LEASE

 

 

 

THIS LEASE is made the 19 ^th day of June, 2009 and entered into by the Landlord and Tenant named herein who, in consideration of the rents and covenants herein contained, covenant and agree as follows:

 

 

ARTICLE 1

BASIC TERMS

 

1.01

Basic Terms .  The basic terms of this Lease are:

 

 

(a)

(i)

Landlord :

GERALDINE JEANETTE DAVIS, TRUSTEE OF THE DAVIS

FAMILY TRUST

 

(ii)

Address of Landlord :

c/o Tonko Realty Advisors (B.C.) Ltd.

600 – 789 West Pender Street

Vancouver, B.C. V6C 1H2

Attention:  Property Manager

Fax: (604) 684-9122

 

 

(b)

(i)

Tenant (legal name) :        

CURRENT TECHNOLOGY CORPORATION

 

 

(ii)

Address of Tenant :

302 – 850 West Hastings Street

Vancouver, B.C.   V6C 1E1

Fax:                                            

 

 

(c)

Leased Premises :

Suite 302, 850 West Hastings Street, Vancouver, B.C.

 

 

(d)

Rentable Area of Leased Premises :

857 square feet, subject to Section 15.05.

 

 

(e)

Initial Term :

Three (3) years commencing on the Commencement Date and expiring on August 31, 2012.

 

 

(f)

Commencement Date :

September 1, 2009

 

 

(g)

Basic Rent :

Lease Year

Per Sq. Ft. Per Annum

Per Annum

Per Month

 

1-3

$18.00

$15,426.00

$1,285.50

 

 

(h)

Permitted Business :

General office use.

 

 

(i)

Operating Name of Business :

Current Technology Corporation

 

 

(j)

Security Deposit :

$4,811.20

 

 

(k)

Renewal Term :

Not applicable

 

 

 

The Landlord and Tenant agree to the foregoing basic terms.  Each reference in this Lease to any of the basic terms shall be construed to include the provisions set forth above as well as all of the additional terms and conditions of the applicable Sections of this Lease where such basic terms are more fully set forth.

 

 

 

 

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1.02

Specific Provisions.      The following provisions (the “Specific Provisions”) have been agreed upon by the Tenant and the Landlord to add to or modify the standard provisions of the Lease which are those contained in ARTICLES 2 to 16 of this Lease (the “Standard Provisions”). In case of discrepancy, the Specific Provisions will prevail over the Standard Provisions.

 

(A)

Prepaid Rent Deposit

 

The Landlord acknowledges receipt from the Tenant of the amount of $7,216.80 inclusive of GST (the “Prepaid Rent Deposit”) as partial consideration for this Lease and the Prepaid Rent Deposit shall be held by the Landlord without liability for interest and applied in equal monthly instalments of $2,405.60 towards payment of the Basic Rent, Operating Costs, Taxes and G.S.T. payable by the Tenant to the Landlord in respect of the months of September 2009, July 2012 and August 2012.

 

 

1.03

Definitions.   In this Lease:

 

" Accounting Year " means each 12-month period commencing January 1 and ending December 31, the whole or part of which period is within the term or any renewal hereof.

 

" Additional Services " means the services supplied by the Landlord and referred to in Section 7.03 or in any other provision hereof as Additional Services, and any other services which from time to time the Landlord supplies to the Tenant and which are in addition to the services which the Landlord has agreed to supply pursuant to the provisions of this Lease and to like provisions of other leases of the Building and may include janitor and cleaning services in addition to those normally supplied, locksmithing, removal of bulk garbage, picture hanging, special security arrangements, the provision of labour and supervision in connection with bulk deliveries, supervision in connection with the moving of any furniture or equipment and the making of any repairs or alterations and maintenance or other services not normally furnished to tenants generally.

 

" Building " means that certain office building of ten storeys located on the Land and all additions and replacements thereto.

 

" Common Areas " means all areas of the Building and the Land except the Leased Premises and all the other premises leased or leasable to other tenants.

 

" Cost of Additional Services " means the Landlord's total cost of providing Additional Services to the Tenant including all amounts paid to independent contractors plus all expenses incurred directly by the Landlord including the cost of labour and materials.

 

“Hazardous Substances” means those substances which now or at any time during the Term, are a threat or capable of posing a threat to the public health or the environment or which are regulated for such reasons under any laws, regulations, by-laws, requirements or guidelines of the Province of British Columbia, the Government of Canada or any municipal government;

 

" Initial Term " means the term of this Lease set forth in Section 1.01 (e).

 

" Insured Damage " means that part of any damage occurring to the Leased Premises of which the entire cost of repair (or the entire cost of repair other than a deductible amount collectable by the Landlord as part of the Operating Costs) is actually recoverable by the Landlord under a policy of insurance in respect of fire and other perils from time to time effected by the Landlord.  Where an applicable policy of insurance contains an exclusion for damages recoverable from a third party, claims as to which the exclusion applies shall be considered to constitute Insured Damage only if the Landlord successfully recovers from the third party.

