Exhibit 10.1
LEASE AND STORAGE LEASE
EXTENDING AND AMENDING AGREEMENT
THIS
AGREEMENT dated the 3
rd
day of December,
2008
BETWEEN:
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160 ELGIN
LEASEHOLDS INC.
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(hereinafter
called “Landlord”)
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OF THE FIRST PART
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- and
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LEARNING TREE INTERNATIONAL INC.
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(hereinafter
called “Tenant”)
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OF THE SECOND PART
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WHEREAS:
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A.
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By a lease dated the 12
th
day of April, 1999
(“Lease”) made between Trizec Hahn Corporation
(“Trizec Hahn”) as landlord, and Tenant, Trizec Hahn
leased to Tenant certain premises known as Suite 2300 and
containing approximately 19,739 square feet of Rentable Area
(“Premises”), located in the building municipally known
as 160 Elgin Street, Ottawa, Ontario (“Building”) for a
term of ten (10) years (“Term”), commencing
July 1, 1999, and expiring June 30, 2009;
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B.
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Landlord
acquired the Building from, and is successor in interest to, Trizec
Hahn;
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C.
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By a storage lease dated the
8 th day of June, 2004
(“Storage Lease”) made between Landlord and Tenant,
Landlord leased to Tenant certain storage premises containing a
total area of approximately 190 square feet and a useable area of
106 square feet, as shown outlined in red on Exhibit
“1” to the Storage Lease (“Storage
Premises”);
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D.
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Landlord and
Tenant have agreed to amend the Lease by: (i) providing for
the updated and agreed upon measurement of the Gross Rentable Area
of the existing Premises as 19,900 square feet; (ii) extending
the Term of the Lease and the Storage Term (as defined in the
Storage Lease) of the Storage Lease each for a further period of
five (5) years commencing July 1, 2009 and expiring
June 30, 2014, on the same terms and conditions as contained
in the Lease and the Storage Lease respectively, except as
otherwise set out herein; and (iii) amending such other
provisions of the Lease as hereinafter provided.
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NOW, THEREFORE,
in consideration of the mutual
promises hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto, the parties hereto
agree as follows:
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1.
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CONFIRMATION
OF RECITALS
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The parties hereto confirm that the
foregoing recitals are true in substance and in fact.
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2.
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EXTENSION OF
TERM OF LEASE AND STORAGE LEASE
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The Term of the Lease and the
Storage Term of the Storage Lease are each hereby extended for a
further period of five (5) years commencing on the 1st day of
July, 2009 and expiring on the 30th day of June, 2014
(‘Extension Term”) on the same terms and conditions as
contained in the Lease and the Storage Lease respectively, except
as expressly set out herein.
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3.
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AMENDMENTS
TO THE LEASE
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Effective as of the
1 st day of July, 2009
(“Effective Date”), the Lease is amended as
follows:
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(a)
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Section 1.1 of the Lease (Premises) is
hereby deleted and replaced with the following:
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1.1 Premises:
That certain office space currently
identified as “Suite 2300” in the building known as
“160 Elgin”, located in the City of Ottawa, Province of
Ontario, containing a deemed area of nineteen thousand, nine
hundred (19,900) square feet of Gross Rentable Area. The
Premises are shown in that approximate location cross-hatched on
Schedule “A”.
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(b)
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Section 1.2 of the Lease (Term) is hereby
deleted and replaced with the following:
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“ 1.2 Term: Fifteen
(15) years, with an option to renew for an additional five
year period,”
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(c)
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Section 1.4 of this Lease (Expiration date)
is hereby deleted and replaced with the following:
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“ 1.4
Expiration Date: 30 th day of June,
2014.”
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(d)
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Section 1.5 of the Lease (Minimum Rent) is
hereby amended by adding thereto the following
provision:
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“For the period commencing
July 1, 2009 up to and including June 30, 2014, an annual
Minimum Rent of three hundred sixty-three thousand, one hundred
seventy-five Dollars ($363,175.00), calculated at a net annual rate
of eighteen dollars and twenty-five cents ($18.25) per square foot
of Gross Rentable Area of the Premises, payable in Canadian money
on the first day of each month, in equal, consecutive, monthly
instalments of thirty thousand, two hundred sixty-four Dollars and
Fifty-eight cents ($30,264.58).”
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(e)
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Section 1.5.1 of the Lease (Free Rent) is
hereby deleted.
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(f)
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Section 1.9 of the Lease (Authorized Use)
is hereby deleted and replaced with the following:
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“ 1.9 Authorized Use:
Any legally permitted general office use and training facility
(with zoning to permit assembly/school use), including telecom and
computer based training, and including providing space to
unaffiliated third parties on a daily, non-exclusive basis, for
meetings, courses, seminars and lectures, including offering to its
staff and clientele complimentary food, snacks and refreshments
incidental to such training sessions, meetings, courses, seminars
and lectures, provided that Tenant shall at all times maintain
supervision and control of the use of the Premises and provided
that all uses of the Premises are to be in compliance with all
applicable laws and all zoning requirements/restrictions applicable
to the Building, and all said uses shall further be subject to:
(i) any existing exclusives granted by Landlord to other
tenants in the Building of which Tenant has been provided written
notice, including, without limitation those set forth in Schedule
“I” to this Lease; and (ii) the further
limitations set out in Section 2 of Schedule “C”
to this Lease”.
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(g)
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Section 1.10 of the Lease (Address for
Notices) is hereby amended by deleting the address for notice of
the Landlord and replacing it with the following:
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“to Landlord:
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3625 Dufferin
Street, Suite 500
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Downsview, ON
M3K 1N4
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Attention:
Leasing Manager”
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(h)
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Section 3.2 of the Lease (Measurement of
Premises and Rent Adjustment) is hereby deleted and replaced with
the following:
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“3.2
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Measure
of Premises and Rent Adjustment
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Landlord and Tenant acknowledge that
the Gross Rentable Area of the Premises is conclusively deemed, for
the purpose of calculating Minimum Rent, to be nineteen thousand,
nine hundred (19,900) square feet and that during
the
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Term, as same may be extended or
renewed, there shall be no further remeasurement of the Premises as
they exist as of October 1, 2008, and no right on the part of
the Landlord to increase, and no right on the part of the Tenant to
decrease, the Rentable Area of the Premises as they exist as of
October 1, 2008 as a result of changes in calculations and
measurement of rentable area pursuant to the Building Owners and
Managers Association (“BOMA”) International Measurement
Standards (ANSI/BOMA Z65.1-1996), or for any other
reason.”
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(i)
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Section 8.1 of the Lease (Use) is hereby
deleted and replaced with the following:
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The Premises shall be used and
occupied by Tenant for the purpose of carrying on the Authorized
Use set forth in Section 1.9 hereof and for no other purpose.
Other than as expressly provided in the Authorized Use, Tenant
shall not permit any part of the Premises to be occupied by any
Person other than Tenant or a permitted assignee or subtenant and
their respective employees.”
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(j)
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Section 10.2 of the Lease (Landlord’s
Approval of Tenant’s Improvements) is hereby amended by
adding thereto the following provision:
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“Notwithstanding the
foregoing, from and after July 1, 2009, if Landlord is
required to construct or supervise Tenant’s leasehold
improvements or changes to the existing Premises during the Term,
there will be no fees (including but not limited to supervision,
security, elevator, etc.) charged to Tenant but Tenant shall pay to
Landlord the amount of all out-of-pocket expenses of Landlord,
which shall be payable immediately upon receipt of evidence of such
expenses, and which expenses shall form part of and be collectible
as Additional Rent.
Further, Landlord agrees that Tenant
may engage a space planner of its choice to complete a preliminary
space plan of the Premises (plus one revision) at the
Tenant’s cost, but which cost Landlord agrees to contribute
to, to a maximum of ten cents ($0.10) per square foot of the
Rentable Area of the Premises.”
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(k)
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Section 17.3 of the Lease (Landlord’s
Base Building Work) and Section 17.5 of the Lease
(Landlord’s Contribution Towards Tenant’s Improvements)
shall no longer apply.
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(l)
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Section 17.6 of the Lease (Option to Renew)
is hereby deleted and replaced with the following:
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(a) Subject to Section 17.19 of
this Lease below (Landlord’s Right to Revoke), Tenant shall
have the option to extend the Term of this Lease (together with the
Storage Term of the Storage Lease) for one (1) further term of
five (5) years (the “Extension Term”). Such
extension shall be on the same terms and conditions as contained in
this Lease, except that: (i) there shall be no further right
to extend after the expiry of the Extension Term; (ii) the
Minimum Rent payable for the Premises and the Storage Rent (as
defined in the Storage Lease) payable for the Storage Premises
shall be such amount as determined pursuant to subsection 17.6(b)
below; and (iii) there shall be no tenant’s allowance or
rent-free period for the Extension Term and the Premises and the
Storage Premises shall be accepted by Tenant in “as is”
condition at the commencement of the Extension Term without
Landlord being required to perform any work. Such right to extend
shall be exercisable by notice to Landlord by not later than nine
(9) months prior to the expiry of the original Term hereof,
failing which such right shall be null and void and forever
extinguished.
(b) The Minimum Rent and Storage
Rent for the Extension Term shall be the market rent (“Market
Rent”) for the Premises and the Storage Premises,
respectively (which for purposes of the definition of Market Rent
are collectively referred to as “Premises”). As used
herein, “Market Rent” means the annual rental which
could reasonably be obtained by Landlord for the Premises from
a
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willing tenant or willing tenants
dealing at arms’ length with Landlord in the market
prevailing for a term commencing on the relevant date, having
regard to all relevant circumstances including the size and
location of the Premises, the facilities afforded, the terms of the
lease thereof (including its provisions for Additional Rent), and
the improvements therein, and with the assumption that the
improvements existing at the time are ideal for Tenant’s use
as is, and disregarding any deficiencies in the condition and state
of repair of the Premises as a result of Tenant’s failure to
comply with its obligations hereunder in respect of the maintenance
and repair of the Premises, and having regard to all economic
inducements and rentals currently being obtained for space in the
Building (if applicable) and for comparable space in other
buildings comparably located. The Market Rent for the Extension
Term shall be as agreed upon between Landlord and Tenant or,
failing agreement by Landlord and Tenant, by not later than three
(3) months prior to the expiry of the Term hereof, the Market
Rent shall be established by single arbitration pursuant to the
Arbitration Act , Ontario. In the event that the Minimum
Rent and the Storage Rent payable during the Extension Term has not
been determined prior to the commencement of the Extension Term,
then until such determination has been made, Tenant shall pay
Minimum Rent and Storage Rent at a rate equal to one hundred and
ten (110%) percent of the Minimum Rent and Storage Rent
payable during the immediately preceding twelve (12) month
period. Upon determination of the Minimum Rent and Storage Rent for
the relevant Extension Term, either Landlord shall pay to Tenant
any excess or Tenant shall pay to Landlord any deficiency in the
payments of Minimum Rent and Storage Rent previously made by
Tenant.”
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(m)
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Section 17.7 of the Lease
(Right of First Refusal) is hereby amended by revising the 5
th
line of the first
paragraph thereof such that such Section reads as
follows:
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“17.7
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Right of First Refusal –
23 rd
Floor
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Provided the Tenant is not in
default under any provisions of this Lease and subject to any
pre-existing rights granted or to be granted to Gowlings,
Strathy & Henderson (such granting to occur no later than
Aug
