LEASE AMENDING AGREEMENT
This Agreement, made this 1ST DAY OF DECEMBER, 1995,
between:
SHERWAY CENTRE LIMITED
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
DELRINA (CANADA) CORPORATION
(hereinafter called the "Tenant")
OF THE SECOND PART
WHEREAS, by a certain lease dated the 31ST DAY OF JULY, 1995 (the "Lease")
the Landlord leased to the Tenant certain premises (the "Initial Premises") of
said lease, containing approximately 74,174 square feet and comprising all of
the 5th and 6th floors of One Park Centre and all of the 3rd, 4th and 5th floors
of Xxx Xxxx Xxxxxx, 000 Xxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxx, for a term of TEN
(10) years commencing on the 1ST DAY OF AUGUST, 1995 and from thenceforth next
ensuing and fully to be completed and ended on the 31ST DAY OF JULY, 2005 (the
"Term");
AND WHEREAS, the Tenant is desirous of leasing certain additional space
from the Landlord;
AND WHEREAS, the Landlord and Tenant have agreed to amend the Lease
effective as of the 1ST DAY OF JANUARY, 1996, in accordance with the terms and
conditions hereinafter set forth;
NOW THEREFORE WITNESSETH that in consideration of the premises and mutual
covenants and agreements herein contained and the sum of One Dollar ($1.00),
paid by each of the parties to the other, the receipt and sufficiency whereof
is hereby acknowledged, the parties hereto mutually covenant and agree with each
other as follows:
1. The Premises as described in Section 2.1 of the Lease is hereby altered to
include that area on the ground floor of One Park Centre comprising 4,856
square feet of space (the "Conference Premises") as outlined in red on
Schedule "A" attached hereto. Effective JANUARY 1, 1996, the Premises
comprise the Initial Premises of 74,174 square feet and the Conference
Premises of 4,856 square feet.
2. Section 6.1(a) of the Lease is hereby amended by adding at the end thereof
the following paragraph:
"Fixed Rent for the Conference Premises in the following amounts:
(iii) for the period from January 1, 1996 to July 31, 2000, $19,424.00 per
annum, in equal monthly instalments of $1,618.67 each, calculated at the
rate of $4.00 per square foot of Rentable Space per annum; and
(iv) for the period from August 1, 2000 to July 31, 2005, $29,378.80 per
annum, in equal monthly instalments of $2,448.23 each, calculated at the
rate of $6.05 per square foot of Rentable Space per annum."
3. The Landlord and Tenant acknowledge and agree that the Conference Premises
is being leased in its "AS IS" condition save and except that the Landlord
shall, at its expense, perform the following work ("Landlord's Work"):
(a) Remove and clear out the existing conduit.
(b) Prepare and make good the marble in the building lobby and remove
glass from the IBM "Security Room" window.
(c) Steam-clean carpets within the Conference Premises.
(d) Replace broken ceiling tiles within the Conference premises.
(e) H.V.A.C. to be serviced and repaired if necessary to a standard
consistent with Base Building.
(f) Remove and clean out all piping and conduit from existing IBM
"Security Room".
(g) Wax tile floors in "Security Room".
The Landlord's Work with the exception of the work described in paragraph
3(b) above shall be completed by no later than December 15, 1995. The work
described in paragraph 3(b) above shall be completed by no later than March
1, 1996.
4. Notwithstanding anything else contained herein, the Landlord and Tenant
mutually agree that the Tenant may have occupancy of the Conference
Premises as of December 1, 1995, provided it shall in no way interfere with
or hinder the Landlord in the performance of the Landlord's Work referred
to in paragraph 3 hereof and with the express understanding and agreement
that such possession is subject to all the terms and conditions of this
Lease, except that the Tenant shall not be required to commence paying
Fixed Rent and Operating Costs and Taxes on the Conference Premises until
July 1, 1996.
5. Schedule "C" of the Lease is hereby amended by adding at the end thereof
the following:
13. RELOCATION
(a) (i) If, at any time during the Term or any renewal of the Term, the
Landlord requires possession of all or any portion of the
Conference Premises for any purpose whatsoever, the Landlord may,
on no less than three (3) months' prior Notice to the Tenant (the
"Relocation Notice"), require the Tenant to vacate all or any
portion of the Conference Premises as specified in the Relocation
Notice (the "Vacated Space") on the date specified in the
Relocation Notice (the "Relocation Date") and relocate into other
premises in Two Park Centre (the "Relocated Premises"). If a
Relocation Notice is given, this Lease, insofar as it relates to
the Vacated Space, shall terminate on the Relocation Date, but
only if the Landlord has completed the Relocated Premises in
accordance with its obligations set out in paragraph 13 (a) (ii);
(ii) The Relocated Premises shall be comparable in all reasonably
material respects to the Conference Premises except for the
ceiling height and shall be fully fixtured (not including the
Tenant's trade fixtures) and in "turn-key" condition built with
the same number of usable rooms with similar dimensions, and
available for the Tenant's occupancy on the Relocation Date, the
Landlord being fully responsible for performing all work required
to make the Relocated Premises so available. If in the event
that the current Cafeteria Premises located on the ground floor
of One Park Centre are leased to another party other than the
Tenant at the time of the Relocation Notice then the Relocated
Premises will be fixtured and built by the Landlord with a
kitchen of a size not exceeding 250 square feet and containing
therein a sink, cabinetry, counters and electrical outlets as
would normally be found within an office premise of similar size
as the Relocated Premises.
(iii) The Landlord shall pay all direct costs of preparing the
Relocated Premises for occupation by the Tenant (which costs
shall include, without limitation, all costs in wiring the
Relocated Premises for the Tenant's use) and of relocating the
Tenant and all of the Tenant's property, fixtures and furniture
therein. The Landlord shall not be liable for any other or
consequential costs, damages or losses to or of the Tenant as a
result of such relocation.
(iv) To the extent that the Rentable Space of the Relocated Premises
is not identical in square footage to that of the Vacated Space,
the Fixed Rent shall be adjusted upwards or downwards, as the
case may be, at the same rate per annum as was payable with
respect to the Vacated Space, but Fixed Rent may be increased
only to the extent that the Rentable Space of the Relocated
Premises is no greater than 5,208 square feet.
(v) The parties enter into such lease amending agreements as
necessary to effect the foregoing.
(b) The Landlord's herein right of relocation with respect to the
Conference Premises shall terminate and be of no force or effect in
the event that the Tenant exercises its right of Offer with respect to
the Cafeteria Premises in accordance with Section 6 of Schedule "C" of
the Lease. In no event shall the LandLord have the right to relocate
the Tenant from the Conference Premises prior to April 1, 1996. For
further clarification and certainty it is further understood and
agreed that the Landlord may not provide a Relocation Notice to the
Tenant with respect to the Conference Premises prior to April 1, 1996.
6. The parties confirm that in all other respects, the terms, covenants and
conditions of the Lease remain unchanged and in full force and effect,
except as modified by this Agreement.
7. This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns where permitted by the Lease.
IN WITNESS WHEREOF the parties have executed this Agreement under
their respective seals.
SIGNED, SEALED AND DELIVERED DELRINA (CANADA) CORPORATION
In the presence of:
/s/ Xxxxxx XxXxxxxxxx Per: /s/ Xxxxx Xxxxx
---------------------------- -------------------------------
Witness Title
/s/ Xxxxxx XxXxxxxxxx Per: /s/ Xxxxxx Xxxxx
---------------------------- ------------------------------
Witness Title
SHERWAY CENTRE LIMITED
Per: Employee
-------------------------------
Title Asst. Secretary
Per: Employee
------------------------------
Title Asst. Secretary
The Tenant, if a corporation, must execute this Agreement under its corporate
seal and indicate the capacity of the signing officers, and if a partnership,
must execute by signatures of the general partners under the seal, and if an
individual, must execute by the individual's signature. Except in the case of
corporation, all signatures must be witnessed.
SCHEDULE "A"
ADASON PROPERTIES
LIMITED
[LOGO] ----------------------
PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 1
SUITE 100
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
RENTABLE [LOGO]
1 1,131 sq.ft. JUNE 15/95
*2 711 sq.ft. (TS) TR RM
3 474 sq.ft.
4 897 sq.ft.
ENTIRE FLOOR USEABLE RENTABLE
12,359 4,609.00 4,856.05
[895 XXX XXXXX XXXX, XXXXXXXX #, XXXXX 000 FLOORPLAN]
THIS LEASE made as of July 31, 1995 between:
SHERWAY CENTRE LIMITED
(the Landlord)
of the first part,
- a n d -
DELRINA (CANADA) CORPORATION
(the Tenant)
of the second part,
whereby the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINED TERMS - GENERAL. In this lease:
"Building" means the buildings known as One Park Centre and Two Park
Centre, 000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx in which the Premises are
located;
"Cafeteria Premises" shall have the meaning given that term in paragraph
6 of Schedule "C";
"Capital Tax" means any tax payable by the Landlord on account of its
capital under the CORPORATIONS TAX ACT (ONTARIO) or any successor
legislation, except any such tax levied, assessed or payable in lieu of
or in substitution for Property Taxes;
"Common Areas" means those parts of the Project designated by the
Landlord for common use by the Landlord and the tenants of the Project,
including the underground pedestrian walkway connecting the Building and
the Garage, the landscaped portions of the Project, the public sidewalks
and the landscaped portions of the streets adjacent to the Land and the
Delivery Facilities;
"Common Service Areas" means those parts of the Project, whether or not
within the Building, designated by the Landlord which provide services to
the Project;
"Consumer Price Index or C.P.I." means (a) the Consumer Price Index
(All Items for Regional Cities, base year 1981 - 100) for the
Municipality of Metropolitan Toronto, or if there is no Consumer
Price Index for that city, for the city in Canada nearest the
Building for which there is a Consumer Price Index published by
Statistics Canada (or by a successor or other governmental agency,
including a provincial agency), or (b) if the Consumer Price Index
is no longer published, an index published in substitution for the
Consumer Price Index or any replacement index designated by the
Landlord. If a substitution is required, the Landlord will make the
necessary conversion. If the base year for the Consumer Price
Index (or the substituted or replacement index) is changed by
Statistics Canada (or by its successor or other governmental
agency) the Landlord will make the necessary conversion.