 

" Land " means certain parcel(s) of land, situated in Vancouver, British Columbia, described as:

 

Lots 1 and 2, Block 21

District Lot 541, Plan 210

 

" Leased Premises " means that portion of the Building shown outlined in heavy black on the Plan attached as Schedule "A" hereto.  The exterior face of the Building and any space in the Leased Premises used for stairways or passageways to other premises, stacks, shafts, pipes, conduits, ducts or other Building facilities, and heating, electrical, plumbing, air conditioning and other systems serving the Building or parts thereof are expressly excluded from the Leased Premises.

 

" Leasehold Improvements " means all fixtures, improvements, installations, alterations and additions from time to time made, erected or installed in the Leased Premises by the Tenant or by the Landlord on behalf of the Tenant, or by other tenants, with the exception of trade fixtures and furniture and equipment not of the nature of a fixture, but shall include all partitions however affixed, doors, hardware, mechanical, electrical and utility installations, closets, built-in cabinets, counters and millwork, floorings, including carpeting, and drapes.

 

" Normal Business Hours " means the hours from 8:00 a.m. to 5:30 p.m. Monday to Friday, inclusive, for office tenancies and from 8.00 a.m. to 6.00 p.m. Monday to Saturday, inclusive, for retail tenancies, of each week, holidays excepted, or any such extended periods of hours and days as the Landlord, acting reasonably, may designate from time to time.  The Landlord may, at its option, designate from time to time different business hours for retail tenants and, when reasonably required, for other tenants.

 

" Operating Costs " means the total of all costs and expenses, calculated in accordance with generally accepted accounting principles, without duplication, incurred in the complete maintenance, operation, repair and replacement of the Building and the Land.  If in any given period of time less than 100% of the Building is occupied by tenants and the Landlord obtains a reduction in cost or a credit as a result of the Building being less than 100% occupied, the amount of such cost reduction or credit shall be

 

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allocated to the Landlord with the intent that the Tenant will be in substantially the same position as if the Building had been 100% occupied.

 

Operating Costs (without limiting the generality of the foregoing):

 

(a)

shall include (but subject to certain deductions as hereinafter provided) the cost of providing cleaning, and janitorial services, the cost of sweeping, restriping, repairing and replacing parking areas, the cost of maintaining and replanting plants and landscaping (if applicable), the cost of operating elevators, the cost of heating, cooling and/or ventilating rentable and non-rentable areas, the cost of providing water, electricity (including lighting), and other utilities and services to the Building and the Land, the cost of supervisory and maintenance services, the cost of all repairs and replacements to the Building or other improvements on the Land, the cost of window cleaning, the cost of security and supervision, the cost of all insurance taken out by the Landlord, accounting and auditing costs, the amount of all salaries, wages, fringe benefits and severance payments paid for, or for the benefit of, or on account of, employees engaged in the maintenance, operation, repair or replacement of the Building and the Land, amounts paid to independent contractors in connection with such maintenance, operation, repair or replacement, the cost of direct supervision and of management and other indirect expenses to the extent allocatable to the maintenance, operation, repair or replacement of the Building and the Land, the cost of leasing or purchasing any signs or public address, intercom, background music apparatus, alarm and security access system or centralized communication cables or centralized systems, that the Landlord may add and maintain, from time to time, to and in the Building and the costs of operating, maintaining, repairing or replacing same, the cost to the Landlord of making a capital improvement resulting in the reduction of the Operating Costs provided the annual amortization of such costs of making capital improvements does not exceed the corresponding reduction of Operating Costs, provincial capital taxes allocated by the Landlord to the Building and the Land and calculated as if the Building and the Land were the only asset of the Landlord, all business taxes and other taxes, if any, from time to time payable by the Landlord with respect to the Common Areas, depreciation or amortization as determined by the Landlord of the costs, including repair and replacement, incurred after the original completion of construction of the Building for repairing or replacing all fixtures, equipment and facilities serving the Building or the Common Areas which by their nature require periodic repair or replacement (including, without limitation, the heating, ventilating and air conditioning systems serving the Building) unless such costs are charged fully in the Accounting Year in which they are incurred, interest calculated at 7%, calculated annually for each Accounting Year upon the undepreciated or unamortized portion of the costs referred to immediately above, the cost of any management fees or, at the Landlord's option from time to time, an administration fee to the Landlord equal to the lesser of 5% of the gross rental income of the Building and the prevailing management fee that would be charged to manage a comparable building in Vancouver by an independent professional property management firm, and all other expenses of every nature incurred in connection with the maintenance, operation, repair or replacement of the Building and the Land;

 

(b)

shall exclude taxes, debt service, depreciation, expenses properly chargeable to capital account (except capital expenditures that are made by the Landlord to reduce Operating Costs), costs of repairing structural defects in the Building and the cost of acquiring new tenants for the Building; and

 

(c)

shall exclude the cost of providing to all the leased and/or leasable premises of the Building those services which the Tenant has agreed to pay for or provide directly for the Leased Premises and the cost of supplying to all the leased and/or leasable premises of the Building those utilities which, in the Leased Premises, are metered and paid for directly by the Tenant; all as detailed in Schedule "D" attached hereto (if applicable).

 

In computing Operating Costs there shall be credited as a deduction the amounts of proceeds of insurance relating to Insured Damage and other damage actually recovered by the Landlord applicable to such damage to the extent that the cost thereof was included therein.  Any expenses not directly incurred by the Landlord but which are included in Operating Costs may be reasonably estimated by the Landlord if the Landlord cannot ascertain the actual amount of such expenses from the persons who incurred them.  If less than all of the Rentable Area of the Building is occupied during any period for which a computation must be made, any expenses which are related to the level of occupancy will be increased to be equal to the amount of such expenses that would have been incurred had the entire Rentable Area of the Building been occupied, to ensure that the Landlord recovers the full amount of such expenses relating to occupancy from those tenants benefiting therefrom.

 

" Prime Rate " means the rate of interest charged and published from time to time by the main branch in Vancouver, British Columbia of the Landlord's bank as a reference rate for setting interest rates on commercial loans in Canadian dollars and referred to by such bank as its "prime rate".

 

" Proportionate Share " means the proportion which the Rentable Area of the Leased Premises bears to the Total Rentable Area of the Building.

 

" Rentable Area " in the case of a whole floor of the Building means the area expressed in square feet (or, at the Landlord's option, in square metres) as certified by the Landlord's architect, engineer or surveyor of all areas of the floor and mezzanine (if any) within the outside walls measured from the inside surface of the window glass of the outer Building walls without deduction for columns and projections between the windows or from the centre of the outer Building walls if any one outer wall of the area does not have any windows all without deduction for columns, wall projections, internal stairs or elevators connecting two or more floors rented by the same tenant or for any other interior construction or equipment or for any doorway areas recessed from the perimeter of the area and shall include the Service Areas serving the floor, but shall not include stair shafts and elevator shafts supplied by the Landlord for use in common with other tenants.

 

" Rentable Area " in the case of part of a floor of the Building means the area expressed in square feet (or, at the option of the Landlord, in square metres) as certified by the Landlord's architect, engineer or surveyor of all the area occupied by the Leased Premises, measured from the inside surface of the window glass of the outer Building walls, without deduction for columns and projections between the windows, or from the centre line of the outer Building walls if any one outer wall of the area does not have any windows to the centre line of all interior walls separating the Leased Premises from adjoining Service Areas and/or other rentable premises, all without deduction or exclusion for columns, wall projections, internal stairs or elevators connecting two or more floors rented by the same tenant, or for any other interior construction or equipment or for any doorway areas recessed from

 

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the lease line designated by the Landlord, multiplied by 1.15 being the agreed adjustment of 15% to take into account that portion of the Service Areas serving the floor which includes the Leased Premises, except that for the ground floor, the agreed adjustment shall be reduced to 5% and therefore the above described area shall be multiplied by 1.05.

 

" Sales Taxes " means all goods and services taxes, sales taxes, value added taxes or any other similar taxes imposed on the Tenant or the Landlord, by any level of government, with respect to rent, additional rent or any other amounts payable by the Tenant to the Landlord under this Lease, whether characterized as a goods and services tax, sales tax, value added tax or otherwise.

 

" Service Areas " means the area of corridors, elevator lobbies, service elevator lobbies, washrooms, air-cooling rooms, fan rooms, janitor's closets, telephone and electrical closets and other closets on the floor serving the Leased Premises.

 

" Taxes " means all taxes, rates, duties, levies and assessments whatsoever, whether municipal or otherwise, levied, imposed or assessed against the Building and the Land or upon the Landlord in respect thereof or from time to time levied, imposed or assessed in the future in lieu thereof, including those levied, imposed or assessed for education, schools and local improvements, and including all costs and expenses incurred by the Landlord in good faith in appealing any taxes, rates, duties, levies or assessments, but excluding taxes and license fees in respect of any business carried on by tenants and occupants of the Building (including the Landlord) and income or profits taxes upon the income of the Landlord to the extent such taxes are not levied in lieu of taxes, rates, duties, levies and assessments against the Building or the Land and shall also include any and all taxes which may in future be levied in lieu of taxes as hereinbefore defined.

 

" Term " means the Initial Term and any extension or renewal thereof and any period of permitted overholding.

 

" Total Rentable Area " means the total Rentable Area of the Building (excluding the basement) which is agreed to be 46,000 square feet.

 

" Utilities " means electricity, oil, gas, power, telephone, water, and all other utilities.

 

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STANDARD PROVISIONS

 

 

ARTICLE 2

LEASED PREMISES AND TERM

 

2.01

Leased Premises.  In consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Tenant to be paid, observed and performed, the Landlord leases to the Tenant the Leased Premises specified in Section 1.01(c).

 

2.02

Initial Term.  The Initial Term of the Lease is the period set out in Section 1.01 (e) and the Initial Term commences on the Commencement Date set out in Section 1.01 (f).

 

2.03

Possession.  If the Landlord is unable to deliver possession of the Leased Premises to the Tenant at the commencement of the Initial Term, the Landlord shall not be liable for damages or loss caused thereby, nor shall this Lease be void or voidable, nor shall the commencement or the expiration date of the Initial Term be changed.  In such event the Tenant shall only be liable for the rent, at the rate hereby reserved, once the Landlord is able to deliver possession of the Leased Premises to the Tenant.

 

2.04

Acceptance of Leased Premises.  Taking possession of all or any portion of the Leased Premises by the Tenant shall be conclusive evidence as against the Tenant that the Leased Premises or such portion thereof are in satisfactory condition on the date of taking possession.

 

2.05

Security Deposit.  The Landlord acknowledges receipt of the amount set out in 1.01 (j) to be held by the Landlord as a deposit as security for the payment of rent and performance of the Tenant's obligations under this Lease.  If at any time rent or any other amount payable by the Tenant is overdue and unpaid or the Tenant fails to perform any of its obligations under this Lease, the Landlord may, either before or after terminating this Lease, apply the whole or any part of the deposit to the payment of such rent or other amount or to compensate the Landlord for any loss or expense incurred by the Landlord and such application will be without prejudice to the Landlord's right to pursue any other remedy set forth in this Lease.  If the whole or any part of the deposit is applied by the Landlord, the Tenant shall forthwith pay to the Landlord a sufficient amount to restore the deposit to the amount specified in Section 1.01 (j) and the Tenant's failure to do so within ten days after demand will constitute a breach of this Lease.  If the Tenant promptly pays all rent as it falls due and performs all of its obligations under this Lease, the Landlord will repay the deposit to the Tenant within 30 days after the later of: (i) termination of this Lease; or (ii) the repossession of the Leased Premises by the Landlord. The Landlord may deliver and assign the security deposit to any purchaser of the Landlord's interest in the Leased Premises and thereupon the Landlord will be discharged from any further liability with respect to such deposit.

 

 

ARTICLE 3

RENT

 

3.01

Basic Rent. The Tenant will pay to the Landlord, at such place as the Landlord directs in writing, during the Initial Term in lawful money of Canada, without any set off, abatement, compensation, or deduction whatsoever, the Basic Rent:

 

a)

for each Lease Year set out in Section 1.01(g), in the amounts per square foot per annum set out in such section multiplied by the Rentable Area of the Leased Premises payable by equal consecutive monthly installments; and

 

b)

for the remainder of the Initial Term (if any), in the amount per square foot equal to the prevailing rate per annum in the open market being charged for the best use of similar premises, with equivalent leasehold improvements, in comparable office/retail buildings in Downtown Vancouver, without deduction for any signing bonus, improvement allowance, rent free period or other inducement payment commonly received by tenants in the then current market circumstances (the “Prevailing Market Rate”), multiplied by the Rentable Area of the Leased Premises payable by equal consecutive monthly installments. The determination of the Prevailing Market Rate shall be made jointly by the Landlord and the Tenant at least three months prior to the first day of the remainder of the Initial Term, failing which it shall be referred to a single arbitrator pursuant to the provisions of the Commercial Arbitration Act of British Columbia. In determining the Prevailing Market Rate, the arbitrator shall comply with the above-described criteria.  The determination made by the arbitrator shall be final and binding upon the Landlord and the Tenant, and their respective successors and assigns.  Each party shall pay one-half of the fees and expenses of the arbitrator.  The provisions of this Section shall be determined to be a submission to arbitration within the provisions of the Commercial Arbitration Act , as amended from time to time. In no event shall the annual Basic Rent for the period referred to in Section 3.01(b) be less than the annual Basic Rent for the last Lease Year of the period specified in Section 3.01(a). Until the Basic Rent has been determined for the period (if any) referred to in this Section 3.01(b) as herein provided, the Tenant shall continue to pay the monthly instalment of Basic Rent payable before the commencement of such period and upon such determination the Landlord and the Tenant shall make the appropriate readjustments.

