HomeMy WebLinkAbout2008-143
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2008 - 143
Being a By-law to authorize an agreement between the
Corporation of the Municipality of Clarington and Community
Care Durham, Bowmanville, Ontario, to enter into agreement
for the lease space at Garnet B. Rickard Recreation Complex,
2440 King Street West, Bowmanville, Ontario.
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS
FOLLOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the
Corporation of the Municipality of Clarington and seal with the Corporation Seal, a
contract between, Community Care Durham, Bowmanville, Ontario, and said
Corporation; and
2. THAT the contract attached hereto as Schedule "A" forrn part of this By-law.
By-law read a first and second time this 14th day of July, 2008.
By-law read a third time and finally passed this 14th day of July, 2008.
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Page 1
THIS LEASE dated as of the first day of April 2010.
BETWEEN:
The Corporation of the Municipality of Clarington
(hereinafter called the "Landlord")
-and -
Community Care Durham, a corporation
incorporated under the laws of the Province of Ontario
(hereinafter called the "Tenant")
LEASE AGREEMENT
Page 2
TABLE OF CONTENTS
ARTICLE I
PREMISES, TERM, OFFER AND USE ............................................................................ 1
1.1 Grant. and Premises ................................................... ................................. 1
1.2 Term ........................................................................... ................................. 1
1.3 Renewal ...................................................................... ...................................1
1.4 Use and Conduct of Business .................................... .................................. 2
1.4 Nuisance ..................................................................... ................................. 2
ARTICLE II
RENT ................................................................................................................................. 3
2.1 Covenant to Pay ....................................................................... ................... 3
2.2 Net Rent ................................................................................... ................... 3
2.3 Payment of Taxes .................................................................... .............. 3 - 4
2.4 Payment of Estimated Taxes and Operating Costs ................. ................... 4
2.5 Utilities and Services ................................................................ .............. 4 - 5
2.6 Additional Rent ......................................................................... ................... 4
2.7 Rent Past Due .......................................................................... ................... 4
2.8 Adjustment of Areas ................................................................. ..................... 5
ARTICLE III
CONTROL OF BUILDING ................................................................................................ 6
3.1 Landlord's Services ..................................................................................... 6
3.2 Control by Landlord .................................................:................................... 6
ARTICLE IV
ACCESS AND ENTRY ...................................................................................................... 7
4.1 Access to Premises ................................................................................ 7 - 8
4.2 Entry not Forfeiture ........................................:............................................. 8
ARTICLE V
MAINTENANCE, REPAIRS AND ALTERATIONS ...........................................:............... 9
5.1 Maintenance by the Landlord ............................................................. ......... 9
5.2 Maintenance by Tenant, Compliance with Laws, Repair on Notice .. .. 9 - 10
5.3 Approval of Tenant's Alterations ........................................................ . 10 - 11
5.4 Repair where Tenant at Fault ............................................................. ........ 11
5.5 Removal of Fixtures and Personal Property ...................................... ........ 12
5.6 Liens ....................................:.............................................................. ........ 12
5.7 Notice by Tenant ................................................................................ ..:..... 12
ARTICLE VI
INSURANCE AND INDEMNITY ....................................................................................... 13
6.1 Tenant's Insurance ..................................................... ................................ 13
6.2 Form of Policies .......................................................... ......................... 13 - 14
6.3 Landlord's Insurance .................................................. ................................ 14
6.4 Release of Landlord .......................:........................... ................................ 14
6.5 Tenant's Effect on Other Insurance ........................... ................................ 15
6.6 Indemnity of Landlord ................................................. ......................... 16 - 17
6.7 Loss or Damage ......................................................... ................................ 17
6.8 Benefit of Releases .................................................... ................................ 18
Page 3
ARTICLE VII
DAMAGE AND DESTRUCTION ...................................................................................... 19
7.1 Damage to Premises, Building or Development ............................ ............ 19
7.2 Insured Damage to Premises ......................................................... ............ 19
7.3 Uninsured Damage to Premises and Last Two Years ................... ............ 19
7.4 Damage to Building or Development ............................................. ............ 20
7.5 Termination ..................................................................................... ............ 20
7.6 Restoration if Lease Not Terminated ............................................. ..... 20 - 21
7.7 Restoration of Premises or Building and Insurance Proceeds ...... ............ 21
7.8 Determination of Matters ................................................................ ............ 21
7.9 Limitation of Liability .......................:.....:......................................... ............ 21
ARTICLE VIII
TRANSFERS ............................................................................................:..:.................... 22
8.1 Transfers ............................................................... ..................................... 22
8.2 Landlord's Right to Terminate ............................... .............................:....... 22
8.3 Conditions of Transfer ........................................... .............................. 22 - 23
8.4 Change of Control ................................................. ..................................... 23
8.5 No Advertising ....................................................... ..................................... 23
8.6 Assignment by Landlord ........................................ ..................................... 23
ARTICLE IX
DEFAULT ......................................................................................................................... 24
9.1 Default and Remedies .................................................... ............................ 24
9.2 Distress ........................................................................... ............................ 25
9.3 Costs .............................................................................. ............................ 25
9.4 Set-Off and Accord and Satisfaction .............................. ............................ 25
9.5 Survival of Obligations .................................................... ............................ 25
9.6 Lien ................................................................................. ............................ 25
9.7 Waiver and Remedies Cumulative ................................. .....................:...... 26
ARTICLE X
SPECIAL PROVISIONS ................................................................................................... 27
10.1 Parking ............................................................................... ........................ 27
10.2 Extension or Renewal ........................................................ ........................ 27
10.3 Operation of a Community Care Service ........................... ........................ 27
10.4 Physical Plant and Equipment ........................................... ........................ 27
10.5 Management and Operation of Premises .......................... ........................ 28
10.6 Disposal of Waste .............................................................. ......:................. 28
10.7 Quality Control .................................................................... ........................ 28
10.8 Marketing and Advertising ..:............................................... ........................ 29
10.9 Concessions/Catering ........................................................ ......................... 29
ARTICLE XI
GENERAL PROVISIONS ...................................................................................:............. 30
11.1 Rules and Regulations .....................:..................................... .................... 30
11.2 Delay ....................................................................................... .................... 30
11.3 Overholding ............................................................................ .................... 30
11.4 Notices .................................................................................... .................... 30
11.5 Successors ............................................................................. .................... 31
11.6 Covenants and Joint and Several Liability ............................. .................... 31
11.7 Heading, Table of Contents, Lease Summary ....................... .................... 31
11.8 Extended Meanings ................................................................ .................... 31
11.9 Partial lnvalidity ....................................................................... .................... 31
11.10 Entire Agreement ................................................................... .................... 31
11.11 Governing Law ....................................................................... .................... 32
Page 4
11.12 Time of the Essence ........................................................................:......... 32
11.13 Quiet Enjoyment ......................................................................................... 32
11.14 No Partnership or Agency .......................................................................... 32
11.15 Signs ............................................................................................................32
ARTICLE XII
SPECIAL PROVISIONS ..................:................................................................................ 33
12.1 Schedules ................................................:.................................................. 33
Schedule "A" -Floor Plan
Schedule "B" -Definitions
Schedule "C" -Rules and Regulations
Page 1
THIS LEASE is made the first day of April, 2010
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(the "Landlord")
OF THE FIRST PART
-and-
COMMUNITY CARE DURHAM
(the "Tenant")
OF THE SECOND PART
IN CONSIDERATION of the rents, covenants and agreements hereinafter contained, the
parties covenant and agree as follows:
ARTICLE I
PREMISES, TERM. OFFER AND USE
1.1 Grant and Premises
In consideration of the performance by the Tenant of its obligations under this lease,
the Landlord leases to the Tenant, and the Tenant leases from the Landlord, for the
Term, the Premises comprising both (1) the interior area shown outlined in red on the
floor plan contained in Schedule "A" attached hereto in the Building known as of the
date of this lease as the Garnet B. Rickard Recreation Complex. The purpose of the
floor plan is to show the approximate location of the interior area which comprises the
Premises. Schedule "A" is not intended to be a representation as to the precise size or
dimensions of the Premises or a representation as to any other aspect of the Building
or the development of any portion of the Lands. The Rentable Area of the interior
space within the Building is approximately 4,619 square feet.
1.2 Term
The Term of this lease shall commence on April 1, 2010 (the "Commence Date') and
shall terminate on the day which is ten (10) years after the Commencement Date (the
"Term"), unless the Term is extended or renewed in accordance with the provisions of
Section 1.3 of this Lease and Licence.
1.3 Renewal
By resolution of Municipal Council (#C212-09) provision is made for the extension of the
lease for an additional Term of Ten (10) years: Not later than six (6) months prior to the
expiration of the Term, the Tenant may give the Landlord notice in writing stating that
the Tenant wishes to renew this Lease for a further Term of ten (10) years upon the
same Terms and conditions, except Rent, as are herein contained. The amount of Rent
to be paid by the Tenant during the renewal Term, shall be the amount that the parties
may agree is the then current Rent, as of the date which is six (6j months prior to the
commencement of the renewal Term for comparable office Premises in the vicinity of
the Premises taking into consideration the incidence of Tenant's inducements and
allowances in the relevant market area or by other means acceptable to the parties. If
three (3) months prior to the end of the Term, either the Landlord has given written
notice to the Tenant that the Landlord does not wish to renew this Lease or the
Landlord and the Tenant have not agreed in writing to the amount of the Rent to be
paid during the renewal Term which is desired by the Tenant, this Lease shall terminate
on the expiration of the Term.
Page 2
1.4 Use and Conduct of Business
Throughout the Term, the interior area of the Premises shall be used and occupied only
for the purposes of a community care facility. Throughout the Term, the Tenant shall
continuously, actively and diligently carry out the use and occupation of the Premises
as aforesaid in compliance with all applicable laws and the provisions of this lease, and
shall not use or occupy or permit or suffer the use or occupancy of the Premises or any
part thereof for any other purpose or business.
1.5 Nuisance
The Tenant shall not commit, permit or suffer (i) any waste, damage or injury to the
Premises or the Building or any part thereof, including, without limitation, the
improvements, installations, fixtures and equipment thereon or therein; (ii) any nuisance
in or on the Premises or Building or any part thereof; (iii) any overloading of any utility or
electrical or mechanical equipment, facilities or systems serving the Premises; or (iv)
systems serving the Premises; (iv) any act or thing or use of the Premises in any
manner which disturbs the quiet enjoyment, annoys or causes a hazard to the Landlord
or occupant of the Building or any part thereof, all as determined by the Landlord in its
sole discretion, acting reasonably.
Page 3
ARTICLE II
RENT
2.1 Covenant to Pay
The Tenant shall pay Rent in lawful money of Canada from the Commencement Date
without prior notice or demand except as may be otherwise expressly provided in this
lease. Rent shall be considered as accruing from day to day. Where it becomes
necessary for any reason to calculate Rent for an irregular period of less than one year
or less than one calendar month, an appropriate apportionment and adjustment shall
be made, pro rata on a per diem (365 day year) basis. Except as may be otherwise
expressly provided in this lease, if the Commencement Date does not fall on the first
day of a calendar month, the Tenant shall pay Rent f
Commencement Date. The Tenant agrees that its a
independent covenant and that all such amounts are
counterclaim, set-off, deduction, abatement, compen
except as may be otherwise expressly provided in thi
Landlord shall be paid to the Landlord at its address
2.2 Net Rent
(1) The Rent reserved by the Landlord by this Lea
Eight Hundred and Nine Dollars and Zero Cents ($50
monthly installments of Four Thousand Two Hundred
Cents ($4,234.08) or Eleven Dollars ($11.D0) per squ
installment being due and payable on the Commence
all expenses for waste removal and snow removal wh
Landlord.
(2) The Lessee shall pay to the Landlord during the
license as Additional Rent for remission to the Municip<
Municipality with the cost of the Leasehold Improvemer
Six Hundred and Ninety Nine Dollars and Ninety Cents
Cents per square foot ($2.10/Sq. Ft) per annum, payaC
Eight Hundred and Eight Dollars and Thirty Three Cent
being due and payable on the Commencement Date.
(3) The Lessee shall pay to the Landlord during the
license as Additional Rent for remission to the Municip<
Municipality with the cost of the utility expenses to inclu
amount of Eighteen Thousand and Fourteen Dollars ar
annum, payable in equal monthly installments of One l
Dollars and Eighteen Cents ($1,501.18), or Three Dolla
($3.90/sq. ft.) with the first installment being due and p.
(4) The Lessee shall pay to the Landlord during the
license as Additional Rent for remission to the Municipt
Municipality with the cost of the utility expenses to inclu
amount of Eighteen Thousand Four Hundred and Seve
annum, payable in equal monthly installments of One 1
Nine Dollars and Sixty Seven Cents ($1,539.67), or Foi
with the first installment being due and payable on the i
2.3 Payment of Taxes
such month on the
enant to pay Rent is an
ayable without demand,
3tion or reduction whatsoever,
lease. Rent payable to the
r notice pursuant to Section 11.4.
and License is Fifty Thousand
9.00) per annum payable in equal
d Thirty Four Dollars and Eight
foot, each in advance with the first
nt Date. The Basic Rent includes
are the responsibility of the
first five years of this lease and
ity of Clarington to assist the
s in the amount of Nine Thousand
$9,699.90), or Two Dollars and Ten
in equal monthly installments of
($808.33) with the first installment
first five years of this lease and
ity of Clarington to assist the
e water, electricity and gas, the
Ten Cents ($18,014.10) per
iousand Five Hundred and One
s and Ninety Cents per square foot
cable on the Commencement Date.
:cond five years of this lease and
y of Clarington to assist the
water, electricity and gas, the
y Six Dollars ($18,476.00) per
~usand Five Hundred and Thirty
Dollars per square foot ($4,00)
~mmencement Date.
(a) The Tenant shall pay to the Landlord no later han the due date therefor, as the
Landlord may direct from time to time, by written noti a to the Tenant, all Taxes
allocated and attributed by the Landlord to the Leasa le Area of the Premises as
Additional Rent.
(b) The Landlord shall pay all Taxes to the taxing uthorities, including to itself to the
extent that its interest in the Building and the Lands i not exempt from taxation.
Page 4
(c) The Tenant shall pay to the Landlord, upon d mand, as Additional Rent any
increase or amount of Taxes or other Taxes which th Landlord, acting reasonably,
determines to be attributable to any act or election b the Tenant (for example declaring
itself. a separate school supporter) or to be attributabl to the Leasehold Improvements.
