tenant relating to Realty
Taxes on the Premises or the Project.
6.5 Contest of Realty Taxes
(a) Landlord may contest any Realty Taxes and appeal any assessments related thereto and may
withdraw any such contest or appeal or may agree with the relevant authorities on any
settlement in respect thereof. Tenant will cooperate with Landlord in respect of any such
contest and appeal and shall provide to Landlord such information and execute such
documents as Landlord requests to give full effect to the foregoing. All costs of any such
contest and appeal by Landlord shall be included in Operating Costs.
_ (b) _ Tenant will not.contest.any.RealtyTaxes or-appeal any assessments related thereto without
first notifying Landlord in writing at least twenty (20) days prior to filing such contest or
appeal and delivering to Lapdlord such security as may be required by Landlord, acting
reasonably, against any costs, liabilities or damages which may be incurred by Landlord or
any other person arising out of such contest or appeal. Unless directed otherwise by notice
-from Landlord within such twenty (20) day notice period, Tenant shall include in any such
contest or appeal in respect of the Premises a corresponding contest or appeal in respect of
the Realty Taxes for the Project. Tenant shall promptly upon request pay all costs and
expenses, including without limitation legal expenses, incurred by Landlord as a result of
any such contest or appeal by Tenant and indemnify Landlord against all costs, liabilities or
damages which may be incurred by Landlord or any other person arising out of such contest ·
or_appeal. \Vhile any such contest or appeal by Tenant is in progress Tenant shall continue
to pay RealtyTaxes in respect of the Premises as if such contest or appeal had not been
co=enced.
15
ARTICLE VII
7. OPERATION OF PROJECT
7 .1 Operation of Project by Landlord
Landlord shall repair, maintain and operate the Project, other than Leasable Areas, in a
reasonable manner having regard to its size, age, location and character.
7.2 Tenant's Payment of Operating Costs
Co=encing on the Co=encement Date and thereafter at all times throughout the Term
Tenant shall pay to Landlord the Proportionate Share of Operating Costs, The amounts payable
by Tenant pursuantto this section 7.2 may be computed on the basis of such periods of time as
Landiord shall determine from time to time and shall be paid to Landlord within ten (10) days
after the submission to Tenant of a statement showing the amount payable by Tenant from time
to time. All amounts payable under this Article VIl in respect of any period not falling entirely
within the Term shall be adjusted on a per diem basis.
7 .3 Adjustments to. Operating Costs
(a) If by reason of the particular nature of Tenant's business conducted on the Premises or the
particular use or occupancy of the Premises or any of the Co=on Facilities by Tenant or
by Tenant's employees, agents or persons having business with Tenant, additional costs in
the nature of Operating Costs, such as utilities charges, security costs, or costs of
maintenance, repairs and replacements, are incurred in excess of the costs which would
otherwise have been incurred for such items ("Excess Costs"), then Landlord shall have the
right to determine on a reasonable basis and require Tenant to pay such Excess Costs.
(b) If Tenant or any other tenant of the Project, pursuant to its lease or otherwise by
arrangement withLandlord, pro:vides.atits cost.anygoods.or-services.thecostof which --
would otherwise be included in Operating Costs, or if any goods or services the cost of
which is included in Operating Costs benefit any portion of the Project to a materially
greater or lesser extent than any other portion of the Project, then either the denominator for
detennining a Proportionate Share, or alternatively the amount of Operating Costs, may be
· adjusted as determined by Landlord acting reasonably to provide for the equitable allocation
of the cost of such goods and services among the tenants of the Project.
7.4 Security
(a) The Landlord shall permit the Tenant and the Tenant's employees and all persons
lawfully requiring co=unication with them to have the use, during Normal Office
Hours in co=on with others entitled thereto, of the main entrance and the stairways,
corridors, elevators, escalators, or other mechanical means of access leading to the
16
building and the Premises. At times other than during Normal Office Hours the Tenant
and the employees of the Tenant shall have access to the Building and to the Premises
only in accordance with the Rnles and Regulations and shall be required to satisfactorily
identify themselves and to register in any_ book which may at the Landlord's option be
kept by the Landlord for such purpose. If identification is not satisfactory, the Landlord is
entitled to prevent the Tenant or the Tenant's employees or other Persons lawfully
requiring co=unication with the Tenant from having access to the Building and to the
Premises. In addition, the Landlord is not required to open the door to the Premises for
the purpose of permitting entry therein to any Person not having a key to the Premises.
(b) The Tenant shall not place or cause to be placed any additional locks upon any doors of
. the Premises without the approval of the Landlord. Two keys or access cards shall be
supplied to the Tenant for each entrance door to the Premises and all Jocks shall be
Building standard to permit access by the Landlord's master key. If additional keys are
required, they must be obtained from the Landlord at the cost of the Tenant. Keys or
other means of access for entrance doors to the Building will not be issued without the
written authority of the Landlord.
ARTICLE VITI
8. · USE OF PREMISES
8.1 Use of Premises
(a) To the intent that this covenant shall run with the Premises for the benefit for the Project,
excluding the Premises, Tenant covenants that it shall not use and shall not permit the Premises
to be used for any purpose other than as described as Use of Premises in section 1.1 hereof. The
Tenant shall satisfy itself that the use as described in l.l(h) complies with all applicable zoning
by-laws.
(b~ __ No one shall use.the Premises for sleeping apartments or residential-purposes, or for the-
storage of personal effects or articles other than those required for business purposes. b) No
cooking or heating of any foods or liquids ( other than the heating of water or coffee in coffee
makers or kettles) shall be permitted in the Premises without the written consent of the Landlord.
c) The Tenant shall not install or permit the installation or use of any machine dispensing goods
for sale in the Premises or the Building or permit the delivery of any food or beverage to the
Premises ( other than reasonable quantities of beverages or food to be consumed by occupants of
the Premises such as coffee, tea, soft drinks, snacks, employee meals, etc.) without the .written
approval of the Landlord or in contravention of the rnles and regulations. d) The Tenant shall
not permit or allow any odours, vapours, steam, water, vibrations, noises or other undesirable
effects to emanate from the Premises or any equipment or installation therein which, in the
Landlord's opinion, are objectionable or cause any interference with the safety, comfort or
convenience of the Building to the Landlord or the occupants and tenants thereof or their agents,
servants, invitees or employees.
17
( c) Unless otherwise specifically set out in this Lease to the contrary, nothing contained
herein shall (i) confer upon the Tenant the exclusive right to sell or provide in the Building any
of the products or services permitted to be sold or provided from the Premises pursuant to this
section; nor (ii) prevent the Landldrd from Leasing any other premises in the· Building to any
other tenant( s) carrying on business which is similar in whole or in part to the business permitted
to be carried on from the Premises pursuant to section l.l(h).
8.2 Tenant's Fixtures
Tenant shall install and maintain in the Premises at all times during the Term first-class
trade fixtures including furnishings and equipment adequate and appropriate for the business to
be conducted on the Premises, all of which shall be kept in good order and condition. Tenant
shall not remove any trade fixtures or other contents from the Premises during the Term except,
with the prior written consent of Landlord, in the ordinary cowse of business or for the purpose
of replacing them with others at least equal in value and function to those being removed.
8.3 -Signs
Tenant shall not erect, install or display any sign on or visible from the exterior of the
Premises, including any signs hanging or paint on windows, without the prior written approval of
Landlord as to size, design, location, specifications and method of installation. Provided that
Landlord shall have the right, in its sole discretion, to prescribe a uniform sign policy applicable
to all tenants of the Project At Landlord's option any exterior signage identifying Tenant's
business on the Premises shall be supplied and erected by Landlord at Tenant's expense in
accordance with section 10.2(d) hereof.
8.4 Waste Removal
Tenant shall not allow any refuse, garbage or any loose, objectionable material to
accumulate in or about the Premises or the Project and will at all times keep the Premises in a
clean and neat condition. __ Tenant shall comply with Landlord's regnlations respecting the storage
anci removal ofwasteand shallbe responsliiie for aiCcosi:s of rem.oval. of waste from the ---
Premises other than costs of routine waste removal included in Operating Costs. Until removed
from the Project all waste from the Premises shall be kept in appropriate containers within the
Premises.
8.5 Pest Control
Landlord shall be responsible for pest extermination in respect of the Premises and shall
engage, for such pmpose, such contractors at such intervals as Landlord may require. Tenant
shall not bring or permit to be brought onto the Premises or the Project any animals or birds of
any kind.
8.6 Waste and Nuisance
( a) Tenant shall not cause, suffer or permit any waste or damage to the Premises or leasehold
improvements, fixtures or equipment therein nor permit any overloading ·of the floors
thereof and shall not use or permit to be used any part of the Premises for any dangerous,
noxious or offensive activity or goods and shall not do or bring anything or permit anything
to be done or brought on or about the Premises or the Project which results in undue noise
or vibration or which Landlord may reasonably deem to be hazardous or a nuisance or
annoyance to any other tenants or any other persons permitted to be on the Project, and
Tenant shall immediately take steps to r=edy, r=ove or desist from any activity,
equipment or goods on the Premises to which Landlord objects on a reasonable basis.
Tenant shall take every reasonable precaution to protect the Premises and the Project from
risk of damage by fire, water or the elements or any other cause.
(b) Tenant shall not itself, and shall not permit any of its =ployees, servants, agents,
contractors, or persons having business with Tenant, to obstruct any Common F aci!ities nor
to use or permit to be used any Common Facilities for other than their intended pmposes.
Without limiting the foregoing, nothing shall be placed or stored anywhere in or on the
Common Facilities, including without limitation on the loading docks and other outside
areas adjacentto the Premises. Tenant shall not, and shall not permit anyone else to, place
anything on the roof of the Building or go on to the roof of the Building for anypmpose
whatsoever, without Landlord's prior written approval, which may be arbitrarily withheld in
Landlord's sole discretion.
( c) Tenant shall not use any advertising, transmitting or other media or devices which can be
heard, seen, or received outside the Premises, or which could interfere with any
communications or other. systems outside the Premises.
(d) For the purposes of this provision "Hazardous-Substance" means any contaminant,
pollutant, dangerous or potentially dangerous substance, noxious substance, toxic substance,
hazardous waste or material, flammable or explosive substance, radioactive material, or any
other waste, sub~taJ:tce _or material w®tsoever, covered by _or regulated under alLmunicipal
provincial or federal Laws.