 

The Tenant shall pay each monthly instalment in advance on or before the first day of each and every calendar month during the Term, and pay the first instalment on or before the day of commencement of the Initial Term. If the Initial Term commences on a day other than the first, or ends on a day other than the last day of a month, the Basic Rent for the fraction of a month shall be calculated at a rate per day equal to 1/365th of the annual Basic Rent.

 

3.02

Basis of Determining Basic Rent.  The annual Basic Rent set out in Section 3.01(a) is calculated on the basis of the Rentable Area of the Leased Premises being approximately the number of square feet set out in Section 1.01 (d) at the rates for each square foot of Rentable Area set out in Section 1.01(g).  The annual Basic Rent shall be adjusted in the event that the Rentable Area of the Leased Premises is found to be different than the Rentable Area stated in Section 1.01 (d) above.

 

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3.03

Pre-authorized Payments.    The Tenant shall provide to the Landlord on or before the commencement of the Initial Term, without prejudice to any other right or remedy of the Landlord,   an executed authorization and a voided cheque to enable the Landlord to draw or issue a debit to the Tenant’s designated bank account at the designated branch of the Tenant’s bank or financial institution. Each monthly debit shall be in an amount equal to the total monthly payment due under the Lease for Basic Rent, Operating Costs and Taxes and under any ancillary agreement such as, without limitation, Parking Agreement and Locker Agreement (the “Monthly Rent”), as it may be adjusted from time to time in accordance with the terms of this Lease. The Tenant shall not terminate the authorization for the Landlord to draw or issue a debit to the Tenant’s bank account. Should the Tenant change banks or financial institutions or branches within the same bank or financial institution during the Term of this Lease, then the Tenant shall deliver a new executed authorization and voided cheque to enable the Landlord to draw or issue a debit to the new account of the Tenant for payment of Monthly Rent. The Tenant further covenants and agrees to pay promptly, when billed, any amounts due under the terms of this Lease which are not specifically covered by the foregoing monthly debits.

 

In the event that any debit issued by the Landlord and any cheque issued by the Tenant shall not be honoured by the Tenant’s bank or financial institution for any reason, then, in addition to any other remedies the Landlord may have, the Tenant shall pay to the Landlord, upon request, Fifty Dollars ($50.00) for each occurrence which amount represents the estimated cost of processing the dishonoured debit or cheque and re-debiting the Tenant’s account or processing a replacement cheque.

 

3.04

Waiver of Offset.  The Tenant hereby waives and renounces any and all existing and future claims, offsets and compensation against any rent and agrees to pay rent, without deduction, regardless of any claim, offset or compensation which may be asserted by the Tenant or on its behalf.

 

 

ARTICLE 4

TENANT'S COVENANTS

 

4.00

Tenant Covenants.  The Tenant covenants with the Landlord as follows:

 

4.01

Rent.  To pay rent on the days and in the manner provided.

 

4.02

Tenant's Taxes.  To pay when due all business taxes, license fees and other taxes and charges levied or assessed in respect of the use or occupancy of the Leased Premises by the Tenant or in respect of the equipment, machinery or fixtures, partitions and improvements brought therein by the Tenant or on behalf of the Tenant, or anyone occupying the Leased Premises with the Tenant's consent, whether existing at the date hereof or hereinafter imposed by any governmental authority, including, without limitation, value added tax, business transfer tax, retail sales tax, federal sales tax, goods and services tax, excise taxes or duties, or any tax similar to any of the foregoing, including penalties for late payment thereof, whether payable by the Tenant or the Landlord.

 

4.03

Tenant's Sales Taxes.  To pay the Landlord all Sales Taxes imposed on the Tenant or the Landlord by any level of government with respect to rent, additional rent or any other amounts payable by the Tenant to the Landlord under this Lease, it being the intention of the parties that the Landlord shall be fully reimbursed by the Tenant with respect to any and all Sales Taxes payable or collectable by the Landlord.  The amount of such Sales Taxes so payable by the Tenant shall be calculated in accordance with the applicable legislation and shall be paid to the Landlord at the same time as the amounts to which such Sales Taxes apply are payable to the Landlord under the terms of this Lease or earlier if required by the applicable legislation.  Notwithstanding any other provision in this Lease to the contrary, the Sales Taxes payable by the Tenant under this paragraph shall be deemed not to be rent or additional rent, but the Landlord shall have all remedies for and rights of recovery of such Sales Taxes as it has for recovery of rent under this Lease.

 

4.04

Utilities.  To pay (without duplication of any payment made on account of Operating Costs) all rates and charges for all Utilities and other services supplied to or used on the Leased Premises or reasonably attributable to the Tenant or the Tenant's occupation of the Leased Premises and if such rates and charges shall be billed or assessed against the Landlord, the Tenant shall pay such rates and charges to the Landlord upon demand by the Landlord.

 

4.05

Taxes.  To pay as additional rent to the Landlord the Tenant's Proportionate Share of any Taxes within 10 days of receipt of notice from the Landlord, provided however that the Landlord may estimate in advance at the beginning of each and any Accounting Year of the Term or portion thereof, the annual amount of the Tenant's Proportionate Share of Taxes and request that the Tenant pay and the Tenant shall pay as additional rent 1/12th of such estimated sum monthly in advance concurrently with the payments of Basic Rent pursuant to Article 3 of this Lease.  As soon as the actual amount of the Taxes for the Accounting Year becomes known to the Landlord and if the said amount exceeds or is less than the amount estimated by the Landlord by 10% or more, the Landlord shall inform the Tenant and the parties shall make all necessary corrective adjustments immediately.  If the difference between the actual amount and the estimated amount of Taxes is less than 10%, the Tenant's Proportionate Share of Taxes shall be adjusted according to Section 4.09.

 

4.06

Increased Taxes.  If any Taxes shall be increased by reason of any installation made in or upon or any alteration or improvement made in or to the Leased Premises by the Tenant or by the Landlord on behalf of the Tenant, the Tenant shall pay the amount of any such increase as additional rent.

 

4.07

Reduction of Taxes.  Any expense incurred by the Landlord in obtaining or attempting to obtain a reduction in the amount of tax shall be added to and included in the amount of such Taxes.  If the Tenant has paid its Proportionate Share of Taxes and the Landlord has thereafter received a refund of any portion of such Taxes, the Landlord shall make an appropriate refund to the Tenant.

 

 

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4.08

Other Costs.  To pay as additional rent to the Landlord:

 

a)

its Proportionate Share of Operating Costs, by monthly instalments to be fixed by the Landlord from time to time; and

 

b)

the Costs of Additional Services (if any) upon demand by the Landlord.

 

If the Tenant's business hours are substantially longer than the Normal Business Hours, the Tenant's Proportionate Share of Operating Costs shall be adjusted to reflect the additional services, supplies and maintenance required as a consequence of the longer business hours.

 

Wherever, in the Landlord's reasonable opinion, any cost or expense included in Operating Costs properly relates only to a tenant or a group of tenants of the Building, the Landlord may charge such cost or expense directly to such tenant or group of tenants.  Any cost or expense charged by the Landlord to the Tenant under this section shall be payable by the Tenant upon demand by the Landlord.

 

4.09

Adjustments.    Within 180 days after the end of each Accounting Year the Landlord shall make a final determination of the actual amount of Operating Costs and Taxes for the Leased Premises for such Accounting Year and the Tenant's Proportionate Share thereof and the aggregate of monthly installments made by the Tenant during the accounting year pursuant to Sections 4.05 and 4.08 shall be adjusted by the Landlord on the basis of the total amount actually paid or payable by the Tenant for such Accounting Year for Operating Costs and Taxes for the Leased Premises. If the actual amount payable by the Tenant exceeds the sum of the monthly installments paid by the Tenant, the Tenant shall pay the deficiency, without interest, as additional rent within 30 days after the date of delivery of a statement by the Landlord, notwithstanding that this may fall after the end of the Term of this Lease. If the sum of the monthly installments paid by the Tenant exceeds the actual amount payable by the Tenant, the Landlord will credit the Tenant, without interest, with the excess to the next ensuing payment of Rent due by the Tenant pursuant to Section 3.01, and if there are no ensuing payments of Rent pursuant to Section 3.01, the amount shall be paid to the Tenant.

 

4.10

Sales Tax Exclusion.  There shall be excluded from amounts payable by the Tenant under this Lease (and shown separately on statements) all Sales Taxes with respect to the purchase of any goods and services, the cost of which goods and services are included in amounts payable by the Tenant under this Lease, to the extent that the amount of such Sales Taxes is or will be available to be claimed by the Landlord as a credit or refund in determining the Landlord's net tax liability on account of Sales Taxes.

 

4.11

Net Lease.  It is the intention of the parties that this Lease shall be a completely net lease, and that the Basic Rent payable to the Landlord shall be net to the Landlord, without abatement or offset for any cause whatsoever and that all costs, expenses and obligations of every kind and nature whatsoever relating to the Leased Premises, whether or not herein referred to and whether or not of a kind now existing or within the contemplation of the parties hereto, shall be paid by the Tenant.

 

4.12

Evidence of Payment.  To produce to the Landlord from time to time upon request satisfactory evidence of the due payment by the Tenant of all payments required to be made by the Tenant under this Lease.

 

4.13

Permitted Use.  To use the Leased Premises only for the purpose set out in Section 1.01 (h) and not to use or permit to be used the Leased Premises or any part thereof for any other purpose or business without the Landlord's prior written approval.  

 

4.14

Waste and Nuisance.  Not to commit or permit any waste or injury to the Leased Premises including Leasehold Improvements and trade fixtures therein, any overloading of the floors and any consumption of electricity therein at any time exceeding 4.5 watts per square foot of Rentable Area, any nuisance or any use or manner of use causing annoyance to other tenants and occupants of the Building. The Tenant shall not at any time cause or allow any Hazardous Substances to be generated, created, used, stored, treated, transferred, transported or disposed of on the Lands, the Building or the Leased Premises except in compliance with all the laws, after obtaining the prior consent of the Landlord and pursuant to the terms of this Lease. The Landlord may impose any conditions that it considers reasonably necessary (including the requirement that monies be posted as security for the performance of the Tenant’s obligations) to protect the Lands, the Building and the Leased Premises.  

 

4.15

Insurance Risks.  Not to do, omit to do or permit to be done or omit to be done upon the Leased Premises anything which would cause the Landlord's cost of insurance (whether fire or liability) to be increased or which shall cause any policy of insurance to be subject to cancellation.  Without waiving the foregoing prohibition, the Landlord may demand, and the Tenant shall pay to the Landlord upon demand, the amount of any such increase of cost caused by anything so done or omitted to be done.

 

4.16

Condition.  Not to permit the Leased Premises to become untidy, unsightly or hazardous or permit waste or refuse to accumulate therein.

 

4.17

By-Laws.  To comply at its own expense with all municipal, federal, provincial, sanitary, fire and safety laws, by-laws, regulations and requirements pertaining to the Leased Premises, the Leasehold Improvements, trade fixtures, furniture and equipment installed by the Tenant, their operation and use, and the making by the Tenant of any repairs, changes or improvements therein.

 

4.18

Fire Exit Doors.  To permit the Landlord to install any fire exit or other doors in the exterior and demising walls of the Leased Premises necessary to comply with the requirements of any statute, law, by-law, regulation, ordinance, order or regulation referred to in Section 4.17, and not to obstruct any such door.

 

4.19

Rules and Regulations.  To observe, and to cause its employees and others over whom the Tenant can reasonably be expected to exercise control to observe the Rules and Regulations attached as Schedule "B" hereto, and such further and other reasonable rules and regulations and amendments therein as may hereafter be made by the Landlord of which notice in writing shall be given to the Tenant.  All such rules and regulations shall be deemed to be incorporated into and form part of this Lease.

 

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The Tenant shall conform to the procedures adopted by the Landlord from time to time for the management of risks associated with Hazardous Substances, including without limiting the generality of the foregoing, conducting or participating in the conduct of audits of environmental matters to confirm compliance with the requirements of this Lease and all laws, adopting and following reasonable plans for the proper handling and storage of Hazardous Substances, maintaining records of storage and use of Hazardous Substances, notifying the Landlord of any changes in storage or handling of Hazardous Substances, and providing to the Landlord all reports as required form time to time.  

 

4.20

Overholding.  That if the Tenant shall continue to occupy the Leased Premises after the expiration or termination of this Lease without any further written agreement and without objection by the Landlord, the Tenant shall be a monthly tenant at a monthly Basic Rent equal to 150% of the Basic Rent payable by the Tenant during the last month prior to the expiration or termination of this Lease and (except as to length of tenancy) on and subject to the terms and conditions of this Lease, including the payment of additional rent.

 

4.21

Use and Occupancy Prior to Term.  If the Tenant for any reason uses or occupies the Leased Premises in any way prior to the commencement of the Term, then during such prior use or occupancy the Tenant shall be a tenant of the Landlord and shall be subject to the terms and conditions of this Lease, including the covenant to pay additional rent but excluding the covenant to pay Basic Rent.

 

4.22

Signs.  The Tenant will not paint, display, inscribe, place or affix any sign, symbol, notice or lettering of any kind anywhere outside the Leased Premises (whether on the outside or inside of the Building) or within the Leased Premises so as to be visible from the outside of the Leased Premises, with the exception only of:

 

a)

a standard directory listing in the main lobby of the Building containing only the name of the Tenant, subject to the prior approval of the Landlord as to design, size and location;

 

b)

if the Leased Premises are above the ground floor, a standard entrance door sign installed at or about the entrance door to the Leased Premises containing only the name of the Tenant, subject to receipt, in each case, of the prior written approval of the Landlord as to design, size and location; and

 

c)

if the Leased Premises are on the ground floor then, at the commencement of the Initial Term the Tenant will install, or at the option of the Landlord, the Landlord shall install on behalf of the Tenant, professionally designed street signage specified in Schedule "C" hereto.

 

The Tenant shall indemnify and save harmless the Landlord from all claims, demands, loss or damage to any person or property arising out of any sign, mast, aerial or other installation, notwithstanding any consent by the Landlord thereto.

 

All the above signs shall be installed at the cost of the Tenant and shall be maintained and replaced or modified (as required by the Tenant subject to the Landlord's approval) at the Tenant's cost by the sign company selected by the Landlord.  The Landlord will collect any such costs as rent.

 

4.23

Inspection and Access.  To permit the Landlord and persons authorized by the Landlord at any time to enter the Leased Premises for the purpose of inspection, maintenance, providing janitor service and window cleaning, making repairs, alterations or improvements to the Leased Premises or the Building, or to have access to utilities and services (including electrical and mechanical rooms and access panels, which the Tenant agrees not to obstruct) or to determine the electric light and power consumption by the Tenant in the Leased Premises.  The Tenant shall provide free and unhampered access for the purpose and shall not be entitled to compensation for any inconvenience, nuisance or discomfort, but the Landlord in exercising its rights hereunder shall proceed to the extent reasonably possible so as to minimize interference with the Tenant's use and enjoyment of the Leased Premises.

 

4.24

Showing Leased Premises.  To permit the Landlord and its authorized agents and employees to show the Leased Premises to prospective tenants during Normal Business Hours of the last six months of the Term and, if the Leased Premises are located at the ground or second floor, to permit the Landlord to install a sign in the Tenant's window during the last six months of the Term to advertise the Leased Premises for lease, such sign not to unreasonably reduce visibility through such window.

 

4.25

Access to the Building Outside Normal Business Hours.  To comply with all regulations set by the Landlord for accessing the Building outside Normal Business Hours and, if the Landlord installs an electronic security access system, to comply with all the required procedures to operate the electronic security access system.  The Landlord, in case of misuse of the electronic security access system or of a breach of the terms of this Lease, including Rules and Regulations, or of any behaviour which, at the sole discretion of the Landlord, is determined to be unacceptable, by the Tenant or its employees, invitees or others under its control, may limit or prohibit access to the Building by the Tenant outside Normal Business Hours in addition to assessing the Tenant for any damage in accordance to Section 6.02(c).  The Landlord, if it installs an electronic security access system, will supply the Tenant with the number of access cards reasonably set by the Landlord, taking into account the Rentable Area of the Leased Premises.  The Tenant covenants with the Landlord to promptly inform the Landlord if any of the Tenant's cards are lost or stolen and to return all cards to the Landlord at the end of the Term.  The Landlord will levy a charge, reasonably set by the Landlord from time to time, for all required replacement cards.

 

4.26

Name of Building.  The Tenant shall not refer to the Building by any name other than that designated from time to time by the Landlord and the Tenant may use the name of the Building for its business address and for no other purpose.

 

4.27

Use of Common Areas.  Not to keep or display, except as may be specifically allowed by the Landlord in writing, any merchandise or other thing on or about the Common Areas or otherwise obstruct the Common Areas.

  

 

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4.28

Operating Name.  The Tenant shall carry on business under the operating name set out in Section 1.01 (i), which the Tenant represents and warrants it is entitled to use, and under no other name or style whatsoever unless such other name or style is first approved in writing by the Landlord, such approval not to be unreasonably withheld.

 

4.29

Covenant to Operate.  The Tenant shall throughout the Term continually operate, occupy and utilize the entire Leased Premises and conduct its business in accordance with the provisions of this Lease.  The Tenant acknowledges that the Landlord is executing this Lease in reliance upon this covenant and that it is a material element inducing the Landlord to execute this Lease.  The Tenant shall operate and conduct its business upon the whole of the Premises in an up-to-date, first class and reputable manner befitting the character of the Building and shall act diligently and use all proper and reasonable efforts consistent with good business practice.  The Tenant agrees not to make any material change in the nature or character of the business carried on by the Tenant in or from the Leased Premises or in the quality of goods and services offered by the Tenant in or from the Leased Premises without the written consent of the Landlord.

 

4.30

New Indemnity.  If at any time during the Term, any indemnifier of the Tenant's obligations under this Lease satisfies its obligations to the Landlord under its indemnity agreement with the Landlord, then within 30 days thereafter, the Tenant shall provide a new indemnity on the same terms and conditions as contained in such agreement from a new indemnifier acceptable to the Landlord, acting reasonably.

 

4.31

Cleaning.   Notwithstanding any janitorial service that the Landlord may have agreed to provide to the Leased Premises at certain intervals at the cost of the Tenant, as part of the Operating Costs, the Tenant shall keep the Leased Premises and, without limitation, the inside and outside of all glass, windows and doors of the Leased Premises, and all interior surfaces of the Leased Premises, in a neat, clean and sanitary condition and shall not allow any refuse, garbage or other loose or objectionable or waste material to accumulate in or about the Leased Premises. The Tenant, if no janitorial service to the Leased Premises is provided by the Landlord, shall pay for its own janitorial service. In the event the Tenant fails to clean in accordance with this Section 4.31 upon notice