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Exhibit 10.32
THIS INDENTURE MADE THIS the day of December, 2000,
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT.
BETWEEN:
SILVER SEVEN ROAD INC. AS TO 55% AND 00000 XXXXXXX LTD. AS TO 45%
Hereinafter called the "Landlord"
OF THE FIRST PART,
AND:
UNISPHERE NETWORKS, INC.
Hereinafter called the "Tenant"
OF THE SECOND PART,
WHEREAS this document and all schedules shall hereafter be referred to as
the "Lease" or the "lease".
PREMISES
1. WITNESSETH that 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 does demise and lease unto the Tenant the
premises, hereinafter called either the "Leased Premises" or the "Premises" for
the purpose of being used by the Tenant as office space and for no other
purpose, all those premises to consist of approximately 14,866 square feet
being the entire second floor of a five (5) storey building to be constructed
on Silver Seven Road (hereinafter such building and all accompanying lands,
driveways, etc. shall be, as applicable, called the "Building" or the
building), in the City of Kanata, Province of Ontario, which said building is
to be erected on the lands described in Schedule "A" hereto annexed. The Leased
Premises is to be in the approximately location shown on the attached Schedule
B.
At the time the building is substantially completed, the Landlord shall
provide a certificate from the Landlord's architect or engineers confirming the
rentable area (to be measured in accordance with BOMA standards) which shall be
grossed up from the usable area of the Leased Premises and, if necessary, the
rents paid herein shall be adjusted to reflect the actual rentable area.
TERM
2(a) Subject to the Landlord having substantially completed the building,
the Tenant shall lease the Leased Premises for and during the term,
(hereinafter called "the Term") of nine (9) years starting from the earlier of
the substantial completion date of the Building or the date the Tenant takes
occupancy of the Leased Premises estimated to be the 1ST DAY OF JUNE, 2001 (the
"Commencement Date") and to be completed and ended nine(9) years later on a
date estimated to be the 31ST DAY OF MAY, 2010. Should the building be
substantially completed after JUNE 1st, 2001, then the Commencement Date shall
be such time as the Landlord's architect deems the building to be substantially
complete. If the substantial completion of the building is delayed beyond June
1, 2001 as a result of the Tenant not providing the Landlord by JANUARY 31ST,
2001 with a complete set of working construction drawings and specifications
necessary to substantially complete, in a timely manner, the Tenant
Improvements as outlined on Schedule "E" herein, then the Term and rents owing
herein shall still commence on JUNE 1ST, 2001.
For the purposes of this Lease, completion or substantial completion of the
building shall mean substantial performance of all contracts for construction of
the Building, using the same meaning of the phrase, "substantial performance",
as given to such term under the Construction Lien Act of Ontario, as certified
by the Landlord's architect or engineer and includes substantial completion of
the Tenant fit up work described in Schedule "E" unless the Tenant has failed to
provide the Landlord with a complete set of working drawings and specifications
by JANUARY 31ST, 2001 in which case substantial completion of the building
refers to the architect's certification of completion of the Schedule "D" work
only.
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FAILURE TO DELIVER LEASED PREMISES
2(b) If the Landlord has not substantially completed the Building by December
1st, 2001 and if the Tenant has provided the drawings and specifications for its
Leased Premises by no later than January 31st, 2001 and so long as the Landlord
has not been delayed by any of the reasons noted below (i.e. including but not
limited to strikes, material shortages, war, and the other reasons noted below)
then the Tenant, by written notice to the Landlord, to be given on or after
December 1st, 2001, and so long as all the above conditions apply, will be able
to terminate this Lease. The Landlord shall use reasonable and diligent efforts
to construct the Building in a good and workmanlike manner, in accordance with
the Landlord's plans and specifications, and in accordance with all laws,
regulations, by-laws, and codes, and with substantial completion of the
Building, including without limitation all items of work (the Landlord's Work)
described in Schedule D to this Lease, to occur on or before December 1, 2001
failing which the Tenant's only recourse shall be to terminate this Lease.
However, the Tenant shall have no right to terminate the Lease as noted
earlier herein, should failure to substantially complete the building and Leased
Premises be due to any Tenant related delays or if the Landlord is bona fide
delayed or hindered in or prevented from the above noted substantial completion
by reasons of strikes, labour troubles, inability to procure materials or
services, power failure, restrictive government laws or regulation, riots,
insurrections, sabotage, rebellion, war, act of God, or other reason whether of
a like nature or not which is not the fault of the Landlord. In the event of any
of the above, including any delay beyond January 31st, 2001 in the Tenant
providing the drawings and specifications noted below, the substantial
completion date and Lease Commencement Date shall be extended by the period of
the delay without the Tenant having any right to terminate the Lease.
The Tenant shall be required to provide to the Landlord a complete set of
working drawings and specifications for the Leased Premises by no later than
January 31st, 2001 failing which, and so long as the Landlord has substantially
completed, by the Commencement Date, its work as outlined on Schedule "D"
attached hereto, all rent to be paid by the Tenant shall still commence on the
Commencement Date of the Term, even if the Tenant improvements as generally
outlined in Schedule "E" herein are not completed.
With reference to such Tenant improvements, the Tenant hereby acknowledges
that their cost for their improvements are estimated to be $30.00 per square
foot and shall be payable by the Tenant on an ongoing basis as such improvements
are being constructed and the Tenant shall make all payments required within ten
(10) days of being invoiced by the Landlord or its contractors and suppliers.
Notwithstanding the above, at the time of signing the Lease the Tenant hereby
agrees to provide the Landlord with $477,200 representing the Landlord's
estimate of the cost, including GST, of the Tenant's improvements as outlined in
the attached Schedule E. The Landlord shall use said $477,200 to make payments
for the tenant improvements. Any balance remaining upon complete payment of the
tenant improvements shall be returned to the Tenant. However should the amount
be inadequate to pay for such tenant improvements then the Tenant shall pay
forthwith upon demand by the Landlord any such shortfall. Prior to the Landlord
agreeing to start the tenant improvements the Tenant will have approved a set of
working drawings and estimated cost to the Tenant of the tenant improvements.
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RENTALS PAYABLE
3(a) Subject to any adjustment required to reflect the actual rentable area of
the Leased Premises as certified by the Landlord's architect, the Tenant
covenants and agrees to pay to the Landlord as rental for the Leased Premises,
without any set-off or deduction whatsoever, the following, namely:
(i) For the first five years of the Term a minimum annual rental of
$237,856.00 per annum based on a rate of $16.00 psf. (hereinafter
called the "Minimum Rental" or "Minimum Rent"). For the next 4 years of
the term a minimum annual rental of $252,722.00 based on a rate of
$17.000 psf., all payable in equal monthly installments, in advance, on
the first day of each month throughout the term and;
(ii) Additional Rental for the payment of the Tenant's proportionate share
of taxes, insurance and operating costs and other costs as set forth
in subparagraphs 3(j), 3(k) and 3(l) and elsewhere herein, as
applicable.
MINIMUM RENTAL
3(b) Minimum Rental shall be payable in equal monthly installments of $19,821.33
for the first 5 years of the Term and $21,060.17 per month for the next 4 years
of the Term all in advance on the first 5 day of each full calendar month during
the Term, the first such payment to include also any pro-rated Minimum Rental
(on a per diem basis) for the period from the date of the commencement of the
Term to the first day of the first full calendar month in the Term. The Minimum
Rental will be adjusted proportionately for any Lease Year, which is other than
12 calendar months. Tenant shall, on or before the commencement of each and
every Lease Year of the Term, including the first Lease Year, deliver to the
Landlord a series of post-dated cheques, one for each month of the Lease Year,
drawn for an amount equal to the amount of Minimum Rental payable in each month
of such Lease Year, provided that the first such payment is to include also any
pro-rated Minimum Rental for the period from the date of the commencement of the
Term to the first day of the first full calendar month in the Term, provided
further that the obligation in the first Lease Year shall be adjusted to take
into account, if applicable, all advance rental paid hereunder.
RENTAL SECURITY DEPOSIT Deleted Intentionally
SECURITY DEPOSIT
3(d) At the time of signing their Lease, the Tenant shall provide to the
Landlord a certified cheque in the amount of $430,000 which is to be cashed and
retained by the Landlord as security for the Tenant's obligations under this
Lease. The terms relating to the cash security are provided in the attached
Schedule F.
MANNER AND PLACE OF PAYMENT OF RENT
3(e) (i) All rent shall be paid by the Tenant to the Landlord or to any entity
designated by the Landlord, at par at the principal office of the Landlord or at
such other place in Canada as the Landlord may designate in writing from time to
time without any prior demand therefore, and shall be payable in lawful money of
Canada.
(ii) Any sums received by the Landlord from or for the account of the Tenant
when the Tenant is in default hereunder may be applied at the Landlord's option
to the satisfaction, in whole or in part, of any of the obligations of the
Tenant then due hereunder in such manner as the Landlord sees fit, and
regardless of any designation or instruction of the Tenant to the contrary.
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LEASE YEAR
3(f) The first Lease Year shall commence on the first day of the Term and shall
end 12 calendar months after the first day of the first calendar month following
the Commencement Date. Thereafter, the Lease Years shall consist of consecutive
periods of 12 months. If, however, the Landlord deems it necessary or convenient
for the Landlord's accounting purposes, the Landlord may at any time and from
time to time, by written notice to the Tenant, specify an annual date from which
each subsequent Lease Year is to commence, and, in such event, the then current
Lease Year shall terminate on the day preceding the commencement of such new
Lease Year. The last Lease Year of the term shall terminate as of the
termination of this Lease Agreement either on account of the running of time or
on account of the early termination of this Lease under the terms hereof.
SET-OFF & ABATEMENT
3(g) All Minimum Rent and Additional Rent and other sums payable hereunder by
the Tenant to the Landlord shall be payable without any deduction, set-off or
abatement whatsoever, and shall be collectable as rent, except as herein
expressly provided.
INTEREST ON ARREARS
3(h) If the Tenant shall fail to pay, when due, any Minimum Rent, Additional
Rent, or installment on account thereof, or any other amount payable to the
Landlord hereunder, the amount unpaid shall bear interest from the due date
thereof to the date of payment at the rate of four (4%) percent in excess of the
prime rate of interest then chargeable by the Landlord's bankers to its most
favoured customers on commercial loans in Canadian currency, but this provision
for interest shall not limit any other remedies which the Landlord may have in
respect of such default.
OPERATE ON CONTINUOUS BASIS - Deleted Intentionally
ADDITIONAL TAXES AND RATES
3(j) The Tenant shall pay in addition to the Minimum Rent an additional monthly
sum (herein called the "Additional Rental for Taxes") estimated by the Landlord
as sufficient to reimburse the Landlord for all municipal, provincial, federal
or other governmental taxes or rates or charges of every nature or description,
including without limiting the generality of the foregoing, realty taxes, school
taxes, general taxes, goods and services taxes (GST), value added taxes,
business transfer taxes, any and all capital taxes including but not limited to
taxes based upon or computed by reference to capital or paid up capital of the
Landlord so long as such capital taxes relate to this Building, fire protection
charges, water rates, sewerage rates, local improvement rates, general or
particular levies or assessments, or charges or any similar rates, taxes,
assessments or charges levied by any municipal, provincial, federal or other
governmental authority against the building to the extent that the same are
attributed, by the Landlord, to the Leased Premises but excluding any interest
or penalty payable as a result of the failure by the Landlord to make any
payment of any such taxes, rates, or charges when due and if such taxes, duties,
rates, levies, assessments or charges are based on a municipal assessment then,
at the Landlord's option, in proportion to the amount of a municipal assessment
attributed to the Leased Premises as compared with the total assessment on the
building, or if not based on assessment then prorated on the basis of the number
of square feet contained within the outer surface of the exterior walls or
centre line of interior walls of the Leased Premises compared with the total
number of square feet contained within the outer surface of the exterior walls
of the building. It is the
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intent of this clause that when the building is fully rented the Landlord will
be fully reimbursed for all such taxes, rates, levies, assessments and charges
levied on the building, and upon the receipt by the Landlord of any demand for
payment or statement of account with respect to any such taxes, rates and
charges, it shall notify the Tenant and the Tenant shall pay for any variation
in the monthly amount payable as Additional Rental for Taxes under this clause;
provided, however, that the Landlord shall be entitled to vary the Additional
Rental for Taxes at any time upon giving notice in writing of such variation to
the Tenant and all amounts payable under this Lease as Additional Rental for
taxes shall be recoverable by the Landlord from the Tenant in the same manner as
rent under the terms hereof.