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"Control" will have the meaning attributed to it in Section 2(3) of the
CANADA BUSINESS CORPORATIONS ACT in force as of the date of this lease
and "Controls" and "Controlled" shall have a corresponding meaning;
"Cost of Utilities" means the cost of electricity and other utilities
supplied to tenants of premises in the Building as determined by the
Landlord who in making its determination shall take into account the
readings of existing electrical check meters;
"Delivery Facilities" means those portions of the Project designated by
the Landlord as facilities for common use by the Landlord and tenants of
the Project for deliveries;
"Eligible Corporation" means a corporation which Controls, is Controlled
by or is under common Control with the Tenant;
"Expert" means any independent, third party architect, engineer, land
surveyor or other professional consultant, as the case may be, appointed
by the Landlord and qualified in the opinion of the Landlord to perform
the particular function;
"Expiration of the Term" means the termination of this lease by either
effluxion of time or operation of any of its provisions;
"First Expansion Premises" shall have the meaning given that term in
subparagraph 3(b) of Schedule "C";
"Fixed Rent" means the amount payable under section 6.1(a);
"Garage" means those portions of the Project designated by the Landlord
for parking;
"Initial Premises" means those portions of the Building, excluding its
exterior, initially leased to the Tenant under this lease and shown
outlined in red on the floor plans attached as Schedule "A". Such
premises comprise all of the 5th and 6th floors of One Park Centre and
all of the 3rd, 4th and 5th floors of Two Park Centre. The Rentable
Space of the Initial Premises is 74,174 square feet;
"Insurance" means coverage with respect to the following risks in amounts
equal, in the case of the Landlord, to those maintained by prudent owners
of like buildings and, in the case of the Tenant, to those maintained by
prudent tenants of like premises:
(a) comprehensive general liability;
(b) all risks coverage;
(c) In the case of the Landlord:
(i) boiler and machinery; and
(ii) loss of rental income by reason of damage; and
(d) In the case of the Tenant, legal liability;
and in the case of the Landlord, such other coverage as the Landlord may
determine to maintain and in the case of the Tenant, such other coverage
as the Landlord may require, in each case having regard to the risks
which are customarily insured against by prudent landlords and tenants of
like premises;
- 3 -
"Land" means the land entered as Parcel 2-8 in the Register for Section
Y-15 in the Land Registry Office for the Land Titles Division of
Metropolitan Toronto and any adjacent lands owned by the Landlord;
"Landlord's Cost" means with respect to any cost incurred by the Landlord
the actual amount thereof and 15% thereof on account of management and
overhead;
"Leasehold improvements" means the fixtures and improvements made by or
on behalf of the Tenant in the Premises;
"Mortgage" means any encumbrance of the Building;
"Mortgagee" means the holder of any Mortgage;
"Notice" has the meaning set forth in section 15.3;
"Permitted Tenant" means Delrina (Canada) Corporation, its parent
company, any affiliate of such parent company or an Eligible Corporation;
"Premises" means the Initial Premises and, if the Tenant exercises its
right to lease such additional premises in accordance with the terms of
this lease, the Swing Space, the First Expansion Premises, the Second
Expansion Premises and the Cafeteria Premises;
"Prime" means the rate of interest from time to time announced by The
Bank of Nova Scotia as its prime rate;
"Project" means the improvements constructed on the Land including the
Building, the Common Areas, the Garage and any other office buildings;
"Rent" means the amounts payable by the Tenant to the Landlord under this
lease;
"Second Expansion Premises" shall have the meaning given that term in
subparagraph 3(c) of Schedule "C";
"Structural Elements" means the structural components of the Building or
Premises as determined by an Expert;
"Swing Space" shall have the meaning given that term in subparagraph 4(a)
of Schedule "C";
"Term" means the term of this lease as specified in section 2.3 and any
permitted overholding; and
"Unavoidable Delay" means any event, except financial inability, beyond
the control of the party affected thereby which prevents the fulfilment
by such party of any obligation hereunder and not caused by such party
and not avoidable by the exercise of reasonable effort or foresight by
such party.
1.2 DEFINED TERMS - OPERATING COSTS AND TAXES. For the purpose of calculating
the Proportionate Share of Operating Cost and Taxes:
"Fiscal Year" means a calendar year provided that the Landlord may by Notice
specify an annual date upon which each subsequent Fiscal Year is to begin, in
which event the Fiscal Year which would otherwise be current when such annual
date first occurs thereafter shall terminate on the preceding day;
"Operating Cost and Taxes" means for a Fiscal Year the aggregate costs paid or
payable by the Landlord and established in accordance with good accounting
practice applied in
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the real estate development industry on account of Property Taxes, Insurance and
the operation, management, maintenance and repair of:
(a) the Building and, in the case of Property Taxes, the portion of
the Land attributable thereto; and
(b) on a proportionate basis as hereinafter provided, the Common Areas
and the Common Service Areas;
and a charge on account of management and overhead equal to 15% of such costs
(exclusive of the Property Taxes component thereof); provided that:
(i) the following shall be excluded:
(A) costs recoverable from tenants other than Operating Cost
and Taxes or Insurers;
(B) debt service, depreciation and costs of a capital nature
and interest on any of the foregoing, except as hereinafter
provided;
(C) costs of procuring any lease;
(D) income, corporate and other taxes of a personal nature of
the Landlord to the extent not imposed in lieu of Property
Taxes;
(E) Capital Tax levied against the Landlord, unless levied,
assessed or payable in lieu of or in substitution for
Property Taxes;
(F) costs incurred by the Landlord in making structural repairs
to the Building or for the repair and maintenance of
Structural Elements unless the need for any of such repairs
is caused by or contributed to by the Tenant, in which case
the Tenant shall be wholly responsible for the costs so
incurred or for the portion of such costs attributable to
its act, omission or negligence;
(G) any costs or expenses incurred by the Landlord in
developing or constructing any additional building or
buildings otherwise expanding the Project; and
(H) any cleaning costs with respect to the Building or the
Common Areas other than those normally contracted for by
the Landlord except to the extent that the Landlord incurs
actual and verifiable additional cleaning costs directly
attributable to the Tenant's use or occupancy of the
Premises, in which case the Tenant shall be solely
responsible for such additional cleaning costs attributable
to the Tenant's use and occupancy of the Premises.
(ii) there shall be included the cost amortized at Prime of all capital
improvements made after the Building is substantially completed
which have the effect of reducing the costs which would otherwise
be included in Operating Cost and Taxes;
(iii) the proportion of Operating Cost and Taxes of the Common Areas and
the Common Service Areas shall be allocated equitably by the
Landlord between the Building and any one or more of the other
office buildings forming part of the Project and be based to the
extent possible on the respective aggregate areas of Rentable
Space of the Building and such other building or buildings; and
- 5 -
(iv) if there are unoccupied premises in the building, the Landlord may
make an equitable adjustment of the amount of Operating Cost and
Taxes by reason of the fact that unoccupied premises occasion
lower costs to the end that the tenants of the occupied premises
will bear the actual amount of the Operating Cost and Taxes
attributable to their premises;
"Property Taxes" means all taxes and other charges imposed by any lawful
authority against land and any fixed improvements thereon or upon the Landlord
in respect thereof and all costs relating to any appeal thereof;
"Proportionate Share" means the ratio, the numerator of which is the Rentable
Space of the Premises and the denominator of which is the aggregate Rentable
Space of the Building (exclusive of any storage areas);
"Rentable Space" means:
(a) with respect to premises on a single tenancy floor occupiable space;
(b) with respect to premises on a multiple tenancy floor occupiable space and
a proportion of all shared areas on such floor, such proportion being a
fraction, the numerator of which is the occupiable space of the Premises
and the denominator of which is the total occupiable space on such floor;
and
(c) for the purpose of this definition:
(i) "occupiable space" means:
(A) with respect to a single tenancy floor, the area of the
floor measured from the inside surface of the exterior
walls, excluding, where applicable, elevators, stairwells,
duct shafts, Delivery Facilities, Common Service Areas, the
Building lobby, other like areas and their enclosing walls;
and
(B) with respect to a multiple tenancy floor, the area of the
Premises measured from the inside surface of the exterior
walls and from the inside surface of all demising walls
except those separating the Premises from adjoining
premises which shall be measured from the centre lines of
such walls;
(ii) "shared areas" means from time to time the areas included in the
measurement made pursuant to part (A) of the term "occupiable
space" less the areas included in the measurement of the Premises
and all other premises on the same floor made pursuant to part (B)
of such term; and
(iii) in the event of any uncertainty as to the principles of
measurement of occupiable space reference should be made to
American National Standard Z65.1 - 1980 (Building Owners and
Managers Association International standard).