· The Tenant covenants with the Landlord that it shall not use or permit or suffer the use of
the Premises or any part thereof to generate, manufacture, refine, treat, transport, store,
handle, dispose of, transfer, produce or process any Hazardous Substance except in strict
compliance with all Laws including, without limitation, the Errvironmental Protection Act
(Ontario) and all other Laws in respect of environmental, land use, occupational or health
and safety matters. If the Tenant fails to comply with any such Laws, the Landlord may,
but shall not be obligated to, do such things as necessary to effect such compliance, and
all costs and expenses incurred by the Landlord in so doing shall be payable forthwith by
the Tenant to the Landlord as Additional Rent In any event, the Tenant covenants to
indemnify and save harmless the Landlord and persons for whom the Landlord is in law
responsible against any and all liabilities, claims, damages, interest penalties, fines,
19
monetary sanctions, losses, costs and expenses whatsoever arising out of: (i) any breach•
by the Tenant of any provisions under this Lease or any non-compliance with any Laws;
or (ii) any act or omission of any person on the Premises or any use or occupancy of or
any thing in, on, under or about the Premises, including, without limitation, the
generating, manufacture, refinement, treatment, transportation, storage, handling,
disposal, transfer, production or processing of any Hazardous Substance by the Tenant or
any person in, on, under or about the Premises, and any nuisance arismg therefrom. The
aforesaid indemnity shall survive the expiration or earlier termination of the Lease.
8.7 Compliance with Laws
Tenant shall be solely responsible for obtaining from all authorities having jurisdiction all
necessary permits, licences and approvals as may be necessary to permit Tenant to occupy the
Premises and conduct its business thereon, as required by all applicable Laws. Tenant shall
comply at its own expense with all applicable Laws respecting the use, condition and occupation
of the Premises, and all leasehold improvements, fixtures, equipment and contents thereof.
8.8 Deliveries
All deliveries to and from the Premises, and loading and unloading of goods,
merchandise, refuse, materials and any other items shall be made only by way of such driveways,
access routes, doorways, corridors or loading docks as Landlord may from time to time designate
and shall be subject to all applicable rules and regulations made by Landlord from time to time
pursuant to section 17.4.
8.9 Window Coverings
Tenant shall comply with all rules and regulations from time to time prescribed by
Landlord in respect of window coverings on the interior of the Premises, in order to maximize
the efficiency of the climate control equipment in or serving the Premises or to maintain an
attractive and uniform appearance of the Project from the exu;rior thereof.
ARTICLE IX
9. SERVICES AND UTILITIES
9.1 Utilities
(a) Subject to Landlord's ability to do so, Landlord shall supply or cause to be supplied to the
Premises electricity, water and gas for the reasonable use of the Premises for their intended
purposes. Tenant shall promptly pay for, as and when they fall due, to Landlord or as
Landlord shall from time to time direct, all costs of supplying water, electricity, gas, steam
and other utilities to or in respect of the Premises, and all costs for all fittings, connections
and meters and all work performed in connection with any services or utilities provided to the Premises. Tenant shall promptly execute and deliver any agreements required by
20,
Landlord or by utilities suppliers in respect of the supply of any utilities to the Premises.
Tenant's use of any such utilities shall not exceed the available capacily of the existing
systems from time to time.
(b) Should there be no individual meters for the measurement of the consumption of any
· utilities supplied to the Premises then Landlord, acting reasonably, may allocate the cost of
such utilities among the various users thereof. If required by Landlord, Tenant shall install
at its expense a separate meter or meters to measure the consumption of any or all utilities in
· the Premises. The cost of any utilities which are not charged to tenants of the Project
individually shall be included in Operating Costs.
9.2 Landlord's Services
The Landlord shall provide climate control to the Premises during the hours of 8:00 a.m.
to 6:00 p.m., Monday to Friday, statutory holidays excepted (herein ''Normal Office Hours") to
maintain a temperature adequate for normal occupancy, except during the making or repairs,
alterations or improvements, provided that the Landlord shall have no liabilily for failure to
supply climate control service when stopped as aforesaid or when prevented from doing so by
repairs, or causes beyond the Landlord's reasonable control. Any re balancing of the climate
control system in the Premises necessitated by the installation of partitions, equipment or fixtures
by the Tenant or by any use of the Premises not in accordance with the design standards of such
system will be performed by the Landlord at the Tenant's expense.
Should the Tenant require climate control, including heat and, where applicable, air-condition to
the Premises outside of Normal Office Hours, the Landlord may provide such services, provided
that the additional. costs incurred in providing such services, such as utilities charges or costs of
maintenance, repairs and replacements, shall be determined by the Landlord on a reasonable
basis and paid by the Tenant
9.3 Non-Liabilily of Landlord
Landlord_shall not beliablefor_any_damages, director.indirect, resulting from or
contributed to by any interruption or cessation in supply of any utilities or heating, ventilating,
air-conditioning and hurnidily control. Without limiting the generalily of the foregoing, Landlord
shall not be liable for and Tenant shall indemnify Landlord against any and all indirect or
consequential damages or damages for personal discomfort or illness of Tenant or any persons
permitted by it to be on the Premises, by reason of the suspension or non-operation of any
utilities, heating, ventilating, air-conditioning or hurnidily control.
9.4 Landlord's Suspension of Utilities
In order to effect any maintenance, repairs, replacements or alterations to any of such
utilities, heating, ventilating, air-conditioning or humidily control systems or any other part of the
Project, Landlord shall have the right to modify or temporarily discontinue or suspend any such
systems as required from time to time.
9.5
(a)
(b)
9.6
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Landlord's Services
Tenant shall pay Landlord on demand all charges as determined and allocated by Landlord
acting reasonably in respect of all special services provided to or for the benefit of Tenant
beyond standard services for the Project the costs of which are included in Operating Costs.
Any services in respect of the Premises requiring drilling or otherwise penetrating floors,
walls or ceilings, or for locksmithing, security arrangements or waste removal, shall be
performed only by persons first approved in writing by Landlord, which approval sball not
be unreasonably withheld.
Landlord's Charges for Services
Unless otherwise expressly agreed between Landlord and Tenant to the contrary in
respect of any specific matter froin tim_e to time, all work performed and materials supplied by
Landlord for Tenant or otherwise respecting the Premises pursuant to .the provisions hereof or
otherwise shall be paid for by Tenant to Landlord forthwith on demand at Landlord's cost for the
same plus fifteen (15%) percent for inspection, supervision, overhead and profit or such other
reasonable amounts as may be charged by Landlord for overhead and profit from time to time.
ARTICLEX
10. MAINTENANCE, REPAIRS AND ALTERATIONS
10.1 Maintenance and Repairs of Premises
At all times throughout the Term Tenant at its sole expense shall perform such
maintenance (including painting and repair or replacement of any interior finishings), repairs and
replacements as required to keep the Premises, all contents thereof and all services and
equipment located in or primarily serving the Premises, in first-class appearance and condition,
and in accordance with all Laws and-Landlord's reasonable requirements,-subject-0n!yt-0 the .
obligations of Landlord expressly provided in section 10.7. For purposes of this section 10.1, but
without affecting the interpretation of any other provision of this Lease, Premises shall include,
without limitation: all leasehold improvements; all exterior and interior walls, windows and
doors, including the exterior faces thereof; loading docks and bumpers; stairs; surrounding or
enclosing masonry or other materials; and all such areas and facilities adjacent or proximate to
· and serving exclusively the Premises.
10.2
(a)
Approval of Repairs and Alterations
Tenant shall not make any repairs, replacements, changes, additions, improvements or
alterations (hereinafter referred to as "Alterations") to the Premises without Landlord's prior
written consent, which consent shall not be unreasonably withheld unless such proposed
Alterations might affect the structure of the Building, the coverage of the Project for zoning
22
purposes or the parking requirements for the Project, or impair the value or usefulness of the
Premises or the Project, in any of which cases Landlord's consent may be unreasonably
withheld in Landlord's sole discretion.
(b) With its request for consent Tenant shall submit to Landlord details of the proposed
Alterations including plans and specifications prepared by qualified architects or engineers,
· and such Alterations shall be completed in accordance with the plans and specifications
approved in writing by Landlord.. Unless expressly authorized in writing by Landlord to the
contrary, all Alterations which might cost in excess of TWENTY TIIOUSAND
($20,000.00) DOLLARS to complete or which may affect the structure or mechanical,
electrical, utility, sprinkler, co=unications or other similar systems of the Building, shall
be conducted under the supervision of a qualified architect or engineer approved by
Landlord., such approval not to be unreasonably withheld..
( c) All Alterations shall be planned and completed in compliance with all Laws and Tenant
shall, prior to comID,encing any Alterations, obtain at its expense all necessary permits and
licences. Prior to the co=encement of any such Alterations Tenant shall furnish to
Landlord such evidence as reasonably required by Landlord of the projected cost of .
Alterations and Tenant's ability to pay for same, together with such indemnification against
costs, liens and damages as Landlord shall reasonably require including, if required by
Landlord, a performance, completion and labour and materials bond acceptable to Landlord
guaranteeing completion of such Alterations.
( d) All Alterations shall be performed at Tenant's cost, promptly and in a good and
workmanlike manner and in compliance with Landlord's rules and regulations, by
competent contractors or workmen who shall be first approved in writing by Landlord,
which approval shall not be unreasonably withheld.. If any Alterations affect the structure or
any external portions of the Building or any mechanical, electrical, utility, sprinkler,
co=unications or other similar systems within the Premises or the Project, they shall, at
Landlord's option, be performed at Tenant's expense by Landlord or by contractors
desigoated by Landlord and under Landlord's supervision. For all Alterations performed by
Landloni or at Landlord's expense or.under Landlord's supervision, Tenant shall pay
forthwith upon request all amounts paid or'payable by Landlord to third parties and all
reasonable charges of Landlord for its own personnel plus fifteen (15%) percent for
inspection, supervision, overhead and profit All Alterations, th~ making nfwhich might
disrupt other tenants or occupants of the Project or the public, shall be performed outside
normal business hours.
