exv10w8





Exhibit 10.8


LEASE




BETWEEN:




674951 ONTARIO LIMITED




- and –



ELOQUA CORPORATION




GOODMAN AND CARR

Suite 2300

200 King Street West

Toronto, Ontario

M5H 3W5




 









 







INDEX




	 	 	 	 	 
	 	 	 	 	Page
	1.
	 	DEMISE	 	1
	2.
	 	TERM	 	1
	3.
	 	USE OF PREMISES	 	2
	4.
	 	RENT	 	3
	5.
	 	PAYMENT	 	3
	6.
	 	DEPOSIT	 	3
	7.
	 	ADDITIONAL RENT	 	3
	8.
	 	RENT AND ADDITIONAL PAST DUE	 	4
	9.
	 	TENANT’S COVENANTS	 	4
	10.
	 	INSURANCE	 	9
	11.
	 	OPERATING COSTS	 	13
	12.
	 	MUTUAL COVENANTS	 	13
	13.
	 	FIXTURES AND REMOVAL AND RESTORATION BY TENANT	 	16
	14.
	 	RE-ENTRY	 	17
	15.
	 	EXPENSES AND REMOVAL OF CHATTELS	 	19
	16.
	 	LANDLORD MAY CURE TENANT’S DEFAULT	 	19
	17.
	 	LIEN ON TRADE FIXTURES	 	19
	18.
	 	ADDITIONAL RENT	 	19
	19.
	 	NET LEASE	 	20
	20.
	 	QUIET ENJOYMENT	 	20
	21.
	 	RIGHT OF ENTRY	 	20
	22.
	 	IMPROVEMENTS	 	20
	23.
	 	FIRE	 	21
	24.
	 	ASSIGNMENT BY LANDLORD	 	22
	25.
	 	LIMITATION OF LANDLORD’S LIABILITY	 	22
	26.
	 	SIGNS	 	23
	27.
	 	WAIVER OF BREACH	 	23
	28.
	 	NOTICES	 	23
	29.
	 	STATUS STATEMENT	 	24
	30.
	 	SUBORDINATION	 	24
	31.
	 	IMPOSSIBILITY OF PERFORMANCE	 	24
	32.
	 	MISCELLANEOUS	 	25





SCHEDULES AND APPENDICES




	 	 	 	 	 

	SCHEDULE “A”
	 	Plan of Building	 	28
	SCHEDULE “B”
	 	Legal Description	 	29
	SCHEDULE “C”
	 	Landlord’s and Tenant’s Work	 	30
	SCHEDULE “D”
	 	Rules and Regulations	 	31






 









 





THIS INDENTURE made the 10th day of February, 2005.



IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT



B E T W E E N:




	 	 	 	 
	 	 	 	 
	 
	 	674951 ONTARIO LIMITED,	 
	 
	 	 	 
	 
	 	(herein called the “Landlord”)	 
	 
	 	 	 
	 
	 	OF THE FIRST PART.	 
	 
	 	 	 
	 
	 	- and -	 
	 
	 	 	 
	 
	 	ELOQUA CORPORATION	 
	 
	 	 	 
	 
	 	(herein called the “Tenant”)	 
	 
	 	 	 
	 
	 	OF THE SECOND PART.	 






1. DEMISE



(a) 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 hereby demises and leases
to the Tenant, and the Tenant rents from the Landlord, Suite No. 214 (the “Leased
Premises”), containing a rentable area of approximately Twelve Thousand Six Hundred Ninety Five
(12,695) square feet (including a 12% surcharge of net area to cover the proportion of
the Common Areas of the Building in which the Leased Premises are located which is chargeable to
the Leased Premises), and being located as shown outlined in red on Schedule “A” attached, in one
of the buildings (the “Building”) erected upon the lands (the “Lands”) situate, lying and being in
the City of Toronto, in the Municipality of Metropolitan Toronto (as more particularly described in
Schedule “B” attached), and municipally known as 543 Richmond Street West, Toronto. The demise of
the Leased Premises, as aforesaid, includes, without limitation, the windows, exterior walls and to
the centre of the interior walls comprising the Leased Premises.



(b) Prior to the Commencement Date, the Landlord shall provide to the Tenant its architect’s
certification of the rentable area of the leased premises whose determination shall be binding upon
the parties.



(c) The Tenant shall have the non-exclusive right, at all times, in common with others entitled
thereto, to the use of the common driveways, entrances and exits, roadways, pedestrian walkways,
loading and unloading docks, service areas and all other common areas and facilities of the
Building and the Lands (the “Common Areas and Facilities”) provided from time to time by the
Landlord. However, the Landlord shall have the right to make all such changes, improvements or
alterations as the Landlord may, in its sole discretion, from time to time decide in respect of the
Building and the Common Areas and Facilities, including, without limitation, the right to change
the location and layout of the parking areas. Any such changes, improvements or alterations
shall be carried out by the Landlord with a view to minimizing, to the extent
reasonably possible under the circumstances, interference with the Tenant’s use of the
Building and the Common Areas and Facilities. The use of all Common Areas and Facilities shall
be subject to the provisions of this Lease and to the rules and regulations made by the Landlord
with respect thereto from time to time.



(d) The Tenant hereby acknowledges that postal delivery within the Building is made to post boxes
located on the ground floor of the Building. The Tenant’s post box number is P.O. Box 103



(e) The Tenant acknowledges and agrees that it is accepting possession of the Leased
Premises in an “as is” condition as of the Commencement of the Term and that the Landlord has no
responsibility or liability for making renovations, alterations or improvements in or to the Leased
Premises, save and except for the Landlord’s Work, if any, set out in Schedule “C” attached hereto.
All further renovations, alterations or improvements in or to the Leased Premises are the sole
responsibility of the Tenant and shall be undertaken or completed at the Tenant’s expense and
strictly in accordance with the provisions of this Lease.




 









 








2. TERM



(a) To have and to hold the Leased Premises, unless sooner terminated as hereinafter provided, for
and during the term (the “Term”) which shall be the period of Five (5) years to be computed
from and inclusive of the 1st day of November, 2005, (the “Commencement Date”) and to be fully
complete and ended on the 31st day of October, 2010;



(b) Provided, and it is hereby agreed, that if due to the failure of the Landlord for any reason
whatsoever to complete the Landlord’s work set out in Schedule “C” attached or to make available
the services which the Landlord is hereby obligated to furnish (other than as a result of the
Tenant not providing complete plans and specifications for the construction of the Leased Premises
in a timely manner in accordance with the provisions of Schedule “C”, in which case there shall be
no delay in the commencement date and no abatement of any part of the rent), the Leased Premises or
any part thereof are not ready for occupancy by the Tenant on the Commencement Date as set out in
Paragraph 2(a) hereof, no part of the rent or only a proportionate part thereof in the event that
the Tenant shall occupy a portion of the Leased Premises, shall be payable for the period prior to
the date when the Leased Premises are ready for occupancy and the full rent shall accrue only after
such aforementioned date. The Tenant hereby agrees to accept such abatement of rent in full
settlement of any and all claims which the Tenant may otherwise have by reason of the Leased
Premises not being ready for occupancy on the Commencement Date, and in such event, the
commencement and expiration dates of the Term as set out in Paragraph 2(a) hereof shall be extended
accordingly. Provided further, that when the Landlord has substantially completed the Leased
Premises in accordance with the provisions of this Lease and the Construction Lien Act (Ontario)
and amendments thereto, delivered possession of the Leased Premises to the Tenant and made
available the required services, the Tenant shall not be entitled to any abatement of rent for any
delay in occupancy due to the Tenant’s failure to complete all installations or other work required
to be completed by the Tenant in accordance with the provisions of this Lease or for the purpose of
carrying on its business operations in the Leased Premises. The decision of the Landlord’s
architect or engineer shall be final and binding upon both parties hereto as to whether or not the
Leased Premises are ready for occupancy by the Tenant and, if necessary, as to the portion of the
Leased Premises that are available for occupancy.



(c) The Tenant shall, upon receipt of Notice from the Landlord, execute an acknowledgment of the
actual Commencement Date of the Term no later than the date on which the Tenant commences business
in or from the Leased Premises. The Tenant shall not have any right to occupy any part of the
Leased premises prior to the Commencement Date of the Term, as aforesaid, unless the Tenant first
obtains the prior consent of the Landlord.



(d) Following execution of this Lease and substantial completion of its leasehold improvements,
but in no event earlier than April 1, 2005, the Tenant shall be permitted to occupy the Leased
Premises for the purpose of conducting its business therein, provided it shall comply with and
abide by all the terms and conditions of this Lease, save and except for the payment of Minimum
Rent and its share of Realty Taxes and Operating Costs. The Tenant will be responsible for the
payment of its share of Hydro Charges while in occupancy prior to the Commencement Date which costs
are estimated to be $1.75 per square foot. Without limiting the generality of the foregoing, the
Tenant shall ensure it complies with all covenants and obligations with respect to
insurance while occupying the Leased Premises prior to the Commencement Date.




3. USE OF PREMISES




          The Tenant shall continuously, actively and diligently use and occupy the Leased Premises only
for general business offices and for no other purpose. The Tenant, in the use and
occupation of the Leased Premises and in the prosecution or conduct of the foregoing business
therein, shall comply with the requirements of all laws, ordinances, rules and regulations of the
federal, provincial and municipal authorities and with any direction or certificate of occupancy
issued pursuant to any laws by any public officer or officers. The Tenant shall not use or permit
to be used any part of the Leased Premises for any dangerous, noxious, or offensive trade or
business and will not cause or maintain any nuisance in, at, or on the Leased Premises.





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4. RENT




          The Tenant shall pay from and after the Commencement Date and throughout the Term, to the
Landlord, in lawful money of Canada, without any prior demand therefor, and without any deduction,
abatement, set-off or compensation whatsoever, as Annual Minimum Rent (the “Minimum Rent”), the sum
of One Hundred Thirty Thousand Eight Hundred Eighty Five Dollars and Forty Five Cents
($130,885.45), payable in equal consecutive monthly instalments of Ten Thousand Nine
Hundred Seven Dollars and Twelve Cents ($10,907.12), each in advance on the first day of each
calendar month throughout the Term. The Minimum Rent is based upon an annual rate of Ten
Dollars and Thirty One Cents ($10.31) per square foot of the rentable area of the Leased
premises.




          If the Term commences on any day other than the first or ends on any day other than the last
day of a calendar month, all rent for the fractions of a month at the commencement or expiration of
the Term shall be pro-rated on a per diem basis based on a period of three hundred and sixty-five
(365) days.




          At the request of the Landlord, the Tenant shall present to the Landlord at the commencement
of each year throughout the Term, a series of monthly postdated cheques for each such year of the
Term in respect of the aggregate of the monthly payments of annual Minimum Rent and any payments of
additional rent estimated by the Landlord in advance, and any other payments required by this Lease
to be paid by the Tenant monthly in advance.




5. PAYMENT




          All payments required to be made by the Tenant under or in respect of this Lease shall be made
to the Landlord at the Landlord’s office at 555 Richmond Street West, Toronto, Ontario, M5V 3B1,
attention Property Manager, or to such agent of the Landlord or at such other place or address as
the Landlord shall hereafter from time to time direct in writing to the Tenant.




6. DEPOSIT





	 	 	See Rider “A” page 3B





7. ADDITIONAL RENT




          Any and all sums of money or charges required to be paid by the Tenant under this Lease
(except Minimum Rent), shall be deemed and paid as additional rent, whether or not the same are
designated as “additional rent” hereunder, or whether or not the same are paid to the Landlord or
otherwise, and all such sums whether or not the same are paid to the Landlord or otherwise, are to
be payable in lawful money of Canada without any deduction, set-off or abatement whatsoever.
Additional rent is due and payable with the next monthly instalment of Minimum Rent, unless
otherwise provided herein, but in any event, such additional rent is not payable as part of Minimum
Rent. Additional rent may be estimated by the Landlord from time to time and such estimated amount
is payable in monthly instalments in advance with annual adjustments, if necessary, and all
additional rent is deemed to be accruing due on a day to day basis.





3









 








Rider “A”



(a) DEPOSIT




     The Tenant hereby deposits with the Landlord as security for the prompt performance and
observance by the Tenant of all of the terms, covenants, conditions and provisions of this Lease
the sum of Thirty Thousand Dollars ($30,000.00) (the “Deposit”) to be held by the Landlord without
interest and applied as follows:




	 	(i)	 	If the Tenant complies with all of the terms, covenants, and conditions under this Lease and
is not otherwise in default under this Lease, then the first Twenty Thousand Dollars
($20,000.00) of the Deposit shall be applied and credited to the Tenant on account of Minimum
Rent and the Tenant’s proportionate share of Realty Taxes, Operating Costs and Utility Charges
(excluding GST) otherwise payable beginning on January 1, 2006 and shall continue to be
applied towards same until exhausted; and






	 	(ii)	 	If Tenant complies with all of the terms, covenants, and conditions under this Lease and is
not otherwise in default under this Lease, , then the balance of the Deposit, namely Ten
Thousand Dollars ($10,000.00) shall be applied and credited to the Tenant on account of
Minimum Rent and the Tenant’s proportionate share of Realty Taxes, Operating Costs and Utility
Charges (excluding GST) otherwise payable beginning on January 1, 2007 and shall continue to
be applied towards same until exhausted.




The Landlord shall be entitled, at its sole discretion, to apply the amount of the balance of the
Deposit as set out in the immediately preceding subparagraphs to any damage resulting from any
default by the Tenant of the covenants and obligations hereunder or towards the payment or
reduction of any claim of the Landlord against the Tenant.



(b) Irrevocable Standby Letter of Credit




                    The Tenant shall provide, in a form acceptable to the Landlord acting reasonably, within five
(5) business days of its execution of the Lease and prior to its occupancy of the Leased Premises,
an Irrevocable Standby Letter of Credit for Ninety Thousand Dollars ($90,000) from one of the five
largest Canadian Banks (the “Letter of Credit”) in favour of the Landlord which shall contain the
provision that the Landlord has the right to draw upon the Letter of Credit if the Tenant defaults
in the performance or observance of any of the terms, covenants or conditions of this Lease as and
when the same are due to be performed by Tenant. Then the Landlord, at its option, may appropriate
and apply all or any part of the Letter of Credit to cure such default, or on account of any losses
or damages sustained by Landlord as a result of such default. Additionally, the Letter of Credit
shall contain the following wording:




     In the event that:




	 	(i)	 	the Tenant makes an assignment for the benefit of creditors or commits any
act of bankruptcy as defined in the Bankruptcy and Insolvency Act, R.S.C. 1985, c.
B-3, or any successors thereto, or, becoming bankrupt and insolvent, takes the
benefit of any Act now or hereafter in force for bankrupt and insolvent debtors; or






	 	(ii)	 	any order is made for the winding-up or liquidation of the Tenant, or the
Tenant voluntarily commences winding-up procedures or liquidation; or






	 	(iii)	 	any order or appointment is made for an interim receiver, a receiver or a
receiver and manager of the Tenant; or




3b









 












	 	(iv)	 	the Lease has been terminated by the Landlord in accordance with the
provisions of the Lease because of the Tenant’s default under the Lease, or has
otherwise been forfeited and determined, prior to its expiry date otherwise than by
mutual consent of the parties thereto; or






	 	(v)	 	the Lease is terminated pursuant to any disclaimer, repudiation or surrender
by a trustee in bankruptcy of the Tenant or by an interim receiver, receiver,
receiver/manager, or liquidator of the Tenant or pursuant to operation of law, court
order, or as a result of any other proceedings or rights to do so pursuant to any
debtor protection legislation, and the Landlord determines that it has or will suffer
damages as a result thereof;




then the Landlord may draw upon this Letter of Credit, in full or any portion thereof remaining
outstanding, and the Landlord shall be entitled to retain such amount as agreed liquidated damages,
despite any termination of the Lease by any disclaimer, repudiation or surrender of this Lease by a
trustee in bankruptcy, or by an interim receiver, receiver, receiver/manager, or liquidator of the
Tenant, or by operation of law or a court order, and the Issuing Bank shall honour such demand.



Provided the Tenant is not in material default of the terms and conditions of the Lease, the Letter
of Credit is to be automatically reduced by the following amounts at its automatic renewal on the
following dates:





	 	a.	 	Upon automatic renewal of the Letter of Credit on January 1, 2007, the amount will be
reduced to EIGHTY THOUSAND ($80,000.00) DOLLARS CANADIAN;
	 
	 	b.	 	Upon automatic renewal of the Letter of Credit on January 1, 2008, the amount will be
reduced to SIXTY THOUSAND ($60,000.00) DOLLARS CANADIAN;
	 
	 	c.	 	Upon automatic renewal of the Letter of Credit on January 1, 2009, the amount will be
reduced to FORTY THOUSAND ($40,000.00) DOLLARS CANADIAN;
	 
	 	d.	 	Upon automatic renewal of the Letter of Credit on January 1, 2010, the amount will be
reduced to TWENTY THOUSAND ($20,000.00) DOLLARS CANADIAN;
	 
	 	e.	 	Provided the Tenant has performed all its obligations pursuant to the Lease, the
Letter of Credit shall expire on November 30, 2010.




3c









 











8. RENT AND ADDITIONAL PAST DUE




          If the Tenant fails to pay, when the same is due and payable, any rent or additional rent
payable by the Tenant under this Lease, such unpaid amount shall bear interest from the due date
thereof to the date of payment at the lesser of the rate of eighteen percent (18%) per annum (one
and one-half percent (1-1/2%) per month compounded annually), or the maximum annual rate permitted
by law.




9. TENANT’S COVENANTS




     The Tenant covenants with the landlord




(a) Payment of Rent




     To pay Minimum Rent and additional rent in the manner and at the times herein reserved.




(b) Business Taxes




          That in each and every year during the Term, the Tenant shall pay as additional rent and
discharge within ten (10) days after the same becomes due and payable, all taxes, rates, duties,
assessments and other charges that may be levied, rated, charged or assessed against or in respect
of all improvements, equipment and facilities on or in the Leased Premises and every tax and
licence fee in respect of any and every business carried on thereon or therein or in respect of the
use or occupancy thereof by the Tenant and any and every permitted occupant of the Leased Premises
(other than corporate income, profits or excess profits taxes assessed upon the income of the
Landlord), whether any such assessment tax, rate duty or licence fee is charged by any federal,
municipal, provincial, school or other bodies during the Term. The Tenant will indemnify and keep
indemnified the Landlord form and against payment for all loss, costs, charges and expenses,
occasioned by or arising from any and all such taxes, levies, rates, duties assessments, licence
fees (including all real property taxes pursuant to Paragraph 9 (c) hereof), and any and all taxes
which may in the future be levied in lieu thereof or in addition thereto. Any such loss, costs,
charges and expenses suffered by the Landlord pursuant to this paragraph 9(b) may be collected by
the Landlord as rent with all rights of distress and otherwise as reserved to the Landlord in
respect of rent in arrears. The Tenant further covenants and agrees that upon the request of the
Landlord, the Tenant will promptly deliver to the Landlord for inspection receipts for
payment of all taxes, rates, duties, assessments and other charges payable by the Tenant pursuant
to this Paragraph 9(b) which were due and payable up to one month prior to such request and will
furnish such other information in connection therewith as the Landlord may reasonably require.
Provided further, if the Tenant or any permitted occupant of the Leased Premises shall elect to
have the Leased Premises or any part thereof assessed for separate school taxes, the Tenant shall
pay to the Landlord as additional rent, as soon as the amount of such separate school taxes is
ascertained, any amount by which the amount of separate school taxes exceeds the amount which would
otherwise have been payable for school taxes had such election not been made by the Tenant or the
permitted occupant of the Leased Premises.




4









 







(c)   
Realty Taxes





(i) That the Tenant will, as additional rent, in each and every year during the
Term and within the time or times hereinafter provided, pay directly to the
Landlord or to the taxing authority as the Landlord may direct from time to time,
and discharge all real property taxes (including local improvement rates, impost
charges or levies), rates, duties and assessments of any nature or kind that may be
levied, rated, charged or assessed against the Leased Premises or any part thereof,
from time to time by any taxing authority, whether federal, provincial, municipal,
school or otherwise, and including, but without limitation, any such taxes payable
by the Landlord which are imposed in lieu of or as a substitute for or in addition
to such real property taxes or on account of the Landlord’s ownership of the Lands
and the Building, whether of the foregoing character or whether same existed at the
commencement of the Term (collectively “real property taxes”).




(ii) If there are separate real property tax bills and separate real property
assessment notices for the Leased Premises, the Tenant agrees to provide the
Landlord within ten (10) days after demand therefor by the Landlord with a copy of
any separate real property tax bills and separate real property assessment notice
for the Leased Premises. The Tenant will, upon request, promptly deliver to the
Landlord receipts for payment of all such real property taxes paid to any such
taxing authorities, as aforesaid, and will furnish and deliver all such other
information in connection therewith as the Landlord may reasonably require. The
Tenant shall pay to the Landlord its proportionate share of all real property taxes
levied or assessed against the Common Areas and Facilities of the Building on the
basis of a separate real property tax bill and separate real property assessment
notice for such Common Areas and Facilities.




(iii) If there is not a separate real property tax bill and separate real property
assessment notice for the Leased Premises and the Common Areas and Facilities, the
Tenant shall pay its share (the “Tenant’s Share”) of such real property taxes
(including local improvement taxes and rates) which may be levied, rated, charged
or assessed by any lawful taxing authority against the lands, buildings and
improvements comprising the Building (including the Common Areas and Facilities)
or on account of the Landlord’s ownership of them within the time or times
hereinafter provided. The Tenant’s Share shall be determined by the Landlord,
acting reasonably and equitably, by allocating property taxes amongst the tenants
of the Building. Realty Taxes shall in every instance be calculated on the basis
of the total Rentable Area of the Building being assessed as fully leased and
operational.




	 	(iv)	 	Payment of Tenant’s
Share of Realty Taxes






     The amounts payable by the Tenant pursuant to this Paragraph 9(c) may be
estimated by the Landlord and shall be payable by the Tenant for the period
covering the first nine (9) months of each calendar year throughout the Term or as
may be estimated by the Landlord for such other period or periods as the Landlord
may determine from time to time. The Tenant shall pay to the Landlord the Tenant’s
share as so estimated of such amount in monthly instalments in advance on the
first day of each calendar month during such period, together with all other
rental payments provided for in this Lease. Notwithstanding anything hereinbefore
contained, if at the time when payment by the Landlord of the real property taxes
(including local improvement rates), whether interim, instalment or final is due,
the Landlord shall not have on deposit a sufficient sum to pay the full amount of
such real property taxes, the Tenant shall forthwith, upon demand, pay, as
additional rent, the Tenant’s share, determined as aforesaid of the amount of any
such deficiency to the Landlord. When the final real property tax bill in any year
has been received, which relates to the period for which such estimated payments
have been made by the Tenant, as aforesaid, the parties hereto agree to adjust all
payments made by the Tenant on account of real property taxes in accordance with
such final real property tax bill. The Tenant shall pay the Tenant’s proportionate
share (as defined in paragraph 11(b) of this Lease) of any and all



5









 






costs and
expenses incurred by the Landlord in respect of any appeal or contestation
conducted by the Landlord of the real property taxes levied or assessed against
the Building.