1.3 NUMBER, GENDER AND JOINT LIABILITY. The necessary grammatical changes
required to make the provisions of this lease apply in the plural sense where
the Tenant comprises more than one entity and to corporations, associations,
partnerships or individuals, male or female, shall be assumed as though in each
case fully expressed. If the Tenant is more than one person or entity its
liability shall be joint and several. If the Tenant is a partnership each
person who is or becomes a member of the partnership or any successor
partnership shall be jointly and severally liable.
1.4 PROCEDURE FOR APPROVAL. Any request for approval shall be requested by
Notice and in the absence of reply given by Notice not later than 15 days after
Notice of the request has been given, or such other period of time as is
otherwise expressly provided in
- 6 -
this lease, the approval shall be deemed to have been given unless the approval
may by the terms of this lease be withheld in the discretion of the party whose
approval is requested. Each approval shall be in writing unless by operation of
the preceding sentence it is deemed to have been given. If either party
withholds its approval it shall give Notice of its reason unless the approval
may by the terms of this lease be withheld in its discretion.
1.5 DIVISIONS. All references in this lease to articles, sections and other
subdivisions are to those in this lease.
1.6 ENTIRE AGREEMENT. This lease and the restrictions and regulations
imposed by the Landlord pursuant to sections 3.2 and 4.1 respectively constitute
the entire agreement between the Landlord and the Tenant concerning the subject
matter of this lease. This lease may only be amended by an agreement in writing
signed by the parties hereto.
1.7 REASONABLENESS. The Landlord and the Tenant shall, except as otherwise
expressly provided in this lease, each act reasonably, having regard to the fact
that they are the owner and a tenant, respectively, of a good quality office
building in the Xxx Xxxxx district of the City of North York, in the exercise
and the enforcement of their respective rights under this lease.
1.8 BUILDING STANDARD. The Landlord and the Tenant shall perform their
respective obligations under this lease having regard to the general standard of
the Building as at August 1, 1995 and subject to the limitations occasioned by
the design of the Building and its basic systems.
1.9 NATURE OF THE LEASE. This lease is a completely net lease to the
Landlord and accordingly, except as otherwise expressly provided in this lease,
the Landlord has no obligations with respect to either the Premises, the
Building, the Common Areas, the Common Service Areas, the Garage or the Project.
ARTICLE II
DEMISE AND TERM
2.1 DEMISE - PREMISES. The Landlord hereby leases the Premises to the Tenant
and the Tenant hereby leases and accepts the Premises from the Landlord to have
and to hold during the Term, subject to the terms of this lease. As at the
commencement of the Term, the Premises comprise only the Initial Premises.
2.2 LICENCES. The Landlord hereby grants to the Tenant a non-exclusive
licence throughout the Term and subject to control by the Landlord:
(a) parking, subject to the terms of paragraph 11 on Schedule "C";
(b) to use those parts of the Common Areas giving access to the
Premises and the Garage;
(c) to have its name displayed on the main lobby directory board for
the Building, on the floor lobby directory board on each floor on
which the Premises are located and on the main door to the
Premises, all such signs to be under the exclusive control of the
Landlord and to conform to the uniform pattern of identification
signs for tenants of the Building prescribed by the Landlord; and
(d) if the Premises constitute one or more full floors of the
Building, to have a sign displaying the name of the Tenant in the
elevator lobby of each such floor provided that the design of the
sign has been approved by the Landlord.
- 7 -
2.3 TERM. The Term shall be ten (10) years beginning August 1, 1995 (the
"Commencement Date") and ending the last day of July, 2005.
2.4 SURRENDER. The Tenant shall surrender possession of the Premises by not
later than the Expiration of the Term.
2.5 OVERHOLDING. The Tenant may remain in possession of the Premises after
the Expiration of the Term with the approval of the Landlord which may be
withheld in its discretion. In that event the Tenant shall be a monthly tenant
at the rent stipulated in such approval and otherwise upon the terms of this
lease.
ARTICLE III
USE OF PREMISES
3.1 USE. The Premises shall be used for general administrative office
purposes only to a standard in keeping with the quality and character of the
Building. The Tenant shall not permit any part of the Premises to be occupied
by any person other than the Tenant and its employees and any subtenant
permitted under Article XI and the employees of such subtenant.
3.2 TERRACE. If there is a terrace immediately adjacent to the Premises to
which the Tenant has access from the Premises any use thereof by the Tenant
shall be subject to whatever restrictions the Landlord, in its discretion, may
by Notice impose. If the Tenant fails to observe such restrictions the Landlord
may prohibit such access.
3.3 WASTE AND NUISANCE. The Tenant shall not commit or permit any waste or
damage to the Premises or any manner of use causing nuisance to other tenants of
the Project.
3.4 EXTRAORDINARY EQUIPMENT. The Tenant shall not install any equipment
which might affect the capacity of either the structure or the basic systems of
the Building.
3.5 FIRE PREVENTION AND ENERGY CONSERVATION. The Tenant shall comply with
the requirements of the Landlord with respect to life safety and, with respect
to the Premises, energy conservation provided such energy conservation measures
do not materially adversely affect the Tenant's lighting, heating and air-
conditioning needs or the use of the Premises after regular business hours or on
weekends.
3.6 EXTERIOR APPEARANCE OF PREMISES. The Tenant shall keep the exterior
appearance of the Premises tidy and business-like and shall not erect any sign
or other like object within the Premises which is visible from the exterior of
the Premises, except as herein provided.
ARTICLE IV
REGULATIONS
4.1 PURPOSE. The Landlord may by Notice impose regulations for the orderly
operation of the Building, the Common Areas and the Garage so long as these do
not materially adversely affect the rights and licences otherwise granted to the
Tenant by this lease. The present regulations are attached to this lease.
4.2 OBSERVANCE. The Tenant shall observe and shall cause those for whom it
is responsible to observe the regulations.
4.3 ENFORCEMENT. The Landlord shall enforce the regulations against all
occupants of the Building but in so doing need not institute any legal action
unless the character or quality of the Building is materially adversely
affected.
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ARTICLE V
LIMITATION OF LIABILITIES
5.1 LIMITATION OF TENANT'S LIABILITY. If and to the extent that the Tenant
shall be prevented or delayed by reason of Unavoidable Delay in the fulfilment
of any obligation hereunder other than the payment of Rent, the Tenant shall not
be in default and the period for the fulfilment of such obligation shall be
extended accordingly.
5.2 LIMITATION OF LANDLORD'S LIABILITY. If and to the extent that the
Landlord shall be prevented or delayed by reason of Unavoidable Delay in the
performance of any obligation here-under the Landlord shall not be in default
and the period for the fulfilment of such obligation shall be extended
accordingly. The Landlord shall only be liable for any personal injury or death
suffered by the Tenant or any other person who may be upon the Premises or for
the loss or any damage to any property of the Tenant or of any such other person
if caused by the actual fault or negligence of the Landlord or those for whom it
is in law responsible, or if the harm or damage arises due to a breach of this
lease by the Landlord or those for whom it is in law responsible.
5.3 INDEMNITY.
The Tenant shall indemnify and save the Landlord harmless in respect of:
(a) all claims and liabilities arising from any act or omission of the
Tenant or any person for whose conduct the Tenant is responsible
and the costs incurred by the Landlord in connection with any
action pertaining thereto; and
(b) any damage suffered by the Landlord by reason of the breach by the
Tenant of any of its obligations under this lease and the costs
incurred by the Landlord in connection with any action pertaining
thereto.
The Landlord shall indemnify and save the Tenant harmless in respect of:
(a) all claims and liabilities arising from any act or omission of the
Landlord or any person for whose conduct the Landlord is
responsible and the costs incurred by the Tenant in connection
with any action pertaining thereto; and
(b) any damage suffered by the Tenant by reason of the breach by the
Landlord of any of its obligations under this lease and the costs
incurred by the Tenant in connection with any action pertaining
thereto.
ARTICLE VI
RENT
6.1 ITEMS OF RENT. The Tenant shall pay to the Landlord:
(a) Fixed Rent for the Initial Premises in the following amounts:
(i) for the portion of the Initial Premises located in One Park
Centre, and comprising 29,383 square feet of Rentable
Space, $177,767.15 per annum, in equal monthly instalments
of $14,813.93 each, calculated at the rate of $6.05 per
square foot of such Rentable Space per annum; and
(ii) for the portion of the Initial Premises located in Two Park
Centre, and comprising 44,791 square feet of Rentable
Space, $235,152.75 per annum, in equal monthly instalments
of $19,596.06 each,
- 9 -
calculated at the rate of $5.25 per square foot of such
Rentable Space per annum;
Fixed Rent with respect to the Swing Space, First Expansion
Premises, Second Expansion Premises and the Cafeteria Premises, if
the Tenant elects to exercise its rights with respect thereto,
shall be calculated and paid in the amounts provided in this
lease. Fixed Rent payable by the Tenant with respect to any
Renewal Term provided for in this lease shall be determined in the
manner required by this lease.