(e) If Tenant performs any such Alterations without compliance with all of the foregoing
provisions of this Article X, Landlord shall have the right to require Tenant to remove such
Alterations forthwith. · ·
(f) Tenant shall pay to Landlord forthwith upon request all of Landlord's reasonable costs
including, without limitation, fees of architects, engineers and designers, incurred in dealing
with Tenant's request for Landlord's consent to any Alteratio.ns, whether or not such consent
23
is granted, and in inspecting and supervising any such Alterations and Landlord shall have
the right to require Tenant to pay Landlord a deposit on account of such costs as a
precondition to Landlord's granting such consent
10.3 Repair According to Landlord's Notice
Landlord or any persons designated by it shall have the right to enter the Premises at any
time to view the state ofrepair and condition thereof and Tenant shall promptly perform
according to Landlord's written notice any maintenance (including painting and repair or
replacement of any interior finishings), repairs or replacements in accordance with Tenant's
obligations hereunder.
10.4 Notice by Tenant
Tenant shall give immediate written notice to Landlord of any accident, defect or damage
in any part of the Premises or the Project which comes to the attention of Tenant or any of its
employees or contractors notwithstanding the fact that Landlord may have no obligation in
respect of the same.
10.5 Ownership of Leasehold Improvements
Ail leasehold improvements installed in or about the Premises shall forthwith upon the
installation thereof become the property of Landlord but without Landlord's thereby accepting
any responsibility in respect of the maintenance, repair or replacement thereof. The expression
"leasehold improvements" where used in this Lease includes, without limitation, all fixtures,
installations, alterations and additions from time to time made or installed in or about the
Premises, and includes all of the following, whether or not they are trade fixtures or easily
removable: doors, partitions and hardware; mechanical, electrical and utility installations;
heating, ventilating, air-conditioning and humidity control equipment; sign installations and
equipment; lighting fixtures and built-in furniture.
10.6 . ConstructionLiens
Tenant shall make all payments and take all steps as may be necessary to ensure that no
lien is registered against the Project or any portion thereof as a result of any work, services or
materials supplied to Tenant or the Premises. Tenant shall cause any such registrations to be
discharged or vacated immediately after notice from Landlord, or within ten (I 0) days after
registration, whichever is earlier. Tenant shall indemnify and save harmless Landlord from and
against any liabilities, claims, liens, damages, costs and expenses, including legal expenses,
arising in connection with any work, services or materials supplied to Tenant or the Premises. If
Tenant fails to cause any such registration to be discharged or vacated as aforesaid then, in
addition to any other rights of Landlord, Landlord may, but shall not be obliged to, discharge the
same by paying the amount claimed into court, and the amounts so paid and all costs incurred by
Landlord, including legal fees and disbursements, shall be paid by Tenant to Landlord forthwith
apon demand.
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10.7 Landlord's Reparrs
Subject to the provisions of Article XIl herein and subject to Tenant's obligations
hereunder, to the extent that the failure to do so would materially detrimentally affect access to or
use of the Premises, Landlord shall reparr all of the following: (i) the structural elements,
exterior walls and roof of the Building; and (ii) damage to the Premises, excluding all leasehold
improvements, against which and to the extent to which Landlord is required to be insured
pursuant hereto or is otherwise insured and against which Tenant is not required to be insured
and is not otherwise insured. The base Building services serving the Premises shall be in good
working order as at the Commencement Date but otherwise the Tenant agrees to accept the
Premises in "as is" condition. Landlord's costs of compliance with this section 10.7 shall be
included in Operating Costs to the extent set out in section 2.13. Provided that to the extent that
such reparr is necessitated directly or indirectly by any act or omission of Tenant or any servant,
employee, agent, contractor, invitee or licensee of Tenant, Tenant shall be solely responsible for
the cost of such reparrs in accordance with section 9.6 and shall indemnify Landlord in respect
thereof.
ARTICLEXI
11. END OF TERM
11.1 Vacating of Possession
Forthwith upon the expiry or earlier termination of the Term, Tenant shall deliver to
Landlord vacant possession of the Premises in such condition in which Tenant is required to keep
the Premises during .the Term pursuant hereto and shall leave the Premises in neat and clean
condition and shall deliver to Landlord all keys for the Premises and all keys or combinations to
locks on doors or vaults in the Premises.
11.2 Removal of Trade Fixtures
Provided Tenant has paid all Rent and is not otherwise in default hereunder, or if
otherwise authorized or requested by Landlord, at the expiry or earlier termination of the Term
Tenant shall remove its trade fixtures and repair all damage resulting from the installation or
removal of such trade fixtures. If at the expiry or earlier termination of the Tenn Tenant does not
remove its trade fixtures or any of its other property on the Premises, Landlord shall have no
obligation in respect thereof and may sell or destroy the same or have them removed or stored at
the expense of Tenant; at the option of Landlord, such trade fixtures or property shall become the
absolute property of Landlord without any compensation to Tenant. ·
11.3 Removal of Leasehold Improvements
Notwithstanding that the leasehold improvements become the property of Landlord upon
installation, at the expiry_ or earlier termination of the Term Tenant shall remove any or all of
25
such leasehold improvements made or installed in or about the Premises by Tenant, including,
without limitation any wiring or teleco=unication equipment installed by Tenant, or by
Landlord as Tenant's contractor, as required by Landlord and in so doing shall repair all damage·
resulting therefrom.
11.4 Overholding by Tenant
If Tenant remains in possession of all or any part of the Premises after the expiry of the
Term with the consent of Landlord but without any further written agreement, this Lease shall
not be deemed thereby to have been renewed and Tenant shall be deemed to be occupying the
Premises as a monthly tenant on the same terms as set forth in this Lease insofar as they are
applicable to a monthly tenancy except the monthly Basic Rent shall be twice the montlily Basic
Rent payable during the last twelve months of the Term.
ARTICLE XII
12. DAMAGE AND DESTRUCTION
12.1 Insured Damage to Premises
(a) If there is damage to or destruction of the Premises caused by an occurrence against which,
and to not more than the extent that, Landlord either is required to insure pursuant to this
Lease or is otherwise insured ("Insured Damage"), then the following provisions of this
section 12) shall apply.
(b) If such damage or destruction is such as to render the whole or any part of the Premises
unµsable for the pUipose of Tenant's use and occupancy thereof; Landlord shall deliver to
Tenant within thirty (30) days following the occurrence of such damage or destruction its
reasonable opinion as to whether or not the same is capable ofbeing repaired, to the extent
of Landlord's repair obligations hereunder, within one hundred and eighty (180) days
following such occurrence.
( c) If this Lease is not terminated as herein provided, Landlord, to the extent of insurance
proceeds which it receives or would have received had it maintained such insurance as
. required hereunder, shall diligently proceed to perform repairs to the Premises to the extent
ofits obligations pursuant to section l 0. 7 hereof; and Tenant, co=encing as soon as
practicable but without interfering with Landlord's repairs, shall diligently perform such ·
repairs as are Tenant's responsibility pursuant hereto.
( d) ff, (i) in Landlord's reasonable opinion, the Premises are not capable of being repaired as
aforesaid within one hundred and eighty (180) days following such occurrence, or (ii)
Tenant was at the time of such damage in breach of this Lease and fails within fifteen (15)
days after notice of such default to remedy same to the extent possible in view of such
damage, Landlord-may, at its option, and in the case of (i) above, Tenant may, at its option,
elect, by written notice to the other within thirty (30) days after delivery by Landlord of the
26
opinion provided for in subsection 12.l(b) above, to terminate this Lease, whereupon
Tenant shall i=ediately surrender possession of the Premises and Basic Rent and all other
payments for which Tenant is liable pursuant hereto shall be apportioned to the effective
date of such termination.
( e) If the <lamage is such as to render the whble or any part of the Premises unusable in whole
or in part for the purpose of Tenant's use and occupancy thereof then the Basic Rent payable _
hereunder shall abate to the extent that Tenant's use and occupancy of the Premises is in fact
diminished, which determination shall be made by Landlord, until the earlier of (i) the
thirtieth (30th) day after fue Premises are determined by Landlord to be ready for Tenant to
commence its repairs to the Premises, and (ii) the date on which Tenant first co=ences the
conduct of business in any part offue Premises which had been damaged.
(f) The respective obligations of Landlord and Tenant with respect to repair of the Premises
following any damage or destruction shall be performed with all reasonable speed and in
accordance with all applicable obligations to repair contained herein. Tenant acknowledges
that its obligations to repair the Premises after such damage or destruction shall be
performed at its sole cost without any contnoution by Landlord whether or not the damage
or destruction was caused by Landlord's fault and whether or not Landlord had at any time
-made any contribution to the cost of any leasehold improvements in the Premises. In any
event, within thirty (30) days after Landlord has completed its repairs to the Premises as
aforesaid, Tenant shall complete its repairs to the Premises and shall recommence fue
conduct of business thereon.
12.2 Uninsured Damage and Last Two Years
If there is damage to or destruction of the Premises and.if, in Landlord's reasonable
opinion, of which notice is given to Tenant within fifteen (15) days after the later of the date of
such damage or destruction and the date upon which Landlord is notified by Tenant of such
damage or destruction, the Premises are not capable of being repaired to the extent of Landlord's
repair obligations within thirty (30) days following the giving of such notice and if (i) such
dan:tage_or destru~tiouis J19t:fmw::ed_D_arnage, or (ii) such damage or destruction occurs within __
the last two (2) years of the T= and either Tenant has no r"maiuiug rights to renew this Lease
or, having the right to renew this Lease fails to do so within fifteen (15) days after receipt of the
said notice, then Landlord, at its option to be exercised by written notice given to Tenant within
thirty (30) days after the later of the date of such damage or destruction and the date.upon which
Landlord is notified by Tenant of such damage or destruction, may terminate this Lease
-whereupon Tenant shall immediately surrender possession of the Premises and Basic Rent and all
other payments for which Tenant is liable hereunder shall be apportioned to the effective date of
such termination. If this Lease is not terminated as aforesaid the parties shall repair as provided
in subsection 12. l ( c) hereof and there shall be no abatement of any Rent unless the damage or
destruction is Insured Damage and then only to the extent expressly provided in subsection
12.l(e) above.
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12.3 Damage to Project
If twenty-five (25%) percent or more of the Rentahle Area ofLeasable Areas of the
Project is damaged or destroyed by any cause whatsoever, whether or not there is any damage to
the Premises, Landlord may, at its option, by notice given to Tenant within sixty ( 60) days after
such occurrence, terminate this Lease as of a date specified in such notice, which date shall be
not less than thirty (30) days and not more than one hundred and eighty (180) days after the
giving of such notice. In the event of such termination Tenant shall surrender vacant possession
of the Premises by not later than the said date of termination, and Basic Rent arid all other
payments for which Tenant is liable hereunder shall be apportioned to the effective date of
termination. If Landlord does not so elect to terminate this Lease, Landlord shall diligently
proceed to repair and rebuild the Project to the extent ofits obligations pursuant hereto to the
extent of insurance proceeds which Landlord receives. or would have received had it maintained
such _insurance as required hereunder, and to the extent that any mortgagee entitled to be paid
such insurance proceeds consents to the use of same for such purpose.
· 12.4 Restoration of Premises or Project
If there is damage to or destruction of the Premises or the Project and if this Lease is not
terminated pursuant hereto, Landlord, in performing its repairs as required hereby, shall not be
obliged to repair or rebuild in accordance with the plans or specifications for the Premises or the
Project as they existed prior to such damage or destruction; rather, Landlord. may repair or
rebuild in accordance with any plans and specifications chosen by Landlord in its sole discretion
provided that Tenant's use of and access to the Premises and the general overall quality of the
Project are not materially detrimentally affected by any difference in plans or specifications of
the Premises or the Project
12.5 Determination of Matters
For the purpose of this Article XII all matters requiring determination such as, without
limitation, the extent to which any area(s) of the Premises or the Project are damaged or are not
capable of beingused, or the time within which repairs may be made, unless expressly provided-
to the contrary, shall be determined by Landlord's Architect, such determination to be final and
binding on the parties.
ARTICLE XIII
13. JNSURANCE AND JNDEMNITY
13 .1 Landlord's Insurance
Landlord shall obtain and maintain in full force and effect during the Term with respect to
the Project insurance against such occurrences and in such amounts, on such terms and with such
deductib!e(s) as would a prudent owner of such a project Such insurance may include, without
limitation: (i) insurance on the Building and any improvements therein which Landlord desires to
28
insure, against damage by fire and other risks covered by extended coverage fire insurance
policies or, at Landlord's option, all risks insurance; (ii) boiler and machinery insurance; (iii)
rental income insurance; and (iv) public liability insurance. Notwithstanding that Tenant shall be
contributing to the costs of such insurance pursuant to the terms of this Lease, Tenant shall not
have any.interest in or any right to recover any proceeds under any of Landlord's insurance
policies.
13.2
(a)
(b)
(c)
13.3
(a)
Tenant's Effect On Other Insurance
Tenant shall not do or permit anywhere on the Premises or Project anything which might: (i)
result in any increase in the cost of ai;iy insurance policy of Landlord on the Project; (ii)
result in an actual or threatened cancellation of or adverse change in any insurance policy of
Landlord on the Project; or (iii) be prohibited by any insurance policy of Landlord on the
Project
If the cost of any insurance policies of Landlord on the Project is increased as· a result of any
improvements made by Tenant or anything done or permitted by Tenant anywhere on the
Premises or Project, Tenant shall pay the full amount of such increase to Landlord forthwith
upon demand. Tenant's responsibility for any increased cost of insurance as aforesaid shall
be conclusively determined by a statement issued by the organization, company or insurer .
establishing the insurance rates for the relevant policy.
If there is an actual or threatened cancellation of or adverse change in any policy of,
insurance of Landlord on the Project by reason of ai;iything done or permitted by Tenant
anywhere on the Premises or Project, and if Tenant fails to remedy the situation giving rise
to such actual or threatened cancellation or change within twenty-four (24) hours after.
notice from Landlord, then Landlord may, at its option, either (i) terminate this Lease
forthwith by written notice; or, (ii) remedy the situation giving rise to such actual or
threatened cancellation or change, all at the cost of Tenant to be paid to Landlord forthwith
upon demand, and for such purpose Landlord shall have the right to enter upon the Premises
without further notice.
Tenant's.Insurance
Tenant shall, at its sole expense, maintain in full force and effect at all times throughout the
Term and such other times, if any, as Tenant occupies the Premises or any portion thereof,
such insurance as would be maintained by a prudent tenant of premises such as the
Premises, which insurance shall include af least all of the following:
(i) comprehensive general liability insurance on an occurrence basis with respect to
any use and occupancy of or things on the Premises, and with respect to the use
and occupancy of any other part of the Project by Tenant or any of its servants,
agents, employees, invitees, licensees, subtenants, contractors or persons for
whom Tenant is in law responsible, with coverage for any occurrence of not less
29
than FIVE MlILION ($5,000,000.00) DOLLARS or such higher amount as
Landlord may reasonably requrre on not less than one (1) month's ·notice;
(ii) all risks insurance covering the leasehold improvements, trade fixtures and
contents on or about the Premises, and all portions of the Premises and the Project
which Tenant is obliged to maintain, repair or replace pursuant to section 10.l or
any other provision hereof, for not less than the full replacement cost thereof and
with a replacement cost endorsement;
(iii) broad form comprehensive boiler and machinery insurance on all insurable
objects located on or about the Premises or which are the property or
responsibility of Tenant, for not less than the full replacement cost thereof and
with a replacement cost endorsement;
(iv) Intentionally deleted;
(v) tenant's legal liability insurance for the full replacement cost of the Premises, and
the loss of use thereof;
(vi) "plate glass" insurance,.including exterior glass and vitrolite, lettering and frames
and plate glass doors. If the Tenant does not carry plate glass insurance, Tenant
will be responsible to replace all damaged and/or broken interior and exterior
glass and vitrolite lettering and frames and plate glass doors with similar qua.!ity at
its own expense, with due dispatch; and
(vii) any other insurance against such risks and in such amounts as Landlord or any
mortgagee of Landlord may from time to time reasonably requrre upon not less
than thirty (30) days' notice to Tenant.
(b) Each of Tenant's insurance policies shall name Landlord as an additional named insured,
and shall be taken out with insurers and shall be in such form and on such terms as are
satisfactory to Landlord from time to time. Without limiting the.generality of the foregoing,
each of Tenant's insurance policies shall contain:
(i) the standard mortgage clause as may be required by any mortgagee of Landlord;
(ii) a waiver by the insurer of any rights of subrogation to which such insurer might
otherwise be entitled against Landlord or any person for whom Landlord is in law
responsible;
(iii) an undertaking by the insurer that no material change adverse to Tenant or
Landlord or any mortgagee of Landlord will be made and the policy will not lapse
or be terminated, except after not less than thirty (30) days' written notice to
Tenant and Landlord and to any mortgagee of Landlord;
30
(iv) a provision stating that Tenant's insurance policy shall be primary and shall not
call into contribution any other insurance available to Landlord;
(v) a joint loss endorsement, where applicable;
(vi) a severability of interests clause and a cross-liability clause; and
(vii) a waiver, in respect of the interests of Landlord and any mortgagee of Landlord, of
any provision with respect to any breach of any warranties, representations,
declarations or conditions contained in the said policy.
( c) . Tenant shall ensure that Landlord shall at all times be in possession of either certificates or
certified copies of Tenant's insurance policies which are in good standing and in compliance
with Tenant's obligations hereunder. The Tenant shall provide to the Landlord evidence of
such insurance on each anniversary date of this Lease or such other times as the Landlord ·
mayrequest
( d) Tenant hereby releases Landlord and its servants, agents, employees, contractors and those
for whom Landlord is in law responsible from all losses, damages and claims of any kind in
respect of which Tenant is required to maintain insurance hereunder or is otherwise insured.
13.4 Landlord's Right to Place Tenant's Insurance
If Tenant fails io maintain in force, or pay any premiums for, any insurance required to be
maintained by Tenant hereunder, or if Tenant fails from time to time to deliver to Landlord
satisfactory proof of the good standing of any such insurance or the payment of premiums
therefor, then Landlord, without prejudice to any of its other rights and remedies hereunder, shall
have the right but not the obligation to effect such insurance on behalf of Tenant and the cost
thereof and all other reasonable expenses incurred by Landlord in that regard shall be paid by
Tenant to Landlord forthwith upon demand.
13-5 Landlord'sNoncLiability
Tenant agrees that Landlord shall not be liable or responsible in any way for any injury or
death to any person or for any loss or damage to any property, at ·any time on or about the
Premises or any property owned by or being the responsibility of Tenant or any of its servants,
agents, customers, contractors or persons for whom Tenant is in law responsible elsewhere on or . .
about the Project, no m.atter how the same shall be caused and whether or not resulting from or
contributed to by the negligence of Landlord, its servants, agents, employees, contractors or
persons for whom Landlord is in law responsible. Without limiting the generality of the
foregoing, Landlord shall not be liable or responsible for any such injury, death, loss or damage
to any persons or property caused or contributed to by any of the following: fire, explosion,
steam, water, rain, snow, dampness, leakage, electricity or gas. Without limiting or affecting the
generality or interpretation of the foregoing, and notwithstanding the foregoing, it is agreed that
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Landlord shall in no event be liable for any indirect or consequential damages suffered by
Tenant.
13.6 Indemnity of Landlord
Tenant shall indemnify Landlord and all of its servants, agents, employees, contractors
and persons for whom Landlord is in law responsible against any and all liabilities, claims,
damages, losses and expenses, including all reasonable legal fees and disbursements, arising
from: (i) any breach by Tenant of any of the provisions of this Lease; (ii) any act or omission of
any person on the Premises or any use or occupancy of or any things in the Premises; (iii) any act
or omission of Tenant or any of its servants, agents, employees, invitees, licensees, subtenants,
contractors or persons for whom Tenant is in law responsible on the Premises or elsewhere on or
about the Project; or (iv) any injury or.death of persons, or any loss or damage to property of
Tenant or any of its servants, agents, employees, invitees, licensees, subtenants, contractors or
persons for whom Tenant is in law responsible, on the Premises or elsewhere on or about the
Project. ·
13. 7 Landlord's Employees and Agents
Every indemnity, exclusion or release of liability and waiver of subrogation contained in
this Lease for the benefit of Landlord shall extend to and benefit all of Landlord's servants,
agents, employees, and others for whom Landlord is in law responsible. Solely for such purpose,
and to the extent that Landlord expressly chooses to enforce the benefits of this section for.the
foregoing persons, it is agreed that Landlord is the agent or trustee for such persons.
ARTICLE XIV
14. ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
14.1 Consent Required
( a) Temmt shall nQt assign this I.ea,;~ lll.Wl:J.oleor in part and shall not sublet or part_with or
share possession of all or any part of the Premises and shall not grant any licences or other
rights to others to use any portion of the Premises (all of the foregoing being hereinafter
referred to as a "Transfer"; a party making a Transfer is referred to as a "Transferor" and a
party taking a Transfer is referred to as a "Transferee") without the prior written consent of
Landlord in each instance, which consent shall not be unreasonably withheld; provided that
it shall be reasonable for Landlord to withhold its consent to a Transfer unless it is shown to
Landlord's satisfaction that: (i) the proposed Transferee has a good business and personal
reputation and has financial strength at least sufficient to satisfy all the obligations of Tenant
hereunder; (ii) without affecting the interpretation of section 8.1 or any other provision
hereof, the business proposed to be carried on by the Transferee on the Premises will not be
incompatible with the uses of other tenants of the Project, and will not be more burdensome
on the Project, in terms of parking requirements or any other factor, than the business
previously carried on by Tenant on the Premises; and (iii) the proposed Transferee is not an
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existing occupant of any part of the Project and has not then recently been a prospect
involved in bona fide negotiations with Landlord respecting the leasing of any premises in
the Project and is not in anyway affiliated with such existing occupant or bona fide
prospect The provisions of this Article XIV shall apply to any Transfer which might occnr
by inheritance or operation oflaw.
(b) If Landlord withholds, delays or refuses to give consent to any Transfer, whether or not
Landlord is entitled to do so, Landlord shall not be liable for any losses or damages in any
way resulting there:from and Tenant shall not be entitled to terminate this Lease or exercise
any other.remedy whatever in respect thereof except to seek the order of a court of
competent jurisdiction compelling Landlord to grant any such consent which Landlord is
obliged to grant pursuant to the terms of this Lease.
( c) No Transfer may be made where any portion of Rent is lower than that provided for herein
or otherwise on terms more favonrahle to the Transferee than the terms· set forth herein.
14.2 Obtaining Consent
All requests to Landlord for consent to any Transfer shall be made to Landlord in writing
together with a copy of the agreement pursuant to which the proposed Transfer will be made,
accompanied by such information in writing as a landlord might reasonably require respecting a
proposed Transferee including, without limitation, name, business and home addresses and
telephone numbers, business experience, credit information iand rating, financial position and
banking and personal references, description of business proposed to be conducted by the
Transferee on the Premises and parking requirements for such business. Tenant shall promptly
pay all costs incurred by Landlord in considering and processing the request for consent
including legal costs and all costs of completing any documentation to implement any Transfer,
which shall be prepared by Landlord or its solicitor if required by Landlord, and as a prior
condition to considering any request for consent Landlord may require from Tenant payment of a
reasonable deposit, of at least FIVE HUNDRED ($500.00) DOLLARS, on account of Landlord's
said costs.
14.3 Landlord's Option
Notwithstanding the other provisions contained in this Article XIV, after Landlord
receives a request for consent to a Transfer with the information and copy of agreement
hereinabove required, it shall have the option, to be exercised by written notice to Tenant within
fifteen (15) days after the receipt of such request, information and agreement, to terminate this
Lease as it relates to the portion of the Premises which is the subject of the proposed Transfer
effective as of the date on which the proposed Transfer by Tenant was proposed to occur. If
Landlord elects to terminate this Lease as aforesaid, Tenant shall have the right, to be exercised
by written notice to Landlord within ten (10) days after receipt of such notice of termination, to
withdraw the request for consent to the Transfer, in which case Tenant shall not proceed with
such Transfer, the notice of termination shall be null and void and this Lease shall continue in
full force and effect.
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· 14.4 Terms of Consent
In the event of a Transfer Landlord shall have the following rights, in default of any of
which no such Transfer shall occur or be effective:
(i) to collect a deposit or further deposit to be held as a security deposit pursuant to
section 16.5 such that the security deposit held by Landlord shall be equivalent to
at least the last two (2) months' Basic Rent payable in respect of the premises
which are the subject of the Transfer;
(ii) to require Tenant and the Transferee and Indemni:fier, if any, to enter into a
written agreement to implement any amendments to this Lease to give effect to
Landlord's exercise of any of its rights hereunder;
(iii) to require the Transferee to enter into an agreement with Landlord in writing and
under seal to be bound by all of Tenant's obligations under this Lease in respect of
the portion of the Premises which is the subject of the Transfer;
(iv) to require the Transferee to waive any rights, pursuant to subsection 39(2) of the
Commercial Tenancies Act (Ontario) and any amendments thereto and any other
statutory provisions of the same or similar effect, to pay any Rent less than any
amount payable hereunder;
(v) to require, if the Transfer is a sublease or other transaction other than an
assignment, that upon notice from Landlord to the Transferee all amounts payable
by the Transferee each month shall be paid directly to Landlord who shall apply
the same on account of Tenant's obligations under this Lease;
14.5 Effect of Transfer
( a) No consent of Landlord to a Transfer shall be effective unless ·given in writing and executed
by Landlord and no such consent shall be presumed by any act or omission of Landlord or
by Landlord's failure to respond to any request for consent or by Landlord's accepting any
payment of any amount payable hereunder from any party other than Tenant No Transfer
and no consent by Landlord to any Transfer shall constitute a waiver of the necessity to
obtain Landlord's consent to.any subsequent or other Transfer.
(b) In the event of any Transfer or any consent by Landlord to any Transfer, Tenant shall not
thereby be released from any of its obligations hereunder but shall remain bound by°all such
obligations pursuant to this Lease for the balance of the Term. If this Lease is renewed or
extended by any Transferee pursuant to any option of Tenant, each Transferor shall be liable
for all of the obligations of Tenant throughout the T= as renewed or extended.
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( c) Every Transferee shall be obliged to comply with all of the obligations of Tenant under this
Lease, and any defanlt of any Transferee shall also constitute a default of Tenant hereunder.
If this Lease is ever disclaimed or terminated by a trustee in bankruptcy of a Transferee
Tenant shall nevertheless remain responsible for fulfilment of all obligations of Tenant
hereunder for what would have been the balance of the Term but for such disclaimer or
termination, and shall upon Landlord's request enter into a new lease of the Premises for
such balance of the Term and otherwise on the same terms and conditions as in this Lease.
14.6 No Advertising of Premises
Tenant shall not advertise this Lease or all or any part of the Premises or the business or
fixtures therein for sale without Landlord's prior written consent
14.7 Mortgage of Lease
The restrictions on Transfer as aforesaid shall apply to any assigning, subletting,
mortgaging, charging or otherwise transferring of the Premises or this Lease for the purpose of
securing any obligation of Tenant.
14.8 Corporate Tenant
Intentionally deleted.
14.9 Assignment by Landlord
If Landlord sells, leases, mortgages or otherwise disposes of the Project or any part
thereof or assigns its interest in this Lease, to the extent that the purchaser or assignee agrees with
Landlord to assume the covenants and obligations of Landlord hereunder, Landlord shall
thereupon be released from all liability pursuant to the terms of this Lease.
ARTICLEXV
15. STATUS AND SUBORDINATION OF LEASE
15.l Status Statement
Tenant shall, within ten (10) days after written request from Landlord, execute and
deliver to Landlord, or to any actual or proposed lender, purchaser or assignee of Landlord, a
. statement or certificate in such form as requested by Landlord stating (if such is the case, or
stating the manner in which such may not be the case): (i) that this Lease is unmodified and in
full force and effect; (ii) the date of co=encement and expiry of the Term and the dates to
which Basic Rent and any other Rent, including any prepaid rent, have been paid; (iii) whether or
not there is any existing default by Landlord tinder this Lease and, if so, specifying such default;
and (iv) that there are no defences, counter claims or rights of set---off in respect of the obligations
hereunder of Tenant.
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15.2 Subordination and Attornment
At the option of Landlord to be expressed in writing from time to time this Lease and the
rights of Tenant hereunder are and shall be subject and subordinate to any and all mortgages,
trust deeds and charges (any of which is herein called "Mortgage") on the Project or any part
thereof now or in the future, including all renewals, extensions, modifications and replacements
of any Mortgages from time to time. Tenant shall at any time on notice from Landlord or holder
· ·of a Mortgage attorn to and become a tenant of the holder of any such Mortgage upon the same
t=s and conditions as set forth herein and shall execute promptly on request any certificates,
agreements, instruments of postponement or attornment or other such instruments or agreements,
including without limitation any short form or notice of this Lease for the purpose of registration ·
on title to the Project, as requested from time to time to give full effect to this Article XV.
Provided.Tenant is not in default hereunder, Landlord shall use reasonable efforts to obtain from
the holder of any Mortgage, in respect of which tenant has executed and delivered an instrument
of postponement, subordination or attormnent as required hereby, its agreement to permit Tenant
to continue to occupy the Premises in accordance with the terms of this Lease.
15.3 Tenant's Failure to Comply
If Tenant fails to execute any certificate, agreement, instrument, or other document as
required by the foregoing provisions of this Article XV within ten (10) days after request by
Landlord, then Landlord shall have the right, without limiting any other rights of Landlord
hereunder or at law, to terminate this Lease or to execute any such certificate, agreement,
instrument or document on behalf of Tenant and in Tenant's name, for which purpose Tenant
hereby appoints Landlord as Tenant's attorney pursuant to the Powers of Attorney Act (Ontario).
15.4 Registration
Tenant shall not register on title to the Premises or the Project this Lease or any short
form or notice hereof without the express written consent of the Landlord, which consent may be
unreasonably withheld.
16. DEFAULT AND REMEDIES
· 16.1 Default and Remedies
. ARTICLE XVI
If any of the following shall occur.