If at any time during the term, taxes payable for the building and
accompanying land are calculated based, in whole or in part, on the building
being less than fully occupied by tenants carrying on business, then the
Landlord may at its option and acting reasonable, adjust such taxes payable as
if the building had been fully occupied by tenants carrying on business. The
parties acknowledge that the purpose of this clause is to ensure that the
Landlord solely benefits from any lower rate or assessment levied on vacant
space in the Building. For greater clarification, the Landlord and Tenant agree
that the Tenant will not pay for taxes allocated to any vacant space in the
Building.
INSURANCE
3(k) The Landlord shall maintain on the building fire insurance and
insurance against all perils, reasonable in the circumstances, for full
replacement cost with minimum by-law endorsement and broad extended coverage,
boiler insurance coverage, insurance against loss of rental income by reason of
fire or related perils and third person liability and any other liability
insurance protecting the Landlord against all or any claims for personal injury
including death or property damage in an amount deemed advisable by the Landlord
from time to time, and if and when deemed advisable by the Landlord, insurance
against loss of an "all risk" nature including earthquake, and the Tenant shall
reimburse the Landlord by paying a further additional monthly sum (herein called
the "Additional Rental for Insurance") for all costs and charges in connection
with any such insurance in the same proportion as the square foot area contained
within the outside surface of the exterior walls or the centre line of interior
walls of the Leased Premises compares to the square foot area contained within
the outside surface of the exterior walls of the building, and all such costs
and charges may be recovered by the Landlord from the Tenant in the same manner
as rent under the terms hereof.
The Tenant shall, throughout the Term of the Lease, maintain adequate
comprehensive general liability insurance and property damage insurance
including but not limited to adequate insurance for all the Tenant's
Improvements and work in the Leased Premises of not less than two million
($2,000,000) dollars for each occurrence and shall have the Landlord named as
co-insured and shall forward a copy of the policy as evidence of compliance with
the Landlord's requirements.
OPERATING AND MAINTENANCE COSTS
3(l) The Landlord shall maintain and repair the building including the
repair and replacement of any building components such as the roof as well as
the foundations, structural columns of the building and mechanical, electrical
and other basic systems of the building and the Landlord shall provide
conditions of adequate comfort during specified hours except during repair,
inspection and replacement of such systems, and the Landlord shall maintain all
the lands comprising the said building including the parking areas and
landscaped areas, as well as operate the said building to the
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standard of a high quality commercial building so as to give it high character
and distinction and the Tenant shall reimburse the Landlord for its
proportionate share of all costs related to the aforementioned repairs and
replacements and for all operating costs to maintain and operate the building
and lands in such a manner which said proportionate share of the said operating
costs are hereinafter called "Additional Rental for Operating Costs". The said
operating costs shall, without limiting the generality of the foregoing, include
the amounts paid whether by the Landlord or other on behalf of the Landlord for
complete maintenance services for the building such as are in keeping with
maintaining the standard of a high quality commercial building so as to give it
high character and distinction, and shall include all repairs and replacements
required for such maintenance, including but not limited to the following:
garbage removal, all grass cutting and removal and other landscaping costs,
parking lot maintenance and snow removal, maintenance of the exterior of the
building including roof repairs and maintenance, the costs of providing water
and electricity or any other utility not otherwise chargeable directly to
tenants, and any costs related to consumption of utilities (including but not
limited to electricity, gas, water, oil, cable, etc.) service contracts with
independent contractors, all amounts paid for wages, benefits, and other
payments to janitors, caretakers and any other staff involved in the maintenance
and management of the building, managerial and administration expenses, supplies
used in the maintenance of the building, the cost of heating ventilating and/or
air-conditioning the building, including the common areas of the building and
including repairs and replacements to all equipment used in the provision of
plumbing, electricity, heating, ventilating, and air conditioning of the
building including any meters and all other expenses paid or payable by the
Landlord in connection with the operation of the building. Such operating costs
shall not include interest on debt or capital retirement of debt, or any amount
directly chargeable by the Landlord to any tenant or tenants as otherwise
provided herein, or the proceeds realized by the Landlord from any insurance
claims made by the Landlord in connection with repairs done by the Landlord, or
income taxes, capital gain taxes, and other income taxes of a personal nature to
the Landlord or any expense recovered under warranties or guarantees. The
Tenant's proportionate share of such operating costs shall be in the same
proportion that the square foot area contained within the outside surface of the
exterior walls or the centre line of interior walls of the Leased Premises
compares to the square foot area contained within the outside surface of the
exterior walls of the building, and all such costs and charges may be
recoverable by the Landlord from the Tenant in the same manner as rent under the
terms hereof. Operating costs shall be determined in accordance with generally
accepted accounting principles and without duplication. The management fee that
forms part of the above costs shall not exceed five percent (5%) of gross
rentals paid (i.e. including Minimum Rental and all Additional Rentals).
DIRECT CHARGE FOR WATER & SEWERAGE RATE & HYDRO CHARGES - Deleted Intentionally.
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PAYMENT OF ADDITIONAL RENT
3(n) During the Term of the Lease, the Tenant shall pay to the Landlord its
proportionate share of Additional Rental for Taxes, Additional Rental for
Insurance and Additional Rental for Operating Costs which shall be collectively
be referred to herein as Additional Rent, additional rent, Additional Rentals
or additional rentals. Prior to the commencement of the term of this Lease and
of each fiscal period selected by the Landlord thereafter which commences
during the term of this Lease, the Landlord shall estimate the amounts of the
said Additional Rentals as herein before set forth for the ensuing fiscal period
or (if applicable) broken portion thereof, as the case may be, and shall notify
the Tenant in writing of such estimate. The amount so estimated shall be payable
in equal monthly installments in advance over the fiscal period or broken
portion thereof in question, on the first day of each and every month during
such fiscal period. The Landlord may from time to time alter the fiscal period
selected in which case the appropriate adjustment in monthly installments shall
be made. From time to time during a fiscal period, the Landlord may re-estimate
the amount of the taxes, insurance, or operating costs or any of them and the
Tenant's proportionate share thereof for such fiscal period or broken portion
thereof, in which the Landlord shall notify the Tenant in writing of such
re-estimate and the Tenant shall pay the amended monthly installments for the
then remaining balance of such fiscal period or broken period thereof such that,
after giving credit for installments paid by the Tenant on the basis of the
previous estimate or estimates, the Tenant's entire proportionate share of such
Additional Rentals will have been paid during such fiscal period.
Within sixty (60) days after the expiration of each fiscal period, the
Landlord shall make a final determination of such taxes, insurance, and
operating costs and of the Tenant's proportionate share thereof for such fiscal
period or broken portion thereof and shall notify the Tenant of such
determination and the Landlord and the Tenant shall make the necessary
readjustment within thirty (30) days of such notification to the Tenant.
Neither the Landlord nor the Tenant may claim a re-adjustment with respect to
such Additional Rentals based upon any error of estimation, determination or
calculation thereof unless claimed in writing within one (1) year after the
final determination thereof.
In the event that and only in the event that the Landlord requires an
adjustment requiring the Tenant to pay more than it already paid toward all
additional rent for the prior year and should the Landlord and Tenant fail to
agree on such adjustment, then the Landlord and Tenant shall appoint an
accountant to be agreed upon by both the Tenant and Landlord to examine the
Landlord's records so as to determine what adjustment, if any, is required.
EXAMINATION OF RECORDS
3(o) The Tenant and its agents may within sixty (60) days of the receipt by
the Tenant of any notice respecting Additional Rental for Taxes, Insurance or
Operating Costs payable hereunder, at reasonable times, and upon giving
reasonable prior notice in writing of its intention to do so, examine at the
expense of the Tenant, the accounts, records, books, statements and other
documents concerning such Additional Rental. All information obtained by the
Tenant as a result of such examination shall be treated as confidential.
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APPEAL OF ASSESSMENT
3(p) The Tenant shall be entitled at any time and from time to time,
provided that it has first obtained the Landlord's written consent, at the
Tenant's own cost and expense to appeal any assessment or taxes imposed or
levied on the Leased Premises or the building and may take such appeal in the
name of the Landlord provided that such appeal is prosecuted in good faith, and
provided that if the building or any part thereof or the Landlord shall become
liable to assessment, prosecution, fine or other liability, the Tenant shall
have given security in a form in an amount satisfactory to the Landlord in
respect of such liability and such undertakings as the Landlord may reasonably
require to indemnify the Landlord from any costs of any nature in connection
with such appeal. In no event shall the Tenant's appeals noted herein permit the
Tenant to delay any payments of rent to the Landlord including but not limited
to payment of Additional Rent for Taxes as called for herein.
TENANT'S COVENANTS
4. THE TENANT COVENANTS WITH THE LANDLORD AS FOLLOWS:
4(a) To pay Minimum Rent and Additional Rents (collectively Rent, Rents,
rent, rents, Rentals, rentals) as herein set forth;
4(b) To observe and perform all covenants and obligations of the Tenant
herein;
4(c) To pay all gas, electrical, water and sewer rates and charges levied
or imposed or any other costs including consumption of any other
utility (including the cost of installing, repairing or replacing any
meter) charged or assessed against the Leased Premises as and when the
same become due;
BUSINESS TAX, ETC.
4(d) To pay business and other taxes, charges, rates, duties and
assessments levied, rated, charged or assessed against and in respect of the
Tenant's occupancy of the Leased Premises or in respect of the personal
property, trade fixtures, furniture and facilities of the Tenant or business of
the Tenant on the Leased Premises, as and when the same become due, and to
indemnify and keep indemnified the Landlord from and against all payment of all
loss, costs, charges and expenses occasioned by or arising from any and all such
taxes, rates, duties, assessments, license fees and any and all taxes which may
in future be levied in lieu of such taxes, and also if the Tenant or any person
occupying the Leased Premises or any part thereof shall elect to have the Leased
Premises or any part thereof assessed for separate school taxes, the Tenant
shall pay to the Landlord as soon as the amount of the separate school taxes is
ascertainable, any amount by which the separate school taxes exceed the amount
which would have been payable for school taxes had such election not been made
as aforesaid.
TENANT REPAIRS AND ALTERATIONS
4(e)(i) General Repairs: The Tenant shall, at its own cost and expense, keep
and maintain the Premises in good order, condition and repair, including all
replacements, maintenance and repair, ordinary, extraordinary, foreseen and
unforeseen, except for those matters that are clearly indicated herein as the
Landlord's obligation to repair. Without limiting the generality of the
foregoing, the Tenant shall, at all times, at its sole cost, keep and maintain
the whole of the Premises including without limitation, all interior partitions,
interior and exterior of all door frames and doors, fixtures, shelves, equipment
and
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appurtenances thereof and improvements thereto (including without limitation,
electrical, lighting, wiring, plumbing fixtures and equipment), and all
telephone outlets and conduits and special mechanical and electrical equipment
within or serving the Premises in good order, first class condition and repair
(which shall include periodic painting and decoration) as determined by the
Landlord, and the Tenant shall make all needed repairs and replacements with
due diligence and dispatch. The tenant shall be responsible to replace any
glass broken on the Premises including outside windows and doors of the
perimeter of the Premises (including perimeter windows in the exterior walls)
during the Term and such glass shall be replaced by the Tenant with glass of as
good quality and size as that glass so broken. The Tenant shall effect all
repairs referred to herein according to notice from the Landlord but failure to
give notice shall not relieve the Tenant from its obligation to repair.
4(e)(ii) Urgent Repairs: Not withstanding anything herein contained, the
Landlord may, in any event, enter the Leased Premises and make repairs to the
Leased Premises without notice if such repairs are, in the Landlord's opinion,
necessary for the protection of the building and the Tenant covenants and
agrees with the Landlord that if the Landlord exercises any such option to
repair, the Tenant will pay to the Landlord together with the next installment
of rent which shall become due after the exercise of such option, all sums
which the Landlord shall have expended in making such repairs and such sums if
not so paid within such time shall be recoverable from the Tenant as rent in
arrears. Provided further that in the event that the Landlord from time to time
makes any repairs as herein provided, the Tenant shall not be deemed to have
been relieved from the obligation to repair and leave the Leased Premises in a
good state of repair.
4(e)(iii) Additional Repairs: Notwithstanding any other terms, covenants and
conditions contained in this Lease, including without limitation, the
Landlord's obligations to take out insurance and the Tenant's obligation to pay
its proportionate share of the cost of such insurance, if the building or any
part thereof, or any equipment, machinery, facilities or improvements contained
therein or made thereto, or the roof or outside walls of the building or any
other structural portions thereof require repair or become damaged or destroyed
through the negligence, carelessness or misuse of the Tenant or its servants,
agents, employees or anyone permitted by the Tenant to be in the building, or
through the Tenant in any way blocking or damaging the heating apparatus, water
pipes, drainage pipes or other equipment or facilities or parts of the
building, the cost of the resulting repairs, replacements or alterations plus a
sum equal to twenty percent (20%) of the cost thereof representing the
Landlord's administrative overhead and charges, shall be borne by the Tenant
who shall pay the same to the Landlord together with interest (with such
interest to be calculated in accordance with paragraph 3(h) herein), forthwith
upon presentation of an account for such expenses incurred by the Landlord.
4(e)(iv) Tenant to Notify. The Tenant shall promptly notify the Landlord of any
damage to, malfunction of, or deficiency or defect in any part of the Premises
or any equipment or utility systems or installations therein or serving the
Premises that might cause or result in injury to any person or property
including the Building.
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4(e)(v) Alterations
(a) The Tenant shall not make any repairs, alterations, replacements,
decorations or improvements to any part of the Premises (the
"Alterations") without first obtaining the Landlord's written
approval. Prior to commencing any such Alterations, the Tenant
shall submit to the Landlord:
(b) Drawings and specifications prepared by qualified architects or
engineers and conforming to good engineering practice;
(c) Such indemnification as the Landlord reasonably requires; and
(d) Evidence satisfactory to the Landlord that the Tenant has
obtained, at its expense, all necessary consents, permits,
licences and inspections from all governmental and regulatory
authorities having jurisdiction.
4(e)(vi) All Repairs or Alterations approved by the Landlord shall be
performed:
(a) At the sole cost of the Tenant;
(b) By competent workmen approved by the Landlord whose labour union
affiliations, if any are compatible with others employed by the
Landlord and its contractors. In the case of work or repairs
related to the mechanical, electrical or structural systems of
the Building, the Landlord will have the right to insist that the
Tenant use the Landlord's trades, professionals or contractors.
(c) In a good and workmanlike manner;
(d) In accordance with the drawings and specifications approved in
writing by the Landlord; and,
(e) Subject to the reasonable regulations, controls and inspection of
the Landlord or its professionals with any cost of such
supervision or inspection to be at the Tenant's expense.
(f) So long as the Tenant covenants that it will not suffer or permit
during the term hereof any mechanics' or other liens for work,
labour, services or materials ordered by it or for the costs of
which it may be in any way obligated to attach to the Leased
Premises or to the building and that whenever and so often as any
such liens shall attach or claims therefor shall be filed, the
Tenant shall within twenty (20) days after the Tenant has notice
of the claim for lien, procure the discharge thereof by payment
or by giving security or in such other manner as is or may be
required or permitted by law.
(g) Any such alterations, additions and fixtures shall, when made or
installed, be and become the property of the Landlord without
payment being made therefor, provided that upon the termination
of this Lease the Landlord may at its option require the Tenant
to remove all or part of such alterations, additions, and
fixtures and or the Landlord may require the Tenant to restore
the Leased Premises to the condition in which they were at the
commencement of this Lease, except for reasonable wear and tear,
all being done at the Tenant's expense.
4(e)(vii) Landlord's Right to Perform. At all reasonable times, the Landlord has
the right to enter and view the conditions or state of repair of the Leased
Premises. If the Tenant shall fail to make any of the repairs required by any of
the provisions of sections. 4(e)(i) to 4(e)(vii) hereof, or any other section of
the Lease, or to commence the performance of any of its obligations thereunder
within ten (10) days after notice by the Landlord or any shorter period of time
required by any
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mortgage affecting the Premises, the Landlord shall have the right (but not the
obligation) to make any such repairs, replacements or perform maintenance work
or any other work required of the Tenant pursuant to the above noted sections
or any other section of this Lease and charge the actual cost and a 20% xxxx-up
thereof to the Tenant and such cost shall be paid to the Landlord as Additional
Rent.
4(f) LICENSES, ASSIGNMENTS AND SUBLETTINGS
The Landlord and Tenant further covenant and agree as follows:
1) Licences
The Tenant shall not suffer or permit any part of the Leased Premises to be used
or occupied by any persons other than the Tenant, any assignees or subtenants
permitted herein and the employees of the Tenant and any such permitted assignee
or subtenant, or suffer or permit any part of the Leased Premises to be used or
occupied by any licensee or concessionaire, or suffer or permit any persons to
be upon the Leased Premises other than the Tenant, such permitted assignees or
subtenants and their respective employees, customers and others having lawful
business with them.
2) Assignments and Sublettings
a) The Tenant shall not assign, mortgage or charge this Lease or sublet or
part with possession of the whole or any part of the Leased Premises nor
shall it permit any subtenant to assign, mortgage or charge its sublease
or sublet or part with possession of the whole or any part of the Leased
Premises (each of the foregoing transactions being sometimes referred to
herein as a "Transfer") unless it shall have first requested and
obtained the consent in writing of the Landlord thereto. Any request for
such consent shall be in writing and shall be accompanied by a true copy
of any agreements relating to the Transfer which the Tenant may have
originated or received, and the Tenant shall furnish to the Landlord all
information requested by the Landlord as to the business and financial
responsibility and standing of the proposed assignee, subtenant, mortgagee
or chargee or occupant (herein referred to as the "Transferee");
b) The Landlord's consent to the Tenant's request for consent to a Transfer
shall not unreasonably be withheld, provided nevertheless that the
Landlord shall be entitled to withhold consent unreasonably if the
Landlord exercises the right to cancel and terminate the Lease as provided
herein. Provided further that the Landlord's consent to any Transfer shall
be conditional upon the Transferee and the Tenant entering into an
agreement in form and content stipulated by the Landlord under which the
Transferee agrees to perform, observe and keep each and every covenant,
proviso, condition and agreement in this Lease on the part of the Tenant
to be performed, observed and kept, including (except in the case of a
subtenancy) payment of rent and all other sums and payments agreed to be
paid or payable under this Lease on the days and at the times and in the
manner herein specified. In the case of a subtenancy, the agreement shall
contain an assignment to the Landlord of the rents and other amounts
payable under the sublease involved and a provision whereby the subtenant
agrees to pay to the Landlord, unless the latter otherwise directs, all
such rents and other amounts payable under the sublease. The assignment
shall be given as security for payment of the rents and other amounts
payable under this Lease. The Landlord shall credit each of the payments
it receives from the subtenant to the balance of Minimum Rental and
Additional Rental, if any, payable by the Tenant under the Lease. Such
agreement shall also contain an acknowledgement by the Tenant that to the
extent that such payments are made by the subtenant to the Landlord they
shall constitute payment by the subtenant to the Tenant. Without limiting
the grounds for withholding consent to a Transfer, the Landlord's refusal
to consent will not be considered unreasonable if a reason for withholding
the consent is:
a) that the Landlord has concerns, on reasonable grounds, about the
business, financial background, business history or creditworthiness
of the proposed Transferee or about the use to which the Leased
Premises may be put; or
b) the Transferee's refusal to execute an agreement of the type referred
to above.
c) Upon the receipt from the Tenant of such request and such required
information, the Landlord shall have the right, exercisable in writing
within fourteen (14) days after such receipt, to cancel and terminate this
Lease if the request relates to all the Leased Premises or to cancel this
Lease only with respect to the applicable part of the Leased Premises if
the request relates only to a part of the Leased Premises. In a case
where the Tenant's request for consent to a Transfer relates only to a
part of the Leased Premises, the phrase "cancellation of this Lease"
means cancellation of this Lease only with respect to the applicable part
of the Leased Premises, and similar expressions have similar meanings.
Such cancellation shall be effective as of the date set forth in the
Landlord's notice of exercise of such right, which shall be neither less
than sixty (60) nor more than one hundred and twenty (120) days following
the service of such notice. If the lease is cancelled only with respect to
a part of the Leased Premises, rent will xxxxx in the proportion that the
Rentable Area of the part of the Leased Premises for
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which this lease is cancelled bears to the Rentable Area of the Leased
Premises, and this Lease will be amended accordingly. If the Landlord shall
exercise such right the Tenant shall surrender possession of the Leased
Premises or the cancelled portion thereof on the date set forth in such
notice in accordance with the provisions of this Lease relating to surrender
of the Leased Premises at the expiration of the Term;
d) If the Landlord shall not exercise the right to cancel this Lease or a
proportion thereof, as above provided after the receipt of the Tenant's
written request, then the Landlord's consent to such request shall not be
unreasonably withheld. In no event shall any Transfer to which the Landlord
may have consented, release or relieve the Tenant from its obligations to
fully perform all the terms, covenants and conditions of this Lease on its
part to be performed. No consent by the Landlord to any Transfer shall be
construed to mean that the Landlord has consented or will consent to any
further Transfer;
e) Documents evidencing the Landlord's consent to a Transfer, if permitted or
consented to by the Landlord, as well as any documents evidencing the
Tenant's assignment of sublease rentals to the Landlord as contemplated
herein, will be prepared by the Landlord or its solicitors, and all related
legal costs, including the costs of registration in any public offices of any
notices or renewal notices of the assignment of sublease rents, will be paid
by the Tenant to the Landlord or its solicitors, as Additional Rent, within
15 days after receipt of an invoice from the Landlord setting out reasonable
particulars of the charges;
(a) If after the date of execution of this Lease shares not listed for sale
on a recognized stock exchange in Canada or the United States in the
capital of either the Tenant or a corporation that controls the Tenant
are transferred by sale, assignment, bequest, inheritance, operation of
law or other disposition, or are issued by subscription or allotment, or
are cancelled or redeemed, so as to result in a change in the effective
voting or other control of the Tenant, or of a corporation that controls
the Tenant, by the person or persons holding control on the date of
execution of the Lease, or if other steps are taken to accomplish a
change of control, the Tenant promptly will notify the Landlord in
writing of the change of control. Whether or not the Tenant notifies the
Landlord of such change of control and unless the Landlord previously had
consented to the change of control, then, should the Landlord determine,
acting reasonably, that such a change in control may negatively impact
the Tenant's ability to meet its financial obligation in this Lease, the
Landlord may, within 120 days after it learns of the change in control,
notify the Tenant that it elects to terminate this Lease. The Tenant will
make available to the Landlord or its lawful representatives all publicly
available or reasonably available information of the Tenant or of any
corporation that controls the Tenant for inspection at all reasonable
times, to ascertain to the extent possible whether there has been a
change of control. For purposes of this section, control means the direct
or indirect beneficial ownership of more than 50% of the voting shares in
the capital of a corporation;
(b) If an approved Transferee has sublet or taken an assignment of all or
part of the Leased Premises from the Tenant and has agreed to pay the
Tenant a rent or other amount in respect of the Leased Premises or any
part of the Leased Premises that exceeds the rent payable by the Tenant
to the Landlord (or a pro-rated portion of such rent in the case of a
sublease or assignment of less than the entire Leased Premises), the
Tenant will pay to the Landlord monthly, as Additional rent, together
with Minimum Rent, an amount equal to the excess rent or other amount
received or receivable by the Tenant from the Transferee;
(c) If the Landlord sells or otherwise disposes of the Building or an
interest in the Building or in this Lease to the extent that the
purchaser or assignee assumes responsibility for compliance with the
covenants and obligations of the Landlord under this Lease, the Landlord
without further written agreement will be relieved of liability for its
covenants and obligations herein;
(d) The Tenant covenants and agrees that it shall not grant to any lender or
other creditor an assignment, mortgage or charge of its interest in any
sublease of all or any part of the Leased Premises or of its interest in
any of the rents payable under any such sublease. The Tenant hereby
agrees that upon request of the Landlord from time to time, it shall
assign unto the Landlord, as security for the payment of the rent under
this lease, all of its right, title and interest in the rents payable
under any and all such subleases, Such assignment shall be acceptable to
the Landlord as to form and content and it is agreed that the Landlord
may withhold its consent to a proposed sublease if the Tenant fails to
execute the assignment.
ASSIGNMENT BY LANDLORD
4(g) If there is a sale, lease or other disposition by the Landlord of the
building, or the assignment by the Landlord of this Lease or any interest of the
Landlord hereunder, and if the party acquiring the Landlord's interest in the
building or this Lease agrees to be bound by the covenants of the Landlord under
this Lease, then the Landlord will, thereupon and without further agreement, be
relieved of all further liability with respect to its covenants and obligations.
At any time it so chooses, the Landlord may designate a management company to
manage the building and upon written notice, from the Landlord, the Tenant will
pay all rent called for herein to such management company.
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RULES AND REGULATIONS
4(h) The Tenant and its employees and all persons visiting or doing business
with it on the Leased Premises shall be bound by and shall observe such
reasonable Rules and Regulations as may hereafter be set by the Landlord of
which notice in writing shall be given to the Tenant and upon such notice being
delivered all such Rules and Regulations shall be deemed to be incorporated into
and form part of this Lease. The Rules and Regulations as at the date of
execution of this Lease are those set out in Schedule "C".
USE OF PREMISES
4(i) The Leased Premises shall be used only for office space purposes and
other uses that comply with applicable zoning and by-laws and that meet with the
Landlord's approval. It is the Tenant's obligation to ensure that all uses or
activities conducted by it, in the building, comply with all applicable zoning
and building by-laws. Any failure to comply and any resulting prohibition by any
governmental authority of any or all of the Tenant's use, work or activity in
the building shall not relieve the Tenant from any of its rental obligations to
the Landlord as described herein.
INCREASE IN INSURANCE PREMIUMS
(j) The Tenant agrees that it will not keep, use, sell or offer for sale in
or upon the Leased Premises any article which may be prohibited by any
insurance policy in force from time to time covering the building. In the
event the Tenant's occupancy or conduct of business in, or on the Leased
Premises, whether or not the Landlord has consented to same, 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 with ten (10) days after bills for such
additional premiums shall be rendered by the Landlord. In determining whether
increased premiums are a result of the Tenant's use or 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 promptly comply with all reasonable requirements of the insurance
authority or of any insurer now or hereafter in effect relating to the Leased
Premises.
CANCELLATION OF INSURANCE
(k) If any policy of insurance upon the building or any part thereof shall be
canceled by the insurer by reason of the use or 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 the Tenant is unable to arrange similar insurance coverage, the Landlord
may, at its option, terminate this Lease forthwith by leaving upon the Leased
Premises notice in writing of its intention to do so and thereupon rent and any
other payments for which the Tenant is liable under this Lease shall be
apportioned and paid in full to the date of such termination and the Tenant
shall immediately deliver up possession of the Leased Premises to the Landlord
and the Landlord may re-enter and take possession of the same.
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OBSERVANCE OF LAW
(1) The Tenant must comply with all provisions of law including without
limitation, federal and provincial legislative enactment, building by-laws, and
any other governmental or municipal regulations which relate to the
partitioning, equipment, operation and use of the Leased Premises, and to the
making of any repairs, replacements, alterations, additions, changes,
substitutions or improvements of or to the Leased Premises. The Tenant must
also comply with all police, fire and sanitary regulations imposed by any
federal, provincial or municipal authorities or made by fire insurance
underwriters, and to observe and obey all governmental and municipal
regulations and other requirements governing the conduct of any business
conducted in the Leased Premises. Provided that in default of the Tenant so
complying, the Landlord may, at its option, where possible, comply with any
such requirement and the cost of such compliance shall be payable by the Tenant
to the Landlord as additional rent and the Landlord may enforce payment thereof
as rent in arrears.
WASTE & OVERLOADING OF FLOORS
(m) The Tenant shall not do or suffer any waste or damage, disfiguration or
injury to the Leased Premises or the fixtures and equipment thereof or permit
or suffer any overloading of the floors thereof; and not to place therein any
safe, heavy business machine or other heavy thing without first obtaining the
consent in writing of the Landlord; and not to use or permit to be used any part
of the Leased Premises for any dangerous, noxious or offensive trade or
business and not to cause or permit any nuisance in, at or on the Leased
Premises; and without the prior consent in writing of the Landlord, the Tenant
will not bring onto or use in the Leased Premises or permit any person subject
to the Tenant to bring onto or use on the Leased Premises any fuel or
combustible material for heating, lighting or cooking nor will it allow onto
the Leased Premises any stove, burner, kettle, apparatus or appliances for
utilizing the same and the Tenant will not purchase, acquire or use electrical
current or gas for consumption on the Leased Premises except from some supplier
thereof as shall have been approved in writing by the Landlord.
INSPECTION
(n) To permit the Landlord, its servants or agents to enter upon the Leased
Premises at any time and from time to time for the purpose of inspection and of
making emergency repair alterations or improvements to the Leased Premises or
to the building and the Tenant shall not be entitled to compensation for any
inconvenience, nuisance or discomfort occasioned thereby. The Landlord, its
servants or agents may at any time upon having provided notice to this effect
and from time to time enter upon the Leased Premises to remove any article or
remedy any condition which in the opinion of the Landlord, reasonably arrived
at, would be likely to lead to cancellation of any policy of insurance as
referred to in Paragraph 4(j) or 4(k) and such entry by the Landlord shall not
be deemed to be a re-entry.
INDEMNITY BY TENANT
(o) And the Tenant agrees to indemnify and save harmless the Landlord of and
from all liabilities, suits, claims, demands, and actions of any kind or
nature, including the full cost of the Landlord in resisting or defending same,
to which the Landlord shall or may become liable for or suffer by reason of any
breach, violation or non-performance by the
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Tenant or any covenant, term or provision hereof or by reason of any occurrence
resulting from, occasioned to or suffered by any person or property by reason of
any act, neglect or default on the part of the Tenant or any of its officers,
agents, employees, visitors, customers or licensees; and the covenant of the
Tenant in regard to such indemnification occurring during the term of the Lease
or any renewal or overholding in respect thereof shall continue in full force
and effect notwithstanding the expiration of the term or the termination of this
Lease for any reason whatsoever.
NO ABATEMENT OF RENT
(p) That there shall be no abatement or reduction of rent and that the Landlord
shall not be liable for any damage howsoever caused to property of the Tenant or
of any person subject to the Tenant which is in or upon or being brought to or
from the Leased Premises or the building or for personal injury (including
death) sustained in any manner by the Tenant or any person subject to the Tenant
while the Tenant or any such person is in or upon or entering or leaving the
Leased Premises or building unless such property damage or personal injury may
have been attributable to fault or neglect on the part of the Landlord or of any
person for whom the Landlord is responsible, and that the Tenant will indemnify
and save harmless the Landlord from and against all claims and demands made
against the Landlord by any person for or arising out of any such property
damage or personal injury.
EXHIBITING PREMISES
(q) To permit the Landlord or its agents or servants upon twenty-four (24)
hours notice to enter and show the Leased Premises, during normal business
hours, to prospective purchasers of the building and may after notice
terminating this Lease has been given or within the last 12 months of the Term,
enter and show the Leased Premises to prospective tenants and erect a sign with
reasonable dimensions stated that the Leased Premises are "For Rent".
MAINTENANCE - (r) Deleted Intentionally
SIGNS
(s) The Tenant shall erect and maintain an identification sign of a type and in
a location of which the Landlord shall have approved in writing, and shall not
erect, install, inscribe, paint or affix any sign, lettering or advertisement
upon or above the exterior of the Leased Premises or the building in which they
are situate, including the exterior glass surface of the windows or doors,
without first in each instance, securing the written approval of the Landlord.
Should the Tenant install, display, inscribe, paint or affix any sign, lettering
or advertisement to or upon the interior doors facing the common areas of the
building without in each instance the prior written approval of the Landlord,
and should such sign prove objectionable to the Landlord, it shall be removed
forthwith by the Tenant upon the request of the Landlord. Subject to compliance
with any zoning and building by-laws or any other governing authority, the
Tenant will be entitled to the right to build signage on the south west corner
on the second (2nd) floor of the building at the Tenant's expense. The Landlord
has the right to place signage on the exterior of the building for other tenants
of the building provided said signage is not on the second floor of the
building. Should the Landlord construct or install a pylon the Tenant will also
have the right to erect signage within the area provided on the pylon for
signage in proportion to its percentage occupancy of the building. The size,
color and location of said signage would be subject to Landlord's approval and
any approvals required by zoning and building by-laws or any other governing
authorities.
NAME OF BUILDING - (t) Deleted Intentionally
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KEEP TIDY
u) At the end of each business day, to leave the Leased Premises in a tidy
condition.
GARBAGE REMOVAL
(v) It is the intention of both parties hereto that garbage removal form part
of the common or operating costs of the building. However should the Tenant
choose to handle its own garbage removal then the Tenant shall be responsible
for, at its own expense, the adequate storage and removal of all garbage from
the Leased Premises and the Tenant shall receive the applicable credit for its
share of the building's operating costs.
DELIVERIES
(w) The Tenant shall receive, ship, take delivery of and allow and require
suppliers or others to deliver or take delivery of merchandise, supplies,
fixtures, equipment, furnishings, wares or merchandise only through the
facilities provided for that purpose, but this restriction shall not apply to
the retail customers of the Tenant.