(d) The Tenant may contest any Taxes and appeal a y assessments with respect
thereto, withdraw any such contest or appeal, and agree with the taxing Authorities on
any settlement or compromise with respect to Taxes.
(e) Notwithstanding the foregoing or any other prc
contrary, after demand therefor is made in writing by
Tenant shall pay to the Landlord an amount determir
or in respect of any and all Sales Taxes, it being the
Landlord shall be fully paid and reimbursed by the Te
Sales Taxes paid or payable by the Landlord or the l
required to remit to any Authority, and, except as ma
in this lease, the. amount of such Sales Taxes so pay
shall be calculated by the Landlord in accordance wit
shall be paid to the Landlord, at the Landlord's optior
the amounts to which such Sales Taxes apply are pa
Terms of this lease or upon demand or at such other
time to time determines and (ii) the amount of such S
Tenant shall be deemed not to be Rent, but the Lanc
remedies for and rights of recovery of such amount a
this lease.
2.4
(a) The amount of Taxes and Sales Taxes may I
each Rental Year or for such shorter period as the L
time. The Tenant shall pay to the Landlord the amc
instalments in advance on the first day of each mon
Notwithstanding the foregoing, when bills for all or a
estimated are received, the Landlord may bill the Te
crediting against such amounts any monthly paymei
and Sales Taxes previously made by the Tenant, ar
Landlord the amounts so billed to the Tenant on dei
isions of this lease to the
ie Landlord to the Tenant (i) the
d by the Landlord to be equal to
tention of parties that the
ant with respect to any and all
Want and/or which the Landlord is
be otherwise expressly provided
ble by the Tenant to the Landlord
the applicable legislation, and
when due or at the same time as
able to the Landlord under the
me or times as the Landlord from
les Taxes so payable by the
Ord shall have all of the same
it has for recovery of Rent under
estimated by the Landlord for
idlord determines from time to
its so estimated in equal
during each such period.
portion of the amounts so
rnt for the billed amounts after
on account of estimated Taxes
the Tenant shall pay to the
(b) Any and all allocations, attributions and deter inations of or with respect to
Taxes or Sales Taxes, Business Tax, other Taxes, U ilities and special services under
this lease shall be made by the Landlord in accordan a with and subject to the
provisions of this lease, on such basis as the Landlor may determine, acting
reasonably, in its sole discretion from time to time.
2.5 Utilities and Services
(a) The cost of Utilities, that being water, hydro, a~d heat are stipulated as a price
per square foot for the Rentable Area.
(b) In no event shall the Landlord be liable for, no shall the Landlord have any
obligation with respect to, any interruption or cessati n of, or any failure in the supply of,
any Utilities, services or systems whatsoever in, to or serving the Building or Premises,
or any part thereof, whether or not supplied by the L ndlord or others.
Page 5
(c) The Tenant shall pay to the Landlord, on dei
charges as determined, allocated and attributed by
provided to or for the benefit of the Tenant or the P
include, without limitation, charges for security, sup
handling materials and articles, and moving of furni
from time to time. The Tenant, from time to time, n
from the Landlord and the Landlord shall have the i
elects not to provide them, then they shall be provic
writing by the Landlord acting reasonably. Unless o
Landlord and Tenant to the contrary, all work, mate
or supplied by the Landlord for the Tenant or respe
by the Tenant to the Landlord upon demand.
2.6 Additional Rent
Except as may be otherwise expressly provided in
be payable by the Tenant to the Landlord on demr
2.7 Rent Past Due
All Rent and any and all other amounts payable by
and past due shall bear interest from the due date
variable rate per annum which is 3% in excess of tl
shall be both calculated and compounded monthly
2.8 Adjustment of Areas
(a) If for any reason the Architect is unable to acc
Commencement Date, any area measurement requi
the Landlord shall provide its reasonable area estim,
as soon as reasonably possible after completion of c
accurate verification certificate on which such Rent
shall be binding upon the parties and shall form part
2.8(b). In the intervening period, discrepancies betty
area shall be made promptly following the Architect':
(b) In the event of any dispute as to the measurer
relating to (i) the Rentable Area of the Premises or (ii
Premises, such shall be determined by the Architect.
opinion of the Architect, whenever required by this le
and any related certificate shall be final and binding c
as Additional Rent, all
Landlord, for all special services
ises. Such special services may
lion, receiving, storing and
as determined by the Landlord
request such special services
to provide them. If the Landlord
only by Persons approved in
wise expressly agreed to by the
> and special services performed
~ the Premises shall be paid for
lease, all Additional Rent shall
Tenant under this lease unpaid
:reof to the date of payment as a
Prime Rate, and such interest
d shall be payable on demand.
arately verify, on or before the
'd for the determination of Rent,
to and shall deliver to the Tenant,
instruction, the Architect's
roll be based, which certificate
~f this lease, subject to Section
en such estimated and verified
verification of such area.
ent or calculation of areas
the Useable Area of the
-he decision, determination or
~e (or requested by the Landlord)
r the partiers.
Page 6
ARTICLE III
CONTROL OF BUILDING
3.1 Landlord's Services
The Landlord shall provide or cause to be provided reasonable services for the
Common Facilities and snow removal from the parking area and pedestrian walkways
on the Lands.
3.2 Control by Landlord
(a) The Tenant acknowledges that the Building is at all times subject to the exclusive
control, management and operation of the Landlord who shall act reasonably in respect
of the Premises. Without limiting the generality of the foregoing, the Landlord shall
have the right, but not the obligation, in its control, management and operation of the
Building or any part thereof and at all times throughout the Term: (i) to maintain, repair,
replace, complete construction of, alter, add to, subtract from, construct improvements
and replacements to, rearrange, build additional storeys on and construct additional
facilities in, on, adjoining or near, the Building or any part thereof, and to obstruct or
close off all or any part of the Building or Premises in connection therewith; (ii) to
employ or retain all personnel necessary for the control, management, operation,
supervision and administration of the Building and Premises or any part thereof
including, without limitation, administrative personnel and managers (the Tenant hereby
acknowledging that the Building may be managed by any Person designated by the
Landlord); (iii) to do such things on, in or near the Building or any part thereof, as
required to comply with any laws, by-laws, regulations, orders, directives, agreements,
licences, privileges, easements or rights of way affecting the Building, or any part
thereof; (iv) to obstruct, lock-up or close off all or any part of the Building or any part
thereof, for security purposes; (v) to enter into, grant, modify, amend or terminate, on
such Terms and conditions as the Landlord, in its sole discretion, may determine, any
easements, rights of way, privileges, licences or agreements with respect to any use or
occupancy of, or any maintenance, repair, replacement, Restoration or reconstruction
of, or supply of any services to, or any operation of, the Building and Premises, or any
part thereof; and (vi) to do such other things on, in or near the Building and Premises or
any part thereof, as the Landlord, in any use of good business judgment, determines to
be advisable.
(b) The Tenant acknowledges and confirms the rights of the Landlord referred to in
this Section 3.2, including, without limitation, the right to expand, rearrange or add to
the Building and Premises from time to time, but such acknowledgment and
confirmation shall not be construed or deemed in any respect to be any obligation or
covenant by the Landlord to exercise such rights. The Landlord, in its sole discretion,
shall determine the extent to which it elects to exercise any of such rights, subject to its
express obligations contained in this lease.
(c) Tenant agrees that it shall not hinder or oppose the Landlord in the exercise by
the Landlord of its rights referred to in this Section 3.2.
(d) Subject to and in compliance with the other provisions of this lease, the Rules
and Regulations and all laws and requirements of all Authorities, the Tenant shall have
the non-exclusive licence during the Term to have access through or to use in common
with all others entitled thereto and for their intended purposes such portions of the
Building and the Lands as are reasonably required for access to or the use and
occupancy of the Premises for their intended purposes during such hours as such
Building and Lands are intended to be open for such access or use, as the case may
be, all as determined, designated, re-designated and as may be changed by the
Landlord from time to time.
Page 7
ARTICLE IV
ACCESS AND ENTRY
4.1 Access to Premises
(a) The Landlord, without limiting any other right which the Landlord may have
pursuant to this lease or at law, shall have the right, but not the obligation,. following
reasonable written notice to the Tenant (except in the case of an emergency or
apprehended emergency where no such notice shall be required), to enter or have the
appropriate agency enter on the Landlords authorization, the Premises at any time and
for any of the following purposes:
(i) to examine the Premises or to perform any maintenance, repairs, replacements,
Alterations or improvements to the Premises or any part thereof as may be
permitted or required by this lease, or to perform any maintenance, repairs,
replacements, Alterations or improvements to the Building, or any part thereof or
to the HVAC System or to any mechanical or electrical equipment or systems, or
any part thereof, located therein serving the Premises or any other part of the
Building or to perform any environmental audit or testing;
(ii) to preserve and protect the Building and Premises, or any part thereof in respect
of any construction or other work being performed in Premises adjoining or in the
vicinity of the Building or the Premises, or in any part of the Lands or in the
vicinity thereof;
(iii) for any purposes as determined by the Landlord in cases of emergency;
(iv) to read any Utility or other similar meters located in the Premises;
(v) .during the last twelve months of the Term (or any renewal or extension Term if
renewed or extended), but only during normal operating hours, to show the
Premises to prospective Tenants, and to permit them to make inspections,
measurements and plans;
(vi) to exercise any of the rights available to the Landlord pursuant to this lease or to
perform such work in respect of the Building or Development, or any part thereof,
as the Landlord shall deem necessary.
(b) The Landlord shall have the right to install, maintain, use, repair, replace, alter,
calibrate, adjust, balance, check and inspect pipes, ducts, conduits, vents, wires,
access panels to mechanical shafts and other installations in or leading in, through,
over or under the Premises including, without limitation, other elements of any
mechanical or plumbing systems or HVAC System or systems for Utilities, telephone
and other communications systems and any other systems which serve the Building or
the Premises, or any part thereof, and the Landlord shall have access to the foregoing
and the right to enter the Premises for the purposes thereof and in connection therewith
at any time following reasonable notice to the Tenant except in the case of an
emergency or apprehended emergency for which no notice shall be required. The
Tenant shall not unduly obstruct any pipes, conduits or mechanical or other electrical
equipment or systems so as to prevent reasonable access thereto.
Page 8
(c) The Landlord shall have the right to take into the Premises all such material and
equipment as it may require in connection with any of the purposes referred to in this
Section 4.1. The Landlord shall exercise its rights under this Section 4.1, to the extent
reasonably possible in the circumstances, in such manner and at such times as the
Landlord, acting reasonably but in its sole discretion, shall determine, and to the extent
practical in the circumstances, so as to minimize interference with the Tenant's use and
enjoyment of the Premises.
(d) At any time that entry by the Landlord is desired in case of emergency or
apprehended emergency, and if no personnel of the Tenant are known by the Landlord
to be present on the Premises or if such personnel fail for any reason to provide to the
Landlord immediate access at the time that such entry is desired, the Landlord may
forcibly enter the Premises without liability for damage caused thereby. This Section 4.1
is not intended to impose any obligations, responsibilities or liabilities on the Landlord
nor is it intended to limit the rights of the Landlord or the obligations of the Tenant under
any other Section of this lease, including, without limitation, Section 3.2.
4.2 Entry not Forfeiture
Notwithstanding anything contained in this lease, the exercise by the Landlord of any of
its rights under this lease, including, without limitation, (i) its rights set out in this Section
or in Sections 3.2, 4.1, 5.1, 5.2(c) and 6.5(c) and (ii) the exercise of any right under this
lease to enter the Premises and to do anything therein, shall not constitute a breach of
any covenant for quiet enjoyment, or a constructive or actual eviction, or a re-entry or
forfeiture (except where expressed by the Landlord in writing), nor shall it render the
Landlord liable for any injury, loss, costs or damages whatsoever, howsoever caused,
whether direct or indirect, incurred as a result thereof by the Tenant, nor shall the
Tenant be entitled to any compensation, diminution or abatement of Rent (except as
may be otherwise expressly provided in this lease).
Page 9
ARTICLE V
MAINTENANCE. REPAIRS AND ALTERATIONS
5.1 Maintenance by the Landlord
(a) The Landlord, at all times throughout the Term, but subject to Section 5.2, Article
VII and the other provisions of this lease imposing maintenance, repair or replacement
obligations or liabilities upon the Tenant, shall maintain, repair and replace or cause to
be maintained, repaired and replaced, as would a prudent owner of a reasonably
similar Building, having regard to size, age and location, reasonable wear and tear
excepted: (i) the structure of the Building including; without limitation, the foundations,
exterior wall assemblies (including weather walls), sub-floor, roof, bearing walls and
structure columns and beams of the Building; and (ii) the mechanical, fire alarm, HVAC
System, electrical and other base Building equipment, facilities and systems and
plumbing fixtures and equipment located in or serving the Premises.
(b) The Landlord shall not be responsible for any damages howsoever caused to the
Tenant by reason of delays in the performance of any maintenance, repairs,
replacements or any other work for which the Landlord is responsible under this lease.
The Landlord shall have the right at any time to stop, interrupt or reduce any services,
facilities, systems or Utilities provided to or serving the Building, the Premises, or any
part thereof, to perform repairs, replacements, improvements, Alterations, maintenance,
Restoration, adjustments, calibrations or balancing or to comply with laws or
regulations, or binding requirements of its insurers, or for causes beyond the Landlord's
reasonable control or as a result of the Landlord exercising any of its rights under this
Section 5.1 or Sections 3.2, 4.1, 5.2(c), 6.5(c) or other Sections of this lease in cases
where the Landlord determines such is prudent or reasonably required. The Landlord
shall not be in breach of any covenant for quiet enjoyment or liable for any injury, loss,
costs or damages whatsoever, howsoever caused, whether direct or indirect, incurred
by the Tenant due to any of the foregoing, and such shall not constitute a constructive
or actual eviction or a re-entry or forfeiture (except where expressed by the Landlord in
writing). The Landlord shall make reasonable efforts to restore the services, facilities,
Utilities or systems so stopped, interrupted or reduced. The Tenant acknowledges and
agrees that it may require one year after the Tenant has fully occupied the Premises in
order to adjust and balance the HVAC system and the Landlord shall not be
responsible for any inconvenience, discomfort, damages, loss or claims whatsoever
arising out of the process of such adjustment or balancing.
5.2 Maintenance by Tenant, Compliance with Laws, Repair on Notice
(a) The Tenant, at all times throughout the Term, at its sole expense, shall maintain
and keep the whole of the Premises, including, without limitation, all Leasehold
Improvements, equipment and appurtenances thereto, furniture, fixtures, and
improvements thereto, in good order, first-class condition and repair as a careful
prudent owner would do and in a clean, sanitary and tidy condition (which shall include,
without limitation, periodic painting and redecoration), to a standard consistent with a
first-class public Building, all as determined by the Landlord, and, subject to Article VII,
the Tenant shall make all needed repairs and replacements thereto with due diligence
and dispatch as a careful prudent owner would do except only for repairs and
replacements for which the Landlord is expressly responsible under Section 5.1.
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(b) The Tenant, at its own expense, (i) shall promptly comply, and shall promptly
provide to the Landlord evidence, satisfactory to the Landlord of such compliance, with
all laws, by-laws, government orders and requirements of all Authorities and with all
reasonable requirements or directives of the Landlord's insurers and other Authorities
affecting or relating to the Premises or their use, maintenance, repair, replacement or
Alteration or any business conducted in or from the Premises, including, without
limitation, obtaining all necessary permits, licenses and approvals relating to the use
and occupancy of the Premises and the conduct of business in or from the Premises,
and shall be responsible for and shall promptly perform all necessary Alterations and
changes to the Premises and contents thereof and such business, use and occupancy
to so comply and (ii) shall (I) co-operate with the Landlord in, and comply with all laws,
by-laws, regulations and orders of all Authorities relating to, the conservation of all
forms of energy in and serving the Building or the Premises or any part thereof, and (II)
comply with all reasonable requests and demands by the Landlord made with a view to
energy conservation.
(c) In addition to the obligations of the Tenant under Sections 5.2(a) and (b) and any
other similar provisions of this lease, the Tenant shall perform all maintenance, repairs,
replacements and other work referred to therein according to written notice from the
Landlord. If the Tenant fails to perform any maintenance, repairs, replacements or other
work required to be performed by it under Sections 5.2(a) or (b) or any other similar
provision of this lease promptly and to the reasonable satisfaction of the Landlord, or if
the Tenant, after written notice from the Landlord, fails to perform any maintenance,
repairs, replacements or other work promptly as required under this lease and such
notice and to the reasonable satisfaction of the Landlord, the Landlord shall have the
right, but not the obligation, to perform such maintenance, repairs, replacements or
other work and to enter the Premises in connection therewith without any liability for any
resulting damage or loss whatsoever to the Tenant's property or business howsoever
caused by reason thereof. The cost of such maintenance, repairs, replacements and
other work, representing the Landlord's overhead, shall be paid by the Tenant to the
Landlord on demand.. The Landlord's failure to give any such notice shall not (i) relieve
the Tenant from its obligations to perform any such maintenance, repairs, replacements
and other work under this lease. nor (ii) prejudice the Landlord's right to perform any
such maintenance, repairs, replacements or other work at the Tenant's cost as provided
above.
5.3 Approval of Tenant's Alterations
(a) No Alterations shall be made to the Premises without the Landlord's and any
required Authority's prior written approval. The Tenant shall submit to the Landlord
details of the proposed Alterations, including, without limitation, plans, drawings and
specifications prepared by qualified Architects or engineers in conformity with the
Landlord's then current Building standards. All such Alterations shall be performed: (i)
at the sole cost of the Tenant; (ii) by contractors and workmen designated, provided or
approved by the Landlord; (iii) in a good and workmanlike manner; (iv) in accordance
with plans, drawings and specifications approved in writing by the Landlord and, where
required, by the Authorities; (v) in accordance with all applicable legal and insurance
requirements; (vi) subject to the reasonable regulations, supervisor control and
inspection by the Landlord; and (vii) subject to providing, and only after there is
provided, to the Landlord such indemnification against liens and expenses and
evidence of such additional Tenant's insurance as the Landlord may reasonably
require; all as determined by the Landlord.
(b) If, in the Landlord's opinion any Alterations or maintenance would affect the
structure of the Development or any part thereof or any of the HVAC System or
electrical, plumbing or mechanical equipment, facilities or systems or other base
building equipment, facilities or systems, then at the option of the Landlord, such work
shall be performed by the Landlord at the Tenant's cost. On completion of such work,
the Tenant shall pay to the Landlord, on demand, the cost of such work, all as
determined by the Landlord. No Alterations or maintenance to the Premises by or on
behalf of the Tenant shall be permitted which may weaken or endanger the structure of,
or adversely affect the condition or operation of the Premises or Building or any part
thereof.
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(c) Whether or not the Landlord gives its approval to any Alterations, the Tenant
shall pay to the Landlord, on demand, as Additional Rent, all of the Landlord's
reasonable costs (including, without limitation, fees and disbursements of Architects,
engineers and designers) incurred in reviewing, consulting in respect of, approving,
inspecting and supervising any and all such Alterations. The Landlord shall have the
right to require the Tenant to make a payment to the Landlord in respect of such costs
as a precondition to the Landlord's granting any necessary approval herein. Such
reasonable costs shall be deemed to include, without limitation, all amounts paid or
payable by the Landlord to third parties, all reasonable charges of the Landlord for its
own personnel.
(d) The Landlord's approval of any Alterations or plans, drawings or specifications
with respect thereto shall not constitute a waiver by the Landlord of the Tenant's
obligations herein to comply with all laws and the requirements of all Authorities with
respect to such Alterations nor any acknowledgment or agreement by the Landlord that
such have been complied with.
5.4 Repair where Tenant at Fault
Notwithstanding any other provisions of this lease including, without limitation, Article
VII, if the Building, the Premises, or any part thereof (including, without limitation all or
any part of the wiring and electrical, lighting and plumbing fixtures and equipment, the
HVAC System and any other base Building equipment, facilities and systems) is
damaged or destroyed or requires repair, replacement or Alteration as a result of the
act or omission of the Tenant, its employees, agents, invitees, licensees, contractors or
others for whom it is in law responsible, the cost of the resulting repairs, replacements
or Alterations plus a sum equal to fifteen percent (15%) of such cost representing the
Landlord's overhead, to the extent required by the Landlord by written notice to the
Tenant, shall be paid by the Tenant to the Landlord on demand.
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5.5 Removal of Fixtures and Personal Property
All Leasehold Improvements (other than Tenant's fixtures) shall immediately upon their
placement become the Landlord's property without compensation to the Tenant. Except
as may be otherwise agreed by the Landlord in writing, no Leasehold Improvements
shall be removed from the Premises by the Tenant either during or at the expiry or
earlier termination of the Term.. The Tenant may, during the Term, in the usual course
of its business, remove its fixtures, provided that the Tenant is not in default under this
lease and provided that such fixtures have become excess to the Tenant's needs or the
Tenant is substituting new and similar fixtures therefor. The Tenant, at the expiration
or earlier termination of the Term, at its cost, (I) shall remove such of the Tenant's
fixtures (excluding Leasehold Improvements) and Tenant's personal property in the
Premises as the Landlord shall require, (II) shall restore the Premises to the Landlord's
then current Building standard (including, without limitation the removal and disposal of
any and all hazardous or toxic substances and containers therefor in accordance with
all applicable laws and the requirements of all Authorities) to the extent required by the
Landlord and (III) shall otherwise peaceably surrender and deliver up vacant
Possession of the Premises to the Landlord. The Tenant, at its cost, shall repair any
damage caused to the Building or any part thereof by such removal or Restoration. If
the Tenant does not remove its fixtures and personal property at the expiry or earlier
termination of the Term, then, at the option of the Landlord and without prejudice to any
other rights or remedies available to the Landlord, the fixtures and personal property
shall become the absolute property of the Landlord without payment of any
compensation therefor to the Tenant and, without notice to the Tenant, may be
removed from the Premises and sold or disposed of by the Landlord in such manner as
it deems advisable, all without any liability whatsoever to the Tenant. If the Tenant fails
to repair any such damage or complete any work, removal, disposal or Restoration
referred to in this Section by the expiry. or earlier termination of the Term, the Tenant
shall be responsible for, and shall indemnify and save harmless the Landlord from and
against, all expenses, losses and damages caused by such failure, including, without
limitation, the damages suffered by the Landlord for loss of use of the Premises and the
cost of removing and selling or disposing of such fixtures and personal property and
restoring the Premises to the Landlord's then current Building standard. The Landlord's
rights and the Tenant's obligations under this Section shall survive the expiration or
earlier termination of the Term.
5.6 Liens
The Tenant shall promptly pay for all materials and services supplied and work done in
respect of the Premises so as to ensure that no lien is registered against any portion of
the Premises or Development or against the Landlord's or Tenant's interest therein. If a
lien is registered or filed, the Tenant shall discharge it at its expense within 10 days
thereafter, failing which the Landlord, at its option, may discharge the lien by paying the
amount claimed to be due into court or directly to the lien claimant and the amount so
paid and all expenses of the Landlord including, without limitation, legal fees (on a
solicitor and his client basis) shall be paid by the Tenant to the Landlord on demand.
5.7 Notice by Tenant
The Tenant shall promptly notify the Landlord of any accident, defect, damage or
deficiency (including, without limitation, any existence, discharge, spillage or leakage of
any hazardous or toxic substances or any notice to the Tenant in connection therewith)
in any part of the Premises or the Building, which comes to the attention of the Tenant,
its employees or contractors notwithstanding that the Landlord may have no obligation
in respect thereof.
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ARTICLE VI
INSURANCE AND INDEMNITY
6.1 Tenant's Insurance
The Tenant shall obtain and maintain in full force and effect at its sole cost, at all times
during the Term and such other times, if any, as the Tenant occupies or is in
possession of the Premises or any portion thereof:
(a) "all risks" property insurance, not less broad than the standard commercial
property floater policy with the exclusions such as, without limitation, those relating to
sprinkler leakages (where applicable), earthquake and flood removed therefrom, on all
property owned by the Tenant or for which it is legally liable or installed or affixed by or
on behalf of-the Tenant and which is located in the Premises or the Building including,
without limitation, furniture, Tenant's fixtures, equipment, stock-in-trade, inventory and
Leasehold Improvements, in an amount not less than the full replacement cost thereof
and with a replacement cost endorsement, by-law endorsement, disputed loss
provisions and with reasonable deductibles.
(b) commercial general liability insurance including, but not limited to, property
damage, public liability, personal injury liability, broad blanket contractual liability,
products and completed operations, non-owned automobile (including contractual)
liability, employers' liability, intentional acts to protect Persons or property and owners'
protective insurance coverage, all on an occurrence basis, with respect to any use,
occupancy, activities or things of, in, on or about the Premises and with respect to any
use, occupancy or activities of, in, on or about any other part of the Building or the
Lands by the Tenant or any of its servants, agents, contractors or Persons for whom
the Tenant is in law responsible, with coverage for any one occurrence or claim of not
less than Five Million Dollars ($5,000,000.00) or such other amount as the Landlord
may reasonably require upon not less than one (1) month's notice at any time, and with
provisions for cross liability and severability of interests, and such insurance shall name
as additional insured the Landlord,;
(c) "all risks" Tenant's legal liability insurance for the actual cash value of the
Premises including, without limitation, the loss of use of the Premises, with limits
satisfactory to the Landlord, acting reasonably, from time to time;
(d) insurance in the Tenant's own name with respect to risk of business interruption
to the extent which is sufficient in the Landlord's opinion to permit the Tenant to meet its
on-going obligations to the Landlord under this lease; and
(e) any other form of insurance that the Landlord, acting reasonably, requires from
time to time upon not less then 30 days written notice, in form and substance, in
amounts, for insurance risks and containing such endorsements and agreements
required by and acceptable to the Landlord.
6.2 Form of Policies
(a) Each policy required pursuant to Section 6.1 shall be in form and substance and
with insurers reasonably acceptable to the Landlord, with loss payable to the Landlord
and with insurance proceeds assigned to the Landlord under the policies referred to in
Sections 6.1(a). Each of the Tenant's insurance policies shall contain (i) an undertaking
by the insurers under such policies that no material change adverse to the Landlord or
Tenant will be made and the policy will not be cancelled or terminated, except after not.
less than 30 days written notice by registered mail to the Landlord and the Tenant of
the intended change, cancellation or termination and (ii) a clause stating that the
Tenant's insurance policy shall be primary insurance and shall not call into contribution
and shall not be excess to any other insurance that may be available to the Landlord.
Each of the policies referred to in Section 6.1(a) and (b) shall contain (i) a waiver of any
rights of subrogation or indemnity or any other claim which the insurers of the Tenant
may have against the Landlord, its agents, officers or employees and (ii) a waiver, in
respect of the interests of the Landlord of any provision in any such insurance policies
with respect to any breach or violation of any warranties, representations, declarations
` Page 14
or conditions contained in such policies.
(b) Tenant will not be required to indemnify the landlord, its agents, officers or
employees or save it harmless where such claims, costs, actions, damages, expenses
(including legal costs and expenses), and liability is caused by or arises from
negligence from the aforementioned parties negligence or the negligence of their
servants, representatives, agents, or contractors.
(c) The Tenant shall provide to the Landlord for acceptance prior to the earlier of the
Commencement Date and the date it occupies the Premises for any purpose, evidence
of such insurance in and completed in accordance with the Landlord's standard form of
certificate of insurance or, if required by the Landlord, evidence in the form of copies of
the policies certified to be true copies by an officer of the insurer and signed by the
insurer. In addition, upon request by the Landlord or upon the placement, renewal,
amendment or extension of all or any part of such insurance, the Tenant shall
immediately provide to the Landlord evidence of such insurance in and completed in
accordance with the Landlord's standard form of certificate of insurance or, if required
by the Landlord, evidence in the form of copies of the policies certified to be true copies
by an officer of the insurer and signed by the insurer.
(d) The cost or premium for each and every such policy shall be paid by the Tenant
prior to the due date therefor. If the Tenant fails to take out or maintain such insurance
or fails to provide to the Landlord such certified copies of insurance and certificates of
insurance as herein required, or if any such insurance is not acceptable to the Landlord
[and if the Tenant fails to commence to diligently rectify and thereafter proceed to
diligently rectify the situation within 48 hours after written notice by the Landlord to the
Tenant (stating, if the Landlord, from time to time, does not approve of such insurance,
the reasons therefor)], then the Landlord shall have the right, but not the obligation, to
do so, and to pay the cost or premium therefor, without prejudice to any other rights or
remedies of the Landlord under this lease or at law, and in such event the Tenant shall
repay to the Landlord, as Additional Rent, on demand the amount so paid.
6.3 Landlord's Insurance
(a) The Landlord shall maintain during the Term, in those reasonable amounts, and
with those reasonable Terms, conditions and deductions that a prudent owner of a
building similar to the Building would maintain, having regard to size, age and location,
(i) "all risks" property insurance and boiler and machinery insurance on the Building
(except property that the Tenant or other Tenants are required to insure), (ii) rental
income insurance with such period of indemnity as the Landlord may determine, (iii)
public liability insurance with respect to the Landlord's operations and (iv) such other
form of insurance as the Landlord reasonably considers advisable, from time to time.
(b) Notwithstanding the Landlord's covenant to insure and the Tenant's payment of
or contribution to the Landlord's costs and premiums respecting such insurance
pursuant to the provisions of this lease, except to the extent, if any, expressly set forth
in this lease or in any such policy of insurance obtained by the Landlord, (i) the Tenant
shall not be relieved of any liability arising from or contributed by its negligence or its
wilful acts or omissions, (ii) no insurable interest or other interest or benefit (including,
without limitation, an implied waiver of subrogation from the Landlord's insurers is or
shall be conferred upon the Tenant under the Landlord's insurance policies and (iii) the
Tenant has and shall have no interest in or right to receive proceeds under any of the
Landlord's insurance policies.
s
Page 15
6.4 Release of Landlord
The acquisition and maintenance by the Tenant of the insurance policies as required
pursuant to this Article shall not limit or restrict the liability of the Tenant under this
lease. Without limiting any exclusion of liability, release or indemnity or other provision
herein, the Tenant hereby releases the Landlord and its agents, officers, employees,
contractors, workers and those for whom each is in law responsible from any and all
liability for losses, damages and claims of any kind to the extent of all insurance
proceeds paid under (i) the policies of insurance maintained by the Tenant as required
under this lease or which would have been paid if the Tenant had maintained the
insurance it is required to maintain under this lease and had diligently processed any
claims thereunder and (ii) any policies of insurance and insurance coverage otherwise
maintained by the Tenant.
6.5 Tenant's Effect on Other Insurance
(a) The Tenant shall promptly comply with all reasonable requirements of any
insurer now or hereafter in effect relating to or affecting the Premises or the Building, or
any part thereof. The Tenant shall not do and shall not cause, suffer or permit to be
done or omitted to be done by any of its employees, agents, contractors or Persons for
whom the Tenant is in law responsible anywhere in the Premises or the Building or by
any Person in, on or about the Premises and shall not permit there to be on the
Premises anything which, whether or not the Landlord has consented thereto, might (i)
result in any increase in the cost of any insurance policies of the Landlord on or related
to the Building or the Lands or any part or contents thereof, (ii) result in an actual or
threatened cancellation of, reduction in coverage under, or adverse change in any
policy of insurance of the Landlord or others on or related to the Building or the Lands
or any part or contents thereof or (iii) be prohibited by any policy of insurance of the
Landlord or any others in force from time to time in respect of the Building or the Lands
or any part or contents thereof.
(b) If the cost of any insurance policies of the Landlord related to the Building or the
Lands or any part or contents thereof shall be increased as a result of (i) the use or
occupancy of the Premises by the Tenant or any other Person on the Premises, or (ii)
anything kept or permitted to be kept by the Tenant or by any Person anywhere on the
Premises or by the Tenant or any of its employees, customers, contractors, suppliers
or Persons for whom the Tenant is in law responsible (any of which are in this Section
6.5 referred to as "Employees") on any part of the Premises, the Building or the Lands,
or (iii) any act or omission of the Tenant or any Person on the Premises, or of the
Tenant or any of its Employees in any part of the Building or the Lands, the Tenant
shall pay the full amount of such increase in cost to the Landlord forthwith upon
demand as Additional Rent. In determining the Tenant's responsibility for any
increased cost of insurance as aforesaid, a statement issued by the organization,
company or insurer establishing the insurance premiums or rates for the relevant policy
shall be conclusive evidence of the various components of such premiums or rates and
the factors giving rise to any increase therein.
(c) In the event of an actual or threatened cancellation of or adverse change in any
policy of insurance of the Landlord or any others on or related to the Building or the
Lands or any part or contents thereof by reason of (i) the use or occupancy of the
Premises by the Tenant or any other Person permitted by the Tenant on the Premises,
(ii) anything placed on or permitted by the Tenant or any Person on the Premises or by
the Tenant or any of its employees or invitees on any part of the Building or the Lands
or (iii) any act or omission of the Tenant or any Person in the Premises or by the Tenant
or any of its employees, invitees or customers on any part of the Building or the Lands
and if the Tenant fails to remedy the situation, condition, use, occupancy or other factor
giving rise to such actual or threatened cancellation or change within three (3) days
after notice thereof by the Landlord, the Landlord, in addition to any other right or
remedy it may have, at its option may either (i) terminate this lease forthwith by written
notice or (ii) remedy the situation, condition, use, occupancy or other factor giving rise
to such actual or threatened cancellation or change, all at the cost of the Tenant to be
paid to the Landlord forthwith upon demand as Additional Rent. For any or all of such
purposes as set forth in this Section the Landlord shall have the right to enter upon the
Premises without further notice.
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6.6 Indemnity of Landlord
Notwithstanding any other provision of this lease, the Tenant shall indemnify the
Landlord and all of its agents, managers, officers, employees, contractors, consultants,
workers and Persons for whom the Landlord is in law responsible (collectively in this
Section 6.6 and in Section 6.7 called "Landlord's Employees") and shall hold them and
each of them harmless from and against any and all liabilities, actions, proceeding,
damages, claims, losses (including, without limitation, indirect or consequential
damages that may be suffered or sustained by the Landlord or any of the Landlord's
Employees and loss of Rent and other amounts payable by the Tenant under this
lease) and expenses (including, without limitation, all legal fees and disbursements)
whatsoever, howsoever arising from or out of this lease, and/or, without limiting the
generality of the foregoing, howsoever caused by, due to, arising from or to the extent
contributed to by any of the following:
(i) any breach or default by the Tenant of or under any of the provisions of this
lease;
(ii) any lien under the Construction Lien Act, R.S.O. 1990, c.30 respecting the
Premises;
(iii) any breach by the Tenant of the Terms of any encumbrance affecting the
Premises;
(iv) any act or omission of the Tenant or any other Person on or permitted on the
Premises, or any use or occupancy of, or any articles in, the Premises or any
part thereof, or any use or occupancy of any other part of the Building or the
Lands by the Tenant or any of its agents, employees, invitees, licensees, sub-
Tenants, assignees, concessionaires, contractors or Persons for whom the
Tenant is in law responsible (collectively in this Section 6.6 and in Section 6.7
called "Tenant's Employees");
(v) any act or omission of the Tenant or any of the Tenant's Employees on the
Premises or elsewhere in, on or about the Building or the Lands or any part
thereof;
(vi) any injury, personal discomfort, illness, death or loss, costs, expenses or
damages whatsoever, direct or indirect or consequential, however caused or
arising (I) to Persons or property of the Tenant or any of the Tenant's Employees
or any other Persons on the Premises or elsewhere in, on or about the Building
or the Lands or any part thereof by or with the invitation, licence or consent of the
Tenant and/or (II) which is excluded from the Landlord's liability or responsibility
under Section 6.7(b);
(vii) any accident or occurrence in, on or at the Premises including, without limitation,
any such accident or occurrence causing injury or death to any Person or
damage to property or any other loss or injury whatsoever; and/or
(viii) any damage, destruction or need of repair or replacement to any part of, or
otherwise relating to, the Premises or any other part of the Building, or any
damages incurred by the Landlord or by any occupant of the Building or any part
thereof, caused by any act or omission of the Tenant or any of the Tenant's
Employees, notwithstanding any other provisions of this lease including, without
limitation, the provisions regarding the Landlord's repair obligations and Article
VII;
and, for greater certainty, whether or not any of the foregoing is caused, arising or
contributed to by the negligence or fault of the Landlord or any of the Landlord's
Employees. If the Landlord, without fault on its part, is made a party to litigation
commenced by or against the Tenant, the Tenant shall indemnify and hold harmless
the Landlord from and against all legal and other costs. The Landlord, at its option,
may participate in, or assume carriage of, any litigation or settlement discussions
relating to the foregoing, or any other matter for which the Tenant is required to
indemnify the Landlord under this lease. Alternatively, the Landlord may require the
Page 17
Tenant to assume carriage of and responsibility for all or any part of such litigation or
discussions. The Tenant shall pay all legal costs incurred or paid by the Landlord in
enforcing the provisions of this lease. For greater certainty the Tenant's obligations
contained in this Section shall survive the expiration or earlier termination of the Term.
6.7 Loss or Damage
The provisions of this Section 6.7 shall govern notwithstanding any other provision of
this lease.
(a) The Landlord shall not be liable for any death or injury arising from or out of any
occurrence whatsoever in, upon, at or relating to the Premises, the Building on the
Lands, or any part thereof, or damage to property of the Tenant or of others located on
the Premises, the Building or the Lands from any cause whatsoever, nor shall the
Landlord be responsible for any loss of or damage to any property of the Tenant or
others from. any cause whatsoever, whether or not such property is entrusted to the
care or control of the Landlord or any of the Landlord's Employees, nor shall the
Landlord be responsible for any indirect or consequential damages that may be
suffered or sustained by the Tenant or any others from any cause whatsoever, and in
each case whether or not any such death, injury, loss, damage or damages results from
the negligence or fault of the Tenant, the Landlord or any of the Landlord's Employees.
(b) Without limiting the generality of the foregoing, the Landlord shall not be liable or
responsible in any way for any death, injury (including, without limitation, personal
discomfort or illness) loss, damage or damages of or to Persons or property resulting,
directly or indirectly, from any of the following, whether or not such results from the
negligence or fault of the Landlord or any of the Landlord's Employees: (i) fire,
explosion, theft, breakage, falling plaster, falling ceiling tile, falling fixtures, steam, gas,
electricity, water, rain, flood, ice, snow or leaks into, in or from any part of the Premises
or Building or from any pipes (including, without limitation, water, steam, sprinkler and
drainage pipes), sprinklers, appliances, drainage or plumbing works, roof, windows or
exterior walls or subsurface of any floor or ceiling of the Premises or Building, or any
part thereof, or from the street or any other source or place whatsoever, or by
dampness, or by the existence, discharge, spillage or leakage of hazardous or toxic
substances, or by any other cause whatsoever; (ii) any suspension, non-operation,
failure, reduction, interruption or failure to supply or perform, for any reason or for any
period of time, of or in any of the services, equipment, facilities, systems (such as,
without limitation, the HVAC System) or Utilities or any public Utilities or any services
serving the Premises, or the Building; or any part thereof; (iii) delays in the performance
of any repairs, replacements, maintenance or Restoration for which the Landlord is
responsible under this lease; (iv) incurred by reason of the Landlord or any of the
Landlord's Employees entering upon the Premises to undertake any examination
thereof or any work or cleaning or performance of other services therein; (v) incurred by
reason of the supply or performance of any dealing, janitorial, pest extermination or
security obligations or services in any part of the Premises or the Building; or (vi) by
reason of inconvenience, annoyance or injury to business arising from the Landlord, the
Tenant or any others making or failing to diligently make, for whatever reason or cause,
any repairs, Alterations, additions, renovations, improvements or Restorations in or to
any part of the Premises, the Building, or the Lands.
(c) The Landlord shall not be liable or responsible in any way for any such death,
injury, loss or damage caused by other Tenants, occupants or Persons on or in the
Premises, the Building or the Lands, or any part thereof or by any occupants of any
adjacent property thereto.
(d) All property of the Tenant or of any of the Tenant's Employees kept or stored on
the Premises (including without limitation, all Leasehold Improvements leased by the
Tenant herein) shall be so kept or stored at the sole risk of the Tenant, and the Tenant
releases and agrees to indemnify the Landlord and save it harmless from and against
any claims arising out of any loss of or damage to such property, including, without
limitation, any subrogation claims by the Tenant's or any others' insurers, and the
Tenant shall make all claims for loss, damage or destruction of or to any such property
against the policies of insurance required to be maintained by the Tenant under this
lease.
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6.8 Benefit of Releases
Every indemnity, hold harmless provision, release and exclusion of liability herein
contained for the benefit of the Landlord and every waiver of subrogation for the benefit
of the Landlord contained in any insurance policy maintained by the Tenant shall
survive the expiration or earlier termination of the Term and shall extend to and benefit
all of the Landlord, its officers, employees and those for whom any of the Landlord,
such manager(s) and such agents, respectively, is in law responsible. Solely for such
purpose, and to the extent that the Landlord expressly chooses to enforce the benefits
of this Section for any or all of such Persons, it is agreed that the Landlord is the agent
or trustee for such Persons. No such indemnity, hold harmless provision, release or
exclusion of liability or waiver of subrogation for the benefit of the Landlord shall be
deemed to impose or imply any obligation, responsibility or liability whatsoever on the
Landlord, including, without limitation, any obligation to perform or do any act or thing,
except to the extent any such obligation, responsibility or liability of the Landlord is
expressly provided for under this lease.
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ARTICLE VII
DAMAGE AND DESTRUCTION
7.1 Damage to Premises, Building or Development
If the Premises or Building, or any part thereof, are damaged or destroyed, in whole or
in part, by fire or any other occurrence, then (i) this lease shall nonetheless continue in
full force and effect, (ii) there shall be no abatement of any Rent except to the extent
expressly provided in this Article, (iii) the following provisions of this Article shall apply
and (iv) notwithstanding any receipt by the Landlord of any insurance proceeds, and
notwithstanding any provision of this lease or obligation or requirement at law, in equity
or by statute to the contrary, the obligations of the Landlord to maintain, repair and
replace or to provide services or Utilities, if any, or to perform Restoration under this
lease shall be subject to the provisions of this Article and limited to the extent to which
the Landlord is required to be insured under this lease or is otherwise insured.
7.2 Insured Damage to Premises
If there is damage or destruction to the Premises caused by an occurrence against
which, and to not more than the extent that, the Landlord either is required to insure
pursuant to this lease or is otherwise insured (in this Article VII called "Insured
Damage"), and if (i) in the Architect's opinion, such Insured Damage is such as to
render the whole or any part of the Premises unusable or unsafe for the purpose of the
Tenant's use and occupancy and the Restoration of the Premises is not capable of
being completed with reasonable diligence within 180 days following such occurrence
or (ii) any Authority, requires that the Building or the Residential Building be demolished
or substantially demolished prior to any Restoration, then the Landlord may elect to
terminate this lease by giving written notice to the Tenant within sixty (60) days after
such occurrence. If the Landlord does not so elect to terminate this lease, the parties
shall diligently perform the Restoration of the Premises pursuant to Section 7.6.
7.3 .Uninsured Damage to Premises and Last Two Years
If there is damage or destruction to the Premises and, in the Architect's opinion, (i) such
damage or destruction is caused by an occurrence against which the Landlord is not
insured or required to insure or the cost of Restoration of which would be in excess of
the extent to which the Landlord is required to insure pursuant hereto or is otherwise
insured or (ii) the Restoration of the Premises is not capable of being completed within
sixty (60) days following the occurrence of such damage or destruction and such
damage or destruction occurs within two (2) years prior to the expiry of the stated Term
or any extension or renewal thereof and either there are no remaining rights in any
party hereto to extend or renew this lease or any party having the right to extend or
renew this lease fails to do so within fifteen (15) days after such occurrence, then, in
either event, the Landlord may elect to terminate this lease by giving written notice to
the Tenant within thirty (30) days after such occurrence. If the Landlord does not so
elect to terminate this lease, the parties shall diligently perform the Restoration of the
Premises pursuant to Section 7.6.
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7.4 Damage to Building or Develoament
If (i) in the Architect's opinion, Restoration of portions of the Building which affect
access or services essential to the Building or Premises is not capable of being
completed with reasonable diligence within one hundred and eighty (180) days
following the occurrence of damage or destruction to such portions or (ii) any Authority
requires that the Building be demolished or substantially demolished prior to any
Restoration following damage or destruction to the Building or any part thereof, in any
such case whether such damage or destruction is a direct or indirect result of any
occurrence of cause whatsoever, whether or not such occurrence or cause is insured,
and whether or not there is any damage or destruction to the Premises, then the
Landlord may elect to terminate this lease by giving written notice to the Tenant within
sixty (60) days after such cause or occurrence. If the Landlord does not so elect to
terminate this lease, the parties shall diligently perform the Restoration of the Premises
and Building to the extent of their obligations pursuant to Section 7.6 (subject to
Sections 7.2 and 7.3).
7.5 Termination
If the Landlord elects to terminate this lease under this Article by giving written notice to
the Tenant, then, notwithstanding the receipt by the Landlord of any insurance
proceeds, (i) this lease shall terminate on the date that such notice is given, (ii) the
Tenant shall immediately vacate and surrender possession of the Premises and (iii) all
Rent accrued to such termination date shall be apportioned and promptly paid without
any right of the Tenant to any abatement, deduction, counterclaim, set-off,
compensation or reduction whatsoever.
7.6 Restoration if Lease Not Terminated
If this lease is not terminated as provided in this Article, the Landlord, to the extent of
insurance proceeds which the Landlord receives or would have received if it had
maintained such insurance as is required to be maintained by the Landlord hereunder,
shall proceed to perform such Restoration to the Premises and Building limited to the
extent of its express obligations under this lease (which exclude, without limitation, the
Restoration of all Leasehold Improvements) and to the extent of which it is not the
Tenant's obligation to perform Restoration under any Article of this lease, and subject to
the provisions of this Article and the Tenant's obligations under this lease. The Tenant,
commencing on the seventh (7th) day following the Landlord's written notice to the
Tenant of the date of the Landlord's substantial completion of its Restoration to the
Premises, without interfering with the Landlord's Restoration, shall re-occupy the
Premises and during the thirty (30) day period commencing on such date (in this
Section called the "Tenant's Restoration Period") shall proceed to perform such
Restoration as is the Tenant's responsibility under this lease, including, without
limitation, the Restoration of all Leasehold Improvements. The respective obligations of
the Landlord and the Tenant with respect to Restoration of the Premises following any
damage or destruction under this Article shall be performed in accordance with all
applicable obligations to perform Restoration contained herein (including, without
limitation, Section 5.3) with due diligence and dispatch. The Tenant's obligations to
perform Restoration to the Premises after such damage or destruction shall be
performed at the Tenant's sole cost and without any contribution thereto by the
Landlord (save and except to the extent as may otherwise be specifically provided in
this lease) whether or not (i) the Landlord had at any time made any contribution to the
cost of supply, installation or construction of any Leasehold Improvements in the
Premises (including, without limitation, any inducement, allowance or loan), (ii) the
Landlord had constructed or provided all or part of such Leasehold Improvements at the
Landlord's sole cost, (iii) the Landlord, the Tenant or both maintain insurance with
respect to such Leasehold Improvements or (iv) the damage or destruction was caused
by the Landlord's fault or negligence. In any event, within the Tenant's Restoration
Period, the Tenant shall complete its Restoration to the Premises and shall fully fixture
and staff the Premises and recommence the operation of the Tenant's use of the
Premises as permitted and required pursuant to this lease. If the damage or
destruction is such as to render the whole or any part of the Premises unusable in
whole or in part for the purpose of the Tenant's use and occupancy as permitted under
this lease, then Net Rent payable hereunder shall abate to the extent that the Tenant's
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use and occupancy of the Premises is in fact thereby diminished, as determined by the
Architect in its sole discretion, from the date of such damage or destruction until the
earlier of (i) the expiry of the Tenant's Restoration Period and (ii) the date on which the
Tenant first commences the use and occupancy as required by this lease of any part of
the Premises which had been so damaged or destroyed, and then only to the extent
that the damage or destruction to the Premises is Insured Damage.
7.7 Restoration of Premises or Building and Insurance Proceeds
If there is damage or destruction to the Premises or the Building, or any part thereof,
and if this lease is not terminated pursuant hereto, the Landlord, in performing the
Restoration of the Premises or Building, or any part thereof, as required hereby, shall
not be obliged to perform such Restoration in accordance with the plans, drawings or
specifications for the Premises or the Building, or any part thereof, as they existed prior
to such damage or destruction but the Landlord may perform such Restoration in
accordance with any plans, drawings and specifications chosen by the Landlord in its
sole discretion. Without limiting the generality of the foregoing, the Landlord shall be
entitled to demolish and rebuild the Premises or Building, or any part thereof. The
proceeds of insurance, which is required to be maintained by the Tenant and which
insurance is required to name the Landlord and any others as insureds with loss
payable to the Landlord and with insurance proceeds assigned to the Landlord, shall be
and are hereby assigned and made payable to the Landlord. If the Tenant receives any
such insurance proceeds, the Tenant shall receive and hold such proceeds in trust for
the Landlord and shall promptly deliver them to the Landlord. To the extent that such
proceeds shall have been paid to the Landlord, they shall be released to the Tenant
(provided the Tenant is not then in default hereunder) as follows: (i) if this lease is not
terminated pursuant hereto, (I) following the Tenant's written request, (II) in accordance
with all applicable laws, (III) in progress payments, but on a "cost to complete" basis, at
stages determined by the Architect, (IV) following receipt by the Landlord of a certificate
from the Architect, in substance and form satisfactory to the Landlord, inter alia, that
Restoration to each stage has been satisfactorily completed by the Tenant, (V)
provided that, to the Landlord's satisfaction, such Restoration is completed free of liens
and without notice or registration of liens, provided that, if the Tenant defaults in making
such Restoration or any part thereof and if the Landlord shall perform such Restoration
or part thereof, the proceeds may be applied by the Landlord to the costs thereof; or (ii)
if this lease is terminated pursuant hereto, but only to the extent of the value of any
Tenant's fixtures or personal property of the Tenant (to the extent that the Tenant is not
indebted to the Landlord or in default under the provisions of this lease) but not to the
extent of the value of any Leasehold Improvements made by, on behalf of or for the
benefit of the Tenant to the Premises.
7.8 Determination of Matters
For the purposes of this Article, the date of any damage or destruction, the
determination of and extent to which any area(s) of the Premises of the Building are
damaged, destroyed, rendered unsafe or are not capable of being used, the times
within which Restoration may be made and the date that it is completed or substantially
completed shall be determined by the Architect in its sole discretion, such determination
to be final and binding on the parties.
7.9 Limitation of Liability
Notwithstanding any other provision of this lease, the Landlord shall not be liable for
any damages, direct, indirect or consequential, of any nature whatsoever, (including,
without limitation, loss of business income or other economic loss to the Tenant), of the
Tenant or its clerks, employees, customers, suppliers or other Persons dealing directly
or indirectly with the Tenant or for whom the Tenant is in law responsible arising out of
the failure for any cause whatsoever of the Landlord or others to perform or complete
Restoration of the Premises or Building, or any part thereof, within any period of time
following the occurrence of damage or destruction contemplated by this Article, and the
Tenant shall indemnify and save harmless the Landlord from and against all such
damages.
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ARTICLE VIII
TRANSFERS
8.1 Transfers
The Tenant shall not assign this Lease and License, or sub-let, or license any person to
use the whole or any portion of the Demised Premises or any area which is part of the
Licensed Areas without first obtaining the Consent of the Lessor, which consent shall
not be unreasonably withheld. Any consent by the Landlord to any Transfer shall not
constitute a waiver of the necessity for such consent to any subsequent Transfer. This
prohibition against any Transfer shall include a prohibition against any Transfer by
operation of law. No Transfer shall take place by reason of the failure of the Landlord to
give notice to the Tenant within the 30 days required by Section 8.2.
8.2 Landlord's Right to Terminate
(a) If the Tenant intends to effect a Transfer, the Tenant shall give prior written
notice to the Landlord of such intent specifying the identity of the Transferee, the type
of Transfer contemplated, the portion of the Premises affected thereby and the financial
and other Terms of the Transfer, and shall provide such financial, business or other
information relating to the proposed Transferee and its principals as the Landlord
requires, together with copies of any documents which record the particulars of the
proposed Transfer.
(b) The Landlord, within thirty (30) days after having received such notice and all
requested information and copies of documents, shall give written notice to the Tenant
either that (i) it consents or does not consent to the Transfer in accordance with the
provisions and qualifications of this Article VIII or (ii) it elects to cancel this lease as to
the whole or part, as the case may be, of the Premises affected by the proposed
Transfer, in preference to giving such consent.
(c) If the Landlord elects to terminate this lease, (i) it shall stipulate in its notice the
termination date of this lease, which date shall be no earlier than thirty (30) days and no
later than ninety (90) days following the giving of such notice of termination and(ii) the
Tenant, within ten (10) days after the Landlord's notice of termination is given, shall give
written notice to the Landlord either to refrain from such Transfer or to accept
termination of this lease.
(d) If the Tenant either fails to give such notice within such ten (10) days or gives
such notice within such ten (10) days agreeing to accept the Landlord's termination, this
lease, as to the whole or affected part of the Premises, as the case may be, shall
terminate on the date of the termination stipulated by the Landlord in its notice of
termination. If the Tenant gives such notice to the Landlord within such ten (10) days.
agreeing to refrain from such Transfer, then the Landlord's election to terminate this
lease shall become void.
8.3 Conditions of Transfer
(a) If there is a Transfer, the Landlord may collect rent from the Transferee and
apply the amount collected to the Rent payable under this lease, but no acceptance by
the Landlord of any payments by a Transferee shall be deemed to be a waiver of the
Tenant's covenants or the provisions of Article VIII nor any acceptance of the
Transferee as Tenant nor a release of the Tenant from its liabilities or the further
performance by the Tenant of its obligations under this lease. Any consent by the
Landlord shall be subject to the Tenant and Transferee executing and delivering an
agreement with the Landlord, in substance and form satisfactory to the Landlord,
agreeing, inter olio: (i) that the Transferee will be bound by all of the Terms, covenants
and conditions of this lease, inducing, without limitation, the Terms, covenants and
conditions contained in Section 1.4, as if such Transferee had .originally executed this
lease as Tenant.
(b) Notwithstanding any Transfers (whether or not permitted or consented to by the
Landlord or otherwise), subsequent amendments to this lease or Alterations, the
Page 23
Tenant shall be jointly arid severally liable with the Transferee under this lease and the
Tenant shall remain bound by this lease and shall not be released from performing and
observing all of the Terms, covenants and conditions of this lease, in each case
throughout the Term and any and all renewals or extensions thereof provided for.
herein.
(c) Any and all Transfers (whether or not permitted or consented to by the Landlord
or otherwise) and the Landlord's consent to any Transfer shall be subject to but not
limited to the condition that the Rent and Additional Rent payable by the Transferee
shall not be less than the Net Rent and Additional Rent, respectively, payable by the
Tenant under this lease as at the effective date of the Transfer.
(d) Notwithstanding the effective date of any Transfer, all Net Rent and Additional
Rent for the month in which such effective date occurs shall be paid in advance by the
Tenant so that the Landlord will not be required to accept partial payments of Net Rent
and Additional Rent for such month from either the Tenant or Transferee.
(e) Any document evidencing or consenting to any Transfer permitted or consented
to by the Landlord, or setting out any Terms or conditions applicable to such Transferor
the rights and obligations of the Tenant or Transferee thereunder, shall be subject to
the Landlord's prior written approval and, at the option of the Landlord, shall be
prepared by the Landlord or its solicitors. All associated legal costs shall be paid by the
Tenant to the Landlord, as Additional Rent, on demand and as a condition to the
Landlord's consent to any Transfer.
8.4 Change of Control
If the Tenant is at any time a corporation or partnership, any actual or proposed
Change of Control in such corporation or partnership shall be deemed to be a Transfer
or proposed Transfer, respectively, and subject to all of the provisions of this Article
VIII. The Tenant shall make available to the Landlord or its representatives all of its
corporate or partnership records, as the case may be, for inspection at all reasonable
times, in order to ascertain whether any Change of Control has occurred.
8.5 No Advertising
The Tenant shall not advertise that the whole or any part of the Premises are available
for a Transfer and shall not permit any broker or other Person to do so unless the text
and format of such advertisement is prior approved in writing by the Landlord.
8.6 Assignment by Landlord
The Landlord shall have the unrestricted right to lease all or any parts of the Building
and this lease or any interest of the Landlord in this lease. To the extent that the lessee
from the Landlord assume the obligations of the Landlord under this lease, the Landlord
shall thereupon and without further agreement be released of all obligations and
liabilities under this Lease.
Page 24
ARTICLE IX
DEFAULT
9.1 Default and Remedies
If and whenever an Event of Default occurs, the Tenant shall be deemed to be in
default under this lease and, without prejudice to any other rights or remedies which the
Landlord may have under this lease or at law, in equity or by statute, the Landlord shall
have the following rights and remedies, which are cumulative and not alternative:
(i) to terminate this lease by written notice to the Tenant;
(ii) to enter the Premises as agent of the Tenant and as such agent to relet the
Premises for whatever Term and on whatever Terms and conditions as the
Landlord in its discretion may determine and to receive the Rent therefor and, as
agent of the Tenant, to take possession of any property on the Premises, to
store such property at the expense and risk of the Tenant or to sell or otherwise
dispose of such property in such manner as the Landlord may see fit without
notice to the Tenant; to make such Alterations to the Premises as the Landlord
may see fit to facilitate their reletting; and to apply the net proceeds of any such
sale or reletting first, to the payment of any expenses incurred by the Landlord
with respect to any such reletting, Alterations or sale, second to the payment of
any indebtedness of the Tenant to the Landlord other than Rent and third, to the
payment of Rent in arrears, with the residue to be held by the Landlord and
applied in payment of future Rent as it becomes due and payable. The Tenant
shall remain liable for any deficiency to the Landlord. No such entering, taking
possession, storing, selling, disposing, Alterations or reletting shall constitute a
termination of this lease unless written notice is given by the Landlord to that
effect;
(iii) to remedy or attempt to remedy any default of the Tenant under this lease, at the
Tenant's sole cost and expense, and to enter upon the Premises for such
purposes. No notice of the Landlord's intention to perform such covenants need
be given to the Tenant unless expressly required by this lease. The Landlord
shall not be liable to the Tenant for any loss, injury or damage whatsoever,
howsoever caused by any acts or omissions of the Landlord in remedying or
attempting to remedy such default nor shall such entry, remedying or attempting
to remedy constitute (I) a termination of this lease (unless written notice is given.
to that effect), (II) a breach of any covenant for quiet enjoyment or other
Landlord's covenantor (III) a constructive or actual eviction or other infringement
of any other of the Tenant's rights, and the Tenant shall pay to the Landlord all
expenses in connection with remedying or attempting to remedy such default;
and
(iv) to recover from the Tenant all damages and expenses incurred by the Landlord
as a result of any Event of Default or any breach of the Tenant including, without
limitation, if the Landlord terminates this lease, the cost of recovering the
Premises, solicitor's fees (on a solicitor and his client basis) and including,
without limitation, the worth at the time of such termination of the excess, if any,
of the amount of Rent and other charges required to be paid pursuant to this
lease for the remainder of the Term over the then reasonable rental value of the
Premises for the remainder of the Term, all of which amounts shall be
immediately due and payable by the Tenant to the Landlord. In determining the
Additional Rent which would be payable by the Tenant after. such termination or
re-entry for an Event of Default, the annual Additional Rent for each year of the
unexpired Term shall be considered to be equal to twelve (12) times the average
monthly payments of Additional Rent paid and/or payable by the Tenant.
Page 25
9.2 Distress
Notwithstanding any provision of this lease or any provision of applicable legislation,
none of the goods and chattels of the Tenant on the Premises at any time during the
Term shall be exempt from levy by distress for Rent in arrears, and the Tenant waives
any such exemption. If the Landlord makes any claim against the goods and chattels of
the Tenant by way of distress, this provision may be pleaded as an estoppel against the
Tenant in any action brought to test the right of the Landlord to levy such distress.
9.3 Costs
The Tenant shall pay to the Landlord on demand all damages and costs (including,
without limitation, all legal fees on a solicitor and its client basis) incurred by the
Landlord in enforcing the Terms of this lease, or with respect to any matter or thing
which is the obligation of the Tenant under this lease, or in respect of which the Tenant
has. agreed to insure or to indemnify the Landlord.
9.4 Set-Off and Accord and Satisfaction
The Tenant hereby waives the benefit of any statutory or other rights in respect of
abatement, reduction; set-off, counterclaim, demand, deduction or compensation in its
favour at the time hereof and at any future time. No endorsement or statement on any
cheque or any letter accompanying any cheque or payment as Rent shall be deemed
an acknowledgement by the Landlord of full payment, or an accord and satisfaction,
and the Landlord may accept and cash any such cheque or payment without prejudice
to the Landlord's right to recover the balance of such Rent or pursue any other right or
remedy provided in this lease or at law, in equity or by statute. The Landlord may apply
or allocate any sums received from or due to the Tenant against any amounts due and
payable under this lease in such manner as the Landlord sees fit.
9.5 Survival of Obligations
If the Tenant has failed to fulfil any of its obligations under this lease with respect to the
maintenance, repair, replacement or Alteration of the Premises or Building, or any part
thereof, or removal of Leasehold Improvements or its fixtures or personal property from
the Premises during or at the expiration or earlier termination of the Term, such
obligations, and the Tenant's liabilities and the Landlord's rights with respect thereto,
shall survive the expiration or earlier termination of the Term.
9.6 Lien
If the Tenant, at any time prior to or during the Term or at the expiration or earlier
termination thereof, is in breach of performing or observing any provision of this lease,
the Landlord has a lien on all fixtures, equipment and facilities and other personal
property of the Tenant as security for the performance and observance of such
provision and as security against loss, costs or damages resulting from any such
breach by the Tenant and such fixtures, inventory, equipment and facilities and other
personal property shall not be removed by the Tenant until such breach is cured, unless
otherwise permitted in writing by the Landlord. The provisions of this Section shall
survive the expiration or earlier termination of the Term.
Page 26
9.7 Waiver and Remedies Cumulative
The waiver by the Landlord of any breach of any provision herein shall not be deemed
to be a waiver of such provision or of any subsequent breach thereof or of any other
provision in this lease. The subsequent acceptance of any Rent or other amount herein
by the Landlord shall not be deemed to be a waiver of any provision herein or of any
preceding breach by the Tenant of any provision herein, even if the Landlord had
knowledge of such preceding breach. The Landlord's acceptance of performance of
any provision herein by any Person other than the Tenant shall not be deemed to be an
acceptance or admission by the Landlord of any rights, title or interest of such Person
as Transferee unless in accordance with Article VIII. Neither provision in this lease nor
any breach of any such provision (whether or not continuing or recurring) shall be
deemed to have been waived by the Landlord unless such waiver is expressly set out in
writing and signed by the Landlord. All rights and remedies of the Landlord under this
lease, at law, in equity and/or by statute shall be cumulative and not alternative.
Whenever the Tenant seeks a remedy to enforce the observance or performance of
any provision in this lease on the Landlord's part to be observed or performed, the
Tenant's only remedy shall be for direct damages (but not indirect or consequential
damages) that the Tenant shall be able to prove in a court of competent jurisdiction that
it has suffered as a direct result of a breach by the Landlord in the observance or
performance of any such provision. The right of the Tenant to seek a remedy is,
however, expressly subject to the provisions of this lease.
Page 27
ARTICLE X
SPECIAL PROVISIONS
10.1 Parkins
The Tenant acknowledges that parking available on the Lands shall be available to the
Tenants, its agents, employees, invitees and customers and to the Landlord, its agents,
officers, employees, invitees and members of the public who use any part of the
Building, on a first come, first serve basis. If either the Landlord or the Tenant
considers that too few parking spaces are available on the Lands, the Landlord and the
Tenant will cooperate in achieving an agreement between them to provide for an
increase in the number of parking spaces. The Tenant acknowledges that in the case
of the Landlord such an agreement would be made in the context of the annual budget
process of the Landlord.
10.2 Extension or Renewal
As a matter of courtesy but not of legal obligation and without derogating in any way
from the other provisions of this lease, at least nine (g) months prior to the expiry of the
Term or any renewal or extension thereof the Landlord will attempt to determine if it will
require vacant possession of the Premises on the expiry of the Term or the renewal or
extension thereof and to give the Tenant written notice of the Landlord's determination
if the Landlord determines that it will not require vacant possession of the Premises at
such time. At such time the Landlord and the Tenant will act in good faith to attempt to
settle the Terms and conditions of a renewal or extension of the lease failing which the
Tenant acknowledges that the Landlord is free to take vacant possession of the
Premises or to lease them to a Person other than the Tenant for a Term commencing
after the expiry of this lease or the extension or renewal of it on Terms and conditions
that the Landlord in its sole discretion considers to be expedient and without any liability
to the Tenant.
10.3 Operation of Community Care Service
Without derogating from the other provisions of this lease, the Tenant shall comply with
all applicable laws, the Terms and conditions of licence or permit issued to the Tenant
by any Authority. The Tenant shall ensure that the Premises are managed and
operated in a safe manner at all times so as to protect the health, safety and well-being
of its staff, customers and visitors. The Tenant shall display warning signs as may be
directed by the Landlord in its sole discretion to ensure public safety. Forthwith after
each incident occurs involving the fatality of or life-threatening injury to any Person
using or occupying the Premises or any part thereof, the Tenant shall notify the
Authorized Officer of the same and the circumstances and cause of the incident. If the
Authorized Officer considers it appropriate to do so the Landlord may enter on the
Premises and examine the records of the Tenants in order to conduct the Landlord's
own- investigation of the circumstances and cause of the incident.
10.4 Physical Plant and Equipment
The Tenant throughout the Term shall maintain a properly documented system of
quality control designed to ensure the Premises are properly maintained. Monitoring
shall be undertaken by the Tenant in accordance with all manufacturers or legal
requirements. The Tenant shall not carry out any structural Alterations to the Premises
without the approval of the Authorized Officer. The Tenant will not permit the
disconnection of any electricity, gas or water supply to any part of the Premises without
permission of the Authorized Officer. The Landlord will conduct and pay for the annual
inspection of the fire alarm system, emergency lighting, fire extinguishers and sprinkler
systems and make appropriate repairs in the Inspection Report. The Tenant is
responsible to ensure that the system is operational at all times and to immediately
advise the Authorized Officer of any deficiencies. The cost of inspections will be borne
by the Landlord.
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10.5 Management and Operation of Premises
The Tenant throughout the Term shall undertake (i) the management and operation of
the Premises; (ii) the supervision of the activities which take place on the Premises;
ensuring the well-being and safety of anyone entering onto the Premises (i.e. staff,
public); (iii) the cleaning and property maintenance of internal and external areas of the
Premises; (iv) the provision of equipment for the purposes of cleaning the Premises; (v)
the provision of security in and about the Premises; (vi) if a monitoring security system
is in place on the Premises, the payment of the costs of normal upkeep and
maintenance; (vii) providing the Authorized Officer and the Fire Department of the
Landlord with keyed access to the Premises; (viii) providing the Authorized Officer with
a list of names and telephone numbers of those having keyed access, updated as
needed; (ix) the payment and supply all day-to-day costs of the Premises including, but
not limited to, cleaning supplies and operating supplies; and (x) the payment and
obtaining of appropriate current licenses, approvals and certificates as required to use
and operate the premises in accordance with this lease.
10.6 Disposal of Waste
The Landlord shall make arrangements and pay for the cost of the disposal of all
effluent, waste and refuse from all parts of Premises from the Commencement Date
until the day after the day of termination of the lease. The Tenant shall ensure that all
waste and refuse is stored, awaiting collection, in industry standard containers used for
normal disposal of domestic and commercial waste and refuse and in all cases, is to be
disposed of appropriately. The Tenant shall ensure that the volume of any effluent,
waste or refuse at the leased space does not exceed the capacity of the storage
containers provided. The Tenant shall not dispose by burning any waste or refuse at
the Facility by burning the same.
10.7 Quality Control
The Authorized Officer shall oversee contract compliance on behalf of the Landlord and
will have the right at any time to inspect the Premises and to meet with the Tenant to
discuss the compliance with this lease. In the event of a breakdown of communication,
the Tenant may appear as a delegate to Council of the Landlord. The Tenant shall:
(a) provide services to a standard which is to the reasonable satisfaction of the
Landlord and to comply in all respects to this lease;
(b) deal with any complaints and suggestions received in a prompt, courteous and
efficient manner;
(c) maintain an accurate record of complaints that will be available for discussion by
the Authorized Officer.
The Tenant shall throughout the Term maintain a properly documented system of
quality control designed to ensure that the Premises are clean and properly maintained:
The Tenant may be invited to meet with the Authorized Officer and any other
appropriate parties on a regular basis to discuss any shared issues relating to the
Premises and shall attend such meetings. The Authorized Officer may mediate any
differences which may arise and to ensure open communication among all the
components of the Premises.
Page 29
10.8 Marketing and Advertising
All marketing and advertising of the Premises and associated events will be the
responsibility of the Tenant and will be carried out at its expense. The Tenant shall
comply with regulations and standards set by the Canadian Advertising Council and
display advertising that is of an acceptable, high moral standard, non-political and in
good taste. The Authorized Officer retains the right to prohibit at any time material
which the Authorized Officer deems may offend the public or embarrass the Landlord,
or detract from the aesthetics of the Building. The Landlord may provide the Tenant
with information which may be posted in the leased space. Approval must be given by
the Authorized Officer for any external signage required by the Tenant; such approval
shall not be unreasonably withheld.
10.9 Concessions/Catering
The Landlord reserves the rights to install and operate all concession/snack/bar
sales/vending machines sales within the Complex.
Page 30
ARTICLE XI
GENERAL PROVISIONS
11.1 Rules and ReQUlations
The Tenant shall comply with, and shall cause its agents, employees, invitees,
licensees, contractors, sub-Tenants and assignees to comply with, all Rules and
Regulations, and amendments thereto, established by the Landlord from time to time
including, without limitation, those set out in Schedule "D" attached heretc. The
Landlord shall have no obligation to enforce any of the Rules and Regulations or the
provisions of any other release or agreement against any other Tenant or occupant of
the Building and the Landlord shall have no liability to the Tenant howsoever caused
with respect thereto.
11.2 De1ay
Except as may be otherwise expressly provided in this lease, whenever and to the
extent that the Landlord or Tenant is delayed or restricted in or prevented from the
fulfilment of any obligation under this lease (other than the obligation to pay any sum of
money and to surrender the Premises on the expiry or earlier termination of the Term)
by reason of strikes, lock-outs, acts of God, restrictive laws or regulations of any
Authority, unavailability of materials or services or other occurrences or matters which
are not its fault or not within its reasonable control, then the performance of such
obligation shall be excused during the period in which such circumstances operate to
delay or restrict or prevent the fulfilment of such obligation and the party so delayed
shall be entitled to perform and fulfil such obligation within an equivalent time period
thereafter.
11.3 Overholding
If the Tenant remains in possession of the Premises after the end of the Term with the
consent of the Landlord but without the parties having executed and delivered a new
lease or an agreement extending or renewing the Term, there shall be no tacit renewal
of this lease or extension or renewal of the Term, and the Tenant shall be deemed to
be occupying the Premises as a Tenant from month to month on the same Terms and
conditions as are set forth in this lease (including, without limitation, those regarding the
payment of Rent), so far as they are applicable to a monthly tenancy, except that Net
Rent shall be monthly, payable in advance on the first day of each month, in an amount
equal to twice the monthly amount of Net Rent payable. during the last full month of the
Term or any extension or renewal Term, as the case may be.
11.4 Notices
Any notice, demand, request, consent or other instrument ("Notice") which may be or is
required to be given under this lease shall be in writing and shall be delivered in person
or sent by registered mail postage prepaid addressed (i) if to the Landlord,
Municipality of Clarington,
40 Temperance Street,
Bowmanville, Ontario, L1 C 3A6,
Attention: Purchasing Manager
and (ii) if to the Tenant, at the Premises, Attention: Administrator, with notice to;
The Director, Finance and Administration,
16100 Old Simcoe Road,
Port Perry, ON L9L 1 P3
Any such Notice shall be deemed to have been given and received on the day upon
which personal delivery is made or, if so mailed, then 48 hours following the date of
mailing. Either party may give Notice to the other of any change of address (other than
the Premises) whereupon the address therein specified shall be deemed to be the
address of such party for Notice. If postal service is interrupted or substantially delayed,
all Notices shall be delivered in person as provided above.
Page 31
11.5 Successors
The rights, obligations and liabilities created by this lease shall enure to the benefit of
and shall bind the successors and assigns of the Landlord and the heirs, executors,
administrators and permitted successors and assigns of the Tenant. No rights,
however, shall enure to the benefit of any Transferee unless the provisions of Article
VIII are complied with.
11.6 Covenants and Joint and Several Liability
Every obligation of the Landlord or the Tenant expressed in this lease, even though not
expressed as a covenant, shall be deemed to be a covenant for all purposes. The word
"Tenant" shall be deemed to mean each and every Person or party mentioned as
Tenant herein. If, at any time, there is more than one Tenant or more than one Person
constituting the Tenant, their covenants shall be considered to be joint and several and
shall apply to each and every one of them, and each of them acknowledges that it shall
have no right to any benefit of division or discussion. If the Tenant is or becomes a
partnership, each Person who is or shall become a member of such partnership or its
successors shall be and continue to be jointly and severally liable for the pertormance
of all covenants of the Tenant pursuant to this lease, notwithstanding the dissolution of
such partnership or its successors and whether or not such Person ceases to be a
member of such partnership or its successors.
11.7 Heading. Table of Contents. Lease Summary
The Article and Section headings, table of contents and lease summary, if any,
appearing in this lease are inserted only as a matter of convenience, are of no force or
effect and in noway affect the substance or interpretation of this lease or constitute a
representation of any kind.
11.8 Extended Meanings
The words "herein", "hereof', "hereunder" and similar expressions used in this lease
relate to the whole of this lease and not only to the provisions in which such
expressions appear. This lease shall be read with all changes in number and gender
as may be appropriate or required by the context. Any reference to the Tenant
includes, in relation to a provision to be performed or observed by the Tenant and
where the context allows, the employees, agents, invitees, visitors, customers,
contractors and licensees of the Tenant and all others over whom the Tenant might
reasonably be expected to exercise control and the Tenant shall cause such Persons to
perform and observe such provisions including, without limitation, the Rules and
Regulations.
11.9 Partiallnvalidity
If all or any part of any provision is held to be or rendered illegal or unenforceable it
shall be considered separate and severable from this lease and the remaining parts of
this lease shall remain in force and effect and shall bind the parties as though the illegal
or unenforceable provision or part thereof had never been included in this lease.
11.10 Entire Agreement
This lease and the Schedules attached hereto set forth the entire agreement between
the Landlord and Tenant concerning the Premises, Building and the Lands and there
are no covenants, representations, agreements, warranties, conditions or
understandings in any way relating to the Premises, the Building or the Lands, or any
part thereof, or the subject matter of this lease or the Offer to Lease, whether
expressed or implied, collateral or otherwise, either oral or written, whether by the
Landlord or any agent or representative, their respective shareholders, directors,
officers, employees or rental agents or by any others, except those set forth in this
lease or deemed to form part of and to be included in this lease pursuant to Section
1.3. This lease and its Schedules may not be modified except by agreement in writing,
executed and delivered by the Landlord and Tenant.
Page 32
11.11 Governing Law
This lease shall be construed in accordance with and governed by the laws of the
Province of Ontario and/or the Government of Canada, if applicable to any portion of
the Lease.
11.12 Time of the Essence
Time shall be of the essence of this lease and every part hereof.
11.13 Quiet Enioyment
Subject to Section 4.2, if the Tenant pays Rent, fully performs all of its obligations under
this lease, and there has been no Event of Default, the Tenant shall be entitled to
peaceful and quiet enjoyment of the Premises for the Term without interruption or
interference by the Landlord or any Person claiming through the Landlord.
11.14 No Partnership or Agency
The Landlord does not in any way or for any purpose become a partner of the Tenant in
the conduct of its business, or otherwise, or a joint venturer, or a member of a joint
enterprise both the Tenant, nor is the relationship of principal and agent created as a
result of the catering into of this lease or the Offer to Lease.
11.15 Signs
(a) Subject to Section 5.04, the Tenant may erect such signs on the premises in
accordance with the Building's standards and in accordance with municipal laws as it
considers necessary for the proper conduct of its business with prior approval of the
Landlord. All such signs shall be removed from the Premises at the end of the Term or
any renewal thereof and the Tenant shall compensate the Landlord for any damage
caused to the Premises or Building, if applicable, by such removal, save and except
that caused by local weather and ambient. conditions.
(b) The Landlord shall provide adequate space on the directory of the Building and
that of each floor of the Premises and on any pylon sign. of the Building for the Tenant's
signage requirements where practicable. The Tenant shall provide the Landlord with
the specifications of its signage requirements before the Commencement Date, and
from time to time, as required by the Region.
Page 33
ARTICLE XII
SPECIAL PROVISIONS
12.1 Schedules
Schedules "A" to "C" inclusive, form part of and are included in this lease.
Page 34
IN WITNESS WHEREOF the Landlord and Tenant have executed this lease under
seal.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By: j~ ~
-~
,}~ :7~At~Rr1BQ~ t~{4 Mgry-_Novak, Deputy Mayor
- --_ ` i
By: ~ ~ - -
atti ie, rk --~ - -- _ -
Date: November 17, 2010
COMMUNITY CARE DURHAM
Name: Title:
.~A GCA.fA Muc c.o i% .0/~E~.C t.a A+rc.S
• c: R o.v, N
sy:
Name: Title:
~i~Erta' F~ u f't£'w-. /cr DrRCC,-s~.t
Date: M' ~ ~~ ~ 20 rc
Page 35
SCHEDULE"A"
FLOOR PLAN
Page 36
SCHEDULE"B"
DEFINITIONS
In this lease and in the Schedules to this lease:
"Additional Rent" means all sums of money required to be paid by the Tenant under
this lease (except Net Rent and except as may otherwise be expressly provided in this
lease) whether or not designated "Additional Rent" or payable to the Landlord or
otherwise.
"Alterations" means all repairs, replacements, improvements, additions or Alterations
to the Premises by the Tenant.
"Architect" means the Architect from time to time named or employed by the Landlord.
"Authorities" means the municipal and regional, provincial and federal government
including, without limitation, their agencies, commissions, Authorities, branches or
departments and any other governmental body or corporate authority having or claiming
jurisdiction over the Building or the Premises, or any part thereof, or over the operations
of the Landlord or the Tenant. Any reference to the Term "Authority" shall include,
without limitation, the insurance companies writing the insurance policies covering the
Building or Premises, or any part thereof, the Insurers Advisory Organization of the
Landlord or Owner(s) or any other body hereafter constituted exercising similar
functions, and the police and fire departments having or claiming jurisdiction over the
Building or Premises, or any part thereof, unless there is something in the context
inconsistent therewith.
"Authorized Officer" means the Director of the Landlord's Department of Community
Services or his designate.
"BOMA" means the "Standard Method for Measuring Floor Area in Office Buildings
(American National Standard Z 65.1-1980) prescribed by Building Owners and
Managers Association International, reprinted May, 1981.
"Building" means the Lands and the building known municipally as of the date of this
lease as the Garnet B. Rickard Recreation Complex, and which is known for municipal
purposes as 2440 Hwy 2, Bowmanville, and is located on a portion of the Lands.
"Business Tax" means (i) all Taxes, rates, duties, assessments and other charges that
are levied, rated, charged or assessed by any Authority against or in respect of all
Leasehold Improvements, Trade Fixtures and Tenant's personal property on or in the
Premises or any parts thereof, or the Landlord or Owner(s) on account of its ownership
thereof or interest therein and (ii) every tax and license fee which is levied, rated,
charged or assessed against or in respect of any and every business carried on in the
Premises or in respect of the use or occupancy thereof or any other part of the Building
by the Tenant and every subtenant or licensee or permitted occupant of the Tenant or
against the Landlord or Owner(s) on account of its ownership thereof or interest therein.
"Change of Control" means, the case of any corporation or partnership, the Transfer
or issue by sale, assignment, disposition, subscription, transmission on death,
mortgage, charge, security interest, operation of law or otherwise, of any shares, voting
rights or interest which would result in any change in the effective control of such
corporation or partnership.
"Commencement Date" means the date on which the Term shall commence under
Section 1.2.
Page 37
"Common Facilities" means the lobbies, public entrances and washrooms within the
Building.
"Construction Area of the Building" is measured in accordance with BOMA, subject
to the Terms hereof, and means the "Construction Area" of the Building, all as
determined by the Architect. The Construction Area of the Building may be adjusted by
the Architect from time to time to take account of any structural, functional or other
change affecting the same.
An "Event of Default" shall occur whenever: (i) the Tenant fails to pay any Rent or
other sums due under this lease on the day or dates appointed for the payment thereof,
whether or not any notice of such failure is given to the Tenant or any demand for
payment has been made by the Landlord; (ii) the Tenant fails to observe or perform any
of the Terms, covenants or conditions of this lease to be observed or performed by the
Tenant (other than the payment of Rent and the Terms, covenants and conditions set
out below under (iii) to (x), inclusive, of this paragraph, for which no notice is required)
and (I) fails to remedy such failure within fifteen (15) days (or such shorter period as
may be provided in this lease) or (II) if such failure cannot reasonably be remedied
within fifteen (15) days or such shorter period and the Tenant fails to commence to
remedy such failure within such fifteen (15) days or shorter period or thereafter fails to
proceed diligently to remedy such failure, in either case after notice in writing from the
Landlord to the Tenant; (iii) the Tenant or Indemnifier becomes bankrupt or insolvent or
takes the benefit of any statute for bankrupt or insolvent debtors or makes any
proposal, assignment, arrangement or compromise with its creditors, or if a petition in
bankruptcy is filed against the Tenant or Indemnifier or any steps are taken or
proceedings commenced by anyone or any court or governmental body for the
dissolution, winding-up or other termination of the Tenant's or Indemnifier's existence or
the liquidation of its assets; (iv) a trustee, receiver, receiver/manager or like Person is
appointed with respect to the business or assets of the Tenant or Indemnifier; (v) this
lease or any of the Tenant's assets are seized or taken under any writ of execution or
similar process or if any encumbrancer of this lease or the Tenant's assets shall take
any action to enforce its security, (vi) the Tenant purports to make or makes any
Transfer or the Premises or any part thereof is occupied or used by any Person or for
any business or purpose other than in compliance with the provisions of this lease or if
the Tenant suffers to exist, creates or incurs any charge, privilege, pledge, security
interest or other encumbrance whatsoever on any of its moveable effects or chattels
situated in the Premises; (vii) the Tenant abandons or attempts to abandon the
Premises or sells or disposes of its goods or chattels or removes them from the
Premises so that there would not in the event of such sale, disposal or removal be
sufficient goods and chattels of the Tenant on the Premises subject to distress to
satisfy all Rent payable for at least twelve (12) months, or the Premises or any part
thereof becomes vacant or unoccupied for a period of 10 consecutive days or more
without the prior written consent of the Landlord, or if the Tenant fails to continuously.
actively and diligently conduct its business in the whole of the Premises, fully fixtured
and staffed and otherwise in compliance with Section 1.4; (viii) an Event of Default as
defined in this paragraph occurs with respect to any lease or agreement under which
the Tenant occupies or has the right to use other Premises or space in the Building, (ix)
a report, statement, certificate or opinion required to be provided by or from the Tenant
or any of its officers or agents under this lease is false or misleading in any respect
except for a misstatement that is the result of an innocent clerical error; or (x) re-entry
or the right to terminate by the Landlord is permitted under any other provision of this
lease or at law or by statute.
"HVAC System" means the heating, ventilation, air-conditioning and other climate
control equipment, facilities and systems serving the Building or any part thereof,
including, without limitation, any and all (i) equipment, improvements and installation, (ii)
duct work, diffusers, distribution piping, air handling units and ventilation units and (iii)
monitoring, conservation and control systems.
Page 38
"Indemnifier" means the Party of the Third Part and includes their respective heirs,
executors, administrators and assigns.
"Landlord" means the party of the First Part and includes the Landlord and its duly
authorized representatives, agents and managers, and without limiting the generality of
any provision of this lease, where the context permits, such as, without limitation, in
Sections 4.1 and 4.2, "Landlord" includes, without limitation, the Landlord and its agents
and managers, the respective employees, contractors and workmen of each of them,
and the respective heirs, executors, administrators, successors and assigns of each of
the foregoing.
"Leasable Area" means the interior area of part of the Building and the exterior area
comprising part of the Lands to the extent designated or intended from time to time by
the Landlord in its sole discretion to be leased to Tenant but excluding the following: (i)
parking areas and facilities; (ii) Storage Areas and (iii) Common Facilities.
"Leasehold Improvements" means Leasehold Improvements in the Premises
determined according to common law, but shall include, without limitation, all
improvements, installation Alterationss and additions from time to time made, erected
or installed in, to or on the Premises by or on behalf of the Tenant or any previous
occupant of the Premises, including, without limitation, signs and lettering, partitions,
doors and hardware, however affixed and whether or not movable, all mechanical,
electrical and Utility installations and all carpeting and drapes.
"Net Rent" means the unpaid minimal Rent payable by the Tenant under Section 2.2.
"Offer to Lease" means the Offer to Lease referred in Section 1.3
"Person" means any person, firm, partnership or corporation (including, without
limitation, a trust company), or any group or combination of Persons, firms, partnerships
or corporations.
"Premises" means the interior area of the Premises leased to the Tenant described in
Section 1.1 and includes, without limitation, Leasehold Improvements, and means the
Premises as relocated pursuant to Section 3.3, and includes, without limitation,
Leasehold Improvements in such Premises as relocated. The interior area of the
Premises shall extend from the upper surface of the structural subfloor to the lower
surface of the suspended ceiling within the boundaries of the Premises determined as
provided in the definition of "Useable Area" contained herein. The interior area of the
Premises shall exclude the exterior faces of (i) the Building and (ii) all exterior and
demising interior walls and windows, notwithstanding the manner in which the Useable
Area is measured.
"Prime Rate" means the variable annual rate of interest (which is calculated daily)
established from time to time by the head office in Toronto of any Canadian chartered
bank designated by the Landlord, from time to time, as the reference rate it will use to
determine rates of interest payable by the most preferred commercial borrowers of such
bank on unsecured loans to such borrowers in Canada (as distinct from the rate of
interest chargeable for small business loans sometimes referred to as the "prime small
business loans interest rate"), current during the applicable period that any amount
bears interest under this lease.
"Rent" means the aggregate of Net Rent and Additional Rent.
Page 39
"Rentable Area" is measured in accordance with BOMA, subject to the Terms hereof,
and means (i) in the case of Premises (whether leased or not) consisting of an entire
floor, the floor area measured to the inside finished surface of the dominant portion of
the permanent outer building walls, including, without limitation, washrooms, telephone,
electrical and janitorial closets and elevator lobbies, and no deductions shall be made
for columns and projections necessary for the Building and (ii) in the case of the
Premises consisting of part of a floor, the area computed by multiplying the Useable
Area of such Premises by a factor of 1. The Landlord, for the purpose of calculating the
Net Rent may change the factor referred to in (ii) from time to time to reflect the actual
ratio of the aggregate floor area of the floor on which the Premises are located (using
the measurement method set out in (i)) to the aggregate Useable Area of all Premises
(whether leased or not) on such floor.
"Rental Year" means the twelve 12) month period ending on March 31. If, however,
the Landlord considers it necessary or convenient for the Landlord's accounting
purposes, the Landlord may at any time and from time to time, by written notice to the
Tenant, specify an annual date from which each subsequent Rental Year shall
commence, and, in that event, the then current Rental Year shall terminate. on the day
preceding the commencement of the new Rental Year'. The first Rental Year of the
Term shall be deemed to commence on the Commencement Date and to expire on the
last day of April next ensuing or upon the earlier termination of the Term. The last
Rental Year of the Term shall be deemed to end upon the expiration or earlier.
termination of the Term.
"Restoration" means the repairing, replacing, altering, demolishing or rebuilding of all
or any part of the Premises or Building.
"Rules and Regulations" means the Rules and Regulations established by the
Landlord from time to time in accordance with the provisions of this lease. The Rules
and Regulations established as at the Commencement Date are those set out in
Schedule "D".
"Sales Taxes" means any and all goods and services Taxes, Sales Taxes, multi-stage
Sales Taxes, value added Taxes, business Transfer Taxes, use Taxes, consumption
Taxes or any other Taxes imposed by any Authority on the Tenant or on the Landlord
or which the Landlord is required to remit to any Authority with respect to Rent paid or
payable by the Tenant under this lease, or imposed by any Authority in respect of this
lease or the rental or any licensing or use of space under this lease, or in respect of the
payments made or payable by the Tenant under this lease, or in respect of the goods
and services purchased by or provided by the Landlord under this lease, including,
without limitation, the provision of administrative services to the Tenant under this
lease, whether characterized as goods and services Taxes, Sales Taxes, multi-stage
Sales Taxes, value added Taxes, business Transfer Taxes, use Taxes, consumption
Taxes or otherwise.
"Taxes" means all Taxes, rates, duties, levies, fees, charges, local improvement rates
and assessments whatsoever now or in the future imposed, levied, rated, assessed or
charged against the Building, the Premises or any part thereof by any lawful taxing
Authority or allocated or attributed by the Landlord to the Premises and including,
without limitation, any amounts assessed, imposed, levied, rated or charged in
substitution for or in lieu of or in addition to any of the foregoing whether of the
foregoing character or not or in existence at the Commencement Date or not, but
excluding only such Taxes as capital gains Taxes, or corporate, income, profit or
excess profit Taxes to the extent such Taxes are not so levied in lieu of any of the
foregoing and to the extent such Taxes are not expressly included in this Section or in
any other Section of this lease.
` 6 ~ Page 40
"Tenant" means the party of the Second Part and is deemed to include the word
lessee and includes every Person mentioned as Tenant in this lease.
"Term" means the period of time as provided in Section 1.2.
"Transfer" means an assignment of this lease in whole or in part, a sublease of all or
any part of the Premises, any transaction whereby the rights, title or interest of the
Tenant under this lease or in or to the Premises are Transferred to another, any
transaction whereby any right of use or occupancy of all or any part of the Premises is
conferred upon anyone, any parting with or sharing the occupation or possession on or
of the whole or any part of the Premises, any mortgage, charge or encumbrance of this
lease or the Premises or any part thereof or other arrangement under which either this
lease or the Premises become security for any indebtedness or other obligations and
includes, without limitation, any transaction or occurrence whatsoever (including, but
not limited to, expropriation, receivership proceedings, seizure by legal process and
Transfer by operation of law), which changes or might exchange the identity of the
Persons having lawful use or occupancy of any part of the Premises.
"Transferee" means the Person or Persons to whom a Transfer is or is to be made.
"Useable Area" is measured in accordance with BOMA, subject to the Terms hereof,
and means in the case of the Premises, the floor area measured to the finished surface
of the Arena Complex side of corridor and other permanent walls, to the centre of
partitions that separate the Premises from the adjoining Arena Complex and to the
inside finished surface of the dominant portion of the permanent outer building walls,
without deductions for columns or projections necessary to the Building.
"Utilities" means, collectively, water, fuel, electricity, sewage, waste collection and
disposal and other Utilities and "Utility" means any of them. The Terms do not include
the cost of water, gas or electricity meters which may be installed to serve the Premises
at the Landlord's expense.
ti
Page 41
SCHEDULE"C"
RULES AND REGULATIONS
1. Removal of Refuse
The Tenant shall not (i) place or leave or permit to be placed or left any debris,
garbage, trash or refuse in or upon any part of the Building outside of the Premises
except in locations, at times, in the manner and in containers designated from time to
time by the Landlord for such purposes or (ii) permit undue accumulations of debris,
garbage, trash or refuse within the Premises or (iii) cause or permit undesirable odours,
vapours, steam, water, vibrations, noises or other undesirable effects to emanate or to
be dispelled from the Premises which the Landlord, in its sole discretion, acting
reasonably, determines to be undue, undesirable, objectionable or unsafe. The Tenant
shall comply with such recycling and waste management programs as the Landlord
may establish from time to time.
2. Securi
At times other than during normal operating hours, the Tenant and all others, including,
without limitation, Persons lawfully requiring communication with the Tenant, shall
comply with any and all security and restricted access requirements as established from
time to time by the Landlord for the Building in accordance with the Landlord's then
current security and operating procedures. If such requirements are not observed or
complied with, or if identification of Persons is not satisfactory to the Landlord, the
Landlord shall be entitled to prevent access to the Building and to the Premises.
3. Locks
The Tenant shall not place or permit any additional locks upon any doors of the
Premises without the prior written approval of the Landlord, which approval may be
subject to the Landlord's reasonable conditions. A reasonable number of keys shall be
supplied to the Landlord for each entrance door to the Premises and all locks shall be
Building standard to permit access by the Landlord's master key. If additional keys are
required, they shall be obtained by the Tenant at the Tenant's expense. Keys or other
means of access for entrance doors to the Building shall not be issued without the prior
written authority of the Landlord. The Tenant shall indemnify the Landlord from and
against any expense resulting from any forced entry to the Premises which may be
required in case of emergency or apprehended emergency, as determined by the
Landlord, whether or not entrance keys have been provided to or used by the Landlord.
At the expiration or earlier termination of the Term, the Tenant, at the Landlord's
request, shall remove any and all additional locks at the Tenant's expense and, in any
event, shall return to the Landlord all keys to the Premises and Building and all security
and restricted access passes and identification cards. The Tenant shall obtain all such
cards and all keys from its employees and other Persons to whom such cards and keys
.have been issued, upon the termination of their employment, association or retainer,
and shall promptly return them to the Landlord.
4. Obstructions
The Tenant shall not do, nor permit to be done, any act in, on or about the Building and
the Lands, including without limitation the sidewalks, streets or passageways adjacent
or near the Buildings, which, in the Landlord's opinion, hinders or interrupts the flow of
traffic to, in or from the Building, or any part thereof. Without limiting the foregoing, (i)
the Tenant shall not park or leave, nor permit to be parked or left, any of its vehicles or
the vehicles of any of its agents, employees, invitees, licensees, visitors, customers,
clients, contractors, sub-tenants, assignees or Persons lawfully requiring
communication with the Tenant in such a manner or in such a place as to obstruct
access to any part of the Building, but not limited to, the driveway, fire zone, delivery
zone, loading dock or garbage pick-up area and (ii) the sidewalks, entries, passages,
escalators, elevators and staircases (if any) shall not be obstructed, and shall not be
used by the Tenant or others, for any purpose other than for ingress and egress from
the Premises.
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5. Receiving, Shipping and Movement of Articles
The Tenant shall not bring in or take out, position, construct, install or move any
furniture, fixtures, improvements, safes, business machinery or other equipment or
anything liable to damage or destroy any part of the Premises or Building, nor permit
any of the foregoing, without first obtaining the prior written consent of the Landlord. In
giving such consent, the Landlord shall have the right, in its sole discretion, to prescribe
the weight permitted and the position thereof, and the use and design of planks, skids
or platforms to distribute the weight thereof. All damage done to the Premises or
Development by moving or using any such heavy equipment or other equipment,
furniture or other article shall be repaired at the expense of the Tenant. The moving of
all equipment, fixtures, furniture and other articles shall occur only upon prior
arrangement with and under the supervision of the Landlord. The Tenant shall not
receive or ship, load or unload articles of any kind except through facilities and
designated doors and at hours designated by and under the supervision of the
Landlord. No Tenant shall employ anyone to do its moving in the Building other than
Persons prior approved in writing by the Landlord. The cost of such moving shall be
paid by the Tenant. Safes and other heavy equipment and machinery shall be moved
through the halls and corridors only upon steel bearing plates. No freight or building
matter of any description shall be received into the Building or carried in the elevators
except during hours prior approved in writing by the Landlord. Any hand trucks,
carryalls or similar equipment used in the Building shall be used only with the prior
written consent of the Landlord and shall be equipped with rubber tires, slide guards
and such other safeguards as the Landlord may require.
6. Washrooms
The washrooms and other water and plumbing fixtures and facilities shall not be used
for any purpose other than those for which they are constructed. No sweepings,
rubbish, rags, ashes or other substances shall be thrown therein. Any damage
resulting from misuse by the Tenant or any of its agents, employees, invitees, visitors,
customers, clients, contractors or licensees shall be borne by the Tenant. No water
shall be permitted to run unless it is in actual use for its intended purposes. The Tenant
and its employees and customers shall use only those washrooms forming part of the
Common Facilities directed by the Landlord from time to time.
7. Use of Premises
The Premises shall not be used for any illegal purpose or for sleeping apartments or
residential purposes or for the storage of personal effects or articles other than those
personal effects and personal articles required for the Tenant's business purposes.
8. Solicitation
No canvassing, solicitation, peddling or distribution of handbills or other advertising
matter nor any displaying of any merchandise shall be permitted in or about the Building
unless otherwise prior approved in writing by the Landlord.
9. Iniurv Prevention
The Tenant shall assist and co-operate with the Landlord in preventing' bodily injury
within or damage to the Premises and the Building. Except with the prior written
consent of the Landlord, the Tenant shall not deface or mark any part of the Building or
Premises nor drive nails, spikes, hooks or screws into, nor bore, drill or cut into, the
walls, floors, ceilings, woodwork or any other part of the Building or the Premises in any
manner or for any reason or purpose. The Tenant shall perform Tenant's maintenance
and Alterations in the Premises only during the times prior approved in writing by the
Landlord and only in such manner as will not interfere with the rights of other enants or
occupants of the Building. The Tenant shall not use or permit any use of the Premises,
or any part thereof, which involves the danger of injury to any Person or forany
dangerous, noxious or offensive trade or business, all as determined by the Landlord in
its sole discretion, acting reasonably.
Page 43
10. Inflammable Materials
No inflammable oils or other inflammable, combustible, dangerous, explosive,
hazardous or toxic materials or substances, save those prior approved in writing by the
Landlord and its insurers, shall be kept or permitted to be kept by the Tenant in any part
of the Premises. Without limiting the foregoing, no propane or natural gas powered
vehicles nor any vehicles containing or carrying compressed inflammable gases shall
be permitted entry or shall be parked in any part of the Lands.
11. Bicycles and Animals
No bicycles or vehicles and no animals, birds, reptiles or insects save and except
service animals, shall be brought within any part of the. Building without the prior written
consent of the Landlord.
12. Dispensing Machines
The Tenant shall not (i) install or permit the installation or use of any machine
dispensing food, liquid or goods for sale or rental, rendering services or providing
entertainment in the Premises or the Building and (ii) permit the delivery of any food or
liquid to the Premises, other than for the consumption by its employees or
clients/customers, in each case without the prior written approval of the Landlord or in
contravention of any Rules and Regulations. Only Persons prior approved in writing by
the Landlord from time to time shall be permitted to prepare, solicit orders for, sell,
serve, distribute or deliver food or liquid in or to any part of the Building or Premises, or
to use the elevators, corridors or other Common Facilities for any such purpose, except
as otherwise expressly provided herein.
13. Cable and Communications
If the Tenant desires telegraphic, facsimile, cable or telephonic connections, the
Landlord will direct the electricians as to where and how the wires are to be introduced,
and without such directions ho boring or cutting for wires shall be permitted. No gas
pipe or electric wire shall be permitted which has not been ordered or authorized in
writing by the Landlord. No aerials or radio, television or other receiving, transmitting or
audio-visual device shall be allowed on the Premises, on the exterior walls of the
Premises or in or on the Building or the Lands, or any part thereof, without prior written
authorization by the Landlord.
14. Smoking
No smoking shall be permitted in the Premises or the Building.
15. Structural Alterations
The Tenant shall not undertake Alterations to the Premises without the prior written
approval of the Authorized Officer.
16. Comalaints
The Tenant shall maintain a written record of complaints that may be made to the
satisfaction of the Authorized Officer and make. the same available to and discuss the
complaints with the Authorized Officer when requested to do so by the Authorized
Officer. The Tenant shall respond to all complaints and suggestions by its customers in
a prompt, courteous and efficient manner.