(i) Tenant fails, for any reason, to make any payment of Rent as and when the same
is due td be paid hereunder and such default continues for seven (7) days after
such payment was due, whether or not notice is given to Tenant;
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(ii) Tenant fails, for any reason, to observe or perform any obligation of Tenant
pursuant to this Lease other than the payment of any Rent provided that if the
Tenant's default can be cured by only the performance of work or by the
furnishing of materials, and if the work cannot be reasonably be completed or the
materials reasonably obtained and/or utilized within _5 days, the default shall not
be deemed to continue if the Tenant proceeds promptly with and diligently
completes the work necessary to cure the defanlt;
(iii) any of Landlord's insurance policies on the Project are actually or threatened to be
cancelled or adversely changed as a result of any use of or articles on or about the
Premises;
(iv} Tenant shall purport to make a Transfer affecting the Premises, or the Premises
shall be used by any person or for any purpose, other than in compliance with this
Lease;
( v) Tenant or any other occupant of the Premises makes an assignment for the benefit
of creditors or becomes bankrupt or insolvent or takes the benefit of any statute
for bankrupt ·or insolvent debtors or makes any proposal or arrangement with
creditors, or Tenant makes any sale in bulk of any property on the Premises (other
than in conjunction with a Transfer approved in writing by Landlord and made
pursuant to all applicable legislation), or steps are taken for the winding up or
other termination of Tenant's existence or liquidation of its assets;
(vi) a..Jrustee, receiver, receiver-manager, or similar person is appointed in respect of
the assets or business of Tenant or any other occupant of the Premises;
(vii) Tenant attempts to or does abandon the Premises or remove or dispose of any
goods from the Premises, so that there would not be sufficient goods on the
Premises subject to distress to satisfy all arrears of Rent and all Rent payable
hereunder for a further period of at least six ( 6) months, or if the Premises are
vacant or unoccupied for a period of five (5) consecutive days or more without the
prior writtenconselit of Landlord;
(viii) this Lease or any other property of Tenant is at any time seized or taken in
execution which remains unsatisfied for a period of five ( 5) days or more;
(ix) termination or re-entry by Landlord is permitted under any provision of this Lease
or at law;
then the then current and the next three (3) months' Rent shall be forthwith due and payable and,
in addition to any other rights or remedies to which Landlord is entitled hereunder or at law,
Landlord shall have 'the following rights and remedies, which are cumulative and not alternative,
namely:
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(x) to terminate this Lease in respect of the whole or any part of the Premises by
written notice to Tenant;
(xi) as agent of Tenant to relet the Premises and take possession of any furniture,
fixtures, equipment or other property thereon and, upon giving notice to Tenant, to·
store the same at the expen,se and risk of Tenant or sell or otherwise dispose of the
. same at public or private sale without further notice, and to make alterations to the
Premises to facilitate their reletting and to apply the net proceeds of the sale of
any fumiture, fixtures, equipment, or other property or from the reletting of the
Premises, less all expenses incurred by Landlord in making the Premises ready for
reletting and in reletting the Premises, on account of the Rent due and to become
due under this Lease and Tenant shall be liable to Landlord for any deficiency and
for all such expenses incurred by Landlord as aforesaid; nothing done by Landlord
shall be construed as an election to terminate this Lease unless written notice of
such termination is given by Landlord to Tenant;
(xii) to remedy any default of Tenant in performing any repairs, work or other
obligations of Tenant hereunder, and in so doing to enter upon the Premises,
without any liability to Tenant therefor and without constituting a re-entry of the
Premises or termination of this Lease or breach of the Landlord's covenant of
quiet enjoyment, and, in such case, Tenant shall pay to Landlord forthwith upon
demand all reasonable costs of Landlord in remedying or attempting to remedy
any such default plus fifteen (15%) percent for inspection, supervision, overhead.
and profit or such other reasonable amounts as.may be charged by Landlord for
overhead arid profit from time to time;
(xiii) to obtain damages from Tenant including, without limitation, if this Lease is
terminated, all deficiencies between all amounts which would have been payable
by Tenant for what would have been the balance of the Term, but for such
termination, and all net amounts actually received by Landlord for such period.
16.2 Interest
All amounts of Rent shall bear interest from their respective due dates until the dates of
payment at the rate of three (3%) percent per annum in excess of the prime rate of interest
charged by Landlord's bank in Ontario from time to time.
16.3 Costs
(a) Tenant shall pay to Landlord forthwith upon demand all costs incurred by Landlord,
including, without limitation, legal expenses on a solicitor and his own client basis
and reasonable compensation for all time expended by Landlord's own personnel,
arising as a result of any default in Tenant's obligations under this Lease.
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(b) Without compelling the Landlord to accept any payment of Rent in arrears, if any
cheque given by the Tenant to the Landlord in payment of Rent is refused payment
by the Tenant's bank for any reason, the Tenant shall immediately replace that ·
cheque wi1h a certified cheque or bank draft and shall pay, in addition, as Additional
Rent, 1he sum of $250.00 as a service charge to 1he Landlord;
( c) Intentionally deleted .
16.4 Distress and Tenant's Property
Tenant hereby waives and renounces 1he benefit of any present or future statute taking
away or limiting Landlord's right of distress and agrees with Landlord that, notwi1hstanding any
such statute, all goods and chattels from time to time on the Premises shall be subject to distress
for Rent. All Tenant's personal property on the Premises shall at all times be the unencumbered
property of Tenant
16 .5 Security Deposit
( a) Tenant has deposited, or will upon execution of 1his Lease deposit, with Landlord the sum
described as Security Deposit in section 1.1 hereof ("SecurityDeposit"). The Security
Deposit shall be held by Landlord without interest as security for the performance by Tenant
of all obligations of Tenant under 1his Lease during the T= and any renewals and any
tenancy resulting from an overholding.
(b) If at any time any Rent shall be overdue Landlord may, at its option, apply all or any portion
of1he Security Deposit to 1he payment of the said Rent Fur1her, if Tenant defaults in the
performance of any of its obligations under 1his Lease then Landlord, at its option, may
apply all or any part of the Security Deposit on account of any losses or damages sustained
by Landlord as a result of such default If all or any part of 1he Security Deposit is applied
by Landlord on account of Rent or losses or damages sustained by Landlord, then Tenant
shall, within three (3) days after demand from Landlord, remit to Landlord a sufficient
amount to restore the Security Deposit to the original sum deposited or required ;;; be
deposited as herein set forth.
( c) If Tenant complies wi1h all of its obligations under 1his Lease, the Security Deposit or the
balance remaining thereof shall be returned to Tenant within 1hirty (30) days after the later
of(i) the end of the Term or (ii) Tenant's vacating the Premises.
( d) Landlord may deliver the Security Deposit, or such portion thereof r=aining on hand, to
any purchaser, mortgagee or assignee of Landlord's interest in the Premises or the Project
and thereupon Landlord shall be discharged from any further liability with respect to the
Security Deposit
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16.6 Remedies to Subsist
No waiver of any of Tenant's obligations under this Lease or of any of Landlord's rights in
respect of any default by Tenant hereunder shall be deemed to have occurred as a result of any
condoning, overlooking or delay by Landlord in respect of any default by Tenant or by any other
act or omission of Landlord including, without limitation, the acceptance of any Rent. less than
the full amount thereof or the acceptance of any Rent after the occurrence of any default by
Tenant The waiver by Landlord of any default of Tenant or of any rights of Landlord, which
shall be effected only by an express written waiver executed by Landlord, shall not be deemed to
be a waiver of any term, covenant or condition in respect of which such default or right has been
waived and shall not be deemed to be a waiver of any subsequent default of Tenant or right of
Landlord. All rights and remedies of Landlord under this Lease and at law shall be cumulative
and not alternative, and the exercise by Landlord of any of its rights pursuant to this Lease or at
law shall at all times be without prejudice to any other rights of Landlord, whether or not they are
expressly reserved. Tenant's obligations under this Lease shall survive the expiry or earlier
termination of this Lease and shall remain in full force and effect until fully complied with.
16. 7 Impossibility of Performance
If and to the extent that either Landlord or Tenant shall be delayed in the fulfilment of any
obligation under this Lease, other than the payment by Tenant of any Rent, by reason of
unavailability of material, equipment, utilities, services or by reason of any Laws, or by reason of
any other similar cause beyond its control and not avoidable by the exercise of reasonable
foresight ( excluding the inability to pay for the performance of such obligation), then the party
being delayed shall be entitled to extend the time for fulfilment of such obligation by a time
equal to the duration of such delay and the other party shall not be entitled to any compensation
for any loss or inconvenience occasioned thereby. The party delayed will, however, use its best
efforts to fulfil the obligation in question as soon as is reasonably practicable by arranging an
alternate method of providing the work, services or materials.
ARTICLE XVII
17. CONTROL OF PROJECT
17 .1 Landlord's Control
The Project is at all times subject to the exclusive control and management of Landlord.
Without limiting the generality of the foregoing, Landlord shall have the right to obstruct or close
off or restrict entry to all or any part of the Project for purposes of performing any maintenance,
repairs or replacements or for security purposes or to prevent the accrual of any rights to any
person or the public or any dedication thereof; provided that in exercising any such right
Landlord shall use reasonable best efforts to minimize interference with Tenant's access to and ·
use of the Premises.
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17.2 Alterations of the Project
(a) At any time or times Landlord shall have the right to make any changes in, additions to,
deletions :from or relocations of any part of the Project including the Premises and any of the
Common Facilities (any of which are herein referred to as "Changes") as Landlord shall
consider desirable. If Landlord makes any Changes to the Premises, including relocation of
the Premises, Landlord shall ensure that the Premises, as affected by such Changes, shall be
substantially the same in size and shall be in all other material respects reasonably
comparable to the Premises originally demised hereby. If the Premises are relocated as a
result of such Changes, Landlord shall be responsible for the direct cost of moving Tenant
to the relocated Premises and constructing replacement leasehold improvements therein, but
not for any indirect costs or losses of Tenant. Tenant shall not have the right to object to or
make any claim on account of the exercise by Landlord of any of its rights under this section
17.2, except that Tenant shall be entitled to an abatement of Basic Rent for any period of
time in excess of ten (10) consecutive days that Tenant is unable to conduct business in the
Premises as a result of the making of such Changes. Landlord shall make any such Changes
· as expeditiously as is reasonably possible and so as to interfere as little as is reasonably
possible with Tenant's business on the Premises.
(b) Tenant acknowledges that portions qf the Project may be under construction during the
T=, and that such construction activities may cause temporary noise and disturbance to
existing tenants of the Project. Landlord will use reasonable efforts to roiniroiz<>
interference with Tenant's occupation of the Premises as a result of such construction
activities, but Tenant acknowledges that in no event shall any noise or other disturbance
caused by such construction constitute a breach of Tenant's right to quiet enjoyment of the
Premises.
17.3 Common Facilities and Parking
Tenant shall not itself and shall not permit any of its employees, servants, agents,
contractors, or persons having business.with Tenant, to obstruct any Common Facilities
including driveways0 laneways or a.ccess _ routes, o_r to_per~_yehlc;ks in any portion of the
Common Facilities other than such areas as expressly authorized by Landlord. Landlord shall
have the right to designate the number and location of parking spaces available for use by Tenant,
its employees, customers and others doing business with it, provided that Landlord shall have no
responsibility whatsoever for supervising or policing the availability of such parking spaces.
Landlord shall have the right, at Tenant's expense payable on demand, to remove any such
obstruction or improperly parked vehicles, without any liability for any damage caused thereby.
The Tenant and its employees, suppliers and other persons not customers having business with
the Tenant, shall park their cars only in those portions of the parking area designated for that
purpose by the Landlord. Within five (5) days after taking possession of the Leased Premises the
Tenant shall furnish the Landlord with the automobile license numbers of the Tenant and its
employees and shall thereafter notify the Landlord of any changes within five (5) days after such
changes occur. Should the Tenant, its employees, suppliers and other persons not-customers
41
having business with the Tenant park vehicles in areas not allocated for that purpose, the
Landlord shall have the right to remove the said trespassing vehicles and the Tenant shall save
harmless the Landlord from any and all damages therefrom and the· Tenant shall pay the costs of
such removal.
17.4 Rules and Regulations
Landlord may from time to time make and amend reasonable rules and regulations for the
management and operation of the Project and Tenant and all persons under its control shall
comply with all of such rules and regulations of which notice is given to Tenant from time to
time, all of which shall be cleemedto be incorporated into and form part of this Lease. Landlord
shall not make any rules orregulations which conflict with any express provision of this Lease
unless and only to the extent required by any applicable Laws. Landlord shall act reasonably in
enforcing such rules and regulations but shall not be liable for their non-enforcement.
17.5 Access to Premises
(a) Without limiting any other rights Landlord may have pursuant hereto or at law, Landlord
shall have the right to enter the Premises at any time for any of the following purposes: (i)
to examine the Premises and to perform any maintenance, repairs or alterations to any part
of the Premises or to any equipment and services serving the Premises or any other part of
the Project; (ii) in cases of emergency; (iii) to read any utility or other meters; (iv) during the
last twelve (12) months of the Term to show the Premises to prospective tenants and to
permit prospective tenants to make inspections, measurements and plans; and (v)at any time
during the Term to show the Premises to prospective purchasers or lenders.
(b) Landlord shall have the right to run through the Premises conduits, wires, pipes, ducts and
other elements of any systems for utilities, heating, ventilating, air-conditioning and
humidity control, telephone and other co=unications systems and any other such systems
to serve the Premises or the Project.
( c) Landlord shall exercise its rights pursuant to this section 17.5 in such manner and at such
timesasLaitdlord; actingreasoii.ably oiifiii its-sole discretion, shallclefonnme, but shall use
its reasonable best efforts not to interfere with or obstruct the Tenant's operations on the
Premises. At any time that entry by Landlord is desired in case of emergency, and if no
personnel of Tenant are known by Landlord to be present on the Premises or if such
personnel fail for any reason to provide Landlord immediate access at the time such entry is
desired, Landlord may forcibly enter the Premises without liability for damage caused
thereby.
17 .6 Expropriation
(a) If the Premises or any part thereof shall be expropriated (which for the purposes of this
Article XVII shall include a sale by Landlord to any authority with the power to expropriate)
by any competent authority then:
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(i) Landlord and Tenant shall co-operate with each other so that Tenant may receive
such award to which it is entitled in law for relocation costs, business interruption,
and the value ofleasehold improvements paid for by Tenant and so that Landlord
may receive the maximum award to which it may be entitled in law for all other
compensation arising from such expropriation including, without limitation, all
compensation for the value of Tenant's leasehold interest in the Premises;
(ii) except for such compensation to which Tenant shall .be entitled as aforesaid, all
Tenant's other rights in respect of such expropriation are hereby assigned to
Landlord, and within ten (10) days after request by Landlord Tenant shall execute
such further documents as requested by Landlord to give effect to such
assignment, failing which Landlord is hereby irrevocably appointed, pursuant to
the Powers of Attorney Act (Ontario) Tenant's attorney to do so on behalf of
Tenant and in its name; and
(iii) Landlord shall have the option, to be exercised by written notice to Tenant, to
terminate this Lease, effective on the date the expropriating authority talces
possession of the whole or any portion of the Premises.
17.7 If the whole or any part of the Project shall be expropriated, then subject to the foregoing
. provisions respecting expropriation of the Premises:
(i)
(ii)
all compensation resulting from such expropriation shall be the absolute property
of Landlord and all of Tenant's rights, if any, to any such compensation are hereby
assigned to Landlord and within ten (I 0) days after request by Landlord Tenant
shall execute such further documents as requested by Landlord to give effect to
such assignment, failing which Landlord is hereby irrevocably appointed, pursuant
to the Powers of Attorney Act (Ontario), Tenant's attorney to do so on behalf of
Tenant and in its name; and
if the expropriation of part of the Project is such as to render undesirable, in
Landlord's reasonable opinion, i:he continuing operation of the portion of the
Project in which the Premises are situate, Landlord shall have the right to
terminate this Lease as of the date the expropriating authority talces possession of
all or any portion of the Project.
17.8 Landlord's Consent
Intentionally deleted.
17.9
(a)
Teleco=unications Carrier's Access
The Tenant's right to select and utilize teleco=unications and data carrier (the
"Carrier") shali be conditional on the execution by such Carrier of a license agreement, in
43
form and substance acceptable to the Landlord, pursuant to which the Landlord shall
grant to the Carrier a license (which shall be coextensive with the rights and privileges
granted to the Tenant under the Lease) to install, operate, maintain, repair, replace and
remove cable and related equipment within the Leased Premises and vertical and
horizontal path ways within the Building but outside of the Leased Premises that are
necessary to provide teleco=unications and data services to Tenant at the Premises).
(b) The license contemplated herein to be granted to the carrier shall p=i.t the Carrier to
provide services only to the Tenant and not to any other tenants or occupants of the
Building and shall require all of the Carrier's equipment ( other than connecting wiring) to
be located in the Tenant's Premises. Tue License shall not grant an exclusive right to the
Tenant or to the Carrier. Landlord reserves the right, at its sole discretion, to grant,
renew, or extend licenses to other teleco=unications and data carriers for the purposes
of locating teleco=unications equipment in the Building which may serve the Tenant or
other tenants in the Building.
( c) Except to the exte~t expressly set forth herein, nothing herein shall grant to the Carrier
any greater rights or privileges than the Tenant is granted pursuant to the terms of this
Lease or diminish the Tenant's obligations or the Landlord's rights hereunder.
( d) The Tenant shall be responsible for ensuring that the Carrier complies with the terms and
conditions of the license agreement relating to the use of the Leased Premises or the
making of any physical Alterations imposed upon the Tenant under this Lease to the
extent the Carrier operates or maintains any equipment or delivers• any services in the
Leased Premises. Any failure by the Carrier to observe and comply with such terms,
conditions, agreement and covenants on behalf of the Tenant, to the extent the Carrier
operates or maintains any equipment or delivers any services · in the Premises or the
Licensed Areas, shall be a default under the Lease.
17 .10 Wireless Frequencies
(a) The Landlordmay reguiJ:e__the Tenant to. modify_ or tern:miate any syste_m of short range
radio :frequencies (herein ''Wireless System") used by the Tenant in the Premises or in the
Project it; in the Landlord's sole· discretion, such Wireless System interferes with the
Wireless System of other Tenants in the Project.
(b) Landlord may from time to time make and amend rules and regulations for the
management and operation of Wireless Systems within the Project and Tenant and all
persons under its control shall comply with all of such rules and regulations of which
notice is given to Tenant from time to time, all of which shall be deemed to be
incorporated into and form part of this Lease. Landlord shall act reasonably in enforcing
such rules and regulations but shall not be liable for their non-enforcement.
( c) Withour limiting the foregoing, nothing contained herein shall impose upon the Landlord
any obligation to ensure Tenant's Wireless Systems are free from interference from other
tenants in the Project or otherwise.
44
ARTICLE XVIII
18. MISCEILANEOUS
18.l Notices
All notices, statements, demands, requests or other instruments ("Notices") which may be
or are required to be given under this Lease shall be in writing and shall be delivered in person or
sent by prepaid registered Canadian mail addressed, if to the Tenant, at the Address for Service
of Notice on Tenant, ifto the Indemnifier, if any, at the Address for Service of Notice on
Indernnifier, and if to the Landlord at the Address for Service of Notice on Landlord, all as
provided in section I. I hereof ·
All such Notices shall be conclusively deemed to have been given and received upon the
day the same is personally delivered or, if mailed as aforesaid, four ( 4) business days ( excluding
Saturdays, Sundays, holidays and days upon which regular postal service is interrupted or
unavailable for any reason) after the same is mailed as aforesaid. Any party may at any time by
notice in writing to the other change the Address for Service of Notice on it If two or more
persons are named as Tenant or Indemnifier, any Notice given hereunder shall be sufficiently
given if delivered or mailed in the foregoing manner to any one of such persons.
18.2 Complete Agreement
There are no covenants, representations, agreements, warranties or conditions in any way
relating to the subject matter of this Lease or the tenancy created hereby, expressed or implied,
collateral or otherwise, except as expressly set forth herein, and this Lease constitutes the entire
agreement between the parties and may not be modified except by subsequent written agreement
duly executed by Landlord and Tenant.
18.3 Time of the Essence
Time is of the essence of all terms of this Lease.
18.4 Applicable Law
This Lease shall be governed by and inteipreted in accordance with the laws of the
Province of Ontario. The parties agree that the Courts of Ontario shall have jurisdiction to
determine any matters arising hereunder.
18.5 Severability
If any provision of this Lease is illegal, unenforceable or invalid, it shall be considered
separate and severable and all the remainder of this Lease shall remain in full force and effect as
45
though such provision had not been included in this Lease, but such provision shall nonetheless
continue to be enforceable to the extent permitted by law.
18.6 Section Numbers and Headings
The table of contents and all section numbers and headings of this Lease are inserted for
y0nvenience only and shall in no way limit or affect the interpretation of this Lease.
18. 7 Interpretation
Whenever a word importing the singnlar or plural is used in this Lease such word shall
include the plural and singnlar respectively. Where any party is comprised of more than one
entity, the obligations of each of such entities shall be joint and several. Words importing
persons of either gender or firms or corporations shall include persons of the other gender and
firms or corporations as applicable. Subject to the express provisions contained in this Lease,
words such as "hereof", "herein", "hereby", "hereafter", and "hereunder" and all similar words or
expressions shall refer to this Lease as a whole and not to any particular section or portion hereof.
18.8 Successors
This Lease shall enure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, successors, assigns and other legal representatives
except only that this Lease shall not enure to the benefit of any of such parties unless and only to
the extent expressly permitted pursuant to the provisions of this Lease.
ARTICLEXIX
19. INDEMNITY
(a) Intentionally deleted.
IN WITNESS WHEREOF the parties have executed this Lease.
EMIXL
epfer, President
THE CORPORATION F THE CITY OF PICKERING
Per: S). bb+; U..o
Name: Debbie Shields, City Clerk
SCHEDULE "A"
LEGAL DESCRIPTION OF PREMISES
1101 Kingston Road, Pickering, Ontario:
Part of Lot 24, Concession 1, Pickering Ontario, being Parts 1, 2 and 3,
Plan 40R-12678, Pickering
PIN 26317-0070 (LT)
SCHEDULEB
OUTLINE PLAN OF PREMISES
.,...-.....,
T-11'"
' ,~_,.
9'-10'"
X
1-4'-Ur
2
SCHEDULEC
LANDLORD'S WORK
The Landlord will provide the Premises with the following items at its expense, all such work
in compliance with the Ontario Building Code applicable at the time the wotl: is being
carried out.
1. Paint throughout the Premises in a neutral colour.
2. Curved wall in back of Premises removed and flooring under such wall repaired.
3. Open office closed in with a door and wall to reasonably match the existing office glazed
wall detail.
3
SCHEDULED
RULES AND REGULATIONS
The Tenant covenants and agrees that the rules and regulations shall in all respect be observed
and performed·by the Tenant, its employees and agents and to the extent the Tenant can require
the same, by its invitees and others over whom the Tenant has control. Landlord shall have
available to it, all remedies provided in this Lease and all other legal remedies available at law or
in equity upon a breach of the rules and regulations by the Tenant. The Landlord may terminate
this Lease forthwith upon such breach if, after Notice of such breach, the Tenant fails to remedy
such breach within fifteen (15) . business days or fails to diligently continue to rectify such
breach. , The rules and regulations shall include, without limitation, the following:
I. Animals or Birds:
No animals or birds shall be kept in fue Premises.
2. Care of Interior and Exterior (if applicable) of Premises
The tenant shall keep the interior and exterior (if applicable) of the Premises clean,
orderly and tidy. The tenant shall keep perishable items properly refrigerated. The
Tenant shall deposit all debris, trash and refuse in areas, at times and in such manner as
the Landlord shall reasonably delegate.
3. No one shall use the Premises for sleeping quarters.
4. The Tenant shall observe strict care not to allow windows admitting light into fue Premises to be
left opened or remain open so as to admit rain or snow, or so as to interfere wifu the heating of
the Premises or the air conditioning of the Premises m: offue Building. The Tenant will be
responsible for any injury caused to fue property of other Tenants or to the property of fue
Landlord by failure on fue part offue Tenant to observe this rule.
5. Furniture, effects and supplies shall not be taken into or removed from the Premises except at
such_time_o,-_inthe normal course of business andin_such manner as may be previously approved
by the Landlord.
6. The Landlord shall have fue right to require all persons entering and leaving fue Building at
hours other than normal business hours, which are defined as between 8:00 am and 6:00 pm,
Monday through Friday, to identify fuernse!ves to a watchman or security guard (where
applicable).
7. Electrical and Communications Wiring:
The Landlord shall direct fue location and manner of installation of all wiring and equipment in
the Premises. There shall be no boring, cutting or installation of telephone, telegraphic, electric
or other wiring wifuout fue written consent offue Landlord.
4
8. Loading, Unloading, Delivery (if applicable):
Deliveries, shipments and all loading and unloading of items to and from the Premises by means
of such doorways, corridors and in such manner as the Landlord shall reasonably designate.
9. Use of Elevator (if applicable):
Elevators shall not be used without the prior approval of the Landlord for the movement of
furniture, freight, supplies or equipment and shall be left in clean condition following use.
10. Obstruction of Plumbing and WashroomFacilities and Co=on Areas
The Tenant agrees that it will not use or permit its employees, agents or invitees to use the
plumbing or washroom facilities of the Premises or co=on areas for any purpose other than
that for which they are constructed.
11. .Overloading of Floors (if applicable)
The Tenant shall not permit any floor of the Premises to be loaded to more than (250) pounds per
square foot live load. All safes and other heavy objects liable to injure or destroy any part of the
Premises or the Project shall be moved at such times, by such means and by such persons as the
Landlord shall reasonably direct. Upon the termination of this lease and the Tenant shall
forthwith inform the Landlord in writing of the combination of all locks, safes and vaults in or on
the Premises.
12. Restriction on Dangerous Materials:
The Tenant shall not keep, use, sell or offer for sale in-the Premises, anything of a dangerous,
inflammable or explosive nature. ·
13. Signs, Advertising and Displays:
The Tenant shall not, in or about the Premises without the written consent of the Landlord, erect
exterior signs, install window or door signs, affix window or door lettering, erect awnings or
canopies or display advertising media or devices which may be seen or heard outside the Leased
I'remises. -The Tenant shall.remove forthwith all-signs, lettering, awnings, canopies and displays
which are found by the Landlord to be objectionable. The Tenant shall indemnify and save
harmless the Landlord from all claims, demands, loss or damage to any person or property
arising out of or in any way caused by the erection, maintenance or removal of any sign or other
installation erected or installed on or about the exterior of the Leased Premises. The Tenant shall
at its own expense, maintain in good condition and repair all such signs, lettering, awnings,
canopies and displays, and shall observe and comply with all requirements of any competent
authority regarding the erection and maintenance of signs including the payment of license or
other fees.
14. Use of Entrances, etc.:
The sidewalks, entrances, lobbies, elevators, stairways and corridors of the Premises, Building or
Project shall not be obstructed by the Tenant or used by it for any other purpose than for ingress
and egress to and from the Premises and the Tenant shall not place or allow to be placed in any
5
such areas any waste paper, dust, garbage, refuse or anything whatever that shall tend to make
such areas appear clean or untidy.
15. Legal Compliance
The Tenant shall comply, at its own expense with all federal, provincial and mnnicipal, fire,
sanitary and safety laws and regulations and by-laws pertairring to the use of the Premises and
surrounding area
16. Odours
The Tenant shall not permit or allow odours, vapours, steam, water, vibrations, noises or other
desirable effects to emanate from the Premises or any equipment or installation therein which, in
the Landlord's opinion, are objectionable or cause any interference with the safety, comfort or
convenience of the Building by the Landlord or any occnpants thereof or their invitees.
6
SCHEDULE "E"
OPTION TO RENEW
Landlord covenants with Tenant that if Tenant duly and regularly pays the rent and performs all
of the covenants, provisos and agreements on the part of Tenant to be paid and performed in the
Lease, and provided the Tenant is not then in default under the terms of the Lease, Landlord, at
the expiration of the T=, and upon Tenant's written request, mailed by registered post, return
receipt requested, to, or delivered to, Landlord and received by Landlord at least six (6) months
prior to the expiration of the Term, grant to Tenant a renewal Lease of the Premises on an "as is"
basis for two (2) further periods as follows:
i. The First Renewal Term shall be for a period of five (5) years;
ii. The Second Renewal Term shall be for a period of five (5) years;
with the First Renewal Term commencing upon the expiration of the initial Term and the Second
Renewa]. Term commencing upon the expiration of the First Renewal Term on the same terms
and conditions as are contained in the Lease, save and except for:
(a) the Tenant shall not be entitled to the benefit of orto receive any rent free period or any
payments by the Landlord to the Tenant as set out in the original Lease;
(b) the Basic Rent for the First Renewal Term shall be the greater of ( a) Basic Rent in the
immediately preceding year of the Term or (b) fair market rental rate ("FMRR") based on the
prevailing market rental rates for similar space in a similar area at the time of exercise by the
Tenant of the first option to renew, ·
( c) The Basic Rent for the Second Renewal Term will be the greater ( a) Basic Rent in the
immediately preceding year of the First Renewal Term or (b) fair market rental rate ("FMRR")
based on the prevailing market rental rates for similar space in a similar area at the time of
exercise by the Tenant of the second option to renew; and
( d) there shall be no further right ofrenewal or extension after the Second Renewal Term.
If th« pfil"(ic,S_a.r_e_ll!lable to _agre_e as to_FMRR, SJ1chrenewal_rent shall be determined b}c
arbitration using the ADR Chambers Expedited Arbitration Rules. The parties agree that the
. ADR Chambers Expedited Arbitration Rules give the parties a fair opportunity to present their
case and respond to the case of the other side. The arbitration shall be held in Toronto and shall
proceed in accordance with the provisions of the Arbitration Act (Ontario). Judgrnent upon the
award rendered by the arbitrator may be entered in any court having jurisdiction. It is agreed that
whether such FMRR is agreed upon or determined by arbitration, such FMRR shall in no event
provide for a Rent plus percentage rent, if any, in an amount less than the Rent, for the last year
ofthe·Term. Pending agreement of the parties as to, or as to the determination by arbitration of
the FMRR, Tenant shall continue to pay the Rent for the last year of the Term or the First
Renewal Tenn, as the case may be, and upon agreement or determination by arbitration as
aforesaid shall commence to pay the FMRR retroactive to the commencement of the applicable
renewal term. Any underpayments by the Tenant shall be adjusted retroactive to the
commencement of the applicable renewal term.
7
Notwithstanding the forgoing, the Tenant shall have an option (the "Termination Option") to
terminate the Lease on the following terms and conditions:
(a) The Termination Option is exercised either during the First Renewal term or the Second
Renewal Term;
(b) The Tenant gives the Landlord not less than 12 months irrevocable written notice (the
"Termination Notice") of its exercising the Termination Option. Upon giving the Termination
Notice, and complying with the provisions of this paragraph, this Lease shall terminate at 11 :59
p.m. on the last day of the calendar month in which the notice period expires (the last day of such
calendar month being called the "Termination Date";
If the Tenant so terminates this Lease, it shall, surrender this Lease, and all the remainder of the
Term of any, yet to come and unexpired, as of the Termination Date and will, subject
nevertheless to the provisions hereinbefore contained thereupon vacate the Premises and yield up
to the Landlord peaceable and vacant possession thereof.