NOTICE OF DAMAGE
(x) That in the event of damage to the Leased Premises from any cause or of
any damage to or defect in any electrical, plumbing, heating, water, sprinkler
or gas systems within or leading to the Leased Premises, the Tenant shall give
immediate notice of such damage or defect to the Landlord and in case of fire,
to the Fire Department.
CERTIFICATES
(y) The Tenant agrees that it will, upon substantial completion of the
Building, or prior to taking occupancy of the Leased Premises and at any time
and from time to time upon not less than ten (10) days prior notice execute and
deliver to the Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the
modifications and that the same is in full force and effect as modified), the
amount of the annual rental then being paid hereunder, the dates to which the
same, by installments or otherwise, and other charges hereunder have been paid,
and whether or not there is any existing default on the part of the Landlord of
which the Tenant has notice. In addition and upon written notice to the Tenant
by the Landlord, the Tenant shall, within ten (10) days, provide most recent
annual financial statements in addition to year to date financial statements
and other financial information reasonably requested by the Landlord. In all
cases, provision of financial information shall be governed by a
confidentiality agreement.
QUIET ENJOYMENT
5. The Landlord covenants with the Tenant for quiet enjoyment.
LANDLORD's COVENANTS
6. The Landlord covenants with the Tenant that subject to the Tenant paying
its proportionate share as set forth in Paragraphs 3(a) and 3(j) or elsewhere
herein hereof, to pay all taxes and rates, municipal, parliamentary or
otherwise, including without limiting the generality of the foregoing, water
rates with respect to the Leased Premises or assessed
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against the Landlord in respect thereof, except such as the Tenant has herein
covenanted to pay.
PARKING
7. The Tenant and all persons employed by or doing business with the Tenant
shall have the use of the land as designated from time to time by the Landlord
for the purpose of access to and egress from the Leased Premises, provided that
no person or Tenant shall have the exclusive use of any particular parking
space and no motor vehicle shall be parked on any part of the lands contained
in the building which is a loading zone or is not designated by the Landlord
for parking or where signs are in place indicating that parking is prohibited
and the Tenant agrees to reimburse the Landlord on demand for the cost of
removal of any motor vehicles which are parked in breach of this clause and
which belong to or are parked by any person employed by or doing business with
the Tenant, all such costs to be recoverable by the Landlord as rent in arrears
under this Lease. It is specifically understood and agreed that the Landlord
shall have the right to make all reasonable rules, regulations and by-laws
relating to the operation of the parking lot and means of ingress to and egress
from the building or any part thereof, in regard to the parking, traffic
control, excessive weights of loads on ramps or loading docks and all such
matters as are required or are normally incidental to the proper management of
the building, but no such rules, regulations or by-laws shall in any way limit
or restrict the nature or extent of the business carried on by the Tenant
within the covenants herein expressed or the mode of operation thereof. The
Tenant covenants and agrees that it will observe, abide by and conform to all
such reasonable rules, regulations and by-laws made or established by the
Landlord as aforesaid. The Landlord agrees to provide to the Tenant 56 non
designated parking spots at no additional cost to the Tenant.
FIXTURES
8. The Tenant hereby accepts that all installations, alterations, additions,
partitions, and fixtures, other than trade fixtures and chattels in or upon the
Leased Premises, whether placed there by the Tenant or the Landlord, shall
immediately upon such placement, be the Landlord's property without
compensation therefore to the Tenant and, except as hereinafter mentioned in
this Paragraph 8 shall not be removed from the Leased Premises by the Tenant at
any time either during or after the term. Notwithstanding anything herein
contained, the Landlord shall be under no obligation to repair or maintain the
Tenant's installations, alterations, additions, partitions and fixtures or
anything in the nature of a leasehold improvement made or installed whether by
the Tenant or by the Landlord on behalf of the Tenant; and further,
notwithstanding anything herein contained, the Landlord shall have the right
upon the termination of this Lease by affluxion of time or otherwise to require
the Tenant to remove its installations, alterations, additions, partitions and
fixtures or anything in the nature of a leasehold improvement made or installed
by the Tenant or by the Landlord on behalf of the Tenant and to make good any
damage caused to the Leased Premises by such installation or removal.
Notwithstanding the contents of this Paragraph 8, after reviewing and approving
the Tenant's Improvements, the Landlord shall be prepared to indicate in writing
what fixtures and improvements the Landlord, at its option, will want the
Tenant, at the Tenant's own cost, to remove at lease expiry including repairing
any damages caused by such removal.
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FIRE
9. Provided that if during the continuation of this Lease the building or the
Leased Premises are destroyed or damaged by fire or the elements, then the
following provisions shall apply and in all cases the Landlord shall act
reasonably in applying such provisions:
(a) If the building or the Leased Premises are totally destroyed or are
partially destroyed so as in the opinion of the Landlord to render the Leased
Premises wholly unfit for occupancy by the Tenant, or if they shall be so badly
damaged that they cannot in the opinion of the Landlord, acting reasonably, be
repaired with reasonable diligence within ninety (90) days of the happening of
such damage, then this Lease shall at the option of the Landlord or Tenant
cease and become null and void from the date of such damage or destruction and
the Tenant shall immediately surrender the Leased Premises and all interest
therein to the Landlord, and the Tenant shall pay rent only to the time of such
damage or destruction, and the Landlord may re-enter or re-possess the Leased
Premises, discharged of this Lease, and remove all parties therefrom.
(b) But if the building or the Leased Premises are partially destroyed and can
in the opinion of the Landlord be repaired with reasonable diligence within
ninety (90) days from the happening of such damage and if the damage is such as
to render the Leased Premises wholly unfit for occupancy by the Tenant, then
the rent shall not run or accrue after said damage, while the process of
repairs is going on, and the Landlord shall repair same with all reasonable
speed, and then the rent shall recommence immediately after said repairs shall
be completed.
(c) But if the building or the Leased Premises can in the opinion of the
Landlord be repaired within ninety (90) days from the happening of such damage,
and if the damage is such that the Leased Premises can be partially used by the
Tenant, then until such damage shall have been repaired, the rent shall xxxxx
in the proportion that the portion of the Leased Premises rendered unfit for
occupancy bears to the whole of the Leased Premises, and the Landlord shall
repair same with all reasonable speed.
Provided, that, if, upon the completion by the Landlord of any repairs
required as a result of any such destruction or damage a dispute shall arise
between the Landlord and the Tenant as to whether or not the Leased Premises
have been made fit for the purposes of the Tenant under this Lease, the
Landlord may at its option terminate this Lease by giving thirty (30) days
notice to the Tenant and if such notice shall be given this Lease shall, at the
expiration of such period be at an end and the Tenant shall deliver up the
Leased Premises to the Landlord or whom it may appoint and the Landlord may on
demand recover the full rental hereby reserved computed from the date on which
such repairs were completed up to the Date on which the Tenant is required to
vacate.
Provided further that if any such total or partial destruction or damage
is caused in whole or in part by any fault or neglect on the part of the Tenant
or of any person subject to the Tenant nothing herein contained shall release
or discharge the Tenant from liability for any loss or damage thereby sustained
by the Landlord.
DAMAGE OF PROPERTY
10. Except in a clear and direct event of negligence by the Landlord or those
for whom the Landlord is, in law, responsible, the Landlord shall not be liable
or responsible in any way for any loss of or damage or injury to any property
belonging to the Tenant or to employees of the Tenant or to any other person
while such property is on the
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Leased Premises or in the building or in or on the surrounding lands and
buildings owned by the Landlord whether or not such property has been entrusted
to employees of the Landlord and without limiting the generality of the
foregoing, the Landlord shall not be liable for any damage to any such property
caused by steam, water, rain or snow which may leak into, issue or flow from
any part of the building or from the water, steam or drainage pipes or plumbing
works of the building or from any other place or quarter or from any damage
caused by or attributable to the condition or arrangement of any electric or
other wiring or for any damage caused by anything done or omitted by any other
tenant.
DELAYS IN PROVISION OF SERVICE
11. Except for willful neglect by the Landlord and subject to paragraph 9(a)
herein, it is understood and agreed that whenever and to the extent that the
Landlord shall be unable to fulfill, or shall be delayed or restricted in the
fulfillment of any obligation hereunder in respect of the supply or provision of
any service or utility or the doing of any work or the making of any repairs by
reason of being unable to obtain the material, goods, equipment, service,
utility or labour required to enable it to fulfill such obligation or by reason
of any statute, law or order-in-council or any regulation or order passed or
made pursuant thereto or by reason of the order or direction of any
administrator, controller or board, or any governmental department or officer of
other authority, or by reason of not being able to obtain any permission or
authority required thereby or by reason of any other cause beyond its control
whether in the foregoing character or not, the Landlord shall be entitled to
extend the time for fulfillment of such obligation by a time equal to the
duration of such delay or restriction, and the Tenant shall not be entitled to
compensation for any inconvenience, nuisance or discomfort thereby occasioned.
DEFAULT OF TENANT
12. Provided and it is hereby expressly agreed that if and whenever the rent
hereby reserved or any part thereof shall not be paid on the day appointed for
payment thereof, whether lawfully demanded or not, or in case of breach or
non-observance or non-performance of any of the covenants, agreements,
provisos, conditions or rules and regulations on the part of the Tenant to be
kept, observed or performed, or in case the Leased Premises shall be vacated
or remain unoccupied for fifteen (15) days then and in every such case, it
shall be lawful for the Landlord thereafter to enter into and upon the Leased
Premises or any part thereof in the name of the whole and the same to have
again, repossess and enjoy as of its former estate, anything in this Lease
obtained to the contrary notwithstanding other than the proviso to this
Paragraph 12;
Provided that notwithstanding anything to the contrary herein before in
this Paragraph 12 contained, the Landlord shall not at any time have the right
to re-enter and forfeit this Lease by reason of the Tenant's default in the
payment of the rent reserved by this Lease, unless and until the Landlord shall
have given to the Tenant at least five (5) business days written notice of its
intention so to do and setting forth the default complained of and the Tenant
shall have the right during such five (5) business days to cure any such
default in payment of rent or fifteen (15) business days for other non-monetary
defaults.
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BANKRUPTCY, ETC.
13. Provided further that in case without the written consent of the Landlord
the Leased Premises shall be used by any other person than the Tenant or for
any other purpose than that for which the same were let or in case the term or
any of the goods and chattels of the Tenant shall be at any time seized in
execution or attachment by any creditor of the Tenant or the Tenant shall make
any assignment for the benefit of creditors or any bulk sale without the
consent of the Landlord or become bankrupt or insolvent or take the benefit of
any Act now or hereafter in force for bankrupt or insolvent debtors, or, if the
Tenant is a corporation and any order shall be made for the winding up of the
Tenant, or other termination of the corporate existence of the Tenant, then in
any such case this Lease shall, at the option of the Landlord, be terminated
and the term shall immediately become forfeited and void and the then current
month's rent and the next ensuing three (3) months rent shall immediately
become due and be paid and the Landlord may re-enter and take possession of the
Leased Premises as though the Tenant or other occupant or occupants of the
Leased Premises was or were holding over after the expiration of the Term
without any right whatever.
RE-ENTRY BY LANDLORD
14. The Tenant further covenants and agrees that on the Landlord's becoming
entitled to re-enter upon the Leased Premises under any of the provisions of
this Lease, the Landlord in addition to all other rights shall have the right
to enter the Leased Premises as the agent of the Tenant either by force or
otherwise, without being liable for any prosecution therefor and to re-let the
Leased Premises as the agent of the Tenant, and to receive the rent therefor
and as the agent of the Tenant, to take possession of any furniture or other
property on the Leased Premises and to sell the same at public or private sale
without notice and to apply the proceeds of such sale and any rent derived from
reletting the Leased Premises upon account of the rent under this Lease, and
the Tenant shall be liable to the Landlord for the deficiency, if any.