Notwithstanding the foregoing, the Tenant shall not be required to
pay the Fixed Rent of $14,813.93 per month as provided in
subparagraph 6.1(a)(i) nor additional rent (including, without
limitation, Operating Costs and Taxes) attributable to that
portion of the Initial Premises located in One Park Centre and
comprising 29,383 square feet of Rentable Space (except for
Tenant's hydro charges) in and for the period commencing March 1,
1996 and ending April 30, 1996. The foregoing represents the only
rent-free period applicable to any portion of the Premises. For
clarity, there shall be no rent free period or abatement with
respect to any monthly parking fees payable under this lease, nor
with respect to the repayment of leasehold improvement allowances
pursuant to paragraph 2 of Schedule "C".
(b) the Tenant's share of Operating Cost and Taxes (exclusive of
Property Taxes, Tenant hydro and Operating Cost not within the
control of the Landlord) which shall be the lesser of (i) the
Tenant's Proportionate Share of the actual amount of Operating
Cost and Taxes (exclusive of Property Taxes, Tenant hydro and
Operating Cost not within the control of the Landlord); and (ii)
the amount obtained by multiplying the prior year's Operating Cost
and Taxes (exclusive of Property Taxes, Tenant hydro and Operating
Cost not within the control of the Landlord) payable by the Tenant
by the percentage increase in the Consumer Price Index (C.P.I.);
(c) the Tenant's Proportionate Share of Property Taxes and Operating
Cost not within the control of the Landlord;
(d) the Cost of Utilities supplied to the Premises, including all
Tenant hydro charges;
(e) the Landlord's Cost on account of the following:
(i) the replacement of tubes and ballasts in the Premises;
(ii) the installation and any change of the name of the Tenant
on the main lobby directory board for the Building, on each
floor lobby directory board on which the Tenant has its
name and on the main door to the Premises;
(iii) any additional services and equipment agreed to be provided
by the Landlord at the request of the Tenant
(f) the monthly fee charged by the Landlord for parking in accordance
with Schedule "C"; and
(g) the amount, if any, by which the Operating Cost and Taxes
attributed to the Premises by the Landlord exceeds the
Proportionate Share of Operating Cost and Taxes if such excess is
occasioned by the use or improvement of the Premises.
- 10 -
6.2 GENERAL. All amounts payable by the Tenant to the Landlord under this
lease shall be deemed to be rent. The Tenant shall pay Rent without abatement,
or deduction and set-off, except as expressly provided, in lawful money of
Canada to such person and at such address as the Landlord may advise. The
Tenant shall pay items of Rent of a recurring nature, including Fixed Rent, in
advance on the first day of each month of the Term and shall pay other items of
Rent within 30 days of the delivery of an invoice therefor. The Landlord shall
estimate and may re-estimate, items of Rent of a recurring and variable nature
for each Fiscal Year and advise the Tenant thereof. If the Commencement Date is
not the first day of a month or if the Expiration of the Term does not occur on
the last day of a month, Rent for the broken period shall be pro-rated.
6.3 FINAL DETERMINATION OF CERTAIN ITEMS OF RENT. The Landlord shall
within 120 days after the end of each Fiscal Year provide to the Tenant a
statement (the "Statement") setting out in detail the method of calculation
of each item of, and the actual amount of the Proportionate Share of
Operating Cost and Taxes and such other items of Rent of a recurring and
variable nature for such Fiscal Year. If the aggregate monthly instalments
on account thereof paid during such Fiscal Year differ from the actual amount
thereof set forth in the Statement, the Tenant shall pay or the Landlord
shall refund the difference within 30 days after the Statement is provided.
If the aggregate of such instalments exceeds by more than 3% the actual
amount thereof, the Landlord shall pay to the Tenant interest on the amount
of the excess at a rate equal to Prime and 1% per annum calculated from the
date of such overpayment being the date, prorated on a per diem basis, when
the aggregate of such instalments equals the Tenant's actual Proportionate
Share of Operating Cost and Taxes. If the aggregate of such instalments is
less than the actual amount thereof by more than 3%, the Tenant shall pay to
the Landlord interest on the amount of the short payment at a rate equal to
Prime and 1% per annum calculated from the date of such underpayment being
the first day of the last month for such Fiscal Year. The Tenant may within
the 120 day period after the Statement is provided examine the books and
records of the Landlord relating to the Project. The Tenant may by Notice
given within such 120 day period but not otherwise dispute the Statement
whereupon the matter shall be finally resolved by an Expert. If the Expert
determines that the amount payable by the Tenant has been overstated by more
than 3% the Landlord shall pay the fee of the Expert. If the Expert
determines that the amount payable by the Tenant has not been overstated by
three (3%) per cent or more the Tenant shall pay such fee. Any adjustment
required to any previous payment made by the Tenant or the Landlord by reason
of any such determination shall be made forthwith and shall bear interest at
a rate equal to Prime and 1% per annum from the date of such over or under
payment as previously described. The Landlord or Tenant may claim a
readjustment of the Proportionate Share of Operating Cost and Taxes or of any
other item of Rent based upon any error of computation or allocation by
Notice given within 180 days after the Statement is provided but not
otherwise.
ARTICLE VII
TAXES
7.1 LANDLORD'S TAXES. The Landlord shall pay before delinquency the Property
Taxes relating to the Building.
7.2 TENANTS TAXES. The Tenant shall pay before delinquency all taxes and
other charges imposed by any lawful authority against the Tenant or any sub-
tenant, licensee or occupant of the Premises which if not paid would constitute
either a lien on either the Land or the Building or a liability of the Landlord.
7.3 ASSESSMENT APPEALS. The Tenant may conduct any appeal from any
governmental assessment or determination of the value of the Land, the Building
or the Premises provided the Tenant does not delay or withhold payment of
Property Taxes.
- 11 -
ARTICLE VIII
INSURANCE
8.1 LANDLORDS INSURANCE. The Landlord shall maintain Insurance with respect
to its interest in the Building, the Common Areas and the Garage. Such
insurance shall include, if available, a waiver of any right of subrogation
against the Tenant.
8.2 TENANTS INSURANCE. The Tenant shall maintain Insurance with respect to
its interest in the Premises, the Leasehold Improvements and all operations of
the Tenant in and from the Premises. The Tenant shall at the request of the
Landlord provide the Landlord with certificates of such insurance. If both the
Landlord and the Tenant have claims to be indemnified under any such insurance,
the indemnity shall be applied first to the settlement of the claim of the
Landlord and the balance to the settlement of the claim of the Tenant. Such
insurance shall include the Landlord and any Mortgagee designated by Notice by
the Landlord as named insureds as their interests may appear and, if available,
shall contain a cross-liability clause protecting the Landlord in respect of
claims by the Tenant as if the Landlord were separately insured and a provision
prohibiting the insurer from materially altering or cancelling the coverage
without first giving the Landlord at least 30 days prior written notice
thereof.
ARTICLE IX
OPERATION, SERVICES, MAINTENANCE,
REPAIR AND ACCESS BY LANDLORD
9.1 STANDARD OF OPERATION. The Landlord shall operate and manage the
Building, the Common Areas, the Common Service Areas and the Garage to the
general standard as exists in the Building and such areas as at August 1, 1995.
9.2 SERVICES TO PREMISES. The Landlord shall provide the following services
to the Premises:
(a) heat, ventilation and air conditioning as required for the
comfortable use and occupancy of the Premises during normal
business hours as determined by the Landlord (and being, at the
date of this lease, 8:00 a.m. to 6:00 p.m. Monday to Friday except
on legal or statutory holidays);
(b) electrical power for lighting and office equipment;
(c) replacement of tubes and ballasts;
(d) janitorial services; and
(e) telecommunication conduits.
9.3 SERVICES TO BUILDING. The Landlord shall provide for the Tenant and
others the following services:
(a) elevators;
(b) washroom facilities and a drinking fountain on each floor of the
Building on which the Premises are located;
(c) heat, ventilation, air conditioning, lighting, and janitorial
service in the appropriate interior portions of the Common Areas;
(d) snow removal and landscape maintenance for the appropriate
exterior portions of the Common Areas;
(e) exterior window washing;
- 12 -
(f) garbage removal;
(g) janitorial services for the appropriate interior portions of the
Common Areas; and
(h) Building security system exclusive of additional security required
by the Tenant.
9.4 MAINTENANCE AND REPAIR. The Landlord shall maintain and repair the
following:
(a) the Building (but not the Premises or the premises of other
tenants) and its basic systems meaning the heating, ventilating
and air-conditioning systems, plumbing and electrical systems
serving the Building but not the Premises or the premises of other
tenants;
(b) the Structural Elements of the Premises; and
(c) the Common Areas, the Common Service Areas and the Garage.
9.5 ACCESS BY LANDLORD. The Landlord may enter the Premises in order:
(a) to perform its obligations hereunder;
(b) to install, maintain and repair equipment within or about the
Premises for the supply of services to other premises in the
Building;
(c) to make repairs or alterations to the Building;
(d) to take such steps as the Landlord may deem necessary for the
safety or preservation of the Project; and
(e) to inspect the state of repair of the Premises.
Prior to the exercise of this right the Landlord whenever possible shall consult
with the Tenant in order to minimize inconvenience to the Tenant and the
Tenant's business and in its exercise of this right shall observe the security
requirements of the Tenant.
ARTICLE X
MAINTENANCE, REPAIR AND IMPROVEMENTS BY TENANT
10.1 MAINTENANCE OF PREMISES. The Tenant shall maintain and repair the
Premises (excluding the Structural Elements thereof) and the Leasehold
Improvements.
10.2 LEASEHOLD IMPROVEMENTS. The Tenant may make Leasehold Improvements
provided that:
(a) the Tenant shall furnish the Landlord with professionally prepared
plans and specifications therefor;
(b) if any proposed Leasehold Improvements affect the structure, the
walls, the systems or the exterior appearance of the Building,
such plans and specifications shall be approved by the Landlord
and, at its election, any Expert;
(c) the Tenant shall advise the Landlord of the identity of its
contractors and tradesmen and their respective labour
affiliations;
(d) the Landlord shall either approve any contractors proposed by the
Tenant to perform any work which may affect the structure, the
walls or the
- 13 -
systems of the Building or, upon provision of detailed reasonable
grounds, require that any such work be performed by either the
Landlord or its contractors in which case the Tenant shall pay the
Landlord's Cost on account thereof; the Landlord may refuse to
allow the contractors and tradesmen of the Tenant access to the
Building if their labour affiliations may conflict with those of
the Landlord or those employed by it or if they are not competent;
(e) the Tenant shall produce evidence satisfactory to the Landlord as
to the existence of all necessary permits and sufficient insurance
coverage;
(f) the Tenant shall pay the Landlord's Cost on account of the fees of
any Expert appointed to review the plans and specifications
whether or not the work proceeds;
(g) construction of the Leasehold Improvements shall be performed in
accordance with the plans and specifications submitted to the
Landlord and, where applicable, approved by the Landlord, subject
to any conditions or regulations imposed by the Landlord and in a
good and workmanlike and expeditious manner using good quality
materials;
(h) the Landlord may inspect construction as it proceeds (the onus
being on the Tenant to advise the Landlord whenever any phase has
been completed so that an inspection can be made);
(i) if the Tenant fails to observe any of the requirements of this
section the Landlord may require that construction stop and that
the Premises be restored to their prior condition failing which
the Landlord may do so and the Tenant shall pay the Landlord's
Cost on account thereof; and
(j) notwithstanding any other provision of this lease, the Tenant
shall pay only the Landlord's out-of-pocket costs for the
supervision of construction and review of Tenant's drawings
relating to its construction, from time to time, of Leasehold
Improvements for the Premises.
10.3 LIENS. If any lien under the Construction Xxxx Xxx, 0000 or any
successor statute is registered against the title to the Building and such lien
relates to material, labour or any service alleged to have been provided to the
Tenant, the Tenant shall upon Notice by the Landlord cause such lien to be
discharged within 5 days after such Notice has been given.
10.4 REMOVAL OF LEASEHOLD IMPROVEMENTS - TERM. The Tenant may remove
Leasehold Improvements either upon the exercise of its rights under, and upon
the terms of, section 10.2 or with the approval of the Landlord which may be
withheld in its discretion.
10.5 REMOVAL OF LEASEHOLD IMPROVEMENTS - EXPIRATION OF TERM. Subject to the
provisions set out below, the Tenant shall be under no obligation to remove its
Leasehold Improvements upon the Expiration of the Term. The Landlord may,
however, upon not less than 30 days Notice (except in the case of default and
re-entry in which case no prior Notice need be given) require the Tenant before
the Expiration of the Term to remove all Leasehold Improvements which are not
considered improvements for general office use and which were installed for the
specific use of the Tenant (including, without limitation, installations made
in, or improvements made to, the Cafeteria Space (if such space is leased by the
Tenant pursuant to the terms of this lease), computer room, and all raised
flooring, halon fire protection system and additional heating, ventilation and
air conditioning equipment installed by the Tenant) and restore the Premises to
their original condition. Upon the Expiration of the Term, all Leasehold
Improvements (including carpeting and light fixtures) and all personal property
of the Tenant remaining in the Premises shall become the property of the
Landlord.
- 14 -
ARTICLE XI
TRANSFERS BY TENANT
11.1 ASSIGNMENT OR SUBLETTING. The Tenant shall be entitled to assign this
lease or sublet or part with possession of all or part of the Premises or
mortgage or encumber the lease (collectively, a "Transfer"), but only if it
first obtains the prior written consent of the Landlord, which consent shall not
be unreasonably withheld or delayed. At the time of requesting the Landlord's
consent, the Tenant shall provide the Landlord with:
(a) a true copy of the bona fide written offer or agreement respecting
the Transfer in connection with which the Landlord's consent is
being sought; and
(b) adequate information regarding the creditworthiness, reputation
and business experience of the proposed assignee or subtenant,
except that the Tenant shall not have to provide such information
where the Transfer involves the mortgaging or encumbrancing of the
lease.
11.2 CHANGE IN CONTROL. The Tenant shall obtain the approval of the
Landlord to any change in the effective control of the Tenant. Provided,
however, that this section 11.2 shall not apply to the Tenant if at such
time: (i) the Tenant is a public corporation whose shares are traded and
listed on any recognized security exchange in Canada or the United Sates; or
(ii) the Tenant is a private corporation but is controlled by a public
corporation defined as aforesaid, so long as in either of the foregoing
provisos, notwithstanding any such sale of controlling shares there will
continue to be a continuity of management, business practices and policies.
11.3 ADVERTISING OF PREMISES. The Tenant shall not advertise the rental
rates, inducements or other financial terms and conditions with respect to the
whole or any part of the Premises which may be available for Transfer and shall
not permit any broker to do so. If the Rent, additional rent or comparable
consideration to be paid by any subtenant or assignee exceeds the Fixed Rent and
additional rent then payable by the Tenant with respect to the whole or such
part of the Premises which are the subject of the Transfer, the amount of the
excess shall be paid to the Landlord forthwith by the Tenant following the
Tenant receiving such excess. The Tenant shall be entitled to deduct any
brokerage fees, leasehold improvement allowances or tenant inducements actually
paid by it in connection with any such Transfer in determining whether the rent
and additional rent payable by the subtenant or assignee exceeds that payable by
the Tenant.
ARTICLE XII
TRANSFER BY LANDLORD, SUBORDINATION AND ATTORNMENT
12.1 TRANSFER BY LANDLORD. This lease shall enure to the benefit of and be
binding upon the successors and assigns of the Landlord. If the Landlord
transfers or leases the Project, or any part thereof, and to the extent that the
transferee or lessee becomes liable to perform the obligations of the Landlord
here-under, the Landlord shall thereupon no longer be liable.
12.2 SUBORDINATION AND ATTORNMENT. The Tenant shall upon Notice:
(a) subordinate this lease to any Mortgage to the intent that this
lease and all the interest of the Tenant in the Premises shall be
subject thereto as fully as if such Mortgage had been executed and
registered and the money thereby secured had been advanced before
the execution and delivery of this lease; and
(b) agree to attorn to any Mortgagee;
- 15 -
provided that the Tenant receives a non-disturbance agreement in form and
content acceptable to the Tenant acting reasonably from any Mortgagee so long as
the Tenant is not in default of the terms of this lease subject to the
provisions of section 14.1.
12.3 STATUS CERTIFICATES. The Tenant shall certify in writing to the
Landlord or as it may direct that this lease is unmodified and in full force and
effect (or if modified, stating the modifications and that this lease is in full
force and effect as modified), the dates to which Rent has been paid, whether or
not there is any existing default on the part of the Landlord of which the
Tenant has notice and any other requested information pertaining to the
performance by the Landlord and the Tenant of their respective obligations
hereunder. Such statement may be requested by the Landlord upon not less than
10 days' Notice. Any such statement may be conclusively relied upon by any
purchaser of the Building or any Mortgagee.
ARTICLE XII
TERMINATION AND RENT ABATEMENT
13.1 TERMINATION BY TENANT. If the Premises or any other part of the
Building, the Garage, the Common Areas or the Common Service Areas are damaged
and the Landlord is thereby unable to fulfil its obligations to the Tenant and
if in the opinion of an Expert, which shall be given not more than 5 days after
the date of such damage, the damage cannot be repaired within a 180 day period
(employing normal construction methods without overtime or other premium unless
the Landlord otherwise instructs the Expert) then the Tenant may by Notice given
not more than 15 days after receipt by the Tenant of the opinion of the Expert
(whose fee shall be payable by the Tenant) terminate this lease with effect as
of the date on which such Notice is given.
13.2 TERMINATION BY LANDLORD. If any part of the Building, the Garage, the
Common Areas or the Common Service Areas is damaged and the Landlord is thereby
unable to fulfil its obligations to the Tenant or to any other tenant of the
Project and if in the opinion of an Expert, which shall be given not more than
45 days after the date of the damage, the damage cannot be repaired within a 180
day period (employing normal construction methods without overtime or other
premium), then the Landlord may by Notice given not more than 15 days after
receipt by the Landlord of the opinion of the Expert terminate this lease with
effect either as of the date on which such Notice is given, if the Premises have
been materially damaged, or if the Premises have not been so damaged, then as of
the date stipulated by the Landlord in its Notice which shall be not less than
60 days after the date on which it is given.
13.3 ABATEMENT OF RENT. If the Premises are damaged to the extent that they
are incapable, notwithstanding a reasonable amount of inconvenience to the
Tenant, of being used by the Tenant for their intended purpose and if the damage
has not been caused by any act or omission of either the Tenant or those for
whom it is responsible Rent shall xxxxx with effect as of the date of the damage
in proportion to the area of the Premises so damaged until either:
(a) the Landlord and the Tenant, each acting diligently, have
completed their respective obligations to repair; or
(b) the proceeds of any loss of rental income insurance attributable
to the damage are no longer available for application on account
of the abatement of the Rent payable under this lease and the rent
payable under any other leases of premises in the Project affected
by the same event of damage or the period of time during which
such proceeds would have been available if the Landlord had
performed its obligation to maintain the coverage described in
part (c)(ii) of the definition of Insurance has expired, whichever
is the first to occur.
- 16 -
ARTICLE XIV
LANDLORDS REMEDIES
14.1 DEFAULT AND RE-ENTRY. If any item of Rent remains unpaid 15 days after
written Notice is given by the Landlord or if the Tenant fails to observe or
perform any of its other obligations hereunder after Notice specifying the
default and a 15 day period to cure has been given or if the Tenant fails within
said curative period to commence to cure such default and proceed diligently to
cure same, the Tenant shall be deemed to be in default and the Landlord may at
any time thereafter re-enter the Premises and terminate this lease.
14.2 RIGHT OF LANDLORD TO REMEDY. If the Tenant defaults hereunder and such
default continues beyond the curative periods provided in section 14.1, the
Landlord may proceed to remedy the default, including the making of any payments
due or alleged to be due by the Tenant to third parties, and the Tenant shall
pay on demand the Landlord's Cost on account thereof.
14.3 BANKRUPTCY OF TENANT. If the Term or a substantial portion of the
property of the Tenant on the Premises is seized or taken in execution or
attachment by a creditor of the Tenant or if the Tenant makes an assignment for
the benefit of creditors or if a receiver-manager is appointed to control the
conduct of the business on or from the Premises or if the Tenant becomes
bankrupt or insolvent or takes the benefit of any act now or hereafter in force
for bankrupt or insolvent debtors or if an order is made for the winding-up of
the Tenant the next ensuing 3 months rent immediately will become due and
payable as accelerated rent and the Landlord may re-enter and take possession of
the Premises as if the Tenant were holding over and this lease shall forthwith
be terminated upon Notice by the Land-lord to this effect. Accelerated rent
will be recoverable by the Landlord in the same manner as the Rent hereby
reserved.
14.4 INTEREST. The Tenant shall pay to the Landlord interest at a rate equal
to Prime and 5% per annum on all arrears of Rent.
14.5 COSTS. If legal action is brought by reason of any default by either
party hereunder and a default is established, the defaulting party shall pay to
the other party all costs incurred therefor, including legal fees (on a
solicitor and client basis).
ARTICLE XV
MISCELLANEOUS
15.1 EXHIBITION PREMISES. The Landlord may upon reasonable notice to the
Tenant and in a manner that will not materially adversely affect the operation
of the Tenant's business exhibit the Premises to prospective purchasers,
prospective Mortgagees and, during the last 6 months of the Term, prospective
tenants.
15.2 NAME OF BUILDING. The Landlord may designate the name of the Building
and the Project and upon not less than 30 days Notice may change the name of
either the Building or the Project. The Tenant shall only refer to the Building
and the Project by their designated names and shall only use such names as its
business address.
15.3 NOTICE. Any Notice to be given pursuant to this lease shall be in
writing and shall be deemed to have been given if signed by or on behalf of the
party giving Notice and delivered or mailed by registered prepaid post to the
other party as follows:
(a) to the Landlord at:
Adason Properties Limited
Suite 2000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0; and
- 17 -
(b) to the Tenant at the Premises.
Any Notice so given shall be deemed to have been given, if delivered, on the
first business day following the date of such delivery or, if mailed, on the
fifth business day following the date of such mailing. Ether party may by
Notice change its address. During any interruption, threatened interruption or
substantial delay in postal services, all Notices shall be delivered.
15.4 COMPLIANCE WITH LAWS, ETC. The Landlord and the Tenant shall at all
times in the performance of their respective obligations under this lease comply
with all laws, bylaws, regulations and orders of any competent authority and
with the requirements of any insurer of the interest of the Landlord in the
Project.
15.5 REGISTRATION. The Tenant may register this lease with the approval of
the Landlord which may in its discretion be withheld in which case the Landlord
and the Tenant shall enter into a short form of lease prepared by the Landlord
and the Tenant shall pay the Landlord's Cost on account thereof. Such short form
shall be for the purpose only of enabling notice of this lease to be registered
and shall not affect the respective rights and obligations of the parties
hereunder.
15.6 QUIET ENJOYMENT. The Landlord covenants with the Tenant for quiet
enjoyment.
15.7 SUCCESSORS TO LANDLORD AND TENANT. This lease shall enure to the benefit
of and be binding upon the executors, administrators, successors and assigns of
the Landlord and Tenant.
15.8 INDEMNITY This lease shall be effective only when the indemnity
agreement in the form attached as Schedule "E" has been executed and delivered
by Delrina Corporation.
15.9 SCHEDULES The following Schedules attached hereto are incorporated by
reference into this lease and form part of it:
Schedule "A" Floor Plans
Schedule "B" Option to Renew
Schedule "C" Special Provisions
Schedule "D" Regulations
Schedule "E" Indemnity Agreement
IN WITNESS WHEREOF the Landlord and the Tenant have executed this lease
under their respective seals.
SHERWAY CENTRE LIMITED
/s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, Vice President
Seal
/s/ Xxxxxxx XxXxxx
------------------------------
Xxxxxxx XxXxxx, Vice President
and Treasurer
DELRINA (CANADA) CORPORATION
/s/ Xxxxxx Xxxxxx A.S.O.
--------------------------------
Assistant Secretary
Seal
/s/ Xxxxxxx Xxxxxxxxx A.S.O.
--------------------------------
Assistant Secretary
/s/ Xxxx Xxxxxxx
--------------------------------
Witness
SCHEDULE "A"
[895 XXX XXXXX ROAD, BUILDING #, SUITE 100 FLOORPLAN]
SCHEDULE "A"
----------------------
[ADASON LOGO] PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 1
SUITE 100
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
Cafeteria Space [MEASURE MASTERS LOGO]
Approximately 7,000 Sq.Ft. JUNE 15/95
SCHEDULE "A"
----------------------
[ADASON LOGO] PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 1
SUITE 500
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
Rentable (Sq.Ft.) 14,949 [MEASURE MASTERS LOGO]
JUNE 15/95
SCHEDULE "A"
----------------------
[ADASON LOGO] PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 1
SUITE 600
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
Rentable (Sq.Ft.) 14,434 [LOGO]
JUNE 15/95
SCHEDULE "A"
----------------------
[ADASON LOGO] PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 1
SUITE 300
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
Rentable (Sq.Ft.) 14,921 [MEASURE MASTERS LOGO]
JUNE 15/95
SCHEDULE "A"
----------------------
[ADASON LOGO] PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 2
SUITE 400
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
Rentable (Sq.Ft.) 14,921 [MEASURE MASTERS LOGO]
JUNE 15/95
SCHEDULE "A"
----------------------
[ADASON LOGO] PARK CENTRE
000 XXX XXXXX XXXX
XXXXX XXXX, XXXXXXX
BUILDING # 2
SUITE 500
----------------------
SCALE 1" = 20' 0"
[FLOOR PLAN]
Rentable (Sq.Ft.) 14,949 [MEASURE MASTERS LOGO]
JUNE 15/95
SCHEDULE "B"
OPTION TO RENEW
(a) The Tenant may renew this lease for 2 successive periods of 5 years (each
such period being called a "Renewal Term"), commencing on the day following the
date of expiration of the initial Term or the first 5 year Renewal Term, as the
case may be, provided that the Tenant shall only be entitled to renew this lease
if it:
(i) has not been notified of a default in the performance of its
obligations under this lease which it has failed to cure within
the times required by this lease, and, subject to such notice but
irrespective of cure, has not otherwise been in persistent
default during the Term or a Renewal Term;
(ii) is in possession and occupancy of and is using at least 45,000
square feet of Rentable Space in the Building in accordance with
the terms of this lease; and
(iii) gives Notice to the Landlord that it wishes to renew this lease
not less than 6 months prior to the expiration of the Term or the
then current Renewal Term, as the case may be, failing which this
right of renewal shall be rendered null and void.
(b) If the Tenant exercises its right of renewal in accordance with the
foregoing, this lease shall be renewed upon the same terms and conditions
contained in this Lease, save and except as follows:
(i) the Tenant shall only be entitled to a total aggregate number of
renewals equal to the number of successive periods referred to
above so that there will be no further right of renewal following
the exercise of the second right of renewal. For greater
certainty, if the Tenant exercises both of the within rights of
renewal in accordance with this lease, the Tenant shall be
entitled to lease the Premises for a total of 10 years following
the expiration of the original Term of this lease, unless this
lease is sooner terminated;
(ii) the provisions of paragraphs 1, 2, 3, 4 (other than subparagraph
4(j)), 5, 6, 7 and 11 of Schedule "C" and any other provision of
this lease which by its terms is applicable only to the initial
Term shall not apply;
(iii) the Tenant shall not be entitled to the benefit of the rent free
period described in paragraph 6.1(a);
(iv) the Fixed Rent shall be the then current fair market rental value
of the Premises then being leased by the Tenant (the "Renewed
Premises"), as established by the mutual agreement of the
Landlord and the Tenant.
For the purpose of this Schedule, the "current fair market rental
value" of the Renewed Premises means the annual amount of Fixed
Rent which could reasonably be obtained by the Landlord for the
Renewed Premises from a willing tenant or willing tenants dealing
at arms' length with the Landlord in the market prevailing,
having regard to all relevant circumstances including the size
and location of the Renewed Premises, the facilities afforded,
the condition of the Renewed Premises and the value of the
improvements (disregarding the value of the Tenant's trade
fixtures and also disregarding any deficiencies in the condition
and state of repair of the Renewed Premises as a result of the
Tenant's failure to comply with its repair obligations under this
lease) and having regard to rentals currently being obtained for
space in the Building itself and for comparable space in other
buildings comparably located.
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If the Fixed Rent to be applicable during a Renewal Term has not been
mutually agreed upon by the Landlord and the Tenant at least 4 months prior
to the expiry of the Term or the then current Renewal Term, as the case may
be, the Fixed Rent applicable during such Renewal Term shall be determined
by the award of 3 arbitrators or a majority of them. At least 45 days
prior to the expiry of the Term or the then current Renewal Term, as the
case may be, the Landlord and Tenant shall each name and appoint one
arbitrator. These appointed arbitrators shall forthwith appoint a third
arbitrator. The award of such arbitrators or majority of them shall be
made prior to the expiration of the Term of this lease, but if it is not so
made, the Tenant shall continue to pay the Fixed Rent which it was paying
during the last year of the Term or the Renewal Term, as the case may be,
until such time as the award is made and the parties shall promptly make
all necessary adjustments regarding any over or underpayment of Fixed Rent
effective the first day of the relevant Renewal Term. Each party shall pay
the fees of the arbitrator named by it and the fees of the third (3rd)
arbitrator and any other expenses under the said arbitration shall be borne
equally by the Landlord and the Tenant. If the Landlord or Tenant neglect
or refuse to name an arbitrator within the time hereinbefore limited, or to
proceed with the arbitration, the arbitrator named by the Landlord or
Tenant as the case may be, shall proceed and fix the Fixed Rent for the
Renewal Term and his award shall be final. The provisions of the
Arbitrations Act (Ontario) shall govern the arbitration. All documents and
proceedings with respect to the arbitration are to be kept confidential by
each of the parties.
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SCHEDULE "C"
SPECIAL PROVISIONS
1. SIGNING BONUS AND LETTER OF CREDIT
The Tenant acknowledges that in connection with a lease dated January 8,
0000 (xxx "0xx Xxxxx Lease") between it and the Landlord with respect to
premises on the 5th floor of Two Park Centre, the Landlord paid the Tenant
a bonus for signing such lease in the amount of $296,940.00. The Tenant
agrees to provide an irrevocable, unconditional bank letter of credit to
the Landlord in the amount of $296,940.00, having a term of two (2) years,
from August 1, 1995 (with interest accruing thereunder to be for the credit
of the Tenant), which letter of credit can be drawn on by the Landlord in
the event of default by the Tenant, subject to the default provisions
contained in section 14.1, and applied against the damages the Landlord
actually suffers as a result of such default. The Tenant confirms that its
obligation to deliver such letter of credit shall continue notwithstanding
the surrender and termination of the 5th Floor Lease.
2. PREMISES "AS IS"/LEASEHOLD IMPROVEMENT ALLOWANCE
Except for the Landlord's obligation to remove existing leasehold
improvements in the Swing Space, First Expansion Premises and Second
Expansion Premises in accordance with paragraphs 3 and 4 of this Schedule
"C", the Tenant acknowledges and confirms that all of the Premises are
leased to the Tenant on an absolutely "as is" basis and that the Landlord
has no obligations to construct improvements or make repairs therein as at
the commencement of the Term or as additional premises may be added to and
become part of the Premises.
The Landlord agrees that on Notice from the Tenant, it will provide to the
Tenant a leasehold improvement allowance of up to $10.00 per square foot of
Rentable Space of the Initial Premises, the First Expansion Space, the
Second Expansion Space and the Swing Space subject to the following
conditions:
(a) no part of such allowance shall be paid in respect of the
Rentable Space of the First Expansion Space, the Second Expansion
Space or the Swing Space unless the Tenant has exercised its
right to lease such space in accordance with the provisions of
this Lease;
(b) the Tenant shall be a Permitted Tenant;
(c) the Tenant has not been notified of a default in the performance
of its obligations under this lease which it has failed to cure
within the times required by this lease, and, subject to such
notice but irrespective of cure, has not otherwise been in
persistent default of its obligations under this lease;
(d) the Landlord's obligations to make any such payments shall not
commence until January 1, 1996;
(e) such allowance shall be used only for the construction or
installation of Leasehold Improvements by or for the Tenant on
its own account and not for any other party;
(f) all work of construction or installation of Leasehold
Improvements with respect to which such allowance is to be
advanced shall have been approved by the Landlord in accordance
with section 10.2;
(g) all advances of such allowance will be made in monthly instalment
payments directly to the Tenant's contractors and suppliers
subject to
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statutory holdbacks as required by law, against detailed invoices
from such contractors and suppliers and such statutory
declarations and certificates of completion from contractors,
subcontractors and architects as reasonably required by the
Landlord.
Notwithstanding the foregoing provisions, the sole obligation for
contracting for the construction of Leasehold Improvements or other work to
be performed in the Premises and for payment of all suppliers, contractors,
subcontractors, architects and engineers in connection therewith shall be
and remain with the Tenant and the Tenant shall indemnify the Landlord with
respect to all costs, expenses and liability with respect thereto, provided
that the Landlord pays the allowance in accordance with the foregoing
provisions. The Tenant confirms that no part of the leasehold improvement
allowance described in this section will be used for the construction of
Leasehold Improvements or for the performance of any other construction for
any subtenant or to provide an inducement or allowance to any subtenant.
The total amount of any leasehold improvement allowance advanced pursuant
to this section shall be repaid by the Tenant in equal blended monthly
installments of principal and interest fully amortized over the remaining
Initial Term of the lease from the date on which each advance of such
allowance by the Landlord has been made, utilizing an interest rate of 10%
per annum calculated monthly on the unamortized portion of such allowance.
Such payments of principal and interest shall be added to the Fixed Rent
otherwise payable with respect to the Premises and paid to the Landlord as
additional rent on the first day of each month during the Initial Term
until fully paid.
If the aggregate amount of leasehold improvement allowances advanced by the
Landlord to the Tenant with respect to the Initial Premises, Swing Space,
First Expansion Premises, Second Expansion Premises or otherwise exceeds or
will exceed $1,000,000.00 then the Landlord at its option, prior to the
advance of any allowances in excess of $1,000,000.00, shall be entitled to
require that the Tenant deliver an irrevocable, unconditional bank letter
of credit in favour of the Landlord for such amount in excess of
$1,000,000.00 and to secure the repayment thereof in accordance with the
preceding provisions. Such letter of credit shall be renewed annually and
remain in place until the unamortized balance of the aggregate of all
leasehold improvement allowances advanced by the Landlord to or on behalf
of the Tenant is less than $1,000,000.00.
3. EXPANSION PREMISES
(a) Provided that:
(i) the Tenant is a Permitted Tenant;
(ii) the Tenant has not been notified of a default in the performance
of its obligations under this lease which it has failed to cure
within the times required by this lease and, subject to such
notice but irrespective of cure, has not otherwise been in
persistent default of its obligations under this lease; and
(iii) with respect to the Second Expansion Premises, the Tenant has
been and remains in continuous actual possession, occupancy and
use of no less than 74,171 square feet of Rentable Space in the
Building from the commencement of the Term until February 1,
1997,
then the tenant shall be entitled to lease the First Expansion Premises and
the Second Expansion Premises in accordance with this paragraph 3.
(b) The first of such additional premises (the "First Expansion Premises")
shall comprise one full floor of no less than 9,100 square feet of Rentable
Space and no
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more than 15,000 square feet of Rentable Space within either One Park
Centre or Two Park Centre.
(c) The second of such additional premises (the "Second Expansion Premises")
shall comprise one full floor of no less than 9,100 square feet of Rentable
Space and no more than 15,000 square feet of Rentable Space within either
One Park Centre or Two Park Centre;
(d) In order to exercise its right to lease the First Expansion Premises, the
Tenant must provide Notice to the Landlord (the "First Notice") electing to
lease the First Expansion Premises on or before April 30, 1996. Within
fifteen (15) business days of receipt of the First Notice the Landlord
shall give the Tenant Notice (the "First Response") of the possible space
within the Building which could constitute the First Expansion Premises,
and the area of each such space and the Tenant shall have five (5) business
days from its receipt of the First Response to elect which particular space
identified in the First Response it wishes to designate as the First
Expansion Premises. If the Tenant exercises its rights with respect to the
First Expansion Premises, then the space so designated by it from the space
identified in the First Response shall be leased to the Tenant as the First
Expansion Premise, and the Fixed Rent payable by the Tenant with respect
thereto shall be calculated at the rate of $3.40 per square foot per annum
of the actual Rentable Space comprising the First Expansion Premises, which
shall be payable in equal monthly installments, in advance, in the same
manner as the Fixed Rent for the Initial Premises.
(e) In order to exercise its right to lease the Second Expansion Premises, the
Tenant must provide Notice to the Landlord (the "Second Notice") electing
to lease the Second Expansion Premises on or before February 1, 1997.
Within fifteen (15) business days of receipt of the Second Notice the
Landlord shall give the Tenant Notice (the "Second Response") of the
possible space within the Building which could constitute the Second
Expansion Premises, and the area of each such space and the Tenant shall
have five (5) business days from its receipt of the Second Response to
select which particular space identified in the Second Response it wishes
to designate as the Second Expansion Premises. If the Tenant exercises its
rights with respect to the Second Expansion Premises, then the space so
designated by it from the space identified in the Second Response shall be
leased to the Tenant as the Second Expansion Premise, and the Fixed Rent
payable by the Tenant with respect thereto shall be calculated at the rate
of $3.60 per square foot per annum of the actual Rentable Space comprising
the Second Expansion Premises, which shall be payable in equal monthly
installments, in advance, in the same manner as the Fixed Rent for the
Initial Premises.
(f) The following additional terms and conditions shall apply to the
First Expansion Premises and the Second Expansion Premises:
(i) the expiry date of the Tenant's term of occupancy of the First
Expansion Premises or Second Expansion Premises will be co-
terminus with the Expiration of the Term;
(ii) if the Tenant fails to give written notice to the Landlord
exercising its rights with respect to the First Expansion
Premises prior to April 30, 1996 or with respect to the Second
Expansion Premises prior to February 1, 1997, the rights of the
Tenant with respect hereto shall be null and void and of no
further effect and the Landlord will be entitled to market the
space which would otherwise have comprised such expansion
premises to unrelated third party tenants;
(iii) if the Tenant exercises its rights for the First Expansion
Premises or the Second Expansion Premises, such premises shall
become part of the Premises no earlier than sixty (60) days and
no later than one hundred and eighty (180) days (to be determined
by the Landlord acting reasonably) after the Landlord receives
the First Notice or the Second Notice, as the
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case may be. The First Response and the Second Response shall
specify the date on which the First Expansion Premises and the
Second Expansion Premises, respectively will become part of the
Premises;
(iv) the Tenant shall be granted a thirty (30) day fixturing period
immediately prior to each of the First Expansion Premises and
Second Expansion Premises becoming part of the Premises during
which time the Tenant will be given occupancy of such premises
for the purposes of preparing same for its use without the
payment of Fixed Rent or additional rent (including, without
limitation, Operating Cost and Taxes), except for the cost of
utilities consumed by it in the First Expansion Premises or
Second Expansion Premises, as the case may be;
(v) the Landlord shall, at the Tenant's request by Notice and prior
to the commencement of the fixturing period for the First
Expansion Premises and Second Expansion Premises, as the case may
be, remove all existing leasehold improvements in such expansion
premises, at the Landlord's sole cost and expense. Apart from
the removal of those leasehold improvements which the Tenant
requires the Landlord to remove, the Landlord shall have no other
obligations to make repairs or other improvements in the First
Expansion Premises or Second Expansion Premises and the Tenant
acknowledges that it will take the First Expansion Premises or
Second Expansion Premises in absolutely "as is" condition; and
(vi) the Landlord agrees that the aggregate Rentable Space of the
First Expansion Premises and Second Expansion Premises offered to
the Tenant shall not be less than 23,000 square feet of Rentable
Space. By way of example, if the First Expansion Premises
offered by the Landlord comprise 10,000 square feet of Rentable
Space, the premises offered by it as the Second Expansion
Premises would comprise no less than 13,000 square feet of
Rentable Space.
(g) Except as set out in this paragraph 3, or as otherwise provided in this
lease, the terms and conditions of this lease shall apply to both the First
Expansion Premises and the Second Expansion Premises but for purposes of
clarity there shall be no rent-free periods provided for by the Landlord
with respect to either the First Expansion Premises or Second Expansion
Premises. The parties will enter into an appropriate lease amending
agreement to include such expansion premises within the Premises and to
amend the provisions relating to Fixed Rent accordingly.
4. SWING SPACE
(a) Provided that:
(i) the Tenant is a Permitted Tenant; and
(ii) the Tenant has not been notified of a default in the performance
of its obligations under this lease which it has failed to cure
within the times required by this lease, and, subject to such
notice but irrespective of cure, has not otherwise been in
persistent default of its obligations under this lease,
the Tenant shall have the right and option, until August 1, 1996, on not
less than thirty (30) days' prior Notice to the Landlord (the "Swing
Notice"), to elect to lease additional premises of not less than 10,200
square feet of Rentable Space and no more than 13,000 square feet of
Rentable Space, subject to availability, anywhere in the Building with the
exception of the second floor in One Park Centre (such additional premises
being called the "Swing Space").
(b) In order to exercise such right and option, the Tenant must:
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(i) provide the Landlord with the Swing Notice on or prior to August
1, 1996; and
(ii) specify in the Swing Notice the actual number of square feet of
Rentable Space required by it in the Swing Space,
failing which the Tenant's rights to lease the Swing Space shall be null
and void and of no further effect.
(c) The Landlord shall within fifteen (15) business days of receiving the Swing
Notice give the Tenant Notice (the "Swing Response") of the possible
locations within the Building that will satisfy the Tenant's space
requirements for the Swing Space as specified in the Swing Notice. Within
five (5) business days of the Tenant receiving the Swing Response, the
Tenant shall by further Notice to the Landlord (the "Selection Notice")
elect which particular space offered to it by the Landlord it wishes to
select to constitute the Swing Space.
(d) The Swing Space shall become part of the Premises sixty (60) days following
the date of the Selection Notice and the expiry date of the Tenant's term
of occupancy of the Swing Space will be co-terminus with the Expiration of
the Term. The parties will enter into an appropriate lease amending
agreement to include the Swing Space within the Premises and to amend the
provisions relating to Fixed Rent accordingly.
(e) The Tenant shall have a 30 day fixturing period immediately prior to the
date on which the Swing Space becomes part of the Premises, during which
fixturing period the Tenant will not be required to pay Fixed Rent or
additional rent (including, without limitations Operating Cost and Taxes),
except for the cost of utilities consumed in the Swing Space.
(f) The annual rate per square foot of Fixed Rent for the Swing Space shall be
calculated in accordance with the following formula:
$3.00 + [$0.40 x A .DIVIDED BY B], where:
A = the number of days between August 1, 1995, and the date on which the
Tenant's Notice for the Swing Space is given to the Landlord, both
dates inclusive.
B = 366.
Fixed Rent calculated at such annual rate per square foot shall be payable
in equal monthly instalments in advance on the first day of each month so
long as the Swing Space forms part of the Premises during the Term.
(g) The Landlord shall, at the Tenant's request by Notice and prior to the
commencement of the fixturing period for the Swing Space, remove all
existing leasehold improvements in the Swing Space, at the Landlord's sole
cost and expense. Apart from the removal of those leasehold improvements
which the Tenant requires to be removed, the Landlord shall have no other
obligations to make repairs or other improvements in the Swing Space and
the Tenant acknowledges that it will take the Swing Space in absolutely
"as is" condition.
(h) Except as set out in this paragraph or as otherwise provided in this lease,
the terms and conditions of this lease shall apply to the Swing Space but
for the purposes of clarity there shall be no rent-free periods or other
financial inducements (other than the leasehold improvement allowance
referred to in paragraph 2 of this Schedule "C") provided for by the
Landlord with respect to the Swing Space.
(i) If the Tenant elects to terminate the lease with respect to the Swing Space
as provided in subparagraph 4(j), it shall pay to the Landlord the complete
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unamortized balance (calculated using the 10% per annum interest factor
described in paragraph 2 of this Schedule "C") of any leasehold improvement
allowance paid by the Landlord to the Tenant in respect of the Swing Space,
together with all real estate commissions and fees incurred by the Landlord
with respect to the Swing Space, also with interest thereon at the rate of
10% per annum from the date on which originally paid by the Landlord to the
date of repayment by the Tenant, such payments to be made by the Tenant to
the Landlord by certified cheque or bank draft on the date of termination
of the lease with respect to the Swing Space.
(j) If:
(i) the Tenant is a Permitted Tenant;
(ii) the Tenant has not been notified of a default in the performance
of its obligations under this lease which it has failed to cure
within the times required by this lease, and, subject to such
notice but irrespective of cure, has not otherwise been in
persistent default of its obligations under this lease; and
(iii) the Tenant is itself in actual possession, occupancy and use of
at least 45,000 square feet of Rentable Space in the Building at
such time,
the Tenant may during the Initial Term (but not thereafter) terminate the
lease with respect to the Swing Space by giving the landlord not less than
nine (9) months' prior written notice of such termination. If such notice
is given, the lease, to the extent applicable to the Swing Space, shall be
terminated effective the date set out in the said notice for termination,
subject to payment by the Tenant of the amount described in subparagraph
4(i), and the lease shall be deemed to be amended accordingly on such date.
5. TERMINