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Exhibit
10.1
LEAD SKY ENTERPRISES
LIMITED
Landlord
- and -
INTELLON CANADA
INC.
Tenant
- and -
INTELLON
CORPORATION
Indemnitor
OFFICE LEASE
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| 1. |
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DATE OF LEASE: |
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June 20, 2008 |
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| 2. |
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LEASED PREMISES: |
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Suites
360 and 385 |
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| 3. |
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PROPERTY: |
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144-146 Front Street West, Toronto |
INDEX
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| ARTICLE I - DEFINITIONS |
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| Section 1.1 |
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Meaning
of Certain Terms |
| Section 1.2 |
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Calculation of Area |
| Section 1.3 |
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Architect’s Certificate Conclusive |
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| ARTICLE II - LEASE OF PREMISES |
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| Section 2.1 |
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Leased
Premises |
| Section 2.2 |
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Term |
| Section 2.3 |
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Condition
of Premises |
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| ARTICLE III - RENT |
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| Section 3.1 |
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Base
Rent |
| Section 3.1.1 |
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Advance
Rent/Security Deposit |
| Section 3.2 |
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Additional Rent |
| Section 3.3 |
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Payment
of Annual Base Rent |
| Section 3.4 |
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Payment
of Additional Rent |
| Section 3.5 |
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Charges
for Utilities |
| Section 3.6 |
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When
Services Not Provided |
| Section 3.7 |
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Rent in
Arrears |
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| ARTICLE IV - TENANT’S COVENANTS |
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| Section 4.1 |
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Tenant to
Pay Rent |
| Section 4.2 |
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Tenant to
Pay Certain Taxes |
| Section 4.3 |
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Separate
School Taxes |
| Section 4.4 |
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Use of
Leased Premises |
| Section 4.5 |
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Prohibited Uses of Leased Premises |
| Section 4.6 |
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No Waste
or Nuisance |
| Section 4.7 |
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Signs |
| Section 4.8 |
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Obligation to Repair |
| Section 4.9 |
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Exceptions to Tenant’s Obligation to Repair |
| Section 4.10 |
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Compliance by Tenant with Laws etc. |
| Section 4.11 |
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Notice of
Defects or Damage |
| Section 4.12 |
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Tenant’s Insurance |
| Section 4.13 |
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Increase
in Insurance Premiums |
| Section 4.14 |
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Indemnity
by Tenant |
| Section 4.15 |
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Surrender
of Leased Premises |
| Section 4.16 |
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Removal
of Tenant’s Property |
| Section 4.17 |
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Exhibit
Leased Premises |
| Section 4.18 |
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Assignment and Subletting |
| Section 4.19 |
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Tenant’s Fixtures |
| Section 4.20 |
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Waste
Removal |
| Section 4.21 |
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Pest
Control |
| Section 4.22 |
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Compliance with Laws |
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| ARTICLE V - LANDLORD’S COVENANTS |
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| Section 5.1 |
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Quiet
Enjoyment |
| Section 5.2 |
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Repair |
| Section 5.3 |
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Heating,
Air-Conditioning, Janitorial, Etc. |
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| Section 5.4 |
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Exceptions to Landlord’s Obligations |
| Section 5.5 |
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Landlord’s Insurance |
| Section 5.6 |
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Building
Taxes |
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| ARTICLE VI - MUTUAL COVENANTS |
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| Section 6.1 |
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Entry by
Landlord |
| Section 6.2 |
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Maintenance of Services etc. |
| Section 6.3 |
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Suspension of Services |
| Section 6.4 |
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Entry by
Landlord not to Interfere |
| Section 6.5 |
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Entry in
Absence of Tenant |
| Section 6.6 |
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Overholding |
| Section 6.7 |
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Limit of
Landlord’s Liability |
| Section 6.8 |
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Landlord’s Alterations |
| Section 6.9 |
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Tenant’s Alterations |
| Section 6.9.1 |
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Tenant to
Discharge all Liens |
| Section 6.10 |
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Termination in the Event of Damage |
| Section 6.11 |
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Termination for Sale/Demolition |
| Section 6.12 |
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Rules and
Regulations |
| Section 6.13 |
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Transfers
by Landlord |
| Section 6.14 |
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Rights of
Landlord’s Mortgagees |
| Section 6.15 |
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Priority
of Lease |
| Section 6.16 |
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Right to
Relocate |
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| ARTICLE VII - LANDLORD’S REMEDIES |
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| Section 7.1 |
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Landlord
May Perform Tenant’s Covenants |
| Section 7.2 |
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Re-entry |
| Section 7.3 |
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Landlord
May Re-let |
| Section 7.4 |
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Right to
Distrain |
| Section 7.5 |
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Landlord
May Follow Chattels |
| Section 7.6 |
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Waiver of
Repudiation of Lease |
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| ARTICLE VIII - CERTIFICATES, NOTICES, PAYMENTS &
FINANCIAL INFORMATION |
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| Section 8.1 |
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Estoppel
Certificates |
| Section 8.2 |
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Notices |
| Section 8.3 |
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Payments |
| Section 8.4 |
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Financial
Information |
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| ARTICLE IX - GENERAL PROVISIONS |
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| Section 9.1 |
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Failure
of Landlord to Deliver Possession |
| Section 9.2 |
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Force
Majeure |
| Section 9.3 |
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Time of
the Essence |
| Section 9.4 |
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Joint and
Several Liability |
| Section 9.5 |
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Amendments |
| Section 9.6 |
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Waivers |
| Section 9.7 |
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Severability |
| Section 9.8 |
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Headings |
| Section 9.9 |
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Changes
Required by Context |
| Section 9.10 |
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Planning
Act |
| Section 9.11 |
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Notice of
Lease |
| Section 9.12 |
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Whole
Agreement |
| Section 9.13 |
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Applicable Law |
| Section 9.14 |
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Assigns |
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| ARTICLE X - SPECIAL PROVISIONS |
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| Section 10.1 |
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Right of
Extension |
| Section 10.2 |
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Confidentiality |
| Section 10.3 |
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Indemnitor’s Covenants |
SCHEDULES
“A”
– FLOOR PLAN
“B”
– LEGAL DESCRIPTION
“C”
– RULES AND REGULATIONS
“D”
– RIGHT OF EXTENSION
THIS LEASE made the
20th day of June, 2008.
IN PURSUANCE OF THE SHORT FORMS OF
LEASES ACT (ONTARIO) BETWEEN:
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LEAD SKY
ENTERPRISES LIMITED |
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(herein
called the “Landlord”) |
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OF THE
FIRST PART |
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- and
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INTELLON
CANADA INC. |
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(herein
called the “Tenant”) |
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OF THE
SECOND PART |
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INTELLON
CORPORATION |
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(herein
called the “Indemnitor”) |
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OF THE
THIRD PART |
WHEREAS the Landlord
and the Tenant have agreed to enter into this Lease.
NOW THEREFORE THIS
INDENTURE WITNESSETH that in consideration of the rents,
covenants, obligations and agreements hereinafter reserved and
contained.
ARTICLE I
DEFINITIONS
Section 1.1 Meaning of Certain
Terms
In this Lease and in the schedules and
appendices to this Lease:
| (a) |
“Additional Rent” means the rental referred to in
Section 3.2; |
| (b) |
“Architect’s Certificate” means the
certificate of an architect appointed by the Landlord; |
| (c) |
“Base Rent” means the rental referred to in
Section 3.1; |
| (d) |
“Building” means the lands and premises municipally
known as 144-146 Front Street West, Toronto, Ontario
together with all buildings, structures, improvements, fixtures,
sprinklers, elevators, heating, ventilating, air-conditioning and
mechanical and electrical equipment and machinery, and water, gas,
sewage, telephone and other communication facilities and electrical
power services and utilities comprised therein, belonging thereto,
connected therewith or used in the operation thereof, and now or
hereafter constructed, erected and installed therein and thereon,
but excludes all Leasehold Improvements made, constructed, erected
or installed therein by or on behalf of any tenant of premises
therein; |
| (e) |
“Rights in Common” means rights of tenants in the
Building to Service Areas and Leasable Service Areas (as
hereinafter defined) located at 144-146 Front Street
West; |
| (f) |
“Commencement Date” means the date set out in
Section 2.2 for the beginning of the Term; |
| (g) |
“Laws” means all statutes, regulations, by-laws,
orders, rules, requirement and directions of all federal,
provincial, municipal and other governmental authority and
regulatory authority having jurisdiction; |
| (h) |
“Leasable Service Areas” means passenger and
service elevator lobbies (other than those on the ground floor and
those exclusively for a tenant’s use); corridors, washroom;
rooms and closets for electrical, telephone, janitor, service and
maintenance facilities; and the walls enclosing the
same; |
| (i) |
“Leased Premises” means the premises comprising a
leasable area of approximately 10,200 square feet, outlined in red
on Schedule “A” located in the Building and being
Suite Numbers 360 and 385 , part of the third
(3rd) floor, and includes all Leasehold Improvements and
all water, gas, sewage, telephone and other communication
facilities comprised therein for the exclusive use thereof,
reserving unto the Landlord the right to make reasonable variations
in the area, form and siting of the Leased Premises, and the right
to relocate on comparable floor or floors prior to the Commencement
Date with the consent of the Tenant, such consent not to be
unreasonably withheld; |
| (j) |
“Leasehold Improvements” means all fixtures,
improvements, installations, alterations and additions from time to
time made, constructed, erected or installed in or to the Leased
Premises, including all interior partitions however affixed and all
rugs, carpeting and floor coverings attached in any way to the
Leased Premises, but excludes moveable trade fixtures, moveable
partitions, and furniture and equipment not affixed to the Leased
Premises; |
| (k) |
“mortgage” includes a mortgage, pledge, charge,
hypothec, encumbrance or financing agreement and
“mortgagee” includes the holder of such
mortgage; |
| (l) |
“Normal Business Hours” means the hours from 8:00
a.m. to 6:00 p.m. on each day, other than a statutory holiday, from
Monday to Friday inclusive in each week, or such extended hours as
the Landlord may reasonably determine from time to
time; |
| (m) |
“Rent” includes all amounts payable by the Tenant
under this Lease; |
| (n) |
“Sales Taxes” means all transfer, multi-stage
sales, sales, use, consumption, value added or other similar taxes
imposed by any federal, provincial or municipal government upon the
Landlord or the Tenant or in respect of this Lease or the payments
made by the Tenant hereunder or the goods and services provided by
the Landlord hereunder including, without limitation, the rental of
the Leased Premises and the provision of services to the Tenant
hereunder; |
| (o) |
“Service Areas” means all facilities and utilities
(other than Leasable Service Areas) from time to time furnished or
designated by the Landlord (as the same from time to time may be
altered, reconstructed or expanded) in connection with the Building
for the use or benefit in common, in such manner as the Landlord
may permit, of occupants of premises in the Building and all others
entitled thereto and now or hereafter developed by the Landlord
including, without limiting the generality of the foregoing,
heating, ventilating, air-conditioning, mechanical and service
equipment, areas and rooms; driveways, entrances and exits,
passageways, entrance lobbies, elevator lobbies on the ground
floor, sidewalks, balconies, terrace, malls, courtyard, ramps to
parking areas, landscaped areas, stairways; elevators (other than
those stairways and elevators exclusively for a tenant’s
use), shafts, flues, vertical ducts, garbage facilities, and
receiving and shipping facilities including ramps and access
thereto; and the walls enclosing the same; |
| (p) |
“Stipulated Rate of Interest” means that rate of
interest at the time such interest falls due under this Lease which
is equal to the lowest rate then charged by any chartered Canadian
bank with which the Landlord is doing business, for commercial
demand loans, plus 3% per annum; |
| (q) |
“Taxes” means all taxes, local improvement rates,
levies, rates, duties, assessments and charges from time to time
imposed against real property, buildings, structures and
improvements by municipal or other governmental authorities having
jurisdiction and all taxes, liens, rates, duties, assessments and
charges which may at any time be substituted therefore or replace
the same or is supplemental thereto but excludes: |
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(ii) |
the amount by which separate school taxes exceed the amount
which would have been payable for school taxes if no assessment had
been made for the support of separate schools; and |
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(iii) |
any tax separately imposed as provided for in Section 4.2
or allocated as provided in Section 3.2 in respect of
Leasehold Improvements in the Building; |
| (r) |
“Tenant’s Proportionate Share” means a
fraction, the numerator of which is the total gross leasable area
of the Leased Premises and the denominator of which is the total
gross leasable area of the Building; |
| (s) |
“Term” means the term of this Lease as set out in
Section 2.2. |
Section 1.2 Calculation of
Area
Wherever in this Lease reference is made
to the size of any area or areas or the leasable area or gross
leasable area of any premises or the amount of any payment is
required to be determined in reference to the size of any area or
areas, the calculation of the size of any such area or areas shall
be made as follows:
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the leasable area of premises or a part of any premises
comprising a single tenancy floor on the second (2nd) and
higher floors shall be computed by measuring to the inside finish
of the permanent outer walls of the Building and shall include all
area within the permanent outer walls of the Building without
deduction for columns, or projections necessary to the Building but
deducting the area occupied by Service Areas which are located
within said premises; |
| (b) |
the leasable area of premises or a part of any premises on the
basement and the ground floor and on a multiple tenancy floor on
the second (2nd) and higher floors shall be computed by
measuring: |
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(i) |
to the inside finish of the permanent outer walls of the
Building; |
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(ii) |
to the surface interior to the premises being measured of
interior walls separating such premises from Service Areas and
Leasable Service Areas; and |
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(iii) |
to the centre line of interior walls separating such premises
from adjoining premises, |
without deduction for
columns, and projections necessary to the Building;
| (c) |
the gross leasable area of premises or a part of any premises
comprising a single tenancy floor on the fifth (5th) floor
shall be the leasable area thereof; |
| (d) |
the gross leasable area of premises or a part of any premises
comprising a single tenancy floor on the second (2nd) through
to and including the seventh (7th) floors, shall be the
leasable area thereof; |
| (e) |
the gross leasable area of premises or a part of any premises
on a multiple tenancy floor on the second (2nd) and higher
floors shall be the aggregate of: |
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(i) |
the leasable area of such premises; and |
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(ii) |
the pro-rata share of Leasable Service Areas applicable to such
floor; |
| (f) |
the gross leasable area of premises on the ground floor and
basement shall be the leasable area thereof; and |
| (g) |
the gross leasable area of the Building shall be the aggregate
of the gross leasable area of all premises in the
Building. |
Wherever the permanent outer wall of the
Building measured vertically from finished floor to the underside
of the finished ceiling at such outer wall is more than 50% glass
or other material of similar viewing properties, the inside finish
of such outer wall shall be considered to be the inside surface of
the glass or other material. Where any wall, door or window of any
premises is recessed from the demising line of such premises the
area of such recess shall for all purposes be a part of such
premises and included in the leasable area of such
premises.
Section 1.3 Architect’s
Certificate Conclusive
An Architect’s Certificate as to
the size of any area or areas, the leasable area of any premises,
the gross leasable area of any premises, the extent of any injury,
the portion of the Leased Premises capable of being used for the
purpose for which they are leased, the period within which any
injury may be repaired, or the date on which any repairs have been
completed, shall be conclusive and binding on the
parties.
ARTICLE II
LEASE OF
PREMISES
Section 2.1 Leased
Premises
The Landlord hereby leases the Leased
Premises to the Tenant and the Tenant hereby leases the Leased
Premises from the Landlord for the Term, at the Rent, subject to
the conditions and in accordance with the covenants, obligations
and agreements contained in this Lease.
Section 2.2 Term
TO HAVE AND TO HOLD the Leased Premises
for and during the period of two (2) years, beginning
on January 1, 2011 (the “Commencement Date”) and
from henceforth ensuing and fully to be completed and ended on
December 31, 2012 (the “Term”).
Section 2.3 Condition of Leased
Premises
As the Tenant will already have been in
occupancy of the Leased Premises, as a subtenant of Platespin Ltd.
prior to the Commencement Date, the Tenant agrees to accept the
Leased Premises in an “as is” condition, being the
condition which the Leased Premises were in as of July 19,
2007.
ARTICLE III
RENT
Section 3.1 Base
Rent
From and after the Commencement Date and
throughout the Term, the Tenant shall pay to the Landlord in lawful
money of Canada, without any deduction, abatement or setoff
whatsoever, an annual Base Rent for the Leased Premises of ONE
HUNDRED AND FORTY-SEVEN THOUSAND, NINE HUNDRED Dollars
($147,900) , being Fourteen Dollars and Fifty Cents
($14.50) per square foot of the gross leasable area of the
Leased Premises, payable in advance in equal consecutive monthly
installments of Twelve Thousand, three hundred and twenty-five
Dollars ($12,325) on the first day of each and every
month.
Section 3.1.1 Advance
Rent/Security Deposit
The Landlord acknowledges the receipt of
Twenty-Five Thousand, Seven Hundred and Forty-One Dollars and
Fifty-Seven Cents ($25,741.57), to be applied to the Base Rent,
Additional Rent and GST due for the last month of the Term and
prior to
the last month of the Term to be held as
a security deposit (the “Security Deposit”). The said
sum of $25,744.57 is the aggregate of $18,282.33 which the Landlord
held as a deposit on account of the Tenant’s lease of Suite
600 at the Building which is being surrendered and $7,459.24 paid
at the time of the acceptance of the Offer to Lease that gives rise
to this Lease.
The Security Deposit shall be held by
the Landlord as security for the faithful performance by the Tenant
of all of the terms, covenants and conditions of this Lease by the
Tenant to be kept, observed and performed during the Term. If at
any time during the Term any of the Rent shall be overdue and
unpaid, then the Landlord may, at its sole option, but without any
requirement to do so, appropriate and apply any portion of the
Security Deposit to the payment of such overdue Rent.
In the event of the failure of the
Tenant to keep and perform any of the terms, covenants and
conditions of this Lease to be kept and performed by the Tenant,
then the Landlord at its option may appropriate and apply the
entire Security Deposit or so much thereof as may be necessary to
compensate the Landlord for loss and damage sustained or suffered
by the Landlord due to such breach on the part of the Tenant, but
such appropriation shall not be deemed to be substitution for any
claims that the Landlord may have under this Lease or in
law.
Should the entire Security Deposit or
any portion thereof be appropriated and applied by the Landlord
then the Tenant shall, upon written demand of the Landlord, remit
to the Landlord a sufficient amount in cash to restore the said
Security Deposit to the original sum deposited and the
Tenant’s failure to do so within five (5) days after
receipt of such demand shall constitute a breach of this Lease.
Should the Tenant comply with all of the terms, covenants and
conditions of this Lease to be kept, observed and performed by the
Tenant and promptly pay all Rent as and when it falls due the
Security Deposit shall be applied against a portion of the Base
Rent, Additional Rent and GST payable for the last month of the
Term.
Section 3.2 Additional
Rent
From and after the Commencement Date,
the Tenant shall pay to the Landlord in lawful money of Canada,
without any deduction, abatement or setoff whatsoever, Additional
Rent for the Leased Premises equal to the aggregate of the
following amounts:
| (a) |
the amount of Taxes imposed in respect of the Leased Premises
provided that if a separate assessment is issued or allocated in
respect of the Leased Premises but not a separate tax bill, then
the amount of the Taxes payable by the Tenant shall be equal to the
amount obtained by multiplying such assessment by the applicable
commercial mill rate; plus the Tenant’s Proportionate Share
of Taxes imposed in respect of the Service Areas and Leasable
Service Areas, if separately assessed; |
| (b) |
if there is no separate assessment issued or allocated in
respect of the Leased Premises, the Taxes charged against the
Leased Premises shall be determined by the Landlord acting
reasonably, the costs of such making such determination to be
included in the Operating Costs. In making such determination the
Landlord shall have the right, without limiting its right to do
otherwise, to establish separate assessments for the Leased
Premises and all other portions of the Building by using such
criteria as the Landlord, acting reasonably, shall determine to be
relevant including, without limitation: |
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(i) |
the then current established principles of assessment used by
the relevant assessment authorities and on the same basis as the
assessment actually obtained for the Building as a whole or the
part thereof in which the Leased Premises are located; |
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(ii) |
assessments of the Leased Premises or any other portions of the
Building in previous periods of time; |
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(iii) |
the Proportionate Share; |
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(iv) |
any act, religion or election of the Tenant or any other
occupant of the Building which results in an increase or decrease
in the amount of the Taxes which would otherwise have been charged
against the Building or any portion thereof; and |
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(v) |
the quality of construction, use, location of the Leased
Premises within the Building or income generated by the Leased
Premises and/or the assessors valuation of the Leased Premises or
the Building. |
| (c) |
the Tenant’s Proportionate Share of the Operating Costs
of the Building and Rights in Common. For the purpose of this
Lease, “Operating Costs” means the aggregate of all
costs and expenses incurred or accrued by the Landlord or by others
on behalf of the Landlord in connection with the management,
supervision, administration, operation, cleaning, maintenance,
repair, replacement and insurance of the Building. By way of
example and without limiting the generality of the foregoing,
Operating Costs shall include the costs of all repairs required in
the maintenance of the Building and Rights in Common, heating costs
and the cost of steam for heating or other purposes, elevator
maintenance costs, equipment rental (fixed or otherwise), the costs
of providing hot and cold water, the costs of electricity not
otherwise chargeable to any tenant or tenants of the Building, the
costs of air-conditioning, window cleaning, snow removal,
landscaping, uniforms and security, all fire, casualty, liability
and other insurance costs, telephone and other utility costs, the
amounts paid under service contracts with independent contractors,
all salaries, wages and other remuneration and the cost of benefits
paid to employees of the Landlord engaged in operating and
maintaining the Building and Rights in Common, sums equal to the
annual amounts required to fully amortize on a straight line basis
over its useful life, equipment, fixed or otherwise, paid for by
the Landlord and used to provide services to the Building and
Rights in Common, legal appraisal and accounting fees incurred for
the purpose of attempting to reduce Taxes and the various costs
referred to in this subsection, business taxes assessed against the
Landlord with respect to the Building, that portion of the capital
or place of business tax payable by the Landlord and attributable
to the Building and Rights in Common, and all other expenses paid
or payable by the Landlord in connection with the management and
operation of the Building and Rights in Common but excluding Taxes,
taxes on income, capital expenditures (save for the annual
amortization amounts with respect to equipments fixed or otherwise,
paid for by the Landlord and used to provide services to the
tenants of the Building), any provisions for depreciation of or in
respect of the Building, interest on debt or capital retirement of
debt, any amounts directly chargeable by the Landlord to any tenant
or tenants of the Building, any costs incurred by the Landlord or
relating to the leasing of space or premises in the Building
(including leasing commissions) and the cost of repairs to the
extent of insurance proceeds received by the Landlord from claims
made with respect to the items so repaired. If in any year during
the Term the Building is not fully leased or occupied, Operating
Costs for such year shall be adjusted to reflect the amount which
would have been payable if the Building had been fully leased and
occupied during such year; and |
| (d) |
The Landlord’s present estimate of the Additional Rent
payable pursuant to Section 3.2 and 3.5 is $ 14.07 per
square foot per annum of the gross leasable area of the Leased
Premises for the 2007 calendar year. Although this is a bona
fide estimate of the Landlord, the Tenant agrees that it is not
intended by the parties to be relied upon by the Tenant and that
such estimate does not impose any liabilities on the Landlord or
affect the obligations of the Tenant hereunder. |
Section 3.3 Payment of Annual
Base Rent
The annual Base Rent shall be paid in
monthly installments in advance. The Base Rent for the portion of
the Term beginning on the Commencement Date to and including the
last day of the month in which the Commencement Date occurs shall
be pro-rated and paid in advance on the Commencement Date and
thereafter a monthly installment of Base Rent shall fall due and be
paid in advance on the first day of each and every month throughout
the Term.
Section 3.4 Payment of
Additional Rent
The Additional Rent shall be payable to
the Landlord upon demand therefor or at the option of the Landlord
shall be payable in monthly installments in advance on the dates
and at the times for payment of Base Rent provided for in this
Lease. The Landlord shall deliver to the Tenant, not less
frequently than annually, a statement showing in reasonable detail
the information relevant and necessary to the calculation of the
amount of Additional Rent, in the case of the first such statement
for the period from the date from which Rent commences to accrue
under this Lease and in the case of each such subsequent statement
from the date to which the immediately preceding statement was made
up. If Additional Rent is payable by monthly installments, then
until the first statement of Additional Rent has been delivered,
the Additional Rent shall be based upon the reasonable estimate of
the Landlord and thereafter, the Additional Rent shall be the
amount stipulated as such in the most recent prior statement of
Additional Rent delivered to the Tenant by the Landlord, adjusted
to an annual basis if necessary. If the aggregate of the monthly
installments, if any, paid by the Tenant in respect of the period
to which any statement of Additional Rent relates is less than the
amount shown by such statement to be payable by the Tenant, the
Tenant shall forthwith pay the amount of the deficiency to the
Landlord. If the aggregate of the monthly installments, if any,
paid by the Tenant in respect of the period to which such statement
of Additional Rent relates exceeds the amount shown by such
statement to be payable by the Tenant, the amount of such excess
shall be applied pro tanto in satisfaction of the next ensuing
installments of Rent.
Section 3.5 Charges for
Utilities
From and after the Commencement Date,
the Tenant shall pay to the Landlord upon demand
therefor:
| (a) |
all rates and charges for chilled water, water, gas and
electric power services and utilities supplied to the Leased
Premises as determined by the Landlord on a consistent basis for
all tenants of all premises in the Building; and |
| (b) |
a reasonable amount for the cleaning, maintaining and servicing
of the electric lighting fixtures in the Leased Premises including
the replacement of electric light bulbs, tubes, starters and
ballasts. |
Such cleaning, maintaining, servicing
and replacement shall be within the exclusive right of the
Landlord.
Section 3.6 When Services Are
Not Provided
When and if any service (such as
janitorial service) which is normally provided by the Landlord to
tenants of the Building in their premises:
| (a) |
is not provided by the Landlord in the Leased Premises under
the specific terms of this Lease, in determining Operating Costs
for the Tenant hereunder, the cost of such service (except as it
relates to Leasable Service Areas and Service Areas) shall be
excluded; and |
| (b) |
is not provided by the Landlord in a significant portion of the
Building, in determining Operating Costs for the Tenant hereunder,
the cost of such service shall be divided by the difference between
the square feet in the Building and the number of square feet
(determined on the basis set out in Section 1.2) in the
Building in which the Landlord does not provide such
service. |
Section 3.7 Rent in
Arrears
All Rent in arrears shall bear interest
at the Stipulated Rate of Interest from the date on which the same
became due until the date of payment thereof.
ARTICLE IV
TENANT’S
COVENANTS
Section 4.1 Tenant to Pay
Rent
The Tenant covenants to pay
Rent.
Section 4.2 Tenant to Pay
Certain Taxes
The Tenant shall pay and discharge on or
before the date when the same or the installments for the same
become due provided that a request therefore and/or a statement
thereof have been provided to the Tenant by the Landlord on the
taxing authority:
| (a) |
all taxes, levied, rated, charged or assessed in respect of the
Leasehold Improvements and all moveable trade fixtures and
furniture and equipment in or on the Leased Premises; |
| (b) |
every tax, rate, duty, assessment and licence fee in respect of
any and every business conducted on or from the Leased Premises and
of the use or occupancy of the Leased Premises by the Tenant
including, without limitation, all business taxes, rates and
licences; and |
| (c) |
all Sales Taxes imposed on the Landlord or the
Tenant. |
Section 4.3 Separate School
Taxes
If the Leased Premises are assessed in
whole or in part for the support of separate schools the Tenant
shall pay and discharge as Rent on or before the date when the same
or the installments for the same become due the amount by which
Taxes for the Building so payable exceed those which would have
been payable except for such assessment for the support of separate
schools.
Section 4.4 Use of Leased
Premises
The Tenant shall use the Leased Premises
only for general office purposes in connection with the trade or
business carried on by the Tenant on the Commencement Date and for
no other purpose.
Section 4.5 Prohibited Uses of
Leased Premises
The Leased Premises shall not be used in
any manner which obstructs any part of the Service Areas or
Leasable Service Areas or for any purpose except that permitted by
Section 4.4. The Tenant shall not use or permit any part of
the Leased Premises to be used in any manner which interferes with
or intrudes upon the use and enjoyment of the Building or the
Rights in Common by any other tenant or which in the opinion of the
Landlord is inconsistent with the general character of the
Building. The Tenant shall also not cause, suffer or permit the
Leased Premises or any part thereof to be used for any business or
activity that is not in compliance with all Laws.
Section 4.6 No Waste or
Nuisance
| (a) |
The Tenant shall not cause, suffer or permit any waste or
damage to the Leased Premises or Leasehold Improvements, fixtures
or equipment therein nor permit any overloading of the floors
thereof and shall not use or permit to be used any part of the
Leased Premises for any dangerous, noxious or offensive activity or
goods and shall not do or bring anything or permit anything to be
done or brought on or about the Leased Premises or the Building
which results in undue noise or vibration or which the Landlord may
reasonably deem to be hazardous or a nuisance or annoyance to any
other tenants or any other persons permitted to be on the Building,
including without limitation any objectionable odours emanating
from the Leased Premises. The Tenant shall immediately take steps
to remedy, remove or desist from any activity, equipment, goods or
condition on or emanating from the Leased Premises to which the
Landlord objects on a reasonable basis. The Tenant shall take every
reasonable precaution to protect the Leased Premises and the
Building from risk of damage by fire, water or the elements or any
other cause. |
| (b) |
The Tenant shall not itself, and shall not permit any of its
employees, servants, agents, contractors or persons having business
with the Tenant, to obstruct any Service Areas or Leasable Service
Areas except as expressly permitted by the Landlord in writing nor
use or permit to be used any Service Areas or Leasable Service
Areas for other than their intended purposes. Without limiting the
foregoing, the Tenant shall not permit any equipment, goods or
material whatsoever to be placed or stored anywhere in or on the
Service Areas or Leasable Service Areas, including without
limitation on the loading docks and other outside areas adjacent to
the Leased Premises. The Tenant shall not, and shall not permit
anyone else to, place anything on the roof of the Building or go on
to the roof of the Building for any purpose whatsoever, without the
Landlord’s prior written approval, which may be arbitrarily
withheld in the Landlord’s sole discretion. |
| (c) |
The Tenant shall not use any advertising, transmitting or other
media or devices which can be heard, seen, or received outside the
Leased Premises, or which could interfere with any communications
or other systems outside the Leased Premises. |
| (d) |
The Tenant shall conduct its business on the Leased Premises in
keeping with a first class centre, having regard to the character
of the Building. To that end, the Tenant covenants and agrees that
it shall not cause, suffer or permit any fumes, odours, noise or
other element, any of which is determined by the Landlord to be a
nuisance or disturbance to the Landlord or any other occupant of
the Building, to emanate from the Leased Premises; if the Landlord
determines that any such fumes, odours, noise or other element is
emanating from the Leased Premises in such manner as to cause any
nuisance or disturbance to the Landlord or any other occupant of
the Building, the Tenant shall forthwith, upon notice from the
Landlord, cause the same to be rectified. |
| (e) |
The Tenant shall be solely responsible for any contaminant,
pollutant or toxic substance at any time affecting the Leased
Premises resulting from any act or omission of the Tenant or any
other person on the Leased Premises or any activity or substance on
the Leased Premises during the Term, and any period prior to the
Term during which the Leased Premises were used or occupied by or
under the control of the Tenant, and shall be responsible for the
clean-up and removal of any of the same and any damages caused by
the occurrence, clean-up or removal of any of the same, and the
Tenant shall indemnify the Landlord in respect thereof. |
Section 4.7 Signs
The Tenant shall not paint, display,
inscribe, place or affix any sign, picture, advertisement, notice,
lettering or direction on any part of the exterior of the Leased
Premises or so as to be visible from the exterior of the Leased
Premises. The Tenant shall adhere to the uniform pattern of
identification signs for tenants to be placed on the outside of the
doors leading into the premises of tenants of part
floors.
The Landlord acknowledges and agrees
that it shall, at its expense, add the Tenant’s corporate
name to all present and planned internal directory board(s) and
panels used for displaying the Building’s tenant’s
roster and suite numbers.
Section 4.8 Obligation to
Repair
The Tenant covenants that from and after
the Commencement Date:
| (a) |
the Tenant shall, at its sole expense, perform such maintenance
(including painting and repair or replacement of any interior
finishings) repairs and redecorating, and upgrading and
replacements as required to keep the Leased Premises, all contents
thereof and all services, equipment and systems located in or
primarily serving the Leased Premises, at all times, in a first
class appearance and condition and in accordance with all Laws but
excluding only the obligations of the Landlord expressly provided
in Section 4.9. For the purposes of this Section 4.8 but
without affecting the interpretation of any other provision of this
Lease, the Leased Premises shall include all Leasehold Improvements
in, on or serving the Leased Premises; |
| (b) |
at any time and without notice in cases of emergency and
otherwise upon reasonable notice during Normal Business Hours the
Landlord may enter and view the state of repair, and |
| (c) |
the Tenant shall repair the Leased Premises according to notice
in writing. |
Section 4.9 Exceptions to
Tenant’s Obligation to Repair
The obligations of the Tenant under
Section 4.8 shall be subject to the following
exceptions:
| (a) |
reasonable wear and tear which does not affect the proper use
and enjoyment of the Leased Premises in accordance with this Lease
and which does not result in the Leased Premises not being
maintained at all times in a first class appearance and
condition; |
| (b) |
injury caused by fire, lightning, tempest or other casualty for
which the Landlord is indemnified under any policy of insurance and
then only to the extent of actual insurance proceeds received under
such policy of insurance, unless caused by the act, default or
negligence of the Tenant or those for whom the Tenant is in law
responsible; |
| (c) |
injury to the Leased Premises caused by or resulting from
structural defects or weakness; and |
| (d) |
injury caused by or resulting from the negligence of the
Landlord, its officers, servants, agents or employees. |
Section 4.10 Compliance by
Tenant with Laws etc.
Except for matters which are the
responsibility of the Landlord under this Lease, the Tenant at its
expense shall comply with and conform to the requirements of all
Laws and with every reasonable regulation and order of the
Insurers’ Advisory
Organization of Canada or of any body
having similar functions, or of any liability or fire insurance
company by which the Tenant or the Landlord may be insured
affecting the operation, condition, maintenance, use or occupation
of the Leased Premises and the making of any alteration or addition
therein or thereto whether or not such alteration or addition be
required on account of any particular use to which the Leased
Premises may be put and whether or not such requirement, regulation
or order be of a kind now existing or within the contemplation of
the parties.
Section 4.11 Notice of Defects
or Damage
The Tenant shall promptly notify the
Landlord of any defect or deficiency in, malfunction of, or damage
to the Leased Premises or any equipment, service or utility therein
of which the Tenant becomes aware at any time during the Term. The
provisions of this Section 4.11 shall not be interpreted so as
to impose any obligation whatsoever upon the Landlord.
Section 4.12 Tenant’s
Insurance
| (a) |
The Tenant shall, at its sole cost and expense, obtain and
maintain in full force and effect at all times throughout the Term
and such other times, if any, as the Tenant occupies the Leased
Premises or any portion thereof: |
| |
(i) |
commercial general liability insurance including, but not
limited to property damage, public liability, personal injury
liability, contractual liability, products and completed
operations, non-owned automobile liability and owners’ and
contractors’ protective insurance coverage, all on an
occurrence basis, with respect to any use, occupancy, activities or
things on the Leased Premises and with respect to the use and
occupancy of any other part of the Building 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 Three Million ($3,000,000.00) Dollars or such
other amount as the Landlord may reasonably require upon not less
than one (1) month’s notice at any time; |
| |
(ii) |
insurance, in respect of such perils as are from time to time
covered in an all risks policy not less broad than the standard
commercial property floater policy with the exclusions relating to
earthquake and flood removed therefrom, covering the leasehold
improvements, trade fixtures, furnishings, equipment,
stock-in-trade, storefront and store facing materials and all signs
in, on or about the Leased Premises, for not less than the full
replacement cost thereof and with a replacement cost
endorsement; |
| |
(iii) |
broad form comprehensive boiler and machinery insurance on all
insurable objects located on the Leased Premises or which are the
property or responsibility of the Tenant on a blanket repair or
replacement basis with a replacement cost endorsement and with
limits for each accident in an amount not less than the full
replacement cost of all Leasehold Improvements, trade fixtures,
furnishings, equipment, stock-in-trade, storefront and store facing
materials and all signs in, on or about the Leased
Premises; |
| |
(iv) |
business interruption insurance either as an extension to or on
the same form as the insurance referred to in subsections 4.12
(i) and (iii) above, and in such amounts from time to
time as necessary to fully compensate the Tenant for direct or
indirect loss of sales or earnings resulting from or attributable
to any of the perils required to be insured against under the
policies referred to in subsections 4.12 (i) and
(iii) above and all circumstances usually insured against by
cautious tenants including losses resulting from interference with
or prevention of access to the Leased Premises or the Building as a
result of such perils or for any other reason; |
| |
(v) |
tenant’s legal liability insurance for the full
replacement cost of the Leased Premises, and the loss of use
thereof; |
| |
(vi) |
leasehold interest insurance to fully protect the Tenant for
loss of its interest in this Lease and its Leasehold Improvements
in the event of termination of this Lease pursuant to
Section 6.10, whether or not there is any damage or
destruction to the Leased Premises; |
| |
(vii) |
standard owners’ form of automobile insurance policy
providing third party liability insurance on all automobiles owned
by or registered in the name of the Tenant with inclusive limits
and on such terms as reasonably required by the Landlord from time
to time, covering all licensed vehicles owned by or operated by or
on behalf of the Tenant; |
| |
(viii) |
plate glass insurance on all internal and external
glass; |
| |
(ix) |
by law compliance insurance; and |
| |
(x) |
insurance against such risks and in such amounts as the
Landlord or any mortgagee, debenture holder or other secured
creditor of the Landlord may from time to time reasonably require
upon not less than thirty (30) days’ written
notice. |
| (b) |
Each of the Tenant’s insurance policies shall name the
Landlord and the Tenant and any others designated by the Landlord
as additional named insureds with the Landlord as loss payee, as
their interests may appear under the policies referred to in
subsections 4.12 where applicable, (x) above, and each of the
Tenant’s insurance policies shall contain, as deemed
appropriate by the Landlord: |
| |
(i) |
the mortgage clause as may be required by any mortgagee,
debenture holder or other secured creditor of the
Landlord; |
| |
(ii) |
if available at no extra cost, a waiver by the insurer of any
rights of subrogation, or indemnity, or any other claim over, to
which such insurer might otherwise be entitled against the Landlord
or any agents or employees of the Landlord or any other person for
whom the Landlord is in law responsible; |
| |
(iii) |
an undertaking by the insurer that no material change adverse
to the Landlord or the Tenant or the mortgagee, debenture holder or
other secured creditor of the Landlord or the Tenant will be made
and the policy will not lapse or be cancelled or terminated, except
after not less than thirty (30) days’ written notice to
the Landlord and the Tenant and the mortgagee, debenture holder or
other secured creditor of either of them of the intended change,
lapse, cancellation or termination; |
| |
(iv) |
a provision stating that the Tenant’s insurance policy
shall be primary and shall not call into contribution any other
insurance available to the Landlord; |
| |
(v) |
a disputed loss endorsement or agreement, where
applicable; |
| |
(vi) |
a severability of interests clause and a cross-liability
endorsement clause for liability policies, where applicable;
and |
| |
(vii) |
a waiver, in respect of the interests of the Landlord and of
any mortgagee, debenture holder or other secured creditor of the
Landlord, of any provision in any such insurance policies with
respect to any breach of any warranties, representations,
declarations or conditions contained in the said
policies. |
All of the Tenant’s
insurance policies shall be taken out with insurers and shall be in
such form and on such terms as are satisfactory to the Landlord
from time to time.
| (c) |
The Tenant shall ensure that the Landlord shall at all times be
in possession of either certificates of insurance in the form
designated or approved by the Landlord or certified copies of the
Tenant’s insurance policies which are current and in force in
good standing including such certificates or other evidence
satisfactory to the Landlord as to the Tenant’s insurance in
effect and its renewal or continuation in force together with such
evidence as may be required by the Landlord as to the method of
determination of the full replacement cost of the Leasehold
Improvements, trade fixtures, furnishings, equipment,
stock-in-trade, plate glass, storefront and store facing materials
and signs and full particulars of the full replacement cost of each
of the same, and if the Landlord reasonably concludes that the full
replacement cost has been underestimated or understated, the Tenant
shall forthwith arrange for any consequent increase in coverage
required pursuant to this Section 4.12. |
| (d) |
The Tenant hereby releases the Landlord and its servants,
agents, employees, contractors and those for whom the Landlord is
in law responsible from all losses, damages and claims of any kind
in respect of which the Tenant is required to maintain insurance or
is otherwise insured. |
Section 4.13 Increase in
Insurance Premiums
The Tenant shall pay to the Landlord
forthwith on demand therefor any amount by which the basic premium
of insurance paid by the Landlord is increased by reason of any
particular use or occupation of the Leased Premises or by reason of
any provision of this Lease.
Section 4.14 Indemnity by
Tenant
The Tenant shall indemnify and save
harmless the Landlord from any and all liabilities, damages, costs,
claims, suits or actions resulting from:
| (a) |
any breach, violation or non-performance of any covenant,
obligation or agreement of the Tenant under this Lease; |
| (b) |
any damage to property however occasioned by the Tenant, its
officers, agent, servants, employees, contractors, customers,
invitees or licensees and any injury to any person or persons,
including death resulting at any time therefrom, occurring in or on
the Leased Premises or the Building or the Rights in Common or any
part thereof arising from or occasioned by any cause whatever,
except where such damage or injury is due to the act, default or
negligence of the Landlord, its officers, agents, servants,
employees or contractors, not under the direction or supervision of
the Tenant; and |
| (c) |
any contract, lien, privilege, mortgage, charge or encumbrance
on the Building arising from or occasioned by the act, default or
negligence of the Tenant, its officers, agents, servants,
employees, contractors, customers, invitees or
licensees, |
and such indemnification shall survive
the termination of this Lease, anything in this Lease to the
contrary notwithstanding.
Section 4.15 Surrender of Leased
Premises
At the expiration or earlier termination
of the Term the Tenant shall peaceably surrender and yield up to
the Landlord the Leased Premises and all Leasehold Improvements
made, constructed, erected or installed in the Leased Premises in
good and substantial repair and condition in accordance with its
covenants to maintain and repair the Leased Premises. Upon the
expiration or earlier termination of the Term, the Tenant shall not
be required to remove all or any part of the Leasehold Improvements
except such of the Leasehold Improvements as have been installed by
or behalf of the Tenant after the Commencement Date without the
prior written approval of the Landlord and which the Landlord
requires to be removed. In the event of any such removal the Tenant
shall make good any damage caused by reason of the installation and
removal of such Leasehold Improvements. On the expiration of the
Term all Leasehold Improvements made, constructed, erected or
installed in the Leased Premises and not required to be removed
shall be deemed to have become the property of the
Landlord.
Section 4.16 Removal of
Tenant’s Property
At any time within thirty (30) days
prior to the expiration of the Term the Tenant, if not in default
under this Lease, may, and at the request of the Landlord shall,
remove from the Leased Premises all its moveable trade fixtures and
furniture and equipment (other than rugs, carpeting and floor
coverings attached in any way to the Leased Premises) not affixed
to the Leased Premises but the Tenant shall repair any damage to
the Leased Premises and the Building which may be occasioned by
such removal. On the expiration of the Term all such moveable trade
fixtures and furniture and equipment not so removed shall be deemed
to have become the property of the Landlord.
Section 4.17 Exhibit Leased
Premises
At any time during the Term, the
Landlord may exhibit the Leased Premises to prospective purchasers
or mortgagees of the Building and during the six (6) months
prio
|