RIGHT OF TERMINATION
15. The Tenant further covenants and agrees that upon the Landlord becoming
entitled to re-enter upon the Leased Premises under any of the provisions of
this Lease, the Landlord, in addition to all other rights, shall have the right
to terminate forthwith this Lease and the term by leaving upon the Leased
Premises notice in writing of its intention so to do, and thereupon, rent shall
be computed, apportioned and paid in full to the date of such termination of
this Lease and any other payments for which the Tenant is liable under this
Lease shall be paid and the Tenant shall immediately deliver up possession of
the Leased Premises to the Landlord, and the Landlord may re-enter and take
possession of same.
DISTRESS
16. The Tenant waives and renounces the benefit of any present or future
statute taking away or limiting the Landlord's right of distress, and covenants
and agrees that notwithstanding any such statute, none of the goods and
chattels of the Tenant on the Leased Premises at any time during the term shall
be exempt from levy by distress for rent in arrears. In the event that the
Tenant shall remove or permit the removal of any of its goods or chattels from
the Leased Premises, the Landlord may within thirty (30) days thereafter and if
the Tenant is in arrears of rent, seize such goods and chattels wherever the
same may be found and may sell or otherwise dispose of same as if they had
actually been distrained upon the Leased Premises by the Landlord for arrears
of rent.
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LANDLORD'S AND TENANT'S WORK
17. The Landlord and Tenant agree to perform and pay for their respective work
on the building and the Leased Premises as outlined in Schedules "D" and "E" to
be provided.
NON-WAIVER
18. No condoning, excusing or overlooking by the Landlord of any default,
breach or non-observance by the Tenant at any time or times in respect of any
covenant, proviso or condition herein contained shall operate as a waiver of
the Landlord's rights hereunder in respect of any continuing or subsequent
default, breach or non-observance, or so as to defeat or affect in any way the
rights of the Landlord herein in respect of any such continuing or subsequent
default or breach, and no waiver shall be inferred from or implied by anything
done or omitted by the Landlord save only express waiver in writing. All rights
and remedies of the Landlord in this Lease contained shall be cumulative and
not alternative.
SURRENDER OF PREMISES
19. (i) SURRENDER: At the expiration or earlier termination of the Lease,
the Tenant shall surrender to the Landlord the Premises in as good condition and
repair as the Tenant is required to maintain the Premises throughout the Term
together with all alterations, additions, improvements and fixtures which may
have been made or installed in, on, or to the Premises, except movable trade
fixtures installed at the Tenant's sole expense. The Tenant shall also surrender
at that time all keys for the Premises to the Landlord at the place then fixed
for the payment of Rent, and shall inform the Landlord of all combinations of
locks, safes and vaults, if any, in the Premises. The Tenant shall, however,
remove all its movable trade fixtures, and any other alterations, additions, or
improvements if requested by the Landlord as provided in section 19.(ii) hereof,
before surrendering the Premises as aforesaid, and shall forthwith repair any
damage to the Premises caused by their installation or removal. The Tenant's
obligation to observe and perform this covenant shall survive the expiration or
earlier termination of the Term.
(ii) Removal and Restoration by Tenant:
a) All alterations, decorations, additions and improvements made by the
Tenant, or by the Landlord on the Tenant's behalf (other than the
Tenant's Movable Trade Fixtures) shall immediately become the
property of the Landlord without compensation therefore to the
Tenant but the Landlord is under no obligation to repair, maintain
or insure such alterations, decorations, additions or improvements.
Such alterations, decorations, additions or improvements shall not
be removed from the Premises either during or at the expiration or
earlier termination of the Term except that: (i) the Tenant may
during the Term in the usual or normal course of its business and
with the prior written consent of the Landlord remove its Movable
Trade Fixtures provided that such Movable Trade Fixtures have become
excess for the Tenant's purposes or the Tenant is substituting new
and similar Movable Trade Fixtures therefore, and provided that in
each case, the Tenant is not in default under this Lease, and such
removal is done at the Tenant's sole cost and expense; and, (ii) the
Tenant shall, at the expiration of the Term, at its own cost, remove
all its Movable Trade Fixtures, and such of its leasehold
improvements and fixtures installed in the Premises as the Landlord
by notice requires to be removed.
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(b) If the Tenant does not remove its Movable Trade Fixtures at the
expiration or earlier termination of the Term, such fixtures
shall, at the option of the Landlord, become the property of the
Landlord and may be removed from the Premises and sold or be
disposed of by the Landlord in such manner as it deems advisable.
(c) The Tenant shall, in the case of every such installation or
removal either during or at the expiration of the Term effect the
same at times designated by the Landlord and promptly repair any
damage caused to the Premises or the building by the installation
or removal of any such alteration, fixture, decoration, addition
or improvement.
(d) For greater certainty, the Tenant's fixtures shall not include
any
(i) heating, ventilating or air conditioning systems,
facilities and equipment in, or serving the Premises;
(ii) floor covering affixed to the floor of the Premises;
(iii) light fixtures; and,
(iv) any fixtures, facilities, equipment or installations
installed by or at the expense of the Landlord.
(iii) Indemnity. If the Premises is not surrendered at the end of the
Term, then the Tenant shall indemnify the Landlord against any and all loss or
liability resulting from such delay by the Tenant in so surrendering the
Premises, including without limitation, any claims founded on such delay made by
any succeeding occupant of the Premises or any part thereof, and the Tenant
shall be liable to the Landlord for legal fees (on a solicitor and his client
basis), and all other costs and expenses incurred by the Landlord in obtaining
possession of the Premises.
(iv) No Tacit Renewal. If the Tenant remains in possession of the
Premises after the end of the Term, and without the execution and delivery of a
new lease, or a written renewal or extension of this Lease, there shall be no
tacit or other renewal of this Lease, and the Tenant will be considered to be
occupying the Premises as a tenant from month to month at a monthly Rent,
payable in advance on the first day of each month equal to the sum of
(a) The same monthly installment of Minimum Rent payable for the
last month of the Term, and
(b) One-twelfth of the amount of Additional Rent and charges
paid or payable by the Tenant for the last Lease Year of the Term, and
otherwise upon the terms and conditions set forth in this Lease, so far as
applicable.
RECOVERY OF ADJUSTMENT
20. The Landlord shall have (in addition to any other right or remedy of the
Landlord) the same rights and remedies in the event of default by the Tenant in
payment of any amount payable by the Tenant hereunder, as the Landlord would
have in the case of default in payment of rent.
NOTICE
21. Any notice required or contemplated by any provisions of this Lease shall
be given in writing enclosed in a sealed envelope addressed, in the case of
notice to the Landlord, at 000 XXXX XXXXXX, 0XX XXXXX, XXXXXX, XXXXXXX XXX 0X0
and in the case of notice to the Tenant, to it at the Leased Premises and
mailed, registered and postage prepaid. The time of giving of such notice shall
be conclusively deemed to be the fourth (4th) business day after the day of
such mailing. Such notice shall be delivered, in the case of notice to the
Landlord, to an executive officer of the Landlord, and
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in the case of notice to the Tenant, to it personally, or to the manager
operating the Tenant's business upon the Leased Premises, or to any executive
or senior officer or director of the Tenant if the Tenant is a corporation.
Such notice, if delivered shall be conclusively deemed to have been given and
received at the time of such delivery. If in this Lease two or more persons are
named as Tenant, such notice shall also be sufficiently given if and when the
same shall be delivered personally to any one of such persons. Provided that
either party may, by notice to the other from time to time designate another
address in Canada to which notices mailed more than ten (10) days thereafter
shall be addressed.
SUBORDINATION
22. This Lease is subject and subordinate to all ground or underlying leases
and to all mortgages (including any deed of trust and mortgage securing bonds
and all indentures supplemental thereto) which may now or hereafter affect such
leases, the Leased Premises, the building and/or the property where the building
is situated and to all renewals, modifications, consolidations, replacements and
extensions thereof. The Tenant agrees to execute promptly any certificate in
confirmation of such subordination as the Landlord may request and hereby
constitutes the Landlord the agent or attorney of the Tenant for the purpose of
executing any such certificate and of making application at any time and from
time to time to register postponements of this Lease in favour of any such
mortgage in order to give effect to the foregoing provisions of this paragraph.
At the written request of the Tenant, the Landlord shall use its best efforts to
obtain non-disturbance agreements from any mortgagee registered on the Property.
LEASE ENTIRE AGREEMENT
23. The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions expressed or implied, collateral or
otherwise forming part of or in any way affecting or relating to this Lease save
as expressly set out in this Lease and that this Lease constitutes the entire
agreement between the Landlord and the Tenant and may not be modified except as
herein explicitly provided or except by subsequent agreement in writing of equal
formality hereto executed by the Landlord and the Tenant.
REGISTRATION
24. The Tenant covenants and agrees with the Landlord that the Tenant will not
register this Lease in this form in the Registry Office or the Land Titles
Office. If the Tenant desires to make a registration for the purpose only of
giving notice of this Lease, then the parties hereto shall contemporaneously
with the execution of this Lease execute a short form thereof solely for the
purpose of supporting an application for registration of notice thereof.
OPTION TO RENEW
25. So long as the Tenant is not in default under the terms of this Lease the
Landlord hereby grants to the Tenant an option to renew this Lease for a further
term of five (5) years; provided that in order to exercise its option for the
said renewal period, the Tenant shall be required to give to the Landlord notice
thereof in writing not less than 12 months before the date of expiry of the Term
of this Lease. Any renewal pursuant to this proviso shall be on the terms and
conditions contained in this Lease except:-
a) there shall be no additional right of renewal; and
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(b) the Minimum Rent shall be at the then prevailing market rental
rate but in any case it shall not be less than the Minimum Rental rate
called for during the last year of the Term nor shall it be more than one
hundred and twenty percent (120%) of the Minimum Rental Rate called for
during the last year of the Term.
NET/NET/NET RENT
26. It is expressly agreed between the Landlord and the Tenant that it is
intended that the rent reserved in this Lease shall be absolutely net/net/net
return to the Landlord during the Term of the Lease without regard to the
condition of the Leased Premises, and that the Landlord shall be free of any
and all costs, expenses, taxes and charges with respect to the Leased Premises
whatsoever, save and except only taxes which are attributable to the income or
profits of the Landlord and any charges to the Landlord in respect of the
amortization or interest under any mortgage or charge on the building.
PAYMENTS BY TENANT
27. In addition to any other specific provisions herein contained, where the
Tenant is obligated under the terms of this Lease to pay any monies, whether to
the Landlord or any third party, or to do any act involving the payment of
money, and the Tenant shall fail to carry out its obligations, the Landlord may
do such act or pay such monies and charge the cost of doing such act or the
amount of such monies paid against the Tenant and may enforce the payment
thereof by the Tenant in the same manner as if rent had not been paid on a
timely basis under the terms of this Lease, and the Tenant shall pay unto the
Landlord, in respect of any amount so paid in respect of any rent or
additional rent not paid on the due date thereof, interest at the rate computed
in accordance with Paragraph 3(h) hereof.
POST-DATED CHEQUES
28. Deleted Intentionally (see Clause 36)
INTERPRETATION
29. (a) In this Indenture "herein", "hereof", "hereby", "hereto",
"hereinafter" and similar expressions refer to this lease or indenture and not
to any particular paragraph, section or other portion thereof, unless there is
something in the subject matter or context inconsistent therewith.
(b) "business day" means any of the days from Monday to Friday of
each week inclusive unless such day is a holiday.
(c) "normal business hours" means the hours from 8:00 a.m. to 6:00
p.m. on business days.
So long as the Tenant pays for associated costs, including but not limited
to incremental heating, lighting, ventilation or cooling costs associated with
operations outside of normal business hours, if any, the Landlord shall ensure
that the Tenant's employees can comfortably work in the Leased Premises outside
of "normal business hours".
SEVERABILITY OF COVENANTS.
30. The Landlord and the Tenant agree that all of the provisions of this Lease
are to be construed as covenants and agreements as though the words importing
such covenants and agreements were used in each separate paragraph hereof.
Should any provision or provisions of this Lease be illegal or not enforceable,
it or they shall be considered separate and severable from the Lease and its
remaining provisions shall remain in force and be binding upon the parties
hereto as though the said provision or provisions had never been included.
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CAPTIONS
31. The captions appearing in this Lease have been inserted as a matter of
convenience and for reference only, and in no way define, limit or enlarge the
scope or meaning of this Lease or of any provision hereof.
SUCCESSORS & ASSIGNS
32. This indenture and everything herein contained shall ensure to the benefit
of and be binding upon the respective heirs, executors, administrators,
successors and assigns and other legal representatives as the case may be, of
each and every of the parties hereto, and every reference herein to any party
hereto shall include the heirs, executors, administrators, successors and
assigns and other legal representatives of such party, and where there is more
than one tenant, the provisions hereof shall be read with all grammatical
changes thereby rendered necessary, and all covenants shall be deemed joint and
several. The neutral gender shall include both the masculine and feminine
gender.
ADDITIONAL TAXES
33. If any business transfer tax, value-added tax, multi-stage sales tax,
sales tax, goods and services tax (GST) or any like tax is imposed on the
Landlord by any governmental authority on any rent payable by the Tenant under
this Lease, the Tenant shall reimburse the Landlord for the amount of such tax
forthwith upon demand as additional rent.
CHANGES TO BUILDING
34. The Landlord hereby reserves the right at any time and from time to time to
make changes in, additions to, subtractions from or rearrangements of the
building including, without limitation, all improvements at any time thereon,
all entrances and exits thereto, and to grant, modify and terminate easements or
other agreements pertaining to the use and maintenance of all or parts of the
lands and building and to make changes and additions to the pipes, conduits,
utilities and other necessary building services in the Leased Premises which
serve other premises, provided that prior to the commencement of such work, if
necessary, the Landlord may alter or relocate the Tenant from all or part of the
Lease Premises, to the extent found necessary by the Landlord, to accommodate
changes in construction design or facilities including major alterations and
relocations. The Landlord agrees that in performing such alterations, it shall
do so in a manner so as to minimize any material interference with the Tenant's
use and enjoyment of the Leased Premises and will pay reasonable cost that the
Tenant may incur as a result of such changes. The Landlord shall have the right
during the Term, at its reasonable expense, to relocate the Tenant from the
Leased Premises to an alternate location within the building so long as the
Landlord ensures the relocated premises will not be smaller and if it is bigger,
the Tenant will pay no additional rent as a result.
GUARANTEE
35. Deleted Intentionally
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POST-DATED CHEQUES:
36. The Tenant agrees to deliver to the Landlord upon the execution of this
Lease, a series of twelve (12) post-dated cheques to cover the monthly
installments of rent and additional rents hereinbefore reserved for the twelve
(12) month period commencing with the Commencement Date of this Lease, and
annually throughout the term of this Lease, the Tenant covenants to deliver to
the Landlord a series of twelve (12) post-dated cheques to cover rent for the
ensuing twelve (12) month period. The Landlord agrees that in lieu of receiving
post-dated cheques as required herein, the Landlord will accept the Tenant
paying all its rent obligations by automatic bank deposit so long as all such
payments are made at the times required herein.
LANDLORD CONDITION
37. The Tenant must return this lease duly executed by the Tenant accompanied
by both the Security Requirement of $430,000 and the $477,200 to be applied on
account of the cost of the Tenant's improvements by no later than December 20,
2000, failing which this Lease shall be null and void.
IN WITNESS WHEREOF the parties hereto have hereunto set their respective
hands and seals and/or affixed their corporate seals duly attested to by the
hands of their proper signing officer(s) authorized in that behalf.
SIGNED, SEALED AND DELIVERED SILVER SEVEN ROAD INC. AND 856581 ALBERTA LTD.
In the presence of: ) (LANDLORD)
)
)
) Per /s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxx Per:
----------------------------------------------
)
)
) Name: Xxxxxx Xxxx Xxxxxx Xxxx
) Position: President Director
) I HAVE AUTHORITY TO BIND THE CORPORATION.
UNISPHERE NETWORKS, INC.
) (TENANT)
)
)
)
Per /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
)
) Name: Xxxxxxx X. Xxxxxxxxxx
) Position: General Counsel & Secretary
) I HAVE AUTHORITY TO BIND THE CORPORATION.
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SCHEDULE "A"
Legal Description -- Lands
BEING:
Part of Lot 1, Concession 2, formerly in the Township of March, now in the
City of Kanata, Regional Municipality of Ottawa-Carleton and designated as
Parts 4, 5 and 6 on Plan 4R-14540 and
Part of Lot 1, Concession 2, formerly in the Township of March, now in the City
of Kanata, Regional Municipality of Ottawa-Carleton and designated as Parts 7
and 8 on Plan 4R-14540.
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Schedule "B"
FLOOR PLAN
[FLOOR LAYOUT CHART]
SILVER XXXXX XXXXXX XXXXXXXX
XXXXXX XXXXX
00
00
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SCHEDULE "C"
Rules and Regulations
The Tenant and its invitees and employees shall observe the following rules and
regulations (as added to, amended or modified from time to time by the
Landlord).
1. SECURITY: Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, any persons
occupying, using or entering the same, or any equipment finishings or
contents thereof, and Tenant shall comply with Landlord's reasonable
requirements relative thereto.
2. LOCKS: Landlord may from time to time install and change locking
mechanisms on the entrances to the Building, common area thereof, and the
Premises, and shall provide to the Tenant a reasonable number of keys and
replacements therefore to meet the bona fide requirements of the Tenant. In
these rules "keys" include any device serving the same purpose. Tenant
shall not add to or change existing locking mechanisms on any door in or to
the Leased Premises without Landlord's prior written consent and without
providing a copy of the key to the Landlord. If, with Landlord's consent,
Tenant installs lock(s) incompatible with the Building master locking
system:
(a) Landlord, without abatement of Rent, shall be relieved of any
obligation under the Lease to provide any service to the affected
areas which require access thereto,
(b) Tenant shall indemnify Landlord against any expense as a result of
forced entry thereto which may be required in an emergency, and
(c) Tenant shall at the end of the Term and at Landlord's request remove
such lock(s) at Tenant's expense
3. RETURN OF KEYS: At the end of the Term, Tenant shall promptly return to
Landlord all keys for the Building and Leased Premises which are in
possession of Tenant.
4. WINDOWS: Tenant shall observe Landlord's rules with respect to maintaining
window coverings at all windows in the Leased Premises so that the Building
presents a uniform exterior appearance, and shall not install any window
shades, screens, drapes, covers or any other on or at window in the Leased
Premises without Landlord's prior written consent.
5. REPAIR, MAINTENANCE, ALTERATIONS AND IMPROVEMENTS: Tenant shall carry out
Tenant's repair, maintenance, alterations and improvements in the Leased
Premises only during times agreed to in advance by Landlord and in a manner
in which will not interfere with the rights of other tenants in the
Building.
6. WATER FIXTURES: Tenant shall not use water fixtures for any purpose for
which they are not intended, nor shall Tenant tamper in any way with water
fixtures so as to increase water consumption. Tenant shall pay for any cost
or damage resulting from such misuse by Tenant.
7. PERSONAL USE OF LEASED PREMISES: The Leased Premises shall not be used or
permitted to be used for residential, lodging or sleeping purposes or for
the storage of personal effects or property not required for business
purposes.
8. HEAVY ARTICLES: Tenant shall not place in or move about the Leased Premises
without Landlord's prior written consent any safe or other heavy article,
which in the Landlord's reasonable opinion may damage the Building and
Landlord may designate the location of any heavy articles in the Leased
Premises.
9. CARPET PADS: In those portions of the Leased Premises where carpet has been
provided directly or indirectly by Landlord, Tenant shall at its own
expense install and maintain pads to protect the carpet under all furniture
having casters other than carpet casters.
10. BICYCLES, ANIMALS: Tenant shall not bring any animals or birds into the
Building and shall not permit bicycles or other vehicles inside or on the
sidewalks outside the Building except in areas designated from time to time
by Landlord for such purposes.
11. DELIVERIES: Tenant shall insure that deliveries of materials and supplies
to the Leased Premises are made through such entrances, elevators and
corridors and at such times as may from time to time be designated by
Landlord, and shall promptly pay or cause to be paid to Landlord the cost
of repairing any damage to the Building caused by any person making such
deliveries.
12. FURNITURE AND EQUIPMENT: Tenant shall insure that furniture and equipment
being moved into or out of the Leased Premises is moved through such
entrances, elevators and corridors and at such times as may from time to
time
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be designated by the Landlord, and by movers or a moving company approved
by Landlord and shall promptly pay or cause to be paid to Landlord the
cost of repairing any damage in the Building caused thereby.
13. SOLICITATIONS: Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
14. FOOD AND BEVERAGES: Tenant shall be permitted the use of the equipment on
the Leased Premises for the dispensation of soft drinks, cold
confectioneries and the like, for the preparation of coffee, tea and the
like, and for the warning of food already prepared. The Tenant shall not
permit on the premise equipment for the preparation of food. In addition
only persons approved from time to time by the Landlord may prepare,
solicit orders for, sell, serve, or distribute foods or beverages in the
Building or use the elevators, corridors or common areas for such purpose.
This however shall not prevent the Tenant from using catering services
from time to time for special occasions as luncheons and receptions.
15. REFUSE: Tenant shall place all refuse in proper receptacles provided by
Tenant at its expense in the Leased Premises or in receptacles (if any)
provided by Landlord for the Building and shall keep sidewalks and
driveways outside the Building and lobbies, corridors, stairwells, ducts
and shafts of the Building free of all refuse.
16. OBSTRUCTIONS: Tenant shall not obstruct or place anything in or on the
sidewalks or driveways outside the building or in the lobbies, corridors,
stairwells or other common areas of the Building, or use such locations
for any purpose except access to and exit from the Leased Premises without
Landlord's prior written consent. Landlord may remove at Tenant's expense
any such obstruction or thing (unauthorized by Landlord) without notice or
obligation to Tenant.
17. DANGEROUS OR IMMORAL ACTIVITIES: Tenant shall not make any use of the
Leased Premises which involves the danger or injury to any person, nor
shall the same be used for any immoral purpose.
18. PROPER CONDUCT: Tenant shall not conduct itself in any manner which is
inconsistent with the character of the Building as a first quality
building or which will impair the comfort and convenience of other tenants
in the building.
19. EMPLOYEES, AGENTS AND INVITEES: In these Rules and Regulations, Tenant
includes the employees, agents, invitees and licensees of Tenant and
others permitted by Tenant to use or occupy the Leased Premises.
20. PARKING: The Tenant, its employees, agents and suppliers shall park only
in those portions of the parking area on the Land designated for such
purposes by the Landlord. If required by Landlord to control parking,
Tenant will provide Landlord with the license numbers of the cars of
Tenant and its employees authorized to park in the parking area.
21. WINDOWS AND WINDOW COVERINGS: The skylights and windows that reflect or
admit light into any place in the Building shall not be covered or
obstructed by the Tenant, and no awnings, curtains or blinds shall be
installed without the prior written consent of the Landlord. Window
coverings that are installed shall have lining on the side facing the
interior side of exterior windows. The Tenant shall not and shall not
permit its employees, agents or invitees to throw anything out the windows
or doors of the Building or into the passageways, stairways, lightwells or
elevators shafts of the Building.
22. SMOKING: Smoking is prohibited in all common areas of the Building.
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SCHEDULE "D"
LANDLORD'S WORK
1. LANDLORD'S WORK (BASE BUILDING WORK)
The Landlord is not required to provide any materials or to do any work to
or in respect of the Premises except the work and materials listed below
("Landlord's Work"). The following base building will be provided by the
Landlord at no cost to the Tenant.
ACCESS
Access to and from the building shall be in keeping with Barrier-Free Design
AMENITIES
Spacious Men's and Women's washrooms on each floor, each with a number of
toilets and sinks that comply with the applicable building code. Bathroom walls
are to be a mix of glazed ceramic and painted drywall with ceramic tiles on
floor. Washroom partitions and handicap stalls as required by building codes.
Fluorescent lighting, mirrors over each vanity, duplex electrical outlets
over the vanity, and hot and cold domestic water supply and drains. The
Landlord will install on the ground floor only, 3 single partitioned showers in
women's washroom and 4 single partitioned showers in men's washroom. These
showers will be considered common area and for use of all tenants of the
Building.
BUILDING CHARACTERISTICS
A concrete and/or steel structure with exterior enclosure including a common
lobby, elevators and stairwells as per applicable building code and finished to
a Class A Commercial office space standard:
Fully sprinklered building to open concept.
Floor plate will be approximately 14,000 sq. ft.
Floor live loading will be at least 50 lbs./SF.
Slab to slab height in Premises of approximately 12 feet.
Exposed ceiling structure ready for installation of mechanical and electrical
systems, distribution, and finished suspended ceiling.
All mechanical and electrical services and control systems sized to equivalent
Class A Commercial office space standard, and roughed into each floor level
ready for the Tenant to provide service distribution and fixtures
installation. For clarification, all purchase and installation of all
electrical wiring, mechanical systems and any and all fixtures including but
not limited to lighting shall be at the Tenant's cost and shall form part of
the Tenant's work.
The inside of the exterior walls and core walls and columns finished to a
primed drywall, ready for paint or other finishes.
Smooth concrete floors, ready to receive applied flooring finishes.
MISCELLANEOUS
Janitor Room on each floor, complete with slop sink, hot and cold water.
Suite Entry Signage and Directory Signage in Lobby.
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PARKING
A lighted parking area which shall include handicap parking spaces and visitor
parking.
SERVICES
2 Passenger Elevators each with 2500 lb. capacity and a speed of 125 f/p/m.
Security card access system for access to the building entrances and elevators
after normal business hours.
Loading Area to be double doors at grade at the rear of the building
A common mail box will be provided for Tenants
An electronically zoned fire alarm system in accordance with applicable building
code.
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SCHEDULE "E"
TENANT IMPROVEMENTS
The Tenant will be responsible for purchase and installation of all materials,
products and services and all costs related thereto, associated with their
Tenant Improvements as and where noted in Schedule "D" and as detailed in this
Schedule "E" and will include but not be limited to the following:
All plans and work for the Tenant Improvements must be prepared by the Tenant at
the Tenant's expense and must be submitted to and approved by the Landlord
before any work is done. The Tenant must use the Landlord and its general
contractor to perform all work associated with Tenant Improvements.
ELECTRICAL POWER:
All distribution wiring and devices, including electrical outlets from the
point of entry to each floor.
LIGHTING:
All wiring, circuiting and fixtures for all lighting in Leased Premises.
HVAC:
Any stand-alone air conditioning system and the final distribution of the base
building system to suit the Tenants requirements including all ducts, diffusers,
insulation, contacts and final electrical connections.
VERTICAL CIRCULATION:
Non-code mandated stairs, stair finish upgrade.
PLUMBING:
All distribution, fixtures and other plumbing work outside of core and away from
core wet stacks.
FIRE PROTECTION:
Reconfiguration and or additions to base building sprinkler system to suit
Tenant's office layout.
WALLS:
All partitions, door frames, doors, finish hardware in Leased Premises.
FINISHES:
All wall finishes (e.g., paint, wall coverings, paneling), interior glazing,
floor and window coverings in Leased Premises.
Ceilings:
Installation of any and all ceilings including but not limited to T-Bar ceiling,
inlay tile and any special ceilings or bulkheads as well as any painting or
other finishes in an open ceiling concept. All T-Bar ceiling grids shall be 20"
by 60".
SPECIALTY SYSTEMS:
Providing and installing cable tray, telephone system cabling, kitchen
equipment, audio/visual equipment, etc.
MILLWORK:
Any and all built in custom millwork required or requested by the Tenant for
kitchen, boardrooms reception areas including the reception desk or any other
area of the Leased Premises.
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ARCHITECTURAL, ENGINEERING AND PERMITS:
The Tenant will be responsible for all architectural, structural, mechanical,
electrical and design fees for their interior fit-up drawings for the Tenant
Improvements or any other fees related to their Tenant Improvements. The Tenant
will also be responsible for the cost of the building permits related to
their Tenant Improvements.
OVERHEAD, SUPERVISION AND GENERAL CONDITIONS:
The Tenant will pay a cost for site overhead which shall not amount to more than
ten percent (10%) of the costs and the Tenant shall be provided with evidence of
such costs. In addition, the Tenant will pay a contractor's markup of 5% of the
cost of the Tenant's fit-up costs. Both the above noted calculations shall only
be applied on Tenant fit-up costs which shall exclude the site overhead costs
and the contractor's five percent (5%) xxxx-up.
SIGNAGE:
All external signage related to the Tenant will be at the Tenant's cost but must
be approved, in writing, by the Landlord.
PAYMENTS:
With reference to such Tenant improvements, the Tenant hereby acknowledges that
the cost for their improvements are estimated to be in the range of $25.00 to
$30.00 per square foot, and shall be payable by the Tenant on an ongoing basis
as such improvements are being constructed and the Tenant shall make all
payments required within ten (10) days of being invoiced by the Landlord or its
contractors and suppliers.
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SCHEDULE F
The following forms an integral part of this Lease. Along with paragraph 3 d)
of this Lease, it contains the terms and conditions relating to the Landlord's
security requirement of $430,000.00 (hereafter "Security Requirement").
a) The $430,000 Security Requirement and associated interest shall be held by
the Landlord as security for the faithful performance by the Tenant of all
terms, covenants and conditions of this Lease by the Tenant to be kept,
observed and performed and irrespective of:
(i) the unenforceability of this Lease against the Tenant;
(ii) the termination of any obligations of the Tenant under this Lease
by operation of law or otherwise except due to termination
resulting from breach by Landlord; or
b) the bankruptcy, insolvency, dissolution or other liquidation of
the Tenant including, without limitation, any surrender or
disclaimer of this Lease by a Trustee in Bankruptcy of the Tenant.
The rights of the Landlord to apply the Security Requirement to address any
financial or other obligation not met by the Tenant as called for in this
Lease, shall be in no way prejudiced or impaired by any neglect, delay or
forbearance of the Landlord in demanding, requiring or enforcing performance
by the Tenant or any other obligated person of any of its obligations under
this Lease or by granting any extensions of time for performance, or by
waiving any performance (except as to the particular performance which has
been waived), or by permitting or consenting to any assignment in bankruptcy
or filing of a notice of intention to make a proposal or a proposal under the
Bankruptcy and Insolvency Act (Canada) or commencement of proceedings under
the Companies Creditors Arrangement Act or by the bankruptcy, receivership,
insolvency or any other creditor's proceedings of or against the Tenant, or
by the winding up or dissolution of the Tenant, or any other event or
occurrence which would have the effect at law of terminating the existence of
obligations of the Tenant prior to the expiry of this Lease except due to
termination resulting from breach by Landlord or by any agreements or other
dealings between the Landlord and Tenant having the effect of amending or
altering this Lease or the obligations of the Tenant hereunder or by any
matter, thing, act or omission of the Landlord whatsoever;
b) If, at any time during the Term, any rent owing by the Tenant under the Lease
is overdue and unpaid, or if the Tenant fails to keep or perform any of the
terms, covenants and conditions of this Lease to be kept, observed and
performed by the Tenant irrespective of the matters referred to in
subparagraph (a) then, the Landlord, at its option, may, in addition to any
and all other rights and remedies provided for in this Lease or by law,
appropriate and use the Security Requirement to the extent necessary to
compensate the Landlord for loss or damage sustained or suffered by the
Landlord due to such breach on the part of the Tenant. The Tenant further
agrees that upon any abandonment of the Leased, disclaimer of this Lease by
an assignee, liquidator, or trustee in bankruptcy or other termination by
operation of law or repudiation or disclaimer under any bankruptcy or
insolvency law (collectively an "Insolvency"), the Landlord may fully use the
Security Requirement and draw the entire amount of it to meet any of the
Tenant's obligations in this Lease, as if such had not occurred, and without
obligation whatsoever to account to the Tenant or to quantify it loss or
damage. Without prejudice to any other rights which the Landlord may have
under this Lease or at law, the Tenant agrees that the Landlord may use the
Security Requirement on default by the Tenant in such amount as it deems
reasonable in its sole judgment.
c) If all or any part of the amount available to the Landlord under the Security
Requirement is used by the Landlord at any time to meet any of the Tenant's
obligations in this Lease, then on demand from the Landlord the Tenant shall
restore the Security Requirement to the original amount specified above.
In addition and again, in the event of any default by the Tenant of its
obligations in this Lease, the Landlord may apply at its option and without
prejudice to any other rights which the Landlord may have, all or any part of
the Security Requirement to compensate the Landlord for any loss, damage or
expense sustained by the Landlord as a result of such event. If all or any
part of the Security Requirement is so applied, the Tenant shall restore the
Security Requirement to the original amount of the Security Requirement on
demand of the Landlord.
d) If the Landlord sells its interest in the Premises, it may deliver the
Security Requirement to the purchaser, and the Landlord will be released from
any further liability with respect to the Security Requirement or its return
to the Tenant.
e) The Landlord will surrender the Security Requirement, or the unapplied
portion of the Security Requirement held by the Landlord pursuant to this
section of this Lease as the case may be, to the Tenant forty five (45) days
after the end of the Term provided that the Tenant has (i) renewed the Lease
and the renewal lease does not require a Security Requirement or (ii) the
Tenant has delivered vacant possession of the Premises in accordance with the
terms of this Lease, including, without limitation, leaving the Premises in
the state of repair required by this Lease and so long as the Tenant has
complied with all its obligations in this Lease.
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(f) Notwithstanding anything to the contrary in this Lease or in this Schedule,
any cash security deposit received by the Landlord shall, in the absence of its
application in whole or in part to compensate the Landlord for its losses and
damages sustained as a result of the default or Insolvency of the Tenant, be
deemed to be applied forthwith upon receipt of the Security Requirement by the
Landlord as prepaid or advance rent paid by the Tenant on account of rent due
under this Lease for the last year of the Term. In such event, and only if such
Security Requirement has not been previously applied by the Landlord to fulfill
Tenant obligations not met by the Tenant, whether due to any default of the
Tenant or an Insolvency of the Tenant, then no rent shall be payable by the
Tenant for the last year of the Term of the Lease.