(d) Utilities





(i) That the Tenant shall be solely responsible for and shall promptly pay all
charges for water, gas, electricity, telephone and any and all other utilities used
or consumed in, or, any other charges levied or assessed on or in respect to, the
Leased Premises, and for all fittings, machines, apparatus or other things leased
in respect thereof, and for all work or services performed by any corporation or
commission in connection with such public or private utilities. Should the Landlord
elect to supply water, gas, electricity, and/or sewer services for the Building, or
any other utility used or consumed, or to be used or consumed, in the Leased
Premises, the Tenant shall purchase and pay for the same as additional rent payable
on demand to the Landlord, at rates not in excess of public utility rates for the
same service, if applicable. In no event shall the Landlord be liable for, nor have
any obligation with respect to, any interruption or cessation of, or any failure in
the supply of any such utilities, services or systems, including, without
limitation, the water and sewage systems, to the Building or to the Leased
Premises, whether or not supplied by the Landlord or others.




(ii) If requested by the Landlord, or if included as part of the Tenant’s work in
respect of the Leased Premises, the Tenant prior to the commencement of the Term
shall install, at its sole cost and expense, any and all separate meters which are
necessary in order to measure the consumption of utilities or services used or
consumed on the Leased Premises. In the event that separate meters are not
available or cannot be installed in the Leased Premises, the Tenant shall pay the
Tenant’s proportionate share (as defined in Paragraph 11 (b) of this
Lease) of the total cost incurred by the Landlord in the supply of all utilities
and services to the Building. Without in any way limiting the provisions of this
Paragraph 9(d)(ii), if at any time during the Term, the Landlord shall
determine, in its sole discretion, that the Tenant’s use of any utility or
service, including, without limitation, water, used or consumed on the Leased
Premises is in any way unusual or of an excessive nature, the Landlord may, at its
option and at the sole cost and expense of the Tenant, install in the Leased
Premises a separate meter or submeter with respect to any such utility or service,
including, without limitation, a separate meter for the measurement of hot and
cold water, whereupon the Tenant’s cost in connection with any such utility or
service shall be determined in accordance with such separate meter or submeter.



(e) Repairs




          That the Tenant shall, at its sole cost and expense and at all times, keep and maintain the
whole of the Leased Premises and every part thereof (including, without limitation, all entrances,
glass, doors, fixtures, equipment (including without limitation any plumbing, heating
air-conditioning and ventilation equipment in the Leased Premises) and appurtenances
thereof and improvements thereto) in good order and first class condition and shall promptly make
all needed repairs and replacements therein and thereto and, without limiting the generality of the
foregoing, the Tenant shall keep the Leased Premises well painted, clean and in a tidy condition,
all as a careful owner would do.




(f) Entry by Landlord




          That it shall be lawful for the Landlord and its agent(s) at all reasonable times during the
Term, on reasonable prior notice, during normal business hours, to enter the Leased
Premises to inspect the condition thereof. Where an inspection reveals that repairs or




6









 







replacements
are necessary, the Landlord shall give to the Tenant notice in writing, and immediately thereafter
the Tenant will forthwith proceed to make all necessary repairs or replacements in a good and
workmanlike manner and to the satisfaction of the Landlord, so as to complete same within the time
or times provided for in the notice delivered by the Landlord as aforesaid. The failure by the
Landlord to give notice shall not relieve the Tenant from any of its obligations to repair or
replace in accordance with the provisions hereof. Provided further, that if the Tenant refuses or
neglects to repair promptly and to the reasonable satisfaction of the Landlord as required pursuant
to the provisions of Paragraph 9(e) hereof or in accordance with any notice received from the
Landlord pursuant to the provisions of this Paragraph 9(f), the Landlord may, but shall not be
obligated to, make such repairs or replacements without liability to the Tenant for any loss or
damage which may occur to the Tenant’s property or to the Tenant’s business by reason thereof and
upon completion, the Tenant shall forthwith pay upon demand the Landlord’s cost for making any such
repairs or replacements plus a sum equal to fifteen percent (15%) thereof for overhead, as
additional rent. The Tenant agrees that the making of any repairs or replacements by the Landlord
pursuant to this Paragraph 9(f) is not a re-entry or a breach of any covenant for quiet enjoyment
contained in this Lease.




(g) Surrender of Leased Premises




     That, at the expiration or sooner termination of the Term, the Tenant shall peaceably
surrender and yield up vacant possession of the Leased Premises to the Landlord in as good
condition and repair, normal wear and tear excepted, as the Tenant is required to maintain
the Leased Premises throughout the Term. The Tenant shall surrender all keys for the Leased
Premises to the Landlord at the place then fixed for the payment of Minimum Rent and shall inform
the Landlord of all combinations of all locks, safes and vaults of any kind in the Leased Premises.
The Tenant shall, however, if requested by the Landlord, remove at its sole cost and expense all
improvements, erections, alterations, fixtures or other appurtenances made, placed or erected by
the Tenant at any time or times prior to or during the Term in or on the Leased Premises and shall
repair, at its sole cost and expense, all damage to the Leased Premises caused by their
installation and/or removal. The Tenant’s obligation to observe and perform the covenant contained
in this Paragraph 9(g) shall survive the expiration or sooner termination of the Term. (see
Section 33(b) Removal of leasehold Improvements by Tenant)



(h) Heat




     To heat, at its own expense, from heating equipment originally supplied by the Landlord, the
Leased Premises to a degree sufficient to protect the Leased Premises and their contents from
damage by cold or frost, and to operate, maintain, repair or, if necessary, replace, at its own
expense, such heating and other mechanical equipment originally supplied by the Landlord. Further,
the Tenant will, at the expiration or sooner termination of the Term, peacefully yield up unto the
Landlord such heating equipment and all other equipment and appurtenances thereto in good and
substantial repair and condition.



(i) Public Orders




     That the Tenant shall, at its sole cost and expense, comply with all provisions of law,
including without limiting the generality of the foregoing, the requirements of all federal,
provincial and municipal legislative enactments, by-laws or regulations now or hereafter in force
which relate to the Leased Premises and the conduct of business therein, or to the making
of any repairs, replacements, alterations, additions, changes, substitutions or improvements of or
to the Leased Premises. The Tenant will further comply with all police, fire, health and sanitary
regulations imposed by any governmental authorities or made by fire insurance underwriters.



(j) Assignment and Subletting





(i) That the Tenant will not assign this Lease in whole or in part, nor sublet all or any
part of the Leased Premises, nor mortgage or encumber this Lease or the Leased Premises or
any part thereof, nor suffer or permit the occupation of, or part with or share possession
of, all or any part of the Leased Premises by any other person, firm



7









 




or corporation (all
of the foregoing being hereinafter referred to as a “transfer”) without the prior consent
of the Landlord in each instance, which consent shall not be unreasonably withheld,
subject to the provisions of subparagraph (ii) of this Paragraph 9(j). The consent by the
Landlord to any transfer, if granted, shall not constitute a waiver of the necessity for
such consent to any subsequent transfer. This prohibition against a transfer is construed
so as to include a prohibition against any transfer by operation of law and no transfer
shall take place by reason of a failure by the Landlord to reply to a request by the
Tenant for consent to a transfer. If there is a permitted transfer of this Lease, the
Landlord may collect rent from the assignee, subtenant or occupant (all of the foregoing
being hereinafter collectively referred to as the “transferee”), and apply the net amount
collected to the Minimum Rent required to be paid pursuant to this Lease, but no
acceptance by the Landlord of any payments by a transferee shall be deemed a waiver of
this covenant or the acceptance of the transferee as Tenant or a release of the Tenant for
the further performance by the Tenant of the covenants or obligations on the part of the
Tenant herein contained. Any document evidencing the Landlord’s consent to a transfer of
the Lease, if permitted or consented to by the Landlord shall be prepared by the
Landlord’s solicitors, and all legal fees with respect thereto shall be paid by the Tenant
to the Landlord forthwith upon demand. Any consent by the Landlord shall be subject to the
Tenant causing any such transferee to promptly execute an agreement directly with the
Landlord agreeing to be bound by all of the terms, covenants and conditions contained in
this Lease as if such transferee had originally executed this Lease as Tenant. .
Notwithstanding that any such transfer is permitted or consented to by the Landlord, the
Tenant shall be jointly and severally liable with the transferee upon this Lease and shall
not be released from performing any of the terms, covenants and conditions contained in
this Lease




     (ii) Landlord’s Option




     If the Tenant intends to effect a transfer of all or any part of the Leased Premises or this
Lease, in whole or in part, or of any estate or interest hereunder, then and so often as such event
shall occur, the Tenant shall give prior written notice to the Landlord of such intent, specifying
therein the name of the proposed transferee and shall provide such information with respect
thereto, including, without limitation, information concerning the principals thereof and as to any
credit, financial or business information relating to the proposed transferee as the Landlord
requires, and the Landlord shall, within thirty (30) days thereafter, notify the Tenant in writing
either, that (a) it consents or does not consent to the transfer, or (b) it elects to cancel this
Lease in preference to the giving of such consent.



     (iii) Consideration on Transfer




     Any increased Minimum Rent or bonus or consideration in excess of the rental payable under
this Lease payable by any transferee shall be the property of the Landlord and paid directly to the
Landlord as additional rent. In addition, any other money or other value that is attributable to
the desirability of the location of the Leased Premises or to leasehold improvements that are owned
by the Landlord or that the Landlord has paid for in whole or in part and which is to be
paid by any transferee shall be paid to the Landlord as additional rent.



     (iv) No Advertisement




     The Tenant shall not print, publish or display any notice or advertisement advertising the
whole or any part of the Leased Premises for the purpose of assignment or subletting without the
prior approval by the Landlord, such approval not to be unreasonably withheld, of the
complete text or format of any such notice or advertisement.



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(k) Corporate Ownership




     That if the Tenant is a corporation or if the Landlord has consented to a transfer of this
lease to a corporation, any transfer or issue by sale, assignment, bequest, inheritance, operation
of law or other disposition or by subscription from time to time of all-or any part of the
corporate shares of the Tenant or of any parent or subsidiary corporation of the Tenant or any
corporation which is an associate or an affiliate of the Tenant (as those terms are defined
pursuant to the Business Corporations Act (Ontario) and amendments thereto) which result in any
change in the present effective voting control of the Tenant by the parties holding such voting
control at the date of execution of this Lease (or at the date a transfer of this Lease to a
corporation is permitted) and which does not receive the prior written consent of the Landlord in
each instance, which consent may not be unreasonably withheld, shall entitle the Landlord to
terminate this Lease upon five (5) days written notice to the Tenant. If the Landlord elects to
cancel this Lease as aforesaid, the Tenant shall have the right to advise the Landlord within five
(5) days after written notice of the Landlord’s election to terminate this Lease that the Tenant
elects to have this Lease reinstated by the transfer, sale, assignment or other disposition (the
“re-transfer”) from the shareholders of the Tenant after such change in control to the shareholders
of the Tenant existing as of the date of execution of this Lease (or at the date that a transfer of
this Lease to a corporation is permitted). If the Tenant effects such re-transfer within ten (10)
days following receipt of notice of the Landlord’s election, and forthwith thereafter provides the
Landlord with evidence satisfactory to the Landlord of such re-transfer, this Lease will be
reinstated as of the date of the termination by the Landlord as aforesaid. If this Lease is
terminated the Landlord may re-enter and take possession of the Leased Premises whereupon the
Landlord’s rights and remedies contained in Paragraph 14 hereof shall apply. The Tenant shall make
available to the Landlord all corporate books and records of the Tenant for inspection at all
reasonable times in order to ascertain whether there has been any change in control. Provided,
notwithstanding anything contained in this Paragraph 9(k) to the contrary, the provisions of this
paragraph shall not apply to the Tenant if at such time (a) the Tenant is a public corporation
whose shares are traded and listed on any recognized stock exchange in Canada or the United States,
or (b) the Tenant is a private corporation but is controlled by a public corporation defined as
aforesaid. The Tenant will not be required to get consent from the Landlord but will provide
advance written notice to the Landlord in the case of a change in the shareholdings of the Tenant
resulting from the listing of the Tenant’s shares on any recognized exchange and the transfer
and/or subscription of less than 45% of the outstanding issued shares from one party to
another.



(I) Nuisance




     That the Tenant will not do or omit to do or permit to be done or omitted anything upon or in
respect of the Leased Premises, the doing or omission of which, as the case may be, shall be or
result in any nuisance or menace to the Landlord or to the other tenants of the Building, and
including, without limitation, the Tenant shall not keep in, on or around the Leased Premises any
animals, birds or other pets; and that no machinery shall be used on the Leased Premises which
shall cause any undue vibration in or to the Leased Premises, and if the Landlord or any other
occupants of the Building shall complain that any machinery or operation thereof in or on the
Leased Premises is a nuisance to it or them, as the case may be upon receiving notice thereof, the
Tenant will immediately cease such nuisance.



10. INSURANCE




(a) Landlord’s Insurance





(i) Subject to the provisions of Paragraph 11 hereof, the Landlord shall, at all times
throughout the Term of this Lease, take out and maintain insurance covering:




(1) the Building (excluding the foundations and excavations) and the machinery,
boilers and equipment contained therein and owned by the Landlord (specifically
excluding any property with respect to which the Tenant and the other tenants of
the Building are obliged to insure pursuant to Paragraph 10(b) hereof or similar
sections in their respective leases) against damage by



9









 






fire and extended perils
coverage including (where applicable) sprinkler leakage, earthquake, flood and
collapse in an amount of not less than the full replacement cost thereof, and with
such reasonable deductions as would be carried by a prudent owner of a similar
building, having regard to the size, age and location of the Building;




(2) the repair and replacement of boilers, pressure vessels, air-conditioning
equipment and miscellaneous electrical apparatus on a broad form blanket coverage
basis;




(3) loss of insurable gross profits attributable to all perils insured against by
the Landlord or commonly insured against by prudent landlords, including loss of all
rentals receivable from tenants in the Building in accordance with the provisions of
their respective leases, including Minimum Rent and additional rent in such amount
as a prudent landlord would insure;




(4) public liability and property damage including the exposure of personal injury,
bodily injury, property damage occurrence, owner’s protective coverage and
contractual obligations coverage, in such reasonable amounts and with such
reasonable deduction as would be carried by a prudent owner of a similar building,
having regard to the size, age and location of the Building; and




(5) any other form of insurance which the Landlord or the Landlord’s mortgagee
reasonably requires from time to time for insurable risk and in amounts against
which a prudent landlord would insure.




(ii) Notwithstanding any contribution by the Tenant to the cost of insurance premiums in
respect of the insurance maintained by the Landlord for the Building as herein provided, the
Tenant acknowledges and agrees that no insurable interest is conferred upon the Tenant under
any policies of insurance carried by the Landlord and the Tenant has no right to receive any
proceeds of any insurance policies carried by the Landlord.



(b) Tenant’s Insurance





(i) The Tenant shall, throughout the Term of the Lease, at its sole cost and expense, take
out and keep in full force and effect in the names of the Tenant, the Landlord and the
Landlord’s mortgagee, as and to the extent their respective interests may appear, the
following insurance:




(1) insurance upon property of every description and kind owned by the Tenant or
for which the Tenant is legally liable or installed by or on behalf of the Tenant
and which is located within the Building, including, without limitation,
stock-in-trade, furniture, fittings, installations, alterations, additions,
partitions, fixtures and anything in the nature of a leasehold improvement in an
amount of not less than one hundred percent (100%) of the full replacement cost
thereof, with coverage against, at least the perils of fire and standard extended
coverage, including sprinkler leakages (where applicable), earthquake, flood and
collapse. If there is a dispute to the amount which comprises the full replacement
cost, the decision of the Landlord or the Landlord’s mortgagee shall be conclusive;



10









 






(2) broad form boiler and machinery insurance on a blanket repair and replacement basis with
limits for each accident in an amount not less than the replacement cost of all leasehold
improvements and of all boilers, pressure vessels, air-conditioning equipment and
miscellaneous electrical apparatus owned or operated by the Tenant or by others (other than
the Landlord) on behalf of the Tenant in the Leased Premises or relating to or serving the
Leased Premises;




(3) business interruption insurance in such amounts as will reimburse the Tenant for direct
or indirect loss of earnings attributable to all perils insured against in subparagraphs (1)
and (2) of this Paragraph 10(b), and any other perils commonly insured against by a prudent
tenant or attributable to prevention of access to the Leased Premises or the Building as a
result of such peril;




(4) public liability and property damage insurance including personal injury liability,
contractual liability, non-owned automobile liability and owners’ and contractors’
protective insurance coverage with respect to the Leased Premises and the Tenant’s use of
the Common Areas and Facilities coverage to include the activities and operations conducted
by the Tenant and any other parties on the Leased Premises and by the Tenant and any other
parties performing work on behalf of the Tenant and those for whom the Tenant is in law
responsible in any other part of the Building. Such policies shall be written on a
comprehensive basis with inclusive limits of not less than Five Million Dollars ($5,000,000)
for bodily injury to any one or more persons or property damage, and such higher limits as
the Landlord or the Landlord’s mortgagee reasonably requires from time to time, and shall
not be invalidated as respects the interests of the Landlord and the Landlord’s mortgagee by
reason of any breach or violation of any warranties, representations, declarations
or conditions contained in the policies. All such policies must contain a severability
of interests clause, a cross liability clause and shall be primary and shall not
call into contribution any other insurance available to the Landlord or to the Landlord’s
mortgagee;




(5) Tenants’ legal liability insurance for the full replacement cost of the Leased
Premises; and




(6) any other form of insurance as the Tenant or the Landlord or the Landlord’s mortgagee
reasonably requires from time to time, in form, in amounts and for insurance risks against
which a prudent tenant would insure.




(ii) All policies required to be written on behalf of the Tenant pursuant to subparagraphs (1), (2)
and (3) of this Paragraph 10(b) shall contain the standard mortgage clause of the Landlord’s
mortgagee and shall contain a waiver of any subrogation rights which the Tenant’s insurers have
against the Landlord and against those for whom the Landlord is in law responsible, whether such
damage is caused by the act, omission or negligence of the Landlord or those for whom the Landlord
is in law responsible.



11









 






(iii) All insurance policies of the Tenant shall be taken out with insurers acceptable to the
Landlord and shall be in a form satisfactory from time to time to the Landlord. The Tenant agrees
that certificates of insurance or, if required by the Landlord or the Landlord’s mortgagee,
certified copies of each such insurance policy, will be delivered to the Landlord as soon as
practicable after the placing of the required insurance. All such policies shall contain an
undertaking by the insurers to notify the Landlord and the Landlord’s mortgagee in writing not less
than thirty (30) days prior to any material change, cancellation, failure to renew, or termination
thereof.




(iv) The Tenant agrees that if the Tenant fails to take out or to keep in force any such insurance
referred to in Paragraph 10(b)(i), or should any such insurance not be approved by either the
Landlord or the Landlord’s mortgagee, and should the Tenant not rectify the situation within
forty-eight (48) hours after written notice by the Landlord to the Tenant (stating if the Landlord
or the Landlord’s mortgagee does not approve of such insurance, the reasons therefor), the Landlord
has the right without assuming any obligation in connection therewith, to affect such insurance at
the sole cost and expense of the Tenant and all outlays by the Landlord shall be immediately paid
by the Tenant to the Landlord as additional rent on the first day of the next month following such
payment by the Landlord, without prejudice to any other rights and remedies of the Landlord under
this Lease.




(v) If the occupancy of the Leased Premises, the conduct of business in the Leased Premises, or any
acts or omissions of the Tenant in the Building or any part thereof, causes or results in any
increase in premiums for the insurance carried from time to time by the Landlord with respect to
the Building, the Tenant shall pay any such increase in premiums, as additional rent, forthwith
after invoices for such additional premiums are rendered by the Landlord. In determining whether
increased premiums are caused by or result from the use and occupancy of the Leased Premises, a
schedule issued by the organization computing the insurance rate on the Building showing the
various components of such rate shall be conclusive evidence of the several items and charges which
make up such rate. The Tenant shall comply promptly with all requirements of the Insurer’s Advisory
Organization (or any successor thereof) or of any insurer now or hereafter in effect, pertaining to
or affecting the Leased Premises.




(vi) If any insurance policy upon the Building or any part thereof shall be cancelled or shall be
threatened by the insurer to be cancelled, or the coverage thereunder reduced in any way by the
insurer by reason of the use and occupation of the Leased Premises or any part thereof by the
Tenant or by any assignee or subtenant of the Tenant, or by anyone permitted by the Tenant to be
upon the Leased Premises, and if the Tenant fails to remedy the conditions giving rise to the
cancellation, threatened cancellation or reduction of coverage within forty-eight (48) hours after
notice thereof by the Landlord, the Landlord may, at its option, either (a) re-enter and take
possession of the Leased Premises forthwith by leaving upon the Leased Premises a notice in writing
of its intention so to do and thereupon the Landlord shall have the same rights
and remedies as contained in Paragraph 14 hereof or (b) enter upon the Leased Premises and remedy
the conditions giving rise to such cancellation, threatened cancellation or reduction, and the
Tenant shall forthwith pay the cost thereof to the Landlord, which cost may be collected by the
Landlord as additional rent and the Landlord shall not be liable for any damage or injury caused to
any property of the Tenant or of others located on the Leased Premises as a result of such entry.
The Tenant agrees that any such entry by the Landlord is not a re-entry or a breach of any covenant
for quiet enjoyment contained in this Lease.




(vii) The Tenant shall, at its sole cost and expense, replace any plate glass or other glass that
has been damaged, broken or removed during the Term and shall at all times keep the plate glass on
the Leased Premises fully insured, pay the premiums therefor and provide the Landlord with a
certificate of such plate glass insurance.




12











 







	11.	 	OPERATING COSTS




(a) In each year of the Term, the Tenant will pay to the Landlord in addition to the Minimum Rent
specified in Paragraph 4 hereof, as further additional rent, the Tenant’s proportionate share (as
hereinafter defined) of the Landlord’s costs and expenses of maintaining, operating, insuring,
repairing, replacing, restoring, supervising and administering (collectively “Operating Costs”) the
Building and the Common Areas and Facilities, such costs and expenses to include, without
limitation (i) the total costs and expenses incurred by the Landlord in insuring the Building
pursuant to Paragraph 10(a)(i) hereof; (ii) real property taxes (including school taxes and local
improvement taxes and rates) and all business and other taxes, if any, from time to time payable by
the Landlord which are levied or assessed or allocated by the Landlord pursuant to Paragraph 9(c)
hereof, against or in respect of the Common Areas and Facilities or against the Landlord on account
of its ownership thereof, capital taxes, and tax of any kind on rentals (iii) all expenses incurred
or paid by the Landlord in connection with operating, maintaining, managing, lighting, cleaning
(including without limitation, the supply of utilities and services in respect of the Common Areas
and Facilities, snow and ice removal and clearance), supervising, policing, landscaping, repairing
and replacing the Building and all Common Areas and Facilities, including, without limitation, all
monies paid to persons, firms or corporations employed by the Landlord to perform same; and (iv) an
administration fee of fifteen percent (15%) of Operating Costs.



(b) The term “proportionate share” as used in this Paragraph 11 and elsewhere in this Lease, shall
mean a fraction, the numerator of which is the rentable area of the Leased Premises and the
denominator of which is the total rentable area of the Building. The Tenant’s proportionate share
is approximately 11.5%.



(c) The amounts payable by the Tenant pursuant to this Paragraph 11 may be estimated by the
Landlord for such period or periods as the Landlord may determine from time to time, and the Tenant
shall pay to the Landlord the Tenant’s proportionate share as so estimated of such amounts in
monthly instalments in advance during such period together with all other rental payments provided
for in this Lease. Notwithstanding anything contained in this subparagraph (c) to the contrary, at
such time as the Landlord expends any money or incurs any charges or expenses in respect of the
cost of maintaining, operating, repairing, replacing or administrating the Building and the Common
Areas and Facilities thereof, pursuant to Paragraph 11 (a) hereof, or, as soon as bills for all or
any portion of the amounts so estimated by the Landlord, as aforesaid, are received, the Landlord
may thereafter bill the Tenant for the Tenant’s proportionate share thereof (less all amounts
previously paid by the Tenant on the basis of the Landlord’s estimate aforesaid, which have not
already been so applied) and the Tenant shall forthwith pay to the Landlord upon demand such
amounts so expended or billed, as additional rent. At the end of the period for which such
estimated payments have been made, the Landlord shall deliver to the Tenant an audited
statement of the actual amounts and costs referred to in this Paragraph 11 and the determination of
the Tenant’s proportionate share thereof, and if necessary, an adjustment shall be made between the
parties hereto. If the Tenant shall have paid in excess of such actual amounts, the excess shall be
refunded by the Landlord within 30 days after delivery of the said statement. If
the amount the Tenant has paid is less than such actual amounts, the Tenant agrees to
pay to the Landlord any such extra amount or amounts with the next monthly payment of
Minimum Rent. Any dispute by the Tenant of any item on the statement provided to the
Tenant by the Landlord pursuant to this Paragraph 11(c) must be brought to the attention of the
Landlord, in writing, within two (2) months of deemed receipt of the statement by the
Tenant in accordance with Paragraph 28 hereof or shall be forever barred.




13









 









	12.	 	MUTUAL COVENANTS






Provided, and it is expressly agreed:




	(a)	 	No Exceptions for Distress





     That, in consideration of the leasing and letting by the Landlord to the Tenant of the Leased
Premises for the Term hereby created (and it is upon that express understanding that these presents
are entered into), and notwithstanding anything contained in the Commercial Tenancies Act R.S.O
1990 cL.7, as amended, or any other Statute subsequently passed to take the place of the said Act
or to amend the same, none of the goods and chattels of the Tenant at any time during the
continuance of the Term on the Leased Premises shall be exempt from levy by distress for rent in
arrears by the Tenant as provided for by any Section or Sections of the said Act or any amendment
or amendments thereto and that upon any claim being made for such
exemption by the Tenant or on distress being made by the Landlord, this covenant and agreement
may be pleaded as an estoppel against the Tenant in any action brought to test the right to the
levying upon any such goods as are named as exempted in said Section or Sections of the said Act or
any amendment or amendments thereto; the Tenant waiving as it hereby does all and every benefit
that could or might have accrued to the Tenant under and by virtue of the said Section or Sections
of the said Act, or any amendment or amendments thereto but for this covenant.




	(b)	 	Public Liability





     That the Landlord shall not be liable for any death or injury arising from or out of any
occurrence in, upon, at or relating to the Building, or damage to property of the Tenant or of
others located on the Leased Premises, nor shall the Landlord be responsible for any loss of or
damage to any property of the Tenant or others from any cause
whatsoever unless such death,
injury, loss or damage directly results from the
gross negligence of the Landlord,
its agents, servants, employees or any other parties for whom it may be in law responsible. Without
limiting the generality of the foregoing, but subject to the provisions of this Section
12(b), the Landlord shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain, snow or
leaks from any part of the Leased Premises or from the pipes, appliances, plumbing works, roof, or
subsurface of any floor or ceiling or from the street or any other place or by dampness or by any
cause of whatsoever nature. The Landlord shall not be liable for any such damage caused by other
tenants or persons in the Building or by occupants of adjacent property or the public, or caused by
construction or by any private, public or quasi-public work. All property of the Tenant kept or
stored on the Leased Premises shall be so kept or stored at the risk of the Tenant only and the
Tenant shall hold the Landlord harmless from and against any claims arising out of damages to the
same, including subrogation claims by the Tenant’s insurers.




	(c)	 	Holding Over





     That if the Tenant shall continue to occupy the Leased Premises at the expiration of this
Lease with the consent of the Landlord, and without any further
written agreement, the Tenant shall be a monthly tenant at twice the monthly rental
herein reserved and otherwise on the terms and conditions herein set forth, except as to the length
of tenancy.




	(d)	 	Over-Loading





     That the Tenant will not bring upon the Leased Premises or any part thereof, any machinery,
equipment, article or thing that by reason of its weight, size, or use might, in the opinion of the
Landlord, damage the Leased Premises and will not at any time overload the floors of the Leased
Premises, and that if any damage is caused to the Leased Premises by any machinery, equipment,
article or thing or by overloading, or by any act, neglect or misuse on the part of the Tenant, or
any of its servants, agents or employees, or by any person having business with the Tenant, the
Tenant shall forthwith repair the same or pay to the Landlord the cost of making good the same.



14









 







	e)	 	Tenant not to Overload Facilities





     That the Tenant will not install any equipment which would exceed or overload the capacity of
the utility facilities in the Leased Premises and agrees that if any equipment installed by the
Tenant shall require additional utility facilities, same shall be installed, if available, and
subject to the Landlord’s prior written approval thereto (which approval may not be unreasonably
withheld), at the Tenant’s sole cost and expense in accordance with plans and specifications to be
approved in advance by the Landlord, in writing.




	(f)	 	Plumbing Facilities





     That the plumbing facilities (if any) in the Leased Premises shall not be used for any other
purpose than that for which they are constructed, and no foreign substance of any kind shall be
thrown therein and the expense of any breakage, stoppage or damage resulting from a violation of
this provision shall be borne by the Tenant, as additional rent, payable forthwith on demand.




	(g)	 	Indemnification





     That, notwithstanding any other terms, covenants and conditions contained in this lease,
including, without limitation, the Landlord’s obligation to take out insurance as set out in
Paragraph 10 (a)(i) hereof, and the Tenant’s obligation to pay its proportionate share of the cost
of insurance in accordance with the provisions of Paragraph 11 hereof, the Tenant shall indemnify
the Landlord and save it harmless from and against any and all loss (including loss of all rentals
payable by the Tenant pursuant to this Lease) claims, actions, damages, liability and expense in
connection with loss of life, personal injury, damage to property or any other loss or injury
whatsoever arising from or out of this Lease or any occurrence in, upon or at the Leased Premises,
or the occupancy or use by the Tenant of the Leased Premises or any part thereof, or occasioned
wholly or in part by any act or omission of the Tenant or by anyone permitted to be on the Leased
Premises by the Tenant. If the Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against the Tenant, then, the Tenant shall protect, indemnify and hold
the Landlord harmless and shall pay all costs, expenses and reasonable legal fees incurred or paid
by the Landlord in connection with any such litigation. The Tenant shall pay all costs, expenses
and legal fees (on a solicitor and his client basis) that may be incurred or paid by the Landlord
in enforcing the terms, covenants and conditions in this Lease, unless a Court shall decide
otherwise.




	(h)	 	Repair Where Tenant at Fault





     That, notwithstanding any other terms, covenants and conditions contained in this Lease,
including, without limitation, the Tenant’s obligation to pay its proportionate share of the costs
of insurance in accordance with Paragraph 11 hereof, in the event the Building, the Common Areas
and Facilities thereof, the Leased Premises, or any equipment, machinery facilities or improvements
contained therein or made thereto or the roof or the outside walls of the Building, or,
any other structural portions thereof require repair or become damaged or destroyed through the
fault, negligence, carelessness or misuse of the Tenant, its servants, agents, employees,
contractors, or others for whom the Tenant is in law responsible, or through it or them in any way,
stopping up or injuring the heating apparatus water pipes, drainage pipes or other equipment or
facilities or parts of the Building, the expense of all such necessary repairs, replacements or
alterations, plus a further fifteen percent (15%) of the costs thereof, shall be borne by the
Tenant who will pay the same to the Landlord forthwith upon presentation of an account of such
expenses incurred by the Landlord as aforesaid.




	(i)	 	Refuse





     That the Tenant will not use any outside garbage or other containers or allow any ashes,
refuse, garbage or other loose or objectionable material to accumulate in or about the Leased
Premises, and will at all times keep the Leased Premises in a clean and tidy condition



15









 





and shall
immediately before the termination of the Term, wash the floors, windows, doors and woodwork of the
Leased Premises. Provided further the Tenant will not store or cause to be stored outside of the
Leased Premises, any of its inventory, stock-in-trade, or raw materials.





	(j)	 	Loading and Unloading





     That all loading and unloading of merchandise, supplies, materials, garbage and all other
chattels shall be effected only through or by means of such doorways, corridors or loading docks as
the Landlord shall designate from time to time and shall be subject to all such rules and
regulations as the Landlord shall promulgate in connection therewith from time to time.




	(k)	 	Window Coverings





     That if the Tenant intends to place upon the interior of the windows in the Leased Premises
any drapes or other window coverings to cover the windows of the Leased Premises, it shall obtain
the approval of the Landlord in writing prior to their installation, such approval not to be
unreasonably withheld. Except in accordance with the provisions of this Paragraph 12(k), the
Tenant shall not place any window coverings anywhere upon the exterior or interior of the windows
in the Leased Premises.




	(I)	 	Leased Premises





     That whenever in this Lease reference is made to the Leased Premises, it shall include,
without limitation, all structural portions, improvements, equipment, systems and erections, in or
upon the Leased Premises or any part thereof from time to time.




	(m)	 	Adjustment of Taxes





     That the taxes and local improvement taxes and rates and, where necessary, all other charges
payable by the Tenant hereunder in respect of the first and last years of the Term, when less than
a full twelve month period shall be prorated for the period of time the Tenant is in occupation of
the Leased Premises.




	(n)	 	Tenant Shall Discharge All Liens





     That the Tenant shall promptly pay all its contractors, suppliers and materialmen and shall do
any and all things necessary to minimize the possibility of a lien attaching to the Leased Premises
or to any part of the Building and should any such lien be made or filed, the Tenant shall
discharge the same forthwith (after notice thereof is given to the Tenant) at the Tenant’s expense.
In the event the Tenant shall fail to cause any such lien to be discharged, as aforesaid, then, in
addition to any other right or remedy of the Landlord, the Landlord may, but it shall not be so
obligated, discharge same by paying the amount claimed to be due into Court or directly to any such
lien claimant and the amount so paid by the Landlord and all costs and expenses including
solicitors’ fees (on a solicitor and his client basis) incurred herein for the discharge of such
lien shall be due and payable by the Tenant to the Landlord as
additional rent on demand. The Tenant shall ensure that in respect of any work performed in or
on the Leased Premises with a value in excess of Ten Thousand Dollars ($10,000.00), the contractors
performing such work shall be bonded.




	13.	 	FIXTURES AND REMOVAL AND RESTORATION BY TENANT





     All alterations, decorations, additions and improvements made by the Tenant or made by the
Landlord on the Tenant’s behalf (other than the Tenant’s trade fixtures) shall immediately become
the property of the Landlord without compensation therefor to the Tenant at any time including upon
the expiry or earlier termination of the Lease. Such alterations, decorations, additions or
improvements shall not be removed from the Leased Premises either during or at the expiration of
the Term or sooner termination of the Lease, except that:



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(a) the Tenant may at the end of the Term, if not in default, remove its trade fixtures;





(b) the Tenant shall, at the end of the Term and at its own cost remove all alterations
decorations, additions or improvements installed by it in or on the Leased Premises as the
Landlord shall at its option require to be removed (see Section 33(b) Removal of
Leasehold Improvements by Tenant); and




(c) the Tenant may remove its trade fixtures at the end of the Term and also during the Term
in the usual and normal course of its business or if such trade fixtures become excess for
the Tenant’s purpose, or if the Tenant is substituting therefor new and similar trade
fixtures, provided the Tenant is not in default and provided the Tenant first notifies the
Landlord thereof.



     If the Tenant does not remove its trade fixtures at the expiration or earlier termination of
the Term, such trade fixtures, at the option of the Landlord, are to become the Landlord’s property
and may be removed from the Leased Premises and sold or otherwise disposed of by the Landlord. For
greater certainty, the term “Tenant’s trade fixtures” shall not include any (i) heating or
ventilating equipment (ii) floor coverings affixed to the floor of the Leased Premises or (iii)
light fixtures.



     The Tenant shall, in the case of every such installation or removal either during or at the
end of the Term, make good any damage caused to the Leased Premises or to the Building by the
installation or removal of any such alterations, decorations, additions or improvements.




	14.	 	RE-ENTRY






If and whenever:




(a) the Tenant fails to pay any Minimum Rent, additional rent or other sums due hereunder
on the day or dates appointed for the payment thereof (provided the Landlord first gives
three (3) business days written notice to the Tenant of any such failure); or




(b) the Tenant fails to observe or perform any other of the terms, covenants or conditions
of this Lease to be observed or performed by the Tenant (other than the terms, covenant or
conditions set out below in subparagraphs (c) to (i), inclusive, for which no notice shall
be required) provided the Landlord first gives the Tenant ten (10) business days,
or such shorter period of time as is otherwise provided herein, written notice of any such
failure to perform and the Tenant within such period of ten (10) business days
fails to commence diligently and thereafter to proceed diligently to cure any such failure
to perform; or




(c) the Tenant or any Indemnifier of this Lease or any person occupying the Leased Premises
or any part thereof or any licensee, concessionaire or franchisee operating business in the
Leased Premises becomes bankrupt or insolvent or takes benefit of any act now or hereafter
in force for bankrupt or insolvent debtors or files any proposal or makes any assignment
for the benefit of creditors or any arrangement or compromise; or




(d) a receiver or a receiver and manager is appointed for all or a portion of the Tenant’s
property or any such Indemnifier’s, occupant’s, licensee’s, concessionaire’s or
franchisee’s property;



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(e) the Tenant abandons or attempts to abandon the Leased Premises or sells or disposes of
property of the Tenant or removes it from the Premises so that there does not remain
sufficient property of the Tenant on the Leased Premises subject to distress to satisfy all
rentals due or accruing hereunder for at least twelve (12) months;




(f) the Leased Premises become and remain vacant for a period of ten (10) consecutive days
or are used by any person, other than such as are entitled to use them;




(g) this Lease or any of the Tenant’s assets are taken under any writ of execution;




(h) steps are taken or proceedings are instituted for the dissolution, winding up, or
liquidation of the Tenant or its assets; or




(i) the Tenant makes or attempts to make a bulk sale of any of its assets (except for a bulk
sale made to a transferee where the transfer has been consented to by the Landlord);


then, and in every such case, the then current month’s rent and the next ensuing three months’ rent
and additional rent shall immediately become due and payable as accelerated rent, and, the Landlord
shall have all rights and remedies available to it under this Lease and at law and at the option of
the Landlord, the Landlord may immediately re-enter the Leased Premises repossess them and expel
all persons from the Leased Premises, and may remove all property from the Leased Premises, sell or
dispose of it as the Landlord considers appropriate, or store it in a public warehouse or elsewhere
at the cost of the Tenant, all without service of notice, without legal proceedings and without
liability for loss or damage.




     If the Landlord elects to re-enter, as herein provided, or if it takes possession pursuant to
legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease
or it may from time to time without terminating this Lease, make such alterations and repairs as
may be necessary, in order to relet the Leased Premises, or any part thereof for such term or terms
(which may be for a term or terms extending beyond the Term of this Lease) and at such rental or
rentals and upon such other terms and conditions as the Landlord in its sole discretion may deem
advisable. Upon each such reletting all rentals received by the Landlord from such
reletting shall be applied, first, to the payment of any indebtedness, other than rent due
hereunder, owing by the Tenant to the Landlord; second, to the payment of any costs and expenses of
such reletting, including brokerage fees, solicitor’s fees and the costs of such alterations and
repairs; third, to the payment of all rentals due and unpaid hereunder, and the residue, if any,
shall be held by the Landlord and applied in payment of future rent as the same may become due and
payable hereunder. If the rentals received from such reletting during any month shall be less than
that to be paid during that month by the Tenant hereunder, the Tenant shall pay any such deficiency
to the Landlord. Such deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of the Leased Premises by the Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to the Tenant.
Notwithstanding any such reletting without termination, the Landlord may at any time thereafter
elect to terminate this Lease for such previous breach. Should the Landlord at any time terminate
this Lease for any breach, in addition to any remedies it may have, it may recover from the Tenant
all damages it has incurred or may incur by reason of such breach, including the cost of recovering
the Leased Premises, reasonable solicitor’s fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent to the rent
reserved in this Lease for the remainder of the stated Term over the then reasonable rental value
as determined by the Landlord for the remainder of the stated Term, all of which amounts shall be
immediately due and payable from the Tenant to the Landlord.



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	15.	 	EXPENSES AND REMOVAL OF CHATTELS




(a) In case suit shall be brought for recovery of possession of the Leased Premises, or, for the
recovery of rent or any other amounts due under the provisions of this Lease, or because of the
breach of any other covenants herein contained on the part of the Tenant to be kept or performed,
and a breach shall be established, the Tenant shall pay to the Landlord all expenses incurred
therefor, including a reasonable solicitor’s fee.



(b) In case of removal by the Tenant of the goods and chattels of the Tenant from the Leased
Premises, the Landlord may follow same for thirty (30) days in the same manner as is provided for
in the Commercial Tenancies Act R.S.O 1990 cL.7, as amended.





	16.	 	LANDLORD MAY CURE TENANT’S DEFAULT





     If the Tenant shall fail to pay, when due, any amounts or charges required to be paid pursuant
to this Lease, the Landlord, after giving five (5) days notice in writing to the Tenant, may, but
shall not be obligated to, pay all or any part of the same. If the Tenant is in default in the
performance of any of its covenants or obligations hereunder, (other than payment of Minimum Rent
or other sums required to be paid pursuant to the terms of this Lease), the Landlord may from time
to time after the giving of such notice as it shall deem sufficient, having regard to the
circumstances applicable (or no notice in the case of an emergency or apprehended emergency)
perform or cause to be performed any of such covenants or obligations or any part thereof, and for
such purpose may do such things as may be requisite, including without limitation, entering upon
the Leased Premises and doing such things upon or in respect of the Leased Premises or any part
thereof as the Landlord may reasonably consider requisite or necessary. All expenses incurred and
expenditures made by or on behalf of the Landlord under this Paragraph 16, plus a sum equal to
fifteen percent (15%) thereof shall be additional rent hereunder and shall be paid by the Tenant
upon demand. The Landlord shall have no liability to the Tenant for any loss or damage resulting
from any such action by the Landlord, and any entry by the Landlord under the provisions of this
Paragraph 16 shall not constitute a breach of the covenant for quiet enjoyment or an eviction.




	17.	 	LIEN ON TRADE FIXTURES





     If the Tenant at the expiration or earlier termination of this Lease shall be in default under
any covenant or agreement contained herein, the Landlord shall have a lien on all stock in-trade,
inventory, fixtures, equipment and facilities of the Tenant as security against loss or damage
resulting from any such default by the Tenant, and the stock-in-trade, inventory, fixtures,
equipment or facilities shall not be removed by the Tenant until such
default is cured, or as
otherwise directed by the Landlord.




	18.	 	ADDITIONAL RENT





     If the Tenant shall be in default in the payment of any amounts or charges required to be paid
pursuant to the terms of this Lease, they shall, if not paid when due, be collectible as rent with
the next monthly instalment of Minimum Rent thereafter falling due hereunder, but nothing herein
contained shall be deemed to suspend or delay the payment of any
amount, money or charge at the time
same becomes due and payable hereunder, or limit any other remedy of the Landlord. The Tenant
covenants and agrees that the Landlord may, at its option, apply or allocate any sums received from
or due to the Tenant against any amounts due and payable hereunder in such manner as the Landlord,
in its sole discretion, sees fit.



19









 







	19.	 	NET LEASE





     The Tenant acknowledges and agrees that it is intended that this Lease is a completely
carefree net lease to the Landlord, and, except as expressly herein set out, that the Landlord is
not responsible during the Term of the lease for any costs, charges, expenses and outlays of
any nature whatsoever arising from or relating to the Leased Premises or the use and occupancy
thereof or to the contents thereof, or the business carried on therein, and the Tenant shall pay
all charges, impositions, costs and expenses of any nature or kind relating to the Leased Premises,
except as expressly herein set out.




	20.	 	QUIET ENJOYMENT





     Upon the payment by the Tenant of the rents herein provided and upon the observance and
performance of all covenants, terms and conditions on the Tenant’s part to be observed and
performed, the Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the Term
hereby demised without hindrance or interruption by the Landlord, or any other person or persons
lawfully claiming by, through or under the Landlord, subject, nevertheless, to the terms and
conditions of this Lease.




	21.	 	RIGHT OF ENTRY





     The Landlord or its agents shall have the right to enter the Leased Premises at all times
during normal business hours (except in the case of emergency, real or apprehended, in which case
the Landlord may enter at any time and will notify the Tenant of such entry as soon as possible
thereafter): (i) to examine the same, (ii) to show them to prospective purchasers, lessees
or mortgagees, and, (iii) without any obligation upon the Landlord to do so, to make such
repairs, alterations, improvements or additions to the Leased Premises or the Building as the
Landlord may deem necessary or desirable. The Landlord shall be allowed to take all material into
and upon the Leased Premises which may be required therefor without the same constituting an
eviction of the Tenant in whole or in part, and the rent reserved hereunder shall not abate while
such repairs, alterations, improvements or additions are being made due to any loss or interruption
of the business of the Tenant or otherwise. The Landlord shall diligently carry out
all repairs so as to minimize interference with the Tenant’s business. The Landlord shall not
be liable for any damage, injury or death caused to any person or property of the Tenant or of
others located on the Leased Premises as a result of such entry. During the six (6) months prior to
the expiration of the Term the Landlord may exhibit the Leased Premises to prospective tenants and
place upon the Leased Premises its usual notice “To Let” which notice the Tenant shall permit to
remain thereon without molestation. If the Tenant shall not be personally present to open and
permit an entry into the Leased Premises at any time when for any reason entry therein shall be
necessary or permissible, the Landlord or its agents may enter the same by a master key or may
forcibly enter the same, without rendering the Landlord or such agents liable therefor, and without
in any manner effecting the obligations and covenants of the Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon the landlord any obligation, responsibility or
liability whatsoever for the care, maintenance or repair of the premises or any part thereof except
as otherwise herein specifically provided.




	22.	 	IMPROVEMENTS





     The Tenant will not make any repairs, alterations, replacements, decorations or improvements
to any part of the Leased Premises without first obtaining the Landlord’s prior written approval
such approval not to be unreasonably withheld. The Tenant shall submit to the Landlord
details of the proposed work, such indemnification against liens, costs, damages and expenses as
the Landlord shall require and evidence satisfactory to the Landlord that the Tenant has obtained,
at its sole expense, all necessary consents, licences and approvals from all governmental
authorities having jurisdiction. All such repairs, replacements, alterations, decorations or
improvements made by the Tenant to the Leased Premises and approved of by the Landlord
shall be at the sole cost of the Tenant, shall be performed by competent workmen in a good and
workmanlike manner and shall be subject to the reasonable supervision
of the Landlord. In
particular, but without limiting the foregoing, the Tenant’s selection of an electrical or
mechanical contractor shall be subject to the written approval of the Landlord, which approval
shall not be unreasonably withheld. Any such repairs, replacements, alterations, decorations or
improvements made by the Tenant without the prior



20









 





written consent of the Landlord, or, which are
not in accordance with the drawings and specifications approved by the Landlord, as aforesaid,
shall, if requested by the Landlord, be promptly removed by the Tenant at its expense and the
Leased Premises restored to their previous condition. Notwithstanding anything herein contained, no
repair, replacement, alteration, addition, or improvement to the Leased Premises by or on behalf of
the Tenant shall be permitted which may weaken or endanger the structure or adversely affect the
condition or operation of the Leased Premises or the Building or diminish the value thereof, or
restrict or reduce the Landlord’s coverage for zoning purposes. Any and all repairs, replacements,
alterations, additions or improvements to the Leased Premises which may affect the structure of the
Leased Premises or any part of the Building or which are to be installed outside the Leased
Premises, shall be performed only by the Landlord at the Tenant’s sole cost and expense.





	23.	 	FIRE





     If and whenever during the Term the Building shall be destroyed or damaged by fire, lightning
or other perils as are insured against by the Landlord from time to time, then and in every such
event:




(a) If the damage or destruction to the Building renders twenty-five percent (25%) or more
of the Building wholly unfit for occupancy or if it is impossible or unsafe to use and
occupy the Building, or if in the opinion of the Landlord the Building is damaged or
destroyed to such a material extent or the damage or destruction is of such a nature that
the Building must be or should be totally or partially demolished, whether to be
re-constructed in whole or in part or not, or if the cost of repairing or rebuilding the
Building as a result of such damage or destruction exceeds twenty-five percent (25%) of
the replacement cost thereof, the Landlord may at its option, terminate this Lease by
giving to the Tenant notice in writing of such termination, in which event this Lease and
the Term hereby demised shall cease and be at an end as of the date of such destruction or
damage, and the Minimum Rent and all other payments for which the Tenant is liable under
the terms of this Lease shall be apportioned and paid in full to the date of such
destruction or damage.




(b) If the damage or destruction is such that the Leased Premises are rendered unfit for
occupancy or if it is impossible or unsafe to use and occupy the Leased Premises, and if
in either event, the damage, in the opinion of either the
Landlord’s architect or
engineer, to be given to the other party within thirty
(30) days of the happening of
such damage or destruction, cannot be repaired with reasonable diligence within one
hundred and twenty (120) days from the happening of such damage or destruction, then,
either the Landlord or the Tenant may within five (5) days next succeeding the giving of
the Landlord’s opinion, as aforesaid, terminate this Lease by giving to the other notice
in writing of such termination, in which event, this Lease and the Term hereby demised
shall cease and be at an end as of the date of such damage or destruction, and the Minimum
Rent and all other payments for which the Tenant is liable under the terms of this Lease
shall be apportioned and paid in full to the date of such destruction and damage. In the
event that neither the Landlord or the Tenant so terminate this Lease, then, the
Landlord shall repair the Leased Premises (to the extent only of the Landlord’s work in
connection with the original construction of the Leased Premises and for greater certainty
shall in no event include any leasehold improvement or fixtures unless originally
installed by the Landlord) with all reasonable speed and the Minimum Rent hereby reserved
shall abate, to the extent of all insurance recoveries received by the
Landlord from the date of the happening of the damage until the damage shall be repaired
by the Landlord to the extent hereinbefore set out in this Paragraph 23(b).




(c) If the damage is such that the Leased Premises are wholly unfit for occupancy or if it
is impossible and unsafe to use and occupy the Leased Premises but, if in either event,
the damage, in the opinion of the Landlord, to be given to the Tenant within thirty (30)
days from the happening of such damage can be repaired (to



21









 







the extent hereinbefore set out in Paragraph 23 (b)) with reasonable diligence within one hundred and twenty (120) days
from the happening of such damage, then, the Minimum Rent hereby reserved shall abate, to
the extent of all insurance coverage received by the Landlord, from the date of the
happening of such damage until the damage shall be repaired by the Landlord to the extent
hereinbefore set out in Paragraph 23(b).




(d) If in the opinion of the Landlord, the damage to the Leased Premises can be made good,
as aforesaid, within one hundred and twenty (120) days of the happening of such destruction
or damage, and the damage is such that the Leased Premises are capable of being partially
used for the purpose for which the Leased Premises are hereby leased, then, until such
damage has been repaired (to the extent set out in Paragraph 23(b)), the Minimum Rent shall
abate in the proportion that the part of the Leased Premises rendered unfit for occupancy
bears to the whole of the Leased Premises, and the Landlord shall repair the damage (to the
extent set out in Paragraph 23(b) with all reasonable speed.




(e) In the event the Landlord shall elect to repair, reconstruct or rebuild the Building or
the Leased Premises, as the case may be, in accordance with the provisions of this Paragraph
23, it is acknowledged and agreed by the Tenant that the Landlord shall be entitled to use
all plans and specifications and working drawings in connection therewith other than those
used in the original construction of the Building or the Leased Premises.




(f) The decision of the Landlord’s architect or engineer as to the time within which the
Building and/or the Leased Premises can or cannot be repaired, the state of tenantability
or fitness of the Leased Premises and/or the Building, and as to the date on which the
Landlord’s work of repair is completed, shall be final and binding upon the parties hereto.




(g) If the damage or destruction is caused by the fault, negligence, carelessness or misuse
of the Tenant, its servants, agents, employees, contractors, or others for whom the Tenant
is in law responsible, there shall be no abatement of the Minimum Rent or any other amounts
payable by the Tenant hereunder.




	24.	 	ASSIGNMENT BY LANDLORD





     The Landlord declares that it may assign its rights under this Lease to a lending institution
as collateral security for a loan to the Landlord and in the event that such an assignment is given
and executed by the Landlord, and notification thereof is given to the Tenant by or on behalf of
the Landlord, it is expressly agreed between the Landlord and the Tenant that this Lease shall not
be cancelled or modified for any reason whatsoever except as provided for, anticipated or permitted
by the terms of this Lease or by law, without the consent in writing of such lending institution.
Upon the written request of the Tenant the Landlord shall use reasonable efforts to obtain at
the Tenant’s expense, an agreement from the mortgagee of the Building to permit the Tenant to
remain in quiet possession of the Leased Premises without interruption or disturbance from such
mortgagee provided that the Tenant pays the rent when due and complies with all the terms and
conditions of the Lease and attorns to such mortgagee.



     The Tenant covenants and agrees with the Landlord that it will, if and whenever reasonably
required by the Landlord, consent to and become a party to any instrument relating to this Lease
which may be required by or on behalf of any purchaser, lender or mortgagee from time to time of
the Leased Premises.




	25.	 	LIMITATION OF LANDLORD’S LIABILITY





     The term “Landlord” as used in this Lease shall, so far as the covenants and obligations on
the part of the Landlord are concerned, be limited to mean and include only the owner or owners at
the time in question of the Building and in the event of any conveyance or transfer of ownership by
the Landlord herein named, and in the case of any subsequent transfer or conveyances, the then
vendor or transferor shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all personal liability in respect of the
performance of any covenants or obligations on the part of the Landlord contained in this Lease
thereafter to be performed, provided that:



22









 







(a) any funds in the hands of the Landlord or the then vendor or transferor at the time of
such transfer, in which the Tenant has an interest, shall be turned over to the purchaser or
transferee and any amount then due and payable to the Tenant by the Landlord or the then
vendor or transferor under any provision of this Lease shall be paid to the Tenant; and




(b) upon any such transfer or conveyance, the purchaser or transferee shall be deemed to
have assumed, subject to the limitations of this Paragraph, all of the terms, covenants and
conditions contained in this Lease to be performed on the part of the Landlord.



     It is the intention of the parties pursuant to this Paragraph 25 that the covenants
and obligations contained in this Lease on the part of the Landlord shall, subject as aforesaid, be
binding upon the Landlord, its successors and assigns, only during and in respect of their
respective periods of ownership.




	26.	 	SIGNS





     The Tenant will not paint, fix, display, or cause to be painted, fixed or displayed, any sign,
picture, advertisement notice, lettering or decoration on any part of the exterior or the interior
of the Leased Premises without, in each instance, the prior written approval of the Landlord
such approval not to be unreasonably withheld. All signs erected by the Tenant with the
Landlord’s approval, as aforesaid, shall nevertheless be of uniform size, lettering and location as
the signs of all other tenants in the Building. Any such signs or other advertising material, as
aforesaid, shall be removed by the Tenant at the expiration or earlier termination of this Lease
and the Tenant shall promptly repair any and all damage caused by such installation or removal. If
the Landlord shall, in its sole discretion, desire to establish a uniform sign policy for all
tenants of the building, then, the Tenant acknowledges and agrees that the Landlord, at its option,
shall be entitled to erect all signs or other advertising material in or on the Building,
advertising the respective tenants’ business operations therein (including the Tenant named
herein.) The cost of such sign and the installation and erection thereof in respect of the Leased
Premises shall be borne entirely by the Tenant and shall be payable forthwith on demand, as
additional rent.




	27.	 	WAIVER OF BREACH





     The waiver by the Landlord of any breach of any term, covenant or condition herein contained
shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of
the same or any other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by the Landlord shall not be deemed to be a waiver of any preceding breach by the
Tenant of any term, covenant or condition of this Lease, regardless of the Landlord’s knowledge of
such preceding breach at the time of acceptance of such rent. No covenant, term or condition of
this Lease shall be deemed to have been waived by the Landlord unless such waiver is in writing and
signed by the Landlord.




	28.	 	NOTICES





     Any notice, demand, request or other instrument which may be or is required to be given under
this Lease shall be delivered in person or sent by registered mail, postage prepaid, and shall be
addressed (a) if to the Landlord at 555 Richmond Street West, Toronto, Ontario, M5V
3BI, Attention: Property Manager or at such other address as the Landlord designates by
written notice, and (b) if to the Tenant, at the Leased Premises. Any
such notice, demand, request or consent is conclusively deemed to be given or made on the date upon
which such notice, demand, request or consent is delivered, or if mailed, then four (4)
days following the date of mailing, as the case may be, and the time period referred to
therein commences to run from the time of delivery or four (4) days following the date of
mailing, as the case may be. Either party may at any time give notice in writing to the other of
any change of address of the party giving such notice and from or after the giving of such notice,
the address therein specified is deemed to be the address of such party for the giving of notices
hereunder. Provided, however, if the postal service is interrupted or substantially delayed for any
reason whatsoever, then, any notice, demand, request or other instrument shall be delivered in
person only.



23









 






	29.	 	STATUS STATEMENT





     Within ten (10) days after written request therefor by the Landlord, or in the event that upon
any sale, assignment, lease or mortgage of the Leased Premises or the lands thereunder by the
Landlord, a status statement shall be required from the Tenant, the Tenant hereby agrees to deliver
in the form supplied by the Landlord a certificate to any proposed mortgagee or purchaser or to the
Landlord, stating, (if such be the case), without limitation, that:




(a) this Lease is unmodified and in full force and effect (or if there have been any
modifications, that this Lease is in full force and effect as modified and identify the
modification agreements, if any) or if this Lease is not in full force and effect, the
certificate shall so state;




(b) the date of the commencement of the Term;




(c) the date to which the Minimum Rent has been paid under this Lease; and




(d) whether or not there is any existing default by the Tenant in the payment of Minimum
Rent or other sum of money under this Lease, and whether or not there is any other
existing default by either party under this Lease with respect to which a notice of
default has been served, and if there is any such default, specifying the nature and
extent thereof.




	30.	 	SUBORDINATION





     This Lease and all of the rights of the Tenant hereunder are, and shall at all times, be
subject and subordinate to any and all mortgages, trust deeds or the charge or lien resulting from
any other method of financing or refinancing or any renewals, or extensions thereof, now or
hereafter in force against the lands, buildings and improvements comprising the Lands and the
Building. Upon the request of the Landlord, the Tenant will subordinate this Lease and all of its
rights hereunder in such form or forms as the Landlord may require to any such mortgage, trust
deeds or the charge or lien resulting from any other method of financing or refinancing and to all
advances made or hereafter to be made upon the security thereof, and will, if requested, attorn to
the holder thereof. If within ten (10) days after the date of any request in respect thereof, the
Tenant has not executed and delivered to the Landlord any instruments or certificates required
pursuant to the provisions of this Paragraph 30 or Paragraph 29 hereof, then, the Tenant hereby
irrevocably appoints the Landlord as the Tenant’s attorney with full power and authority to execute
and deliver in the name of the Tenant any such instruments or certificates.




	31.	 	IMPOSSIBILITY OF PERFORMANCE





     Notwithstanding anything to the contrary contained in this Lease, if either party hereto is
bona fide delayed or hindered in or prevented from the performance of any term, covenant or act
required hereunder by reason of strikes, labour troubles, inability to procure materials or
services, power failure, restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, acts of God, or other reasons whether of a like nature or not which is
not the fault of the party delayed in performing work or doing acts required under the terms of
this Lease, then, the performance of such term, covenant or act is excused for the period of the
delay and the party so delayed shall be entitled to perform such term, covenant or act within the
appropriate time period after the expiration of the period of such delay. However, the provisions
of this Paragraph 31 shall not in any way operate to excuse the Tenant from the prompt payment of
Minimum Rent and additional rent or any of the payments required by the terms of this Lease.




24












 





32. MISCELLANEOUS




     The Landlord and Tenant agree that:



(a) Successors and Assigns




     All rights and liabilities herein given to or imposed upon the respective parties hereto shall
extend to and bind the several respective permitted heirs, executors, administrators, successors
and assigns of the said parties, and if there shall be more than one Tenant, they shall be bound
jointly and severally by the terms, covenants and agreements contained herein. No rights, however,
shall enure to the benefit of any assignee of the Tenant unless the assignment to such assignee has
been approved by the Landlord in writing as provided in Paragraph 9(j) hereof.



(b) Accord and Satisfaction




     No payment by the Tenant or receipt by the Landlord of a lesser amount than the monthly
Minimum Rent herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement or any cheque or any letter accompanying
any cheque or payment as rent be deemed an accord and satisfaction, and the Landlord may accept
such cheque or payment without prejudice to the landlord’s right to recover the balance of such
rent or pursue any other remedy in this Lease provided.



(c) Entire Agreement




     This Lease and the Schedules and Riders, if any, attached hereto and forming a part hereof,
together with the rules and regulations promulgated by the Landlord from time to time set forth all
the covenants, promises, agreements, conditions and understandings between the Landlord and the
Tenant concerning the Leased Premises and there are no covenants, promises, agreements, conditions
or understandings, either oral or written, between them other than are herein set forth. Except as
herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease
shall be binding upon the Landlord or the Tenant unless in writing and signed by each of
them.



(d) Captions and Section Numbers




     The captions, section numbers, article numbers, and index appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of such sections or articles of this Lease, nor in any way affect this Lease.



(e) Extended Meanings




     The word “Tenant” shall be deemed to include the word “lessee” and shall mean each and every
person or party mentioned as a tenant herein, be the same one or more, and if there shall be more
than one Tenant, any notice required or permitted by the terms of this Lease may be given
by or to any one thereof, and shall have the same force and effect as if given by or to all
thereof. Any reference to “Tenant” shall include, where the context allows, the servants, employees,
agents, and invitees of the Tenant and all others over whom the Tenant exercises control. Whenever
the word Landlord is used in this Lease, it shall be deemed to include the word “lessor” and to
include the Landlord and its duly authorized representatives. The words “hereof”, “herein”,
“hereunder” and similar expressions used in any section or subsection relate to the whole of this
Lease, and not to that section or that subsection only, unless otherwise expressly
provided.



25









 





     The use of the neuter singular pronoun to refer to the Landlord or the Tenant shall be deemed
a proper reference even though the Landlord or the Tenant may be an individual, a partnership, a
corporation, or a group of two or more individuals or corporations. The necessary grammatical
changes required to make the provisions of this Lease apply in the plural sense where there is more
than one Landlord or Tenant and to either corporations, associations, partnerships, or individuals,
(males or females), shall in all instances be assumed as though in each case fully expressed.



(f) Partial Invalidity




     If any term, covenant or condition of this Lease or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and enforced to the fullest extent permitted by law.



(g) Registration




     The Tenant shall not register this Lease or notice thereof without the written consent of the
Landlord such consent not to be unreasonably withheld.



(h) Governing Law




     This Lease shall be construed in accordance with, and governed by, the laws of the Province of
Ontario.



(i) Time of the Essence





	 	 	Time shall be of the essence of this Lease and of every part hereof.





(j) Notice by Tenant




     The Tenant shall, when it becomes aware of same, or when the Tenant, acting reasonably, should
have become aware of same, notify the Landlord of any damage to, or deficiency or defect in any
part of the Building, including the Leased Premises and any equipment or utility systems, or any
installation located therein, notwithstanding the fact that the Landlord may have no obligation
with respect to same.



(k) Rules and Regulations




     The Tenant and its employees and all persons visiting or doing business with the Tenant shall
be bound by the rules and regulations attached to this Lease as Schedule “D” and all such rules and
regulations shall be deemed to be incorporated in and form part of this Lease.



26









 





33. SPECIAL CONDITIONS




(a) Fixturing Period



The Tenant and its consultants, vendors and contractors shall be permitted reasonable access to the
Premises for the purpose of design, planning and completion of the Tenant’s Work from execution of
the Lease until March 31, 2005 (the “Fixturing Period”). The Tenant acknowledges that the
Landlord’s Work may continue during the Fixturing Period. The Landlord and Tenant will mutually
cooperate with each other with respect to the completion of their respective work during the
Fixturing Period.



The Tenant shall not be responsible for payment of Net Rent, its share of Realty Taxes, Operating
Costs and Hydro Charges during the Fixturing Period but shall otherwise abide by and observe all
other terms and provisions of the Lease, including without limitation discharging its obligation to
insure the Premises.




(b) Removal of Leasehold Improvements by Tenant



Without limiting the generality of the foregoing, the Tenant shall not be responsible at expiration
of the Term for:





	 	(i)	 	removing those leasehold improvements installed in the Premises prior to
February 14, 2005; and
	 
	 	(ii)	 	removing those leasehold improvement(s) the Tenant installs in the Leased
Premises that have been approved in writing in advance by the Landlord including
specific written acknowledgement that such leasehold improvement(s) do not require
removal at the expiration of the Term. It shall be deemed reasonable for the Landlord
to refuse to waive the Tenant’s obligation to remove same if in its opinion such
leasehold improvement is not of a generic office nature likely to be re-usable by
subsequent tenant(s) leasing the Leased Premises, or detracts from the value or the
appearance of the Leased Premises.





(c) Right of First Opportunity



If during the time periods set out in Section 33(b)(i) and 33(b)(ii) below, the noted premises are
available for lease and not under formal negotiation between the Landlord and a third-party, then
the Tenant shall have the right to lease same on the terms and provisions set out hereunder by
delivering written notice to the Landlord exercising such right.





	 	(i)	 	During the first Eighteen (18) months of the Term, the Tenant shall have
an ongoing Right of First Opportunity (“ROFO1”) to lease Suite 215 in
the Building (shown outlined in blue on the plan attached hereto as Schedule
“A” and encompassing approximately 6,000 rentable square feet of area on the
2nd floor) on the same terms and conditions as are contained in this Lease
including but not limited to Minimum Rent rate, Fixturing Period, early occupancy
rights and Leasehold Allowance, save and except that the Term for Suite 215
shall expire on October 31, 2010 and Fixturing Period, early occupancy rights and
Leasehold Allowance shall be adjusted on a pro-rated basis to reflect any
resulting term of lease less than Sixty (60) months.
	 
	 	(ii)	 	During the first Twelve (12) months of the Term, the Tenant shall have an
ongoing Right of First Opportunity (“ROFO2”) to lease Suite 217 in the Building
(shown outlined in green on the plan attached hereto as Schedule “A” and encompassing
approximately 5,841 rentable square feet of area on the 2nd floor) on the
same terms and conditions as are contained in this Lease including but not limited to
Minimum Rent rate, Fixturing Period, early occupancy rights and Leasehold Allowance,
save and except that the Term for Suite 217 shall expire on October 31, 2010 and
Fixturing Period, early occupancy rights and Leasehold Allowance shall be adjusted on
a pro-rated basis to reflect any resulting term of lease less than Sixty (60) months.





26b









 





(d) Right of First Refusal



If during the Term the Landlord receives an acceptable written offer from a third-party to lease
Suite 215 or Suite 217 in the Building, then the Landlord shall notify the Tenant in writing of the
terms and provisions of such acceptable offer and the Tenant shall have a period of Three (3)
business days from receipt of such notice to exercise this right to lease such premises on the same
economic terms as are contained in such offer, save and except as noted hereunder, by delivering
written notice to the Landlord exercising this right.



In the event the acceptable offer from the third-party is for a term of lease greater than Sixty
(60) months, then the Tenant shall only be responsible for “matching” the term of lease for Sixty
(60) months and all economic terms shall be adjusted on a pro-rated basis to reflect such shorter
term of lease.



In the event the financial and corporate covenant of the third-party tendering the acceptable
written offer is materially stronger than the financial and corporate covenant of the Tenant, then
it is understood and agreed that the economic terms of the Tenant’s lease of such premises shall be
adjusted in a reasonable manner to reflect its own financial and corporate covenant.



(e) Access



Access to the Building and the Leased Premises is currently on a 24-hour per day 7-day per week
basis subject to the terms and provisions of the Lease.



(f) Leasehold Improvement Allowance



Landlord will pay to Tenant on the Commencement Date a leasehold improvement allowance (the
“Leasehold Improvement Allowance”) not exceeding Six Dollars and Twenty Five Cents ($6.25) per
square foot of the rentable area in the Premises upon the occurrence or satisfaction of the
following:





	 	i.	 	The Tenant is in occupancy of the Leased Premises and abiding
by the terms and provisions of the Lease; and
	 
	 	ii.	 	Delivery to Landlord of the following:






	 	1)	 	a statutory declaration of an officer of the
contractor that has performed the installation of the Leasehold
Improvements or alteration of existing Leasehold Improvements (the
“Tenant’s Work”) that the contract under which the Tenant’s Work was
performed (the “Tenant Work Contract”) has been “completed” or
“abandoned”, as those terms are defined under the Construction Lien Act
(Ontario); and
	 
	 	2)	 	one of:






	 	(A)	 	if applicable, a certificate of
substantial performance of the Tenant Work Contract in the form
prescribed in the Act, together with evidence of the date of
publication of such certificate as provided by the Act;
	 
	 	(B)	 	declarations of last supply in the
form described in the Act, if applicable, given by officers of all
the subcontractors employed by the contractor in the performance
of the Tenant’s Work;
	 
	 	(C)	 	if applicable, a certificate of
completion in the form prescribed in the Act, in respect of the
subcontract of each subcontractor employed by the contractor that
has performed the Tenant’s Work, together with evidence of
delivery of a copy of such certificates of completion to each
respective subcontractor;




26c









 






	 	(D)	 	the expiry of the periods pursuant to the
Act within which a person who supplied services or materials in
connection with the performance of the Tenant’s Work may file a
claim or lien for work or service performed or material supplied,
provided no claim for lien for work or service performed or material
supplied has been filed, or if such liens have been filed, then only
upon such liens being discharged or vacated. In connection
therewith, Landlord may require the Tenant to provide evidence by
way of a solicitor’s opinion that no liens in connection with the
Tenant’s Work are registered against the freehold or leasehold
interest in the Land or Building, such opinion to be dated the date
of the Leasehold Improvement Allowance is paid to Tenant;
	 
	 	(E)	 	the delivery to Landlord of proof of
payment of worker’s compensation assessments for all Tenant’s
contractors and subcontractors; and
	 
	 	(F)	 	receipted invoices, totalling not less
than the Leasehold Improvement Allowance, verifying the actual cost
of installing Leasehold Improvements in the Premises.




For the purposes of clarification, the Leasehold Improvement Allowance shall be used to pay for
design costs, construction management fees, construction drawings, installation of carpet repair/replacement and/or installation of drywall doors, windows, millwork, and wiring costs for both power and network to the Leased Premises.



In the event that the Tenant does not use the entire Leasehold Improvement Allowance, the
Landlord shall reduce the Minimum Annual Rent accordingly,




34. OPTION TO EXTEND:



If,



(a) The Tenant pays the rent (including Minimum Rent and Additional Rent) as and when due and
punctually observes and performs the terms, covenants and conditions to be observed and performed
by it in accordance with the terms of the Lease;



(b) The Tenant is not in default under the Lease;



(c) The Tenant gives the Landlord not less than six (6) months and not more then twelve (12) months
written notice prior to the expiration of the Term of this Lease of the Tenant’s intention to
extend the Term of the Lease; and



(d) So long as the Tenant is Eloqua Corporation and itself in occupation and conducting business in
the whole of the Leased Premises in accordance with the terms of the Lease, the Tenant expressly
acknowledging and agreeing that the provisions of this section are personal to the Tenant, then the
Landlord will grant to the Tenant the right to extend the Term of this Lease upon the expiry of the
initial Term for a period of five (5) years (the “Extended Term”) upon the same terms and
conditions as set out in the Lease except that:





26d









 









(i) There shall be no further right to extend the Term;




(ii) The Landlord may at its option require the Tenant to enter into an Extension
Agreement, as prepared by the Landlord at the Tenant’s expense to give effect to the
Extended Term; and




(iii) The Minimum Rent payable during each year of the Extended Term shall be based on the
fair market rent for similar premises in the Building at the time the Tenant exercises this
Option to Extend, but in no event less than $10.31 per rentable square foot per annum in
each year of the extended term.



	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED	 	)	 	674951 ONTARIO LIMITED
	         in the presence of:

	 	)	 	 	 	(Landlord)
	 	 	)	 	 	 	 
	 

	 	)	 	Per:	/s/ Rena Miller 
	 

	 	 	 	 	 
	 	 	)	 	 	Rena Miller — Property Manager
	 	 	)	 	 	 	 
	 	 	)	 	 	 	 
	 

	 	)	 	Per:	 
	 

	 	 	 	 	 
	 	 	)	 	 	Michael Alter — Vice President
	 	 	)	 	 	 	 
	 	 	)	 	 	 	 
	 	 	)	 	 	 	 
	 	 	)	 	 
	 	 	)	 	ELOQUA CORPORATION
	 

	 	)	 	 	 	(Tenant)
	 	 	)	 	 	 	 
	 	 	)	 	 	 	 
	 	 	)	 	 
	 	 	)	 	Per:	/s/ Mark Organ
	 

	 	 	 	 	 
	 	 	 	 	 	Mark Organ, President






27









 





SCHEDULE “A”

PLAN OF BUILDING










28









 





SCHEDULE “B”

LEGAL DESCRIPTION




     Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, Block A, Lot 14, Lots 15, 16, 17, 18, 19,
20, 21, 22, 23, 24 and 25, Block D, Blocks B and C, The Private Lane, Plan D-1303 and Lot 12,
Section H, Military Reserve, in the City of Toronto Municipality of Metropolitan Toronto,
designated as Part 1, on Plan 63R-3261 (as described in Instrument No. CT-807031).



29









 






SCHEDULE “C”

LANDLORD’S AND TENANT’S WORK



Save and except as provided for hereunder, the Landlord shall deliver and the Tenant shall accept
the Leased Premises in an “as-is” condition, and the Tenant hereby acknowledges that leasehold
improvements in the Leased Premises have been subjected to the wear and tear of the previous
occupant.



Save and except as provided for hereunder, the Tenant shall be responsible for any and all costs of
new leasehold improvements in the Leased Premises, or modifications of existing leasehold
improvements, if any, including but not necessarily limited to the cost of securing required
permits, working drawings, material, labour, and a reasonable charge for supervision by the
Landlord.



The Tenant agrees to construct and complete in a good and workmanlike manner, leasehold
improvements and modifications to the Leased Premises strictly in accordance with the terms and
provisions of the Lease. Without limiting the generality of the foregoing, the Tenant shall not
commence any such work without the prior written approval of the Landlord, and the Tenant shall use
only those contractors approved by the Landlord in advance.



The Landlord, at its sole cost, shall complete the following work in the Leased Premises within
Five (5) business of execution of this Lease:





	a.	 	Ensure all Base Building electrical, plumbing and heating, ventilation and airconditioning
system (“HVAC”) serving the Premises, and HVAC, electrical and sprinkler systems in the Leased
Premises, are fully functional and in good repair and condition; and
	 
	b.	 	Complete a general cleaning of the Leased Premises.





30









 





SCHEDULE“D”

RULES AND REGULATIONS



1. The Tenant shall not permit any cooking, except within the kitchen located within the Leased
Premises, in the Leased Premises without the written consent of the Landlord. The Tenant shall
be permitted to use a microwave oven to heat up food as long as the smell and odours resulting
therefrom shall not flow through beyond the Leased Premises.



2. The sidewalks, entrances, driveways and roadways shall not be obstructed or used by the Tenant,
its agents, servants, contractors, invitees or employees for any purpose other than ingress to and
egress from the Leased Premises. The Landlord reserves the entire control of all parts of the
Building employed for the common benefit of the tenants thereof.



3. The Tenant, its agents, servants, contractors, invitees or employees, shall not bring in or take
out, position, construct, install or move any safe, business machinery or other heavy machinery or
equipment or anything liable to injure or destroy any part of the Building without first obtaining
the consent in writing of the Landlord. In giving such consent, Landlord shall have the right in
its sole discretion, to prescribe the weight permitted and the position thereof, and the use and
design of planks, skids, or platforms, to distribute the weight thereof. All damage done to the
Building by moving or using any such heavy equipment or machinery shall be repaired at the expense
of Tenant. The moving of all heavy equipment or other machinery shall occur only by prior
arrangement with the Landlord.



4. The Tenant shall not place or cause to be placed any additional locks upon any doors of the
Leased Premises without the approval of the Landlord and subject to any conditions imposed by the
Landlord.



5. The water closets and other water apparatus shall not be used for any purpose other than those
for which they were constructed, and no sweepings, rubbish, rags, ashes or other substances shall
be thrown therein. Any damage resulting by misuse shall be borne by the Tenant. The Tenant shall
not deface or mark any part of the Building, or drive nails, spikes, hooks, or screws into the
walls or woodwork of the Building.



6. No one shall use the Leased Premises for sleeping apartments or residential purposes, or for the
storage of personal effects or articles other than those required for business purposes.



7. The Tenant shall not receive or ship articles of any kind except through freight facilities, and
designated doors and at hours designated by the Landlord. All receiving and shipping shall be
subject to the rules and regulations established by the Landlord in that regard, including without
limitation, the use of rubber wheels on all equipment being used to move articles in and out of the
Leased Premises and the Building.



8. No inflammable oils or other inflammable, dangerous or explosive materials except those approved
in writing by the Landlord’s insurers shall be kept or permitted to be kept in the Leased Premises.



9. If the Tenant desires telegraphic or telephonic connections, the Landlord will direct the
electricians as to where and how the wires are to be introduced, and without such direction no
boring or cutting for wires will be permitted. No gas pipe or electric wire will be permitted which
has not been ordered or authorized by the Landlord. No outside radio or television aerials shall be
allowed on the Leased Premises without authorization in writing by the Landlord, such authorization
not to be unreasonably withheld.




31









 




10. The Tenant shall not permit undue accumulations of garbage, trash, rubbish or other refuse
within or without the Leased Premises or cause or permit objectionable odours to emanate or be
dispelled from the Leased Premises.



11. No pets or animals shall be permitted in the Leased Premises or the Building.



12. The Landlord shall have the right to make such other and further reasonable rules and
regulations as in its judgment may from time to time be needed for the safety, care and cleanliness
of the building, and for the preservation of good order therein.





32











 





LEASE AMENDING AGREEMENT




THIS AGREEMENT made as of the 13th day of February, 2006.


BETWEEN:



674951
ONTARIO LIMITED



(the “Landlord”)



- and -



ELOQUA CORPORATION



(the “Tenant”)



WHEREAS:



A. By a Lease dated the 10th day of February, 2005 (the “Lease”), the Landlord leased to
Eloqua Corporation, for a term (the “Term”) of five (5) years commencing on the 1st day of November, 2005,
and expiring on the 31st day of October, 2010, certain premises (the “Leased Premises”) known as
Suite No. 214, comprising an area of approximately Twelve Thousand Six Hundred Ninety Five (12,695)
rentable square feet shown outlined in red on the plan attached to the Lease as Schedule “A”, and located on the Second (2nd) floor of the building (the “Building”) known municipally as
543 Richmond Street West in the City of Toronto, in the Province of Ontario.



B. The Tenant has agreed to lease Suite 215 in the Building from the Landlord and to further
amend the Lease upon the terms and provisions as are contained in this Agreement



NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency of which is by
each of the parties hereto acknowledged, the parties agree as follows:



1. The Landlord does demise and lease to the Tenant the premises known as Suite 215 shown outlined
in red on the floorplan attached hereto as Schedule “A”, consisting of an area of approximately Six
Thousand and Twelve (6,012) square feet of rentable area on the Second (2nd) floor of
the Building (“Suite 215”), and Suite 215 is hereby added to and included in the Leased Premises as
defined in the Lease beginning on September 1, 2006 (the “Start Date”).



2. it is further understood and agreed that under this Lease Amending Agreement:





(i) The Tenant’s proportionate share for Suite 215 is 5.2%;




(ii) The Minimum Rent payable by the Tenant with respect to Suite 215 shall be based on
the rate of Ten Dollars and Thirty One Cents ($10.31) per square foot
of the rentable area of Suite 215 per annum from September 1, 2006 through October 31, 2010;




(iii) The Tenant will accept Suite 215 in an “as is” condition save and except that the Landlord shall, at its sole cost;




	 	a.	 	Ensure all Base Building electrical, plumbing and heating, ventilation
and air-conditioning system (“HVAC”) serving Suite 215, and HVAC, electrical and
sprinkler systems in Suite 215, are fully functional and in good repair and
condition; and
	 
	 	b.	 	Complete a general cleaning of Suite 215.






(iv) The Landlord will pay to the Tenant on the Start Date a Leasehold Improvement
Allowance not exceeding Five Dollars and Twenty One Cents ($5.21) per square foot of the
rentable area of Suite 215 upon the terms and provisions of Sections 33(f)(i) and 33(f)(ii)
in
the Lease.




(v) The Tenant hereby deposits with the Landlord as security for the prompt
performance and observance by the Tenant of all of the terms, covenants, conditions and



 









 





LEASE AMENDING
AGREEMENT 
Between: Eloqua
Corporation 
&674951
Ontario Limited 
February
13, 2006

Page 2





provisions of the Lease the sum of Fifteen Thousand Dollars ($15,000.00) (the “Deposit”)
to be held by the Landlord without interest and applied as follows:




	 	a.	 	If the Tenant complies with all of the terms, covenants, and conditions
under this Lease and is not otherwise in default under this Lease, then the first
Ten Thousand Dollars ($10,000.00) of the Deposit shall be applied and credited to
the Tenant on account of Minimum Rent and the Tenant’s proportionate share of Realty
Taxes,
Operating Costs and Utility Charges (excluding GST) otherwise payable beginning
on January 1, 2007 and shall continue to be applied towards same until exhausted;
and
	 
	 	b.	 	If the Tenant complies with all of the terms, covenants, and conditions
under this
Lease and is not otherwise in default under this Lease, then the balance of the
Deposit, namely Five Thousand Dollars ($5,000.00) of the Deposit shall be applied
and credited to the Tenant on account of Minimum Rent and the Tenant’s
proportionate share of Realty Taxes, Operating Costs and Utility Charges (excluding
GST) otherwise payable beginning on January 1, 2008 and shall continue to be
applied towards same until exhausted;






(vi) The Tenant shall, within five (5) business days of execution of this Agreement by the
Tenant, provide the Landlord with an Irrevocable Standby Letter of Credit (the “LC”) in the
substantially in the same form as the existing Letter of Credit in favour of the Landlord from
the Tenant’s bank as set out in Rider “A” Section (b) of the Lease save and except that:




	 	a.	 	The aggregate amount of the LC shall be Thirty Five Thousand Dollars
($35,000.00);
	 
	 	b.	 	Provided the Tenant is not in material default of the terms and
conditions of the Lease, upon automatic renewal of the LC on January 1, 2008, the
amount will be reduced to Thirty Thousand Dollars ($30,000.00);
	 
	 	c.	 	Provided the Tenant is not in material default of the terms and
conditions of the Lease, upon automatic renewal of the LC on January 1, 2009, the
amount will be reduced to Twenty Thousand Dollars ($20,000.00);
	 
	 	d.	 	Provided the Tenant is not in material default of the terms and
conditions of the
Lease, upon automatic renewal of the LC on January 1, 2010, the amount will be
reduced to Ten Thousand Dollars ($10,000.00); and
	 
	 	e.	 	Provided the Tenant has performed all its obligations pursuant to the
Lease, the LC
shall expire on November 30, 2010.




4. Following execution of this Agreement, the Tenant shall be permitted to occupy Suite 215 for the
purpose of completing its leasehold improvements and thereafter to conduct its business, provided
it shall comply with and abide by all the terms and conditions of the Lease, save and except: the
Tenant shall not be responsible for the payment of Minimum Rent and its share of Realty Taxes,
Operating Costs and Hydro Charges from execution of this Agreement through February 28, 2006; and
the Tenant shall not be responsible for the payment of Minimum Rent and its share of Realty Taxes
and Operating Costs but shall be responsible for Hydro Charges from March 1, 2006 through August
31, 2006. Without limiting the generality of the foregoing, the Tenant shall ensure it complies
with all covenants and obligations with respect to insurance while occupying Suite 215 prior to the
Start Date.



5. The
Tenant represents and warrants that it has the right, full power and authority to agree to
the amendments to the Lease, and other provisions contained in this Agreement.



6. The parties confirm that the terms, covenants and conditions of the Lease remain unchanged and
in full force and effect, except as modified by this Agreement, It is understood and agreed that
all terms and expressions when used in this Agreement, unless a contrary intention is expressed
herein, have the same meaning as they have in the Lease.







 









 








LEASE AMENDING
AGREEMENT 
Between: Eloaua
Corporation
 & 674951
Ontario Limited
 February 13, 2006

Page 3



7. This Agreement shall enure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns, as the case may be.



8. It is understood and acknowledged that this Lease Amending Agreement and the Lease and all
negotiations and discussions relating thereto are of a confidential nature. The Tenant shall not
disclose any details related thereto to any party, save and except those required by the operation
of the Tenant’s business, to have such information




     IN WITNESS WHEREOF the Landlord has duly executed this Agreement at Toronto this 10 day
of March, 2006.



	 	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED)	 	 	674951 ONTARIO LIMITED
	in the presence of:
	 	 	)	 	 	 	 	 	 	(Landlord)
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	Per:	 	/s/ Rena Miller
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	Rena Miller, Property Manager
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	Per:	 	/s/ Michael Alter
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	Michael Alter, vice-president
	 
	 	 	)	 	 	 	 	 	 	 	 	 






     IN
WITNESS WHEREOF the Tenant has duly executed this Agreement at        
this         day of FEB, 2006.



	 	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED)	 	 	ELOQUA CORPORATION
	 
	 	 	)	 	 	 	 	 	 	(Tenant)
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	Per:	 	/s/ Steven Woods
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	Steven Woods, CTO
	 
	 	 	)	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






 









 







LEASE AMENDING AGREEMENT

Between: Eloaua Corporation

& 874951 Ontario Limited

February l3, 2006

Page 4




SCHEDULE  “A”









 









 








LEASE AMENDING AGREEMENT




THIS AGREEMENT made as of the 22nd day of May, 2007.


BETWEEN:



674951 ONTARIO LIMITED



(the “Landlord”)



-and-



ELOQUA
CORPORATION 

(the “Tenant”)



WHEREAS:



A. By a Lease dated the 10th day of February, 2005 (the “Lease”), the Landlord leased to Eloqua
Corporation, for a term (the “Term”) of five (5) years commencing on the 1st day of November, 2005,
and expiring on the 31st day of October, 2010, certain premises (the “Leased Premises”) known as
Suite No. 214, comprising an area of approximately Twelve Thousand Six Hundred Ninety Five (12,695)
rentable square feet shown outlined In red on the plan attached to the Lease as Schedule “A”, and
located on the Second (2nd) floor of the building (the “Building”) known municipally as 543
Richmond Street West in the City of Toronto, in the Province of Ontarlo.



B. By way of a Lease Amending Agreement dated February 13, 2006, the Tenant leased from the
Landlord Suite 215 encompassing approximately Six Thousand and Twelve (6,012) square feet of
rentable are on the 2nd floor of 543 Richmond Street West (“Suite 215”) and Suite 215 was
incorporated into the Leased Premises effective on September 1, 2006;



C. By way of an agreement dated the 22nd day of May, 2007, the Tenant has agreed to lease
Suite 107 in the Building from the Landlord effective on October 6, 2007; and



D. The Tenant has agreed to lease Suite 119 in the Building on a short-term basis as set out
hereunder.



NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency of which is by
each of the parties hereto acknowledged, the parties agree as follows:



1. Effective on June 6, 2007 (the “Effective Date”) for a Term of Four (4) months expiring on
October 5, 2007 the Landlord does lease to the Tenant Suite 119 upon the same terms, covenants and
conditions as are contained in the Lease except that:





	(a)	 	the Tenant will accept Suite 119 in an “as is” condition;
	 
	(b)	 	the Landlord has no responsibility or liability for making any renovations, alterations or
improvements in or to Suite 119, save and except the Landlord, at its cost, will ensure existing
lighting fixtures and lamps and HVAC service to Suite 119 are in good and working order;
	 
	(c)	 	the Tenant shall not complete any renovations, alterations or improvements in or to Suite 119
and shall not install, affix or hang any decorations or fixtures on the walls, door or ceiling of
Suite 119 or otherwise deface Suite 119 in any way and shall repair any damage or unreasonable wear
and tear to Suite 119 caused by its occupancy of same; and
	 
	(d)	 	The monthly Gross Rent payable by the Tenant with respect to Suite 119 shall be the amount of
Three Thousand Two Hundred Sixty One Dollars and Seventy Seven Cents ($3,261.77) (including GST)
which shall be deemed to be full and complete payment of all Minimum Rent, Realty Taxes, Operating
Costs and Hydro Charges with respect to Suite 119 for each month from June 6, 2007 through October
5, 2007. Notwithstanding the foregoing, the Tenant shall not be responsible for paying such Gross Rent
for the first Seven (7) days of the Term;




 









 











LEASE AMENDING AGREEMENT

Between:Eloqua Corporation

& 674951 Ontario Limited

June 1, 2007

Page 2



3. The Landlord and the Tenant shall both have the right to terminate the Lease at any time
during the Term, without penalty or bonus to either party, by providing Seven (7) days advance
written notice to the other party effecting same; and



4. The Tenant hereby deposits with the Landlord the sum of Three Thousand Two Hundred Sixty One
Dollars and Seventy Seven Cents ($3,261.77) as a further security deposit to be held by the Landlord
without interest to assure the Tenant’s performance of its obligations pursuant hereto, all as more
particularly set out in the Lease.




5. The parties confirm that the terms, covenants and conditions of the Lease remain unchanged
and in full force and effect, except as modified by this Agreement. Without limiting the generality
of the foregoing, the Deposit shall continue to be held by the Landlord as a security deposit, Without
interest, all as more particularly set out in the Lease.



It is understood and agreed that all terms and expressions when used in this Agreement, unless a
contrary intention is expressed herein, have the same meaning as they have in the Lease.




6. The Tenant represents and warrants that it has the right, full power and authority to agree
to the amendments to the Lease, and other provisions contained in this Agreement.



7. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, successors and assigns, as the case may be.




     IN WITNESS WHEREOF the Landlord has duly executed this Agreement at Toranto this 1st
day of June 2007.



	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED)	 	674951 ONTARIO LIMITED
	in the presence of:
	 	)	 	 	 	 	 	 	(Landlord)
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Rena Miller
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	Rena Miller, Property Manager
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Michael Alter
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	Michael Alter, vice-president
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 







	 	 	IN WITNESS WHEREOF the Tenant has duly executed this Agreement at Toranto this 8th
day of June 2007.





	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED)	 	ELOQUA CORPORATION
	 
	 	)	 	 	 	 	 	 	(Tenant)
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ David Harris Kolada
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	David Harris Kolada, SVP & CFO






 









 






LEASE
AMENDING AGREEMENT




THIS AGREEMENT made as of the 22nd day of May, 2007.


BETWEEN:



674951
ONTARIO LIMITED



(the “Landlord”)



-
and -



ELOQUA
CORPORATION



(the “Tenant”)



WHEREAS:



A. By a Lease dated the 10th day of February, 2005 (the “Lease”), the Landlord leased to
Eloqua
Corporation, for a term (the “Term”) of five (5) years commencing on the 1st day of November, 2005,
and expiring on the 31st day of October, 2010, certain premises (the “Leased Premises”) known as
Suite
No, 214, comprising an area of approximately Twelve Thousand Six Hundred Ninety Five (12,695)
rentable square feet shown outlined in red on the plan attached to the Lease as Schedule “A”, and
located on the Second
(2nd)
floor of the building (the “Building”) known municipality as 543
Richmond
Street West in the City of Toronto, in the Province of Ontario.



B. By way of a Lease Amending Agreement dated February 13, 2007, the Tenant leased from the
Landlord Suite 215 encompassing approximately Six Thousand and Twelve (6,012) square feet of
rentable are on the 2nd floor of 543 Richmond Street West (“Suite 215”) and Suite 215 was
Incorporated
into the Leased Premises effective on September 1, 2006; and



C. The Tenant has agreed to lease Suite 107 in the Building from the Landlord and to further
amend the Lease upon the terms and provisions as are contained in this Agreement



NOW
THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency of which is by
each of the parties hereto acknowledged, the parties agree as follows:



1. The Landlord does demise and lease to the Tenant the premises known as Suite 107 shown outlined
in red on the floorplan attached hereto as Schedule “A”, consisting of an area of approximately
Eleven Thousand Three Hundred (11,300) square feet of rentable area
on the First (1st) floor of the
Building (“Suite 107”), and Suite 107 is hereby added to and included in the Leased Premises as
defined in the Lease beginning on October 6, 2007 (the “Start Date”).



Within Fifteen (15) days of execution of this agreement, the Landlord’s space-planner shall measure
and certify the final rentable area of Suite 107 in accordance with Building standard methodology
for the 1st floor of the Building, and this agreement shall, if required, be amended in accordance
with such final determination.




2. It is further understood and agreed that under this Lease Amending Agreement:




(i) The Tenant’s proportionate share for Suite 107 is 9.8%;




(ii) The Minimum Rent payable by the Tenant with respect to Suite 107 shall be based on the
rate of Ten Dollars and Thirty One Cents ($10.31) per square foot of the rentable area of Suite
107 per annum from October 6, 2007 through October 31, 2010;




(iii) The Tenant will accept Suite 107 in an “as is” condition save and except that the Landlord
shall, at its sole cost;




	 	a.	 	Ensure all Base Building electrical, plumbing and heating, ventilation and air-
conditioning system (“HVAC”) serving Suite 107, and HVAC, electrical and
sprinkler systems in Suite 107 (as currently configured), are fully functional and in
good repair and condition;




 









 









LEASE AMENDING AGREEMENT

Between: Eloqua Corporation

& 674851 Ontario Limited

May 22, 2007

Page 2





	 	b.	 	Complete a general cleaning of Suite 107;
	 
	 	c.	 	Replace any materially damaged ceiling tiles, and, where
missing, install new
ceiling tiles throughout the existing T-Bar ceiling grid in Suite
107;
	 
	 	d.	 	Ensure all 2’x4’ fluorescent lighting fixtures
currently installed in the ceiling grid of
Suite 107 are connected and in good and working order; and
	 
	 	e.	 	Demolish all existing drywall partitions and interior
glazing in Suite 107 and
repair, to the extent reasonably possible, any damage to the ceiling
grid resulting
from such demolition. The Landlord will leave the existing kitchen
and plumbing
intact.




It is understood and agreed that the Landlord shall have joint access to
Suite 107 after execution of this agreement for the purpose of completing
the work it is responsible for as described above and the Tenant shall
cooperate with the Landlord to allow for such Landlord’s work to be
completed in an expeditious and efficient manner.





(iv) The Landlord will pay to the Tenant on the Start Date a Leasehold
Improvement Allowance not exceeding Three Dollars and Eighty Five Cents
($3.85) per square foot of the final rentable area of Suite 107 upon the
terms and provisions of Sections 33(f)(i) and 33(f)(ii) in the Lease.




(v) The Tenant hereby deposits with the Landlord as security for the
prompt
performance and observance by the Tenant of all of the terms, covenants,
conditions
and
provisions of the Lease the sum of Twenty Six Thousand Dollars
($26,000.00) (the
“Deposit”) to be held by the Landlord without Interest and applied as
follows:




	 	a.	 	If the Tenant complies with all of the terms, covenants,
and conditions under this
Lease and is not otherwise in default under this Lease, then the
first Seventeen
Thousand Three Hundred Thirty Three Dollars and Thirty Three Cents
($17,333.33) of the Deposit shall be applied and credited to the
Tenant on account
of Minimum Rent and the Tenant’s proportionate share of Realty
Taxes, Operating
Costs and Utility Charges (excluding GST) otherwise payable
beginning on
January 1, 2008 and shall continue to be applied towards same
until exhausted;
and
	 
	 	b.	 	If the Tenant complies with all of the terms, covenants,
and conditions under this
Lease and is not otherwise in default under this Lease, then the
balance of the
Deposit, namely Eight Thousand Six Hundred Sixty Six Dollars and
Sixty Seven
Cents ($8,666.67) of the Deposit shall be applied and credited to
the Tenant on
account of Minimum Rent and the Tenant’s proportionate share of
Realty Taxes,
Operating Costs and Utility Charges (excluding GST) otherwise
payable beginning
on January 1, 2009 and shall continue to be applied towards same
until exhausted.






(vi) The Tenant shall, within five (5) business days of execution of this
Agreement by
the Tenant, provide the Landlord with an Irrevocable Standby Letter of
Credit (the “LC”) in
the substantially in the same form as the existing Letter of Credit in
favour of the Landlord
from the Tenant’s bank as set out in Rider “A” Section (b) of the Lease
save and except that:




	 	a.	 	The aggregate amount of the LC shall be Forty Nine
Thousand Dollars
($49,000.00);
	 
	 	b.	 	Provided the Tenant is not in material default of the
terms and conditions of the
Lease, upon automatic renewal of the LC on January 1, 2009, the
amount will be
reduced to Thirty Eight Thousand Dollars ($38,000.00);
	 
	 	d.	 	Provided the Tenant is not in material default of the
terms and conditions of the
Lease, upon automatic renewal of the LC on January 1, 2010, the
amount will be
reduced to Nineteen Thousand Dollars ($19,000.00); and
	 
	 	e.	 	Provided the Tenant has performed all its obligations
pursuant to the Lease, the LC
shall expire on November 30,2010.




 









 











LEASE AMENDING AGREEMENT

Between: Eloqua Corporation

& 674951 Ontario Limited

May 22, 2007

Page 3



4. Following execution of this Agreement, the Tenant shall be
 permitted to access Suite 107 for
the purpose of completing its leasehold improvements and upon completion of same to occupy Suite
107 to conduct its business therein, provided it shall comply with
and abide by all the terms and conditions of the Lease, save and except the Tenant shall not be responsible for the payment of
Minimum Rent and its share of Realty Taxes, Operating Costs and Hydro Charges from execution of
this Agreement through October 5, 2007. Without limiting the generality of the foregoing, the
Tenant shall ensure it complies with all covenants and obligations with respect to insurance while
accessing and/or occupying Suite 107 prior to the Start Date.



5. The Tenant represents and warrants that it has the right, full power and authority to agree to
the amendments to the Lease, and other provisions contained in this Agreement.



6. The parties confirm that the terms, covenants and conditions of the Lease remain unchanged and
in full force and effect, except as modified by this Agreement. It is understood and agreed that
all terms and expressions when used in this Agreement, unless a contrary intention is expressed
herein, have the same meaning as they have in the Lease.



7. This Agreement shall ensure to the benefit of and be binding
 upon the parties hereto and their
respective heirs, executors, administrators, successors and assigns, as the case may be.



8. It is understood and acknowledged that this Lease Amending
 Agreement and the  Lease and all
negotiations and discussions relating thereto are of a confidential nature. The Tenant shall not
disclose any details related thereto to any party, save and except those required by the operation
of the Tenant’s business, to have such information




     IN
WITNESS WHEREOF the Landlord has duly executed this Agreement at Toronto, this 1st
day of June, 2007.




	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED)	 	674951 ONTARIO LIMITED
	in the presence of:
	 	)	 	 	 	 	 	 	(Landlord)
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Rena Miller
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	Rena Miller, Property Manager
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Michael Aller
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	Michael Aller, vice-president
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 





IN WITNESS
WHEREOF the Tenant has duly executed this Agreement at
                    , this 1st
day of June, 2007.




	 	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED)	 	 	ELOQUA CORPORATION
	 
	 	 	)	 	 	 	 	 	 	(Tenant)
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	)	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Per:	 	/s/ David Harris Kolada
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	David Harris Kolada, SVP & CFO






 









 






LEASE AMENDING AGREEMENT

Between:Eloqua Corporation

& 674851 Ontario Limited

May 22, 2007

Page 4




SCHEDULE “A”










 









 






LEASE
AMENDING AGREEMENT




THIS AGREEMENT made as of the 19th day of November, 2007.


BETWEEN:



674951 ONTARIO LIMITED

(the “Landlord”)



 - and -



ELOQUA CORPORATION

(the “Tenant”)



WHEREAS:



A. By a Lease dated the 10th day of February, 2005 (the “Lease”), the Landlord
leased to Eloqua Corporation, for a term (the “Term”) of five (5) years commencing on the 1st
day of November, 2005, and expiring on the 31st day of October, 2010, certain premises (the
“Leased Premises”) known as Suite No. 214, comprising an area of approximately Twelve Thousand
Six Hundred Ninety Five (12,695) rentable square feet shown outlined in red on the plan
attached to the Lease as Schedule “A”, and located on the Second (2nd) floor of the
building (the “Building”) known municipally as 543 Richmond Street West in the City of
Toronto, in the Province of Ontario.



B. By way of a Lease Amending Agreement dated February 13,
 2007, (the “First Amending Agreement”)
the Tenant leased from the Landlord Suite 215 encompassing approximately Six Thousand and
Twelve (6,012) square feet of rentable are on the 2nd floor of
 543 Richmond Street
West (“Suite 215”) and Suite 215 was incorporated into the Leased Premises effective on
September 1, 2006; and



C. By way of a Lease Amending Agreement dated May 22, 2007, (the “Second Amending
Agreement”), the Tenant leased from the Landlord Suite 107 encompassing approximately
Eleven Thousand Three Hundred square feet of rentable are on the 1st floor of 543
Richmond
Street West (“Suite 107”) and Suite 107 was incorporated into the Leased Premises effective on
October 6, 2007. Said Agreement provides that the Landlord’s space planner shall calculate the
final rentable area and the rent shall be adjusted accordingly; and



D. The Landlord’s space planner has determined that the total rentable area of Suite 107 is
approximately Ten Thousand Nine Hundred and Seventeen (10,917) square feet (the “Actual
Rentable Area”); and



E. The parties hereto have agreed to amend the Second Amending Agreement to reflect the
Actual Rentable Area of Suite 107 and amend the other terms and conditions accordingly;



NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency
of which is by each of the parties hereto acknowledged, the parties agree as follows:



1. The Second Amending Agreement is amended as of the Commencement Date as
follows:





	 	(a)	 	Section 1 is amended to read Ten Thousand Nine Hundred and Seventeen (10,917)
square feet of rentable area;
	 
	 	(b)	 	Section 2(i) is amended to read the Tenant’s proportionate share for Suite 107 is
9.4%




2. The Tenant represents and warrants that it has the right, full power and authority to agree to
the amendments to the Lease, and other provisions contained in this Agreement.



3. The parties confirm that the terms, covenants and conditions of the Lease remain unchanged and
in full force and effect, except as modified by this Agreement. It is understood and agreed that
all terms and expressions when used in this Agreement, unless a contrary intention is expressed
herein, have the same meaning as they have in the Lease.





 









 







LEASE AMENDING AGREEMENT

Between: Eloqua Corporation

& 674951 Ontario Limited

May 22, 2007

Page 2




4. This Agreement shall enure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns, as the case may be.




5. It is understood and acknowledged that this Lease Amending Agreement and the Lease and
all negotiations and discussions relating thereto are of a confidential nature. The Tenant shall
not
disclose any details related thereto to any party, save and except those required by the operation
of the Tenant’s business, to have such information




     IN
WITNESS WHEREOF the Landlord has duly executed this Agreement at
Toronto, this      day of                     , 2007.



	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED	 	)	 	 	   674951
ONTARIO LIMITED	 
	in the presence of:
	 	)	 	 	 	 	 	 	(Landlord)
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Rena Miller
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	Rena Miller, Property Manager
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Michael Alter
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	Michael Alter, vice-president
	 
	 	)	 	 	 	 	 	 	 	 	 






     IN
WITNESS WHEREOF the Tenant has duly executed this Agreement at
Toranto this 31 day of         2007.



	 	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED	 	)	 	 	  ELOQUA CORPORATION	 
	 
	 	)	 	 	 	 	 	 	(Tenant)
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 	 	 
	 
	 	)	 	 	Per:	 	/s/ Ralf Riekers
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	VP Finance & Operations






 









 





OFFER TO AMEND LEASE




Dated this 12th day of April 2010.




543 RICHMOND STREET WEST, TORONTO, ONTARIO

(the “Building”)





	 	 	TO: ELOQUA CORPORATION

        (the “Tenant”)
	 
	 	 	WE, 674951 ONTARIO LIMITED

        (the “Landlord”)




hereby offer to amend the existing lease dated February 10th, 2005 between the Landlord and the
Tenant (the “Lease”), through Cityspace SG Real Estate Inc. (the “Landlord’s Agent”) and Colliers
Macaulay Nicolls (Ontario) Inc., (the “Tenant’s Agent”) upon the following terms and conditions:





	1.	 	Premises
	 
	 	 	The premises shall consist of the existing premises of Twenty Nine Thousand Six Hundred
Twenty Four (29,624) rentable square feet being part of the 1st and 2nd
floors of the Building (the “Existing Premises”) and an additional Four Thousand
Seventy Seven (4,077) rentable square feet on the 2nd floor of the Building
currently occupied by Buck Productions as shown on Schedule “A” hereto (the “Expansion
Premises”) comprising a total of approximately Thirty Three Thousand Seven Hundred and
One (33,701) rentable square feet in the Building (collectively referred to as the
“Premises”). The final rentable area of the Premises shall be subject to adjustment, if
required, based on the actual, rentable area as determined by the Landlord’s architect in
accordance with the measurement standards in the Lease. The Landlord’s architect’s
certificate shall be delivered to the Tenant prior to the Commencement Date.
	 
	2.	 	Lease Term
	 
	 	 	The Term for the Premises shall be Five (5) years commencing November 1, 2010 (the
“Commencement Date”) and expiring on October 31, 2015 (the “Lease Term”).
	 
	3.	 	Minimum Rent
	 
	 	 	Throughout the entire Lease Term the Tenant shall pay to the Landlord the following
minimum rent (the “Minimum Rent”) payable in advance on the first day of each month as
follows:






	 	OPTION 1	 	 
	 
	 	Years 1-5:	 	 Seventeen Dollars and Twenty Cents ($17.20) per
square foot of Rentable Area of the Premises per





 









 








	 	 	 	annum based on the Leasehold Improvement Allowance set out
in Section 7(i) below.
	 
	 	OPTION 2	 	 
	 
	 	Years 1-5:	 	Fifteen Dollars and Sixty Cents ($15.60) per square
foot of Rentable Area of the Premises per annum based on
the Leasehold Improvement Allowance set out in Section
7(ii) below.






	4.	 	Additional Rent
	 
	 	 	As per the existing Lease which is estimated to be $9.85 per square foot of Rentable Area at
present except for the following items which shall not be included in Operating Costs:






	 	(a)	 	All amounts which otherwise would be included in Operating Costs which are chargeable by the
Landlord to other tenants;
	 
	 	(b)	 	Such of the Operating Costs as are recovered from insurance proceeds, warranties or
guarantees, to the extent such recovery represents reimbursements for costs previously
included in Operating Costs;
	 
	 	(c)	 	Interest on debt and capital retirement of debt;
	 
	 	(d)	 	All amounts which otherwise would be included in Operating Costs which are directly
attributable to the operation of the surface parking lot and underground parking garage
forming part of and serving the Building;
	 
	 	(e)	 	Commissions and other expenses payable in connection with the marketing and leasing of the
Building including the cost of any leasehold improvement allowance or other inducement paid to
tenants of the Building;
	 
	 	(f)	 	The amount of any goods and services tax (“G.S.T.”) and/or harmonized sales tax (“H.S.T.”)
paid or payable by the Landlord on the purchase of goods and services including in Operating
Costs
which may be available to the Landlord as a credit in determining the Landlord’s net tax
liability or refund on account of G.S.T. and/or H.S.T.;
	 
	 	(g)	 	All costs and expenses incurred as a result of the negligent acts or omissions of the
Landlord or those for whom it is in law responsible;
	 
	 	(h)	 	All costs and expenses of all replacements to the structure of the Building
including, without limitation, the foundation, exterior wall assemblies including
weather walls, roof, subfloor, bearing walls and structural columsn and beams
of the Building;
	 
	 	(i)	 	All fines, suits, claims, demands, actions, costs, charges, and expenses of any
kind or nature made necessary by the Landord’s non-compliance with
governing codes, by-laws, regulations, and ordinances relating to the Building;
	 
	 	(j)	 	The costs and expenses incurred with respect to the initial acquisition, development or
construction of the Building or any expansion thereof; and,
	 
	 	(k)	 	Mortgage payments and mortgage interest payments.




 









 












	 	(I)	 	It is understood and agreed that the Tenant shall be responsible only for its proportionate
share of capital repairs and replacements determined in accordance with sound accounting
principles consistently applied, such costs, if appropriate in the circumstances as determined
by the Landlord’s accountants, acting reasonably, to be amortized according to sound accounting
principles.






	5.	 	Use
	 
	 	 	As per the existing
Lease.






	6.	 	Parking
	 
	 	 	The Tenant shall continue to lease fifteen (15) unreserved, underground parking spaces at 555
Richmond Street West which are currently $110.00 per month per space plus applicable taxes. On the
first (1st) day of the second (2nd) month following the month during which
the Sublease Agreement is executed, the Tenant shall be provided an additional thirty (30)
reserved, surface parking spaces in the east lot of the Building (off of Portland Street) at the
current rate of $110.00 per month per space plus applicable taxes. The prevailing rate for parking
shall change from time-to-time but such change on a cumulative basis, shall not exceed annual
“market” percentage increases. The Tenant shall have the right, with thirty (30) days written
notice to the Landlord, to decrease the number of monthly parking spaces.
	 
	 	 	The reserved surface parking spaces shall be dedicated exclusively to the Tenant from 7:00 a.m. to
7:00 p.m. on weekdays (“Regular Parking Hours”) and will not require the Tenant, its employees or
guests to provide keys to the parking lot attendant(s). The Tenant shall be responsible for
policing its reserved parking spaces during Regular Parking Hours however, the Landlord, with the
cooperation of the Tenant, shall employ a commercially reasonable system to ensure that no cars are
parked in the Tenant’s reserved parking spaces at the start of Regular Parking Hours.
	 
	 	 	It is understood and agreed that the Landlord may contract out the parking lot to a third-party
outside of regular business hours and that the Landlord and the Tenant shall work together, both
acting reasonably, to agree on procedures to allow for casual parking by employees of the Tenant,
at no cost, outside of regular business hours. The Landlord shall, at the Landlord’s cost,
re-stripe the parking lines and number the parking spaces prior to the Tenant being provided the
additional thirty(30) surface parking spaces.
	 
	7.	 	Leasehold Improvement Allowance
	 
	 	 	The Landlord will pay to the Tenant, as a contribution towards the cost of approved leasehold
improvements, such approval not to be unreasonably withheld or delayed, installed by or on behalf
of the Tenant, the sum of:






 











 






	 	(i)	 	Twenty Five Dollars ($25.00) per square foot of Rentable Area for the Premises plus applicable Goods and Services Tax (GST) and Harmonized
Sales Tax (HST) in the case of Minimum Rent, Option 1 above; or
	 
	 	(ii)	 	Twenty Dollars ($20.00) per square foot of Rentable Area for the Premises
plus applicable Goods and Services Tax (GST) and Harmonized Sales Tax (HST) in the case of Minimum Rent, Option 2 above.







	 	 	 	Such contribution shall be payable on a one-time basis to the Tenant when the said
leasehold improvements have been installed and paid for by the Tenant, the Tenant has
furnished evidence satisfactory to the Landlord of such installation and payment, and the
Lease Term has commenced, all as more particularly set out in the final Lease Amending
Agreement. Should the Tenant’s aggregate leasehold improvement cost be less than the
Leasehold Improvement Allowance, the difference will be applied against the Minimum Rent
due, amortized on an equal monthly basis throughout the Term with interest at a rate of
9.5% per annum calculated annually.






	 	8.	 	Landlord’s Work
	 
	 	 	 	The Landlord shall, at its cost and expense within Twenty One (21) days of execution of
the Lease Amending Agreement by the Parties or such other schedule agreed upon by
Landlord and Tenant in order to minimize disruption to the Tenant’s employees, complete
the work to the Expansion Premises as per attached Schedule “B” (the “Landlord’s Work”).
The Landlord shall complete the Landlord’s Work diligently, expeditiously and in a good
and workmanlike manner and all such work shall be performed in accordance with the provisions of the Lease and good construction practices
by competent contractors and in compliance with all current, relevant and applicable
municipal and provincial building codes, laws, by-laws, and regulations.






	 	9.	 	Fixturing Period
	 
	 	 	 	During the period following completion of the Landlord’s Work and until the Commencement
Date, the Tenant will be permitted to have occupancy of the Expansion Premises to
complete the Tenant’s Work, and during this period, the Tenant shall be bound by all the
provisions of the Lease save those requiring the payment of Minimum Rent and the Tenant’s
share of Realty Taxes, Operating Costs and Utility Charges.
	 
	 	10.	 	No Representations
	 
	 	 	 	There are no covenants, representations, agreements, warranties or conditions in any way
relating to the subject matter of this agreement expressed or implied, collateral or
otherwise, except as expressly set forth herein.





 









 











	 	11.	 	Right of First Refusal
	 
	 	 	 	Provided the Tenant is not in default under the Lease, then subordinate to any existing
rights of other tenants in the Building as of the date of unconditional acceptance of
this Agreement, the Tenant will have a right of first refusal (the “Right of First
Refusal”) on any office space on the main and second (2nd) floors of the
Building having a rentable area greater than two thousand five hundred (2,500) rentable
square feet that come available from time to time (the “RFR Space”). If at any time
during the term of this Lease the Landlord receives from a third party an offer to lease
that incorporates all or part of the RFR space which the Landlord is prepared to accept
(the “Third Party Offer”), the Landlord shall offer the RFR space to the Tenant, in
writing, at the terms and conditions of the Third Party Offer in its entirety, including
without limitation the lease of space that is not RFR space, with the exception of the
following:






	 	i)	 	In the event the party submitting the Third Party Offer is substantially
more creditworthy than the Tenant, then any upfront allowances or inducements
may not be granted to the Tenant provided that in such an event the Minimum
Rent payable by the Tenant shall be discounted on a pro-rata basis.







	 	 	 	The Tenant will have five (5) business days following receipt of the terms for the Third
Party Offer to advise the Landlord of its acceptance or refusal of the Landlord’s offer.
If the Tenant does not exercise its Right of First Refusal and thereafter if the Landlord
does not enter into a lease with the new tenant based on the terms and provisions of the
Third Party Offer within sixty (60) days after notice is provided to the Tenant then the
Tenant’s Right of First Refusal will be in full force and effect. If the Tenant does not exercise its Right of First Refusal and thereafter the Landlord enters into a lease with a
new tenant based on the terms and provisions of the Third Party Offer within sixty (60)
days after notice is provided to the Tenant, then the Tenant’s Right of First Refusal with
respect to the Third Party Offer space will be null and void and of no further force or
effect. However, the Right of First Refusal shall continue to be in effect for the
remaingin RFR Space. The Provisions of this Right of First Refusal are personal to the
Tenant.






	 	12.	 	Swing Space
	 
	 	 	 	As requested by the Tenant, the Landlord shall provide the Tenant with access to the
Expansion Premises, Suite 217 (3,686 sf), and Suite 228 (726 sf) in the Building
(hereafter referred to collectively as the “Swing Space”), all as shown on Schedule “A-1”,
to facilitate the construction of Tenant’s leasehold improvements within the Premises,
commencing the later of May 8, 2010 or Seven (7) days following execution of the Lease
Amending Agreement as provided for herein until December 31, 2010. The Tenant shall be
responsible for observing all terms and provisions of the Lease while in occupancy of the
Swing Space save for the payment of




 









 






	 	 	 	Minimum Rent and its share of Realty Taxes, Operating Costs and Utility Charges and the
Swing Space shall be delivered in a clean, vacant ‘broom swept’ condition with working
lighting to meet base building standards. The Tenant shall vacate the Swing Space in a
clean, vacant ‘broom swept’ condition upon completion of its construction. In the event
the Tenant has a bonafide requirement for additional swing space, the Landlord will use
its best commercial efforts to provide the Tenant with additional space in the Building,
on similar terms, at no cost to the Tenant.






	 	13.	 	Restoration
	 
	 	 	 	The Tenant’s rights and obligations with respect to restoration of the Leased Premises at
the expiry of the Term or any permitted extension thereof are set out in Section 33(b) of
the Lease save and except that the Tenant shall not be responsible for removing those
leasehold improvements installed in the Leased Premises prior to April 12, 2010 with the
exception that the Tenant shall be responsible for the cost of the Landlord’s removal of
the internal stairway connecting Suite 214 and Suite 107 and the returning the affected
areas to more or less the condition they were in prior to installation of such staircase,
such obligation surviving expiration of the Term.
	 
	 	14.	 	Time of Essence
	 
	 	 	 	Time shall be of the essence of this agreement and the transactions contemplated herein,
provided that the time for doing or completing any matter herein may be amended by an
agreement in writing signed by both parties.
	 
	 	15.	 	Definitions
	 
	 	 	 	Words defined in the Offer and used herein shall have the same meaning ascribed to them by
the Lease.
	 
	 	16.	 	Waiver to Agent
	 
	 	 	 	The parties to this agreement acknowledge that the agents have recommended that they
obtain advice from their legal Counsel prior to signing this document. The parties further
acknowledge that the information provided by the agents is not legal, accounting,
environmental or tax advice, and the parties are cautioned not to rely on any such
information without seeking specific legal, accounting, environmental or tax advice with
respect to their unique circumstances.
	 
	 	17.	 	Lease Amending Agreement
	 
	 	 	 	The existing Lease shall be amended to include the terms of this Offer in a lease amending
agreement (the “Lease Amending Agreement”). The Lease Amending Agreement shall be prepared
and delivered by the Landlord to the Tenant within Ten (10) business days after
unconditional acceptance of the Offer. The Tenant has not yet reviewed the Lease Amending
Agreement and the Landlord and Tenant agree that the Lease Amending Agreement may be
subject to amendments as agreed to by both the Landlord and Tenant or their respective
solicitors, acting reasonably. The Landlord and Tenant shall use their respective best
efforts to




 









 






	 	 	 	execute the Lease Amending Agreement within Ten (10) business days from the date of
delivery of Lease Amending Agreement to the Tenant. In all other respects, the terms,
covenants and conditions shall remain unchanged and in full force and effect, except as
modified by the Lease Amending Agreement. Any reference to the Term of the Lease shall be
deemed to refer to the Amended Term.






	 	18.	 	Tenant’s Work
	 
	 	 	 	The Premises are leased “As Is” and any alterations shall be subject to the Tenant
obtaining the approval of the local Municipal authority and the Landlord, as required, at
the Tenant’s cost, such approval from the Landlord not to be unreasonably withheld or
delayed, all as further defined in the Lease.
	 
	 	19.	 	GST/HST
	 
	 	 	 	All amounts referred to in this Offer are quoted without the Goods and Services Tax and
the Harmonized Sales Tax and such taxes shall be in addition to costs quoted.
	 
	 	20.	 	Agency Disclosure
	 
	 	 	 	A selling commission will be paid to Colliers Macaulay Nicolls (Ontario) Inc. by the
Landlord. It is understood and agreed that Colliers Macaulay Nicolls (Ontario) Inc. is
working on the Tenant’s behalf and as such owes a fiduciary responsibility to the Tenant.






	 	21.	 	Option to Extend
	 
	 	 	 	If,





(a) The Tenant pays the Rent (including Minimum Rent and Additional Rent) as and when
due and punctually observes and performs the terms, covenants and conditions to be observed
and performed by it in accordance with the terms of the Lease;


(b)
The Tenant is not in default under the Lease;

(c)
The Tenant gives the Landlord not less than Nine (9) months and not more than Eighteen (18) months written notice prior to the expiration of the Term of this Lease of the Tenant’s
intention to extend the Term of the Lease; and

(d)
So long as the Tenant is Eloqua Corporation or a permitted
Transferee, defined as:


(i)
A holding body corporate, a subsidiary body corporate or affiliated body corporate (as those terms are defined as of the date of this Offer pursuant
to The Canada Business Corporations Act) of the Tenant;

(ii)
 A corporation formed as a result of a merger or amalgamation involving the Tenant with another corporation or corporations; or





 









 












	 	(iii)	 	A purchaser, whether by acquisition of shares or assets, of all or a
majority of the Tenant’s business and/or assets.






	 	 	 	and itself in occupation and conducting business in the Leased Premises in accordance with
the terms of the Lease, the Tenant expressly acknowledging and agreeing that the provisions
of this section are personal to the Tenant or a permitted Transferee, then the Landlord will
grant to the Tenant the right to extend the Term of this Lease upon the expiry of the
initial Term for a period of Five (5) years (the “Extended Term”) upon the same terms and
conditions as set out in the Lease except that:






	 	i)	 	The Landlord may at its option require the Tenant to enter into an Extension Agreement, as prepared by the Landlord at the Tenant’s
expense to give effect to the Extended Term; and
	 
	 	ii)	 	The Minimum Rent payable during each year of the Extended Term shall be based on the fair market rent, all economic factors considered, for
comparable premises (including comparable leasehold improvements), in comparable buildings, in the same neighbourhood, Nine (9) months prior to expiration of the Term. For the purpose of this clause 555 and 543
Richmond Street West are deemed to be comparable buildings. Failing agreement as to the fair market rent, such rent shall be determined by an
arbitrator agreed on by the parties both acting reasonably, such arbitrator employing baseball style/final offer arbirtration whereby each party
submits a final offer and the arbitrator selects one of the two offers to which the parties will be bound.






	 	22.	 	Tenant Conditions
	 
	 	 	 	This Offer shall be conditional for five (5) days following acceptance of this Offer upon
the Tenant reviewing and approving the terms of this Offer.






	 	 	 	This condition is for the sole benefit of the Tenant and the Tenant may approve this
condition, in its sole and unfettered discretion, by giving notice in writing to the
Landlord, or its agent, at any time prior to the expiration of the above mentioned five (5)
days, failing which, this Offer shall be null and void.






	 	23.	 	Landlord Condition
	 
	 	 	 	This Offer is subject to the Landlord, at its sole discretion, satisfying itself with
respect to the Tenant’s financial strength, creditworthiness and corporate standing within
Five (5) business days of receiving pertinent financial and corporate information requested
by the Landlord from the Tenant, which the Tenant hereby agrees to provide to the Landlord
forthwith, upon conditional acceptance of this Offer. Without limiting the generality of the
foregoing, the Tenant shall provide the




 









 






	 	 	 	Landlord, after conditional acceptance of this Offer, with its most recent audited
finanical statements and any unaudited financial statements perpared in the interim.
	 
	 	 	 	This subject condition is for the sole benefit of the Landlord and may be waived by them at
any time within the time periods specified, by delivery of written notice to the Tenant as
set out herein, waiving this subject condition. Should this subject condition not be waived
within the time periods specified, then this Offer shall be considered null and void. The
Tenant is hereby notified that a Consumer Report containing credit and/or personal
information may be referred to in connection with this transaction.






	 	24.	 	Mutatis Mutandis
	 
	 	 	 	All other terms, conditions and rights in the Tenant’s existing Lease, except for these
explicitly amended herein, shall be in full force and effect throughout the Amended Term.
	 
	 	25.	 	Relocation
	 
	 	 	 	The Lease Amending Agreement resulting from this Offer to Lease shall contain a clause
restricting the Landlord from relocating the Tenant from any part of the Premises prior to
the expiry of the Lease Term or any extension thereof save as may be provided for in the
Lease as a result of fire or other damage to the Leased Premises and/or Building.
	 
	 	26.	 	Sale/Demolition
	 
	 	 	 	The Landlord acknowledges and agrees that there will be no demolition clause giving the
Landlord the right to demolish the Building or terminate the Lease for demolition or
redevelopment of the Building during the Lease Term or extension thereof.
	 
	 	27.	 	Card Reader
	 
	 	 	 	Provided it does not adversely effect the Landlord’s card reader system installed at the
entrance to 555 Richmond Street West, the Landlord hereby consents to the Tenant and the
Tenant’s security company (ADT Security) installing a card reader, compatible with the
Tenant’s office security system, at the main building entrance of 555 Richmond Street West which permits access to the Building. The installation of such card reader
system shall be strictly subject to the Landlord’s approval of plans, specifications and
contractors, all as more particularly set out in the Lease. The
	 
	 	28.	 	Building Services
	 
	 	 	 	The Landlord will ensure that the on-going maintenance of the Building will be completed in
a timely manner. Specifically the Landlord shall address the following issues in the
following timeframes:






	 	•	 	Plumbing issues — overflows in washrooms, any type of flooding — immediately




 









 












	 	•	 	Ballast replacement issues for lights — within 2 days (depending on location)
	 
	 	•	 	Heat and air condition issues — within 1 hour
	 
	 	•	 	Rodent issues — 24 hours





	 	 	 	charges for the cabling, labor and material shall be an allowable expense included in the
Leashold Improvement Allowance. Notwithstanding anything to the contrary contained herein or
in the Lease, the Tenant shall be responsible for removal of the card reader system at the
expiration of the Term, if requested by the Landlord.






	 	29.	 	Time for Acceptance
	 
	 	 	 	This Offer shall be irrevocable by the Landlord and open for acceptance by the Tenant until
5:00 p.m. on the 19th day of April 2010 after which time, if not accepted, this
Offer shall be null and void.




Acceptance of this Offer may be communicated by facsimile transmission of an accepted Offer or by
delivery of such facsimile without limiting other methods of communicating acceptance available to
the parties.



Dated at
_____ this ___ day of ___ , 2010.




	 	 	 	 	 	 	 

	 	 	674951 ONTARIO LIMITED
	 
	 	 	 	 	 	 
	 

	 	Per:	 	/s/ Rena Miller	 	 
	
	 	 	 	 

Rena Miller, Property Manager
	 	 





We hereby agree that the above correctly sets forth the terms of our agreement and undertake to
carry out the provisions thereof.



Dated at
14:00 this 14 day of April, 2010.




	 	 	 	 	 	 	 

	 	 	ELOQUA CORPORATION
	 
	 	 	 	 	 	 
	 

	 	Per:	 	/s/ Joseph P. Payne	 	 
	 

	 	Name/Title:
	 	 

Joseph P. Payne
	 	 






 









 






Schedule “A”








 









 





Schedule A-1










 









 








Schedule “B”

LANDLORD’S WORK



The Landlord will, at its own expense, complete the following work in the Expansion Premises within
Twenty One (21) days of execution of the Lease Amending Agreement by the Parties or such other
schedule agreed upon by Landlord and Tenant in order to minimize disruption to the Tenant’s
employees:





	1)	 	Demolish and/or construct the/a demising wall between the Existing Premises and the Expansion
Premises, as requested and indicated by the Tenant and repair or replace t-bar ceiling and
tiles, where applicable, if damaged by such demolition/construction;
	 
	2)	 	Replace all burnt out lighting;
	 
	3)	 	Ensure all electrical and HVAC systems in the Expansion Premises are in good and working
order;
	 
	4)	 	Remove all debris, and deliver the Expansion Premises in a clean, broomswept manner.






 











 




PARKING AGREEMENT



THIS AGREEMENT MADE the 4th day of June 2010



BETWEEN:



674951 ONTARIO LIMITED



(hereinafter
referred to as the “Licensee”)



OF THE FIRST PART




- and -




ELOQUA CORPORATION



(hereinafter referred to as the “Licensee”)




OF THE SECOND PART




          WHEREAS
the Licensor and the Licensee have entered into a lease dated the 10TH day of February,
2005 and subsequent extension and amending agreements (hereinafter referred to as the “Lease”)
pursuant to which the Licensor leased to the Licensee certain premises as described therein in the
Building.




          AND WHEREAS the Licensee is desirous of securing a licence to use indoor parking spaces in the
underground of 555 Richmond Street West (“the 555 Spaces”) and outdoor parking spaces in the
surface cast lot of 543 Richmond Street West (on Portland Street) (“the 543 Spaces”) and
collectively (the “Parking Spaces”).




          AND WHEREAS all capitalized terms used in this Parking Agreement shall have the meanings
assigned to them in the Lease unless otherwise defined.




          NOW WITNESSETH THEREFOR that in consideration of the fees, covenants, and agreements herein
contained, the sum of Two Dollars ($2.00) paid by each party to the other (the receipt and
sufficiency of which is hereby acknowledged) and for other good and valuable consideration, the
parties hereto covenant and agree as follows:




Licence





	1.	 	Provided the Licensee is not in default under the Lease, the Licensor grants a licence to the
Licensee during the Term and all renewals and extensions, for so long as the Licensee is in
possession of the entire Leased Premises, permitting the Licensee to use fifteen (15)
unreserved 555 Spaces and thirty (30) reserved 543 Spaces to be designated by the Licensor.
The reserved 543 Spaces shall be dedicated exclusively to the Licensee from 7:00 a.m. to 7:00
p.m. on weekdays other than statutory holidays (“Regular Parking Hours”) and will not require
the Licensee, its employees or guests to provide keys to the parking lot attendant(s). The
Licensee shall be responsible for policing its 543 Spaces during Regular Parking Hours,
however, the Licensor, with the cooperation of the Licensee, shall employ a commercially
reasonable system to ensure that no cars are parked in the Licensee’s 543 Spaces at the start
of Regular Parking Hours.





Fee





	2.	 	From and after the 1st day of August, 2010, the Licensee shall pay to the Licensor (or to the
parking operator or such other Person if the Licensor so directs) throughout the Term for each
such parking space $110 per month per space until October 30, 2012, $120 per month per space
from November 1, 2012 to October 30, 2013 and $130 per month per space from November 1, 2013
until the end of the Term (all rates exclude applicable taxes), (the “Parking Fee”). In
addition, the Licensee shall be responsible for the cost of the garage access card for cach of
the 555 Spaces and any subsequent replacements necessitated by loss, theft, damage or any
reason whatsoever.




 









 











Payment





	3.	 	The Parking Fee payable pursuant to this Agreement shall be paid monthly in advance on the
first day of each and every month throughout the Term, and the non-payment thereof shall be
treated as non-payment of Rent under the Lease.





Default





	4.	 	A Default under this Agreement shall also constitute a default under the Lease, and a default
under the Lease shall also constitute a default under this Agreement. If the Lease shall
expire or is terminated, this Agreement shall thereupon automatically be deemed to be
terminated. Lor the purposes of this Agreement. “Default” means:






	 	(i)	 	if the Licensee fails to pay the Parking Fee on the day or
dates appointed for the payment thereof (provided that the Licensor first gives
three (3) business days’ written notice to the Licensee of any such failure):
or
	 
	 	(ii)	 	the Licensee fails to observe or perform any other of the
terms, covenants or conditions of this Agreement to be observed or performed by
the Licensee provided the Licensor first gives the Licensee ten (10) business
days’ written notice of any such failure to perform and the Licensee within
such period of ten (10) business days fails to commence diligently and
thereafter to proceed diligently to cure any such failure to perform.





Additional Provisions





	5.	 	It is understood and agreed that the use of the Parking Spaces by the Licensee is subject to
and qualified by the following provisions:






	 	(a)	 	the Parking Spaces are for the use of one (1) vehicle per space by the Licensee:
	 
	 	(b)	 	the use of the Parking Spaces shall be restricted to the Licensee’s employees
or guests visiting the Licensee for the purpose of business:
	 
	 	(c)	 	the Licensee shall not be entitled to assign, sublicense or part with
possession of its right to use any or all of the said Parking Spaces:
	 
	 	(d)	 	subject to the terms of this Agreement, the Licensee’s use of the Parking
Spaces shall be subject to all reasonable rules and regulations established from time
to time by the Licensor or the operator, as the case may be, from time to time:
	 
	 	(e)	 	subject to the terms of this Agreement, the use by the Licensee of the
Parking Spaces is subject to the exclusive control of the Licensor:
	 
	 	(f)	 	the Licensee agrees to indemnify the Licensor (collectively the “Owners”)
against all liability, claims, damages or expenses due to or arising out of any action
or omission or neglect by the Licensee, its agents, servants, invitees, assignees or
licensees on or about the Parking Spaces or due to or arising out of any breach by the
Licensee or anyone who by law the Licensee is responsible for, of the provisions of
this Agreement or any rules or regulations established from time to time by the
Licensor or by the parking operator:
	 
	 	(g)	 	the Licensee shall use the Parking Spaces at its sole risk and the Owners
will not be liable for any loss, injury or damage caused to persons using the Parking
Spaces or to automobiles or their contents or any other property, the responsibility
for insuring against any such loss, injury or damage being that of the Licensee who
hereby waives on behalf of itself and its insurers any rights of subrogation against
the Owners:
	 
	 	(h)	 	the Licensee shall pay to the Licensor (or to the parking operator or such
other Person if the Licensor so directs) the current replacement fee at that time for
each and every access card that is lost or misplaced or damaged:
	 
	 	(i)	 	it is understood and agreed that the Licensor may contract out the management
of the Parking Spaces to a third parly outside of Regular Parking Hours and that the
Licensor and the Licensee shall work together, both acting reasonably, to agree on
procedures to allow for casual parking for work purposes by employees of the Licensee.
at no cost, outside of Regular Parking Hours;




- 2 -









 






	 	(j)	 	the Licensor shall, at the Licensor’s cost, re-slripe the parking lines
and number the Parking Spaces prior to August 1, 2010.





Successors and Assigns





	6.	 	All rights and liabilities herein granted to, or imposed upon the respective parlies hereto,
extend to and bind the successors and assigns of the Licensor and the heirs, executors,
administrators and permitted successors and assigns of the Licensee, as the case may be. No
rights, however, shall enure to the benefit of any assignee of the Licensee unless the
assignment to such assignee has been consented to by the Licensor in writing. If there is more
than one Licensee, they are all bound jointly and severally by the terms, covenants and
conditions herein. Notwithstanding any assignment by the Licensee permitted herein or the
person making payment of the Parking Fees contemplated herein, the Licensee shall not be
released from performing any of the terms of this Agreement.




IN WITNESS WHEREOF the parties hereto have executed this Agreement.




	 	 	 	 	 
	 	674951 ONTARIO LIMITED
 	 
	 	               (Licensor)

 	 
	 	Per:  	/s/ Rena Miller
 	 
	 	 	Rena Miller, Property Monager 	 
	 	 	 	 
	 
	 	 	 
	 	Per:  	/s/ Robert Carsley
 	 
	 	 	Robert Carsley, President 	 
	 	 	 	 
	 
	 	ELOQUA CORPORATION
 	 
	 	           (Licensee)

 	 
	 	Per:  	/s/ Donald E. Clarke
 	 
	 	  	Authorized
Signing Officer
 	 
	 	Name:  	Donald E. Clarke
 	 
	 	Title:  	CFO
 	 



- 3 -









 






	 	 	 	 	 



LEASE EXTENSION & AMENDING AGREEMENT



THIS AGREEMENT made this 18th day of May, 2010.



B E T W E E N:



674951 ONTARIO LIMITED



(the “Landlord”)



 – and –



ELOQUA CORPORATION



(the “Tenant”)



WHEREAS:



A. By a Lease dated the 10th day of February, 2005 (the “Lease”), the Landlord leased to
Eloqua Corporation, for a term (the “Term”) of five (5) years commencing on the 1st day of
November, 2005, and expiring on the 31st day of October, 2010, certain premises (the “Leased
Premises”) known as Suite No. 214, comprising an area of approximately Twelve Thousand Six Hundred
Ninety Five (12,695) rentable square feet shown outlined in red on the plan attached to the Lease
as Schedule “A”, and located on the Second (2nd) floor of the building (the “Building”)
known municipally as 543 Richmond Street West in the City of Toronto, in the Province of Ontario.



B. By way of a Lease Amending Agreement dated February 13, 2006, the Tenant leased from the
Landlord Suite 215 encompassing approximately Six Thousand and Twelve (6,012) square feet of
rentable area on the 2nd floor of 543 Richmond Street West (“Suite 215”) and Suite 215
was incorporated into the Leased Premises effective on September 1, 2006;



C. By way of a Lease Amending Agreement dated May 22, 2007, the Tenant leased from the Landlord
Suite 107 encompassing approximately Ten Thousand Nine Hundred Seventeen (10,917) square feet of
rentable are on the 1st floor of 543 Richmond Street West (“Suite 107”) and Suite 107
was incorporated into the Leased Premises effective on October 6, 2007; and



D. The parties hereto have agreed to incorporate Suite 201 and Suite 203 in the Building into the
Leased Premises and to extend the Term of the Lease upon the terms and provisions set out
hereunder.





     NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of
which by each of the parties hereto acknowledged, the parties hereto agree as follows:


1. Term: The Term of the Lease is hereby extended for a period of Five (5) years from
November 1, 2010 through October 31, 2015 (the “Extended Term”) upon the same terms and conditions
as are contained in the Lease save and except as amended by this Agreement.



The Tenant shall continue in occupancy of Suite 214, Suite 215 and Suite 107 (collectively the
“Existing Premises”) on an “as is” basis and any alterations to the Existing Premises shall be at
the Tenant’s cost and in accordance with the terms and provisions as further defined in the Lease.



2. Expansion Space: Effective on November 1, 2010 Suite 201 and Suite 203 encompassing
approximately Four Thousand Seventy Seven (4,077) rentable square feet on the 2nd floor
of the Building as shown outlined in red on the floor plan attached hereto as Schedule “A” (“Suite
201/203”) shall be incorporated into and form part of the Leased Premises as defined in the Lease.





	 	(a)	 	Except as specifically provided for in Schedule “B” attached hereto, the Tenant shall
accept Suite 201/203 in an “as-is where-is” condition and acknowledges that existing
leasehold improvements in Suite 201/203 have been subjected to
the wear and tear of




 1









 












	 	 	 	prior
occupants. The Landlord has no responsibility or liability for making any renovations,
alterations or improvements in or to Suite 201/203 except as specifically provided for in
Schedule “B” attached hereto; and
	 
	 	(b)	 	All further renovations, alterations or improvements in or to Suite 201/203 are the
sole responsibility of the Tenant and shall be undertaken and completed at the Tenant’s
expense and strictly in accordance with the provisions of the Lease. Without limiting the
generality of the foregoing, the Tenant shall not commence any work in Suite 201/203
without the Landlord’s prior written approval of plans, specifications and the Tenant’s
selection of contractors, such approval from the Landlord not to be unreasonably withheld
or delayed, all as more particularly set out in the Lease.




3. Mimimum Rent: Minimum Rent payable by the Tenant during the Extended Term shall be
calculated based on the option set out in Subsection 3(i) or 3(ii) below selected by the Tenant by
way of written notification to the Landlord by no later than June 15, 2010:





	 	i)	 	OPTION 1
	 
	 	 	 	Seventeen Dollars and Twenty Cents ($17.20) per square foot of rentable area of the
Leased Premises per annum based on the Leasehold Improvement Allowance set out in Section
4(i) below.
	 
	 	ii)	 	OPTION 2
	 
	 	 	 	Fifteen Dollars and Sixty Cents ($15.60) per square foot of rentable area of the Leased
Premises per annum based on the Leasehold Improvement Allowance set out in Section 4(ii)
below.




4. Leasehold Improvement Allowance: The Landlord will pay to the Tenant, as a contribution
towards the cost of approved leasehold improvements installed by or on behalf of the Tenant, such
approval not to be unreasonably withheld or delayed, the sum of:





	 	(i)	 	Twenty Five Dollars ($25.00) per square foot of rentable area of the Leased
Premises plus applicable Harmonized Sales Tax (HST) in the case the Tenant selects
Minimum Rent Option 1 above (i.e. Subsection 3(i)); or
	 
	 	(ii)	 	Twenty Dollars ($20.00) per square foot of rentable area of the Leased Premises
plus applicable Harmonized Sales Tax (HST) in case the Tenant selects Minimum Rent
Option 2 above (i.e. Subsection 3(ii)).




Should the Tenant’s aggregate leasehold improvement cost be less than the Leasehold Improvement
Allowance, the difference will be applied against the Minimum Rent due, amortized on an equal
monthly basis throughout the Term with interest at a rate of 9.5% per annum calculated annually.



The Leasehold Improvement Allowance shall be payable on a one-time basis to the Tenant when the
said leasehold improvements have been installed and paid for by the Tenant, the Tenant has
furnished evidence satisfactory to the Landlord of such installation and payment, and the Lease
Term has commenced, all as more particularly set out in Schedule “C” attached hereto.



5. Letter of Credit: The Tenant hereby agrees to provide the Landlord, within ten (10)
business days of execution of this Agreement and in exchange for any existing letters of credit
issued in favour of the Landlord, an Irrevocable Standby Letter of Credit (the “Letter of Credit”)
drawn through one of the Five (5) largest Canadian Chartered banks, in a form acceptable to the
Landlord , incorporating terms as set out in Rider A subparagraph b of the current Lease between
the parties, save that the such Letter of Credit shall be in the amount of the last month’s
estimated gross rent plus HST payable under the Extended Term and such Letter of Credit shall not
diminish in amount but its full amount shall be in place throughout the Extended Term, as a
security deposit, to assure the Tenant’s performance of its obligations pursuant to the terms of
the Lease as extended. The Letter of Credit will replace and substitute any existing letter of
credit issued in favour of the Landlord.



6. Additional Rent: It is understood and agreed that notwithstanding anything to the
contrary in the Lease. The following items shall not be included in Operating Costs:





	 	(a)	 	All amounts which otherwise would be included in Operating Costs which are
chargeable by the Landlord to other tenants;
	 
	 	(b)	 	Such of the Operating Costs as are recovered from insurance proceeds,
warranties or guarantees, to the extent such recovery represents reimbursements for
costs previously included in Operating Costs;




2









 












	 	(c)	 	Interest on debt and capital retirement of debt;
	 
	 	(d)	 	Commissions and other expenses payable in connection with the marketing and
leasing of the Building including the cost of any leasehold improvement allowance or
other inducement paid to tenants of the Building;
	 
	 	(e)	 	The amount of any goods and services tax (“G.S.T.”) and/or harmonized sales tax
(“H.S.T.”) paid or payable by the Landlord on the purchase of goods and services
including in Operating Costs which may be available to the Landlord as a credit in
determining the Landlord’s net tax liability or refund on account of G.S.T. and/or
H.S.T.;
	 
	 	(f)	 	All costs and expenses incurred as a result of the gross negligent acts or
omissions of the Landlord or those for whom it is in law responsible;
	 
	 	(g)	 	All costs and expenses of replacements to the major structural elements of the
Building including the foundation, exterior wall assemblies including weather walls,
subfloor, bearing walls and structural columns and beams, but excluding the roof and
related components;
	 
	 	(h)	 	All fines, suits, claims, demands, actions, costs, charges, and expenses of any
kind or nature made necessary by the Landlord’s non-compliance with governing codes,
by-laws, regulations, and ordinances relating to the Building;
	 
	 	(i)	 	The costs and expenses incurred with respect to the initial acquisition,
development or construction of the Building or any expansion thereof; and,
	 
	 	(j)	 	Mortgage payments and mortgage interest payments.
	 
	 	(k)	 	It is understood and agreed that the Tenant shall be responsible only for its
proportionate share of capital repairs and replacements determined in accordance with
sound accounting principles consistently applied, such costs, if appropriate in the
circumstances as determined by the Landlord’s accountants, acting reasonably, to be
amortized according to sound accounting principles. Without limiting the generality of
the foregoing, the Tenant shall not be responsible for any cost attributable to the
replacement of the Building’s roof and related components, where the Tenant’s
proportionate share of such cost exceeds Fifteen Cents ($0.15) per rentable square foot
of the area of the Leased Premises per annum.




7. Measurement: The final rentable area of the Leased Premises shall be subject to
adjustment, and the Lease amended to reflect such adjustment, if required, based on the actual
rentable area as determined by the Landlord’s space planning architect in accordance with the
measurement standards set out in the Lease. The Landlord’s space planning architect’s certificate
of final measurement shall be delivered to the Tenant prior to the November 1, 2010. The Leased
Premises is approximately 33,701 square feet of rentable area and the Tenant’s “proportionate
share” is approximately 29.14%.



8. Fixturinq Period: Following execution of this Agreement and completion of the Landlord’s
Work set out in Schedule “B” attached hereto, the Tenant shall be permitted to occupy the Suite
201/203 for the purpose of completing its leasehold improvements, and thereafter to conduct its
business, provided it shall comply with and abide by all the terms and conditions of this Agreement
and the Lease, save and except for the payment of Minimum Rent and its share of Realty Taxes,
Operating Costs and Hydro Charges. Without limiting the generality of the foregoing, the Tenant
shall ensure it complies with all covenants and obligations with respect to insurance while
occupying Suite 201/203 prior to November 1, 2010.




3 









 







9. Swing Space:The Landlord shall provide the Tenant with access to Suite 201/203, Suite
217 (3,686 rsf), and Suite 228 (726 rsf) in the Building (hereafter referred to collectively as the
“Swing Space”), all as shown outlined in red on Schedule “A-1” attached hereto, commencing Seven
(7) days following execution of this Agreement until December 31, 2010, to facilitate the
construction of Tenant’s leasehold improvements within the Leased Premises. The Tenant shall be
responsible for observing all terms and provisions of the Lease while in occupancy of the Swing
Space save for the payment of Minimum Rent and its share of Realty Taxes, Operating Costs and
Utility Charges. Without limiting the generality of the foregoing, the Tenant shall ensure it
complies with all covenants and obligations with respect to insurance while in occupancy of the
Swing Space. The Swing Space shall be delivered in a clean, vacant ‘broom swept’ condition with
existing lighting in good and working order. The Tenant shall vacate the Swing Space in a clean,
vacant ‘broom swept’ condition upon completion of its construction. In the event the Tenant has a
bonafide requirement for additional swing space, the Landlord will use its best commercial efforts
to provide the Tenant with additional space in the Building, on similar terms, at no cost to the
Tenant.



10. Card Reader: Provided it does not adversely affect the Landlord’s card reader system
installed at the entrance to 555 Richmond Street West, the Landlord hereby consents to the Tenant
and the Tenant’s security company (ADT Security) installing a card reader, compatible with the
Tenant’s office security system, at the main building entrance of 555 Richmond Street West which
permits access to the Building. The installation of such card reader system shall be strictly
subject to the Landlord’s approval of plans, specifications and contractors, all as more
particularly set out in the Lease. The charges for the cabling, labour and material shall be an
allowable expense included in the Leasehold Improvement Allowance. Notwithstanding anything to the
contrary contained herein or in the Lease, the Tenant shall be responsible for removal of the card
reader system at the expiration of the Term, if requested by the Landlord.



11. Building Services: The Landlord will use its reasonable commercial efforts to complete
the on-going maintenance of the Building in a timely manner. Specifically the Landlord shall use
its reasonable commercial efforts to address the following issues in the following approximate
timeframes:





	 	i)	 	Plumbing issues — overflows in washrooms, any type of flooding — immediately
	 
	 	ii)	 	Ballast replacement issues for lights — within 2 days (depending on location)
	 
	 	iii)	 	Heat and air condition issues — within Three (3) hours
	 
	 	iv)	 	Rodent issues — 24 hours




12. Restoration: The Tenant’s rights and obligations with respect to restoration of the
Leased Premises at the expiry of the Term or any permitted extension thereof are set out in Section
33(b) of the Lease save and except that the Tenant shall not be responsible for removing those
leasehold improvements installed in the Leased Premises prior to April
12, 2010 with the exception that the Tenant shall be responsible for the cost of the Landlord’s
removal of the internal stairway connecting Suite 214 and Suite 107 and the returning of the areas
affected by such removal to more or less the condition they were in prior to installation of such
staircase, such obligation surviving expiration of the Term.



13. HST: All amounts referred to in this Agreement are quoted without the Harmonized Sales
Tax and such tax shall be in addition to costs quoted.



14. Relocation: The Landlord shall not relocate the Tenant from any part of the Leased
Premises prior to the expiry of the Extended Term or any extension thereof.



15. Sale/Demolition: The Landlord shall not demolish the Building or terminate the Lease
for demolition or redevelopment of the Building during the Extended Term or any extension thereof.



16. Special Conditions: The following Special Conditions are set out in more detail in
Schedule “C” attached hereto and form part of this Agreement and the Lease:





	 	1.	 	Leasehold Improvement Allowance (continued)
	 
	 	2.	 	Right of First Refusal
	 
	 	3.	 	Option to Extend






	17.	 	Miscellaneous:




4 









 












	 	a.	 	The Tenant represents and warrants that it has the right, full
power and authority to agree to the amendments to the Lease, and other provisions
contained in this Agreement.
	 
	 	b.	 	The parties confirm that the terms, covenants and conditions of the
Lease remain unchanged and in full force and effect, except as modified by this
Agreement.
	 
	 	c.	 	This Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, administrators,
successors and assigns, as the case may be.
	 
	 	d.	 	There are no covenants, representations, agreements, warranties or
conditions in any way relating to the subject matter of this agreement expressed
or implied, collateral or otherwise, except as expressly set forth herein.
	 
	 	e.	 	It is understood and acknowledged that this Lease Amending
Agreement and the Lease and all negotiations and discussions relating thereto are
of a confidential nature. The Tenant shall not disclose any details related
thereto to any party, save and except those required by the operation of the
Tenant’s business, to have such information.
	 
	 	f.	 	Words defined in this Agreement and used herein shall have the same
meaning ascribed to them by the Lease.
	 
	 	g.	 	Time shall be of the essence of this Agreement and the transactions
contemplated herein, provided that the time for doing or completing any matter
herein may be amended by an agreement in writing signed by both parties.





     IN WITNESS WHEREOF the Landlord has duly executed this Agreement at Toronto, this
day 10th of November, 2010.



	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED	 	 	)	 	 	674951 ONTARIO LIMITED	 	 
	 

	 	 	)	 	 	 	 	 
	     in the presence of:	 	 	)	 	 	               (Landlord) 
	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	 

	 	 	)	 	 	Per:
	/s/ Rena Miller	 	 
	 

	 	 	 	 	 	 	 

	 	 
	 

	 	 	)	 	 	 	Rena Miller, Property Manager	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	 

	 	 	)	 	 	Per:  	/s/ Robert
Carsley	 	 
	 

	 	 	 	 	 	 	  	 	 
	 

	 	 	 	 	 	 	Robert Carsley, President 	 	 






     IN WITNESS WHEREOF the Tenant has duly executed this Agreement
at Vienna, VA this 28th day of October, 2010.



	 	 	 	 	 	 	 	 	 	 	 

	SIGNED, SEALED AND DELIVERED	 	 	)	 	 	ELOQUA CORPORATION	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	     in the presence of:

	 	 	)	 	 	 	 	 	 	 
	 	 	 	)	 	 	                (Tenant)
	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 	 	 
	 

	 	 	)	 	 	Per: 
	 /s/ Don Clark
	 	 
	 

	 	 	 	 	 	 	 	 	 
	 

	 	 	)	 	 	 	Don Clark, CFO	 	 







 5 











 





Schedule “A”

The Expansion Premises









6









 








SCHEDULE A-1

Swing Space









7









 








SCHEDULE B

Landlord’s Work



The Landlord shall, at its cost and expense within Twenty One (21) days of execution of this
Agreement by the parties hereto and delivery to the Landlord of the Tenant’s demising wall plan, or
such other schedule agreed upon by Landlord and Tenant in order to minimize disruption to the
Tenant’s employees or to allow for Suite 201/203 to be utilized as Swing Space as provided for in
Section 9 of this Agreement, complete the work to Suite 201/203 set out hereunder (the “Landlord’s Work”).
The Landlord shall complete the Landlord’s Work diligently, expeditiously and in a good and workmanlike manner and all such work shall be performed in
accordance with the provisions of the Lease and good construction practices by competent
contractors and in compliance with all current, relevant and applicable municipal and provincial
building codes, laws, by-laws, and regulations.





	1)	 	Demolish and/or construct the/a demising wall between the Existing Premises and Suite
201/203, as requested and indicated by the Tenant and repair or replace t-bar ceiling and
tiles, where applicable, if damaged by such demolition/construction;




2) Replace all burnt out lighting;





	3)	 	Ensure all electrical and HVAC systems in Suite 201/203 are in good and working order;




4) Remove all debris, and deliver Suite 201/203 in a clean, broom swept manner.




8









 








SCHEDULE C

Special Conditions



1. Leasehold Improvement Allowance (continued from Page 2 Section 4): The
Leasehold Improvement Allowance shall be payable upon the occurrence or satisfaction of the
following:





	 	i.	 	The Tenant is in occupancy of the Leased Premises and abiding by the terms and
provisions of the Lease; and
	 
	 	ii.	 	delivery to Landlord of the following:






	 	1)	 	a statutory declaration of an officer of the contractor that has
performed the installation of the Leasehold Improvements or alteration of existing
Leasehold Improvements (the “Tenant’s Work”) that the contract under which the
Tenant’s Work was performed (the “Tenant Work Contract”) has been “completed” or
“abandoned”, as those terms are defined under the Construction Lien Act (Ontario);
and
	 
	 	2)	 	one of:






	 	(A)	 	if applicable, a certificate of substantial performance of
the Tenant Work Contract in the form prescribed in the Act, together with
evidence of the date of publication of such certificate as provided by the
Act;
	 
	 	(B)	 	declarations of last supply in the form described in the Act,
if applicable, given by officers of all the subcontractors employed by the
contractor in the performance of the Tenant’s Work;
	 
	 	(C)	 	if applicable, a certificate of completion in the form
prescribed in the Act, in respect of the subcontract of each subcontractor
employed by the contractor that has performed the Tenant’s Work, together with
evidence of delivery of a copy of such certificates of completion to each
respective subcontractor;
	 
	 	(D)	 	the expiry of the periods pursuant to the Act within which a
person who supplied services or materials in connection with the performance
of the Tenant’s Work may file a claim or lien for work or service performed or
material supplied, provided no claim for lien for work or service performed or
material supplied has been filed, or if such liens have been filed, then only
upon such liens being discharged or vacated. In connection therewith, Landlord
may require the Tenant to provide evidence by way of a solicitor’s opinion
that no liens in connection with the Tenant’s Work are registered against the
freehold or leasehold interest in the Land or Building, such opinion to be
dated the date of the Leasehold Improvement Allowance is paid to Tenant;
	 
	 	(E)	 	the delivery to Landlord of proof of payment of worker’s
compensation assessments for all Tenant’s contractors and subcontractors; and
	 
	 	(F)	 	receipted invoices, totalling not less than the Leasehold
Improvement Allowance, verifying the actual cost of installing Leasehold
Improvements in the Premises.




2. Right of First Refusal: Provided the Tenant is not in default under the Lease, then
subordinate to any existing rights of other tenants in the Building as of the date of unconditional
acceptance of this Agreement, the Tenant will have a right of first refusal (the “Right of First
Refusal”) on any office space on the main and second (2nd) floors of the Building having
a rentable area greater than two thousand five hundred (2,500) rentable square feet that come
available from time to time (the “RFR Space”). If at any time during the term of this Lease the
Landlord receives from a third party an offer to lease that incorporates all or part of the RFR
space which the Landlord is prepared to accept (the “Third Party Offer”), the Landlord shall offer
the RFR space to the Tenant, in writing, at the terms and conditions of the Third Party Offer in
its entirety, including without limitation the lease of space that is not RFR space, with the
exception of the following:





	 	i)	 	In the event the party submitting the Third Party Offer is
substantially more creditworthy than the Tenant, then any upfront allowances or
inducements may not be granted to the Tenant provided
that in such an event the Minimum Rent payable by the Tenant shall be discounted on
a pro-rata basis.




9









 










The Tenant will have five (5) business days following receipt of the terms for the Third Party
Offer to advise the Landlord of its acceptance or refusal of the Landlord’s offer. If the Tenant
does not exercise its Right of First Refusal and thereafter if the Landlord does not enter into a
lease with the new tenant based on the terms and provisions of the Third Party Offer within sixty
(60) days after notice is provided to the Tenant then the Tenant’s Right of First Refusal will be
in full force and effect. If the Tenant does not exercise its Right of First Refusal and thereafter
the Landlord enters into a lease with a new tenant based on the terms and provisions of the Third
Party Offer within sixty (60) days after notice is provided to the Tenant, then the Tenant’s Right
of First Refusal with respect to the Third Party Offer space will be null and void and of no
further force or effect. However, the Right of First Refusal shall continue to be in effect for the
remaining RFR Space. The Provisions of this Right of First Refusal are personal to the Tenant.



3. Option to Extend:



If,





(a) The Tenant pays the Rent (including Minimum Rent and Additional Rent) as and when due
and punctually observes and performs the terms, covenants and conditions to be observed and
performed by it in accordance with the terms of the Lease;



(b)
The Tenant is not in default under the Lease;

(c)
The Tenant gives the Landlord not less than Nine (9) months and not more than
Eighteen (18) months written notice prior to the expiration of the Term of this Lease
of the Tenant’s intention to extend the Extended Term of the Lease; and




(d) So long as the Tenant is Eloqua Corporation, or a Permitted Transferee as defined in
Subsection 3(e) hereunder, and itself or a Permitted Transferee is in occupation and
conducting business in the Leased Premises in accordance with the terms of the Lease, the
Tenant expressly acknowledging and agreeing that the provisions of this section are
personal to the Tenant or a permitted Transferee, then the Landlord will grant to the
Tenant the right to extend the Extended Term of this Lease upon the expiry of the Extended
Term for a period of Five (5) years (the “Further Extended Term”) upon the same terms and
conditions as set out in the Lease except that:




	 	i)	 	The Landlord may at its option require the Tenant to enter into a Further
Extension Agreement, as prepared by the Landlord at the Tenant’s expense to give
effect to the Further Extended Term; and
	 
	 	ii)	 	The Minimum Rent payable during each year of the Further Extended Term shall
be based on the fair market rent, all economic factors considered, for comparable
premises (including comparable leasehold improvements), in comparable buildings, in
the same neighbourhood, Nine (9) months prior to expiration of the Extended Term. For
the purpose of this clause 555 and 543 Richmond Street West are deemed to be
comparable buildings. Failing agreement as to the fair market rent, such rent shall be
determined by an arbitrator agreed on by the parties both acting reasonably, such
arbitrator employing baseball style/final offer arbirtration whereby each party
submits a final offer and the arbitrator selects one of the two offers to which the
parties will be bound.






	 	(e)	 	A Permitted Transferee is defined as follows:






	 	i)	 	A holding body corporate, a subsidiary body corporate or
affiliated body corporate (as those terms are defined as of the date of this
Offer pursuant to the Canada Business Corporations Act) of the Tenant;
	 
	 	ii)	 	A corporation formed as a result of a merger or amalgamation
involving the Tenant with another corporation or corporations; or
	 
	 	iii)	 	A purchaser, whether by acquisition of shares or assets, of
all or a majority of the Tenant’s business and/or assets.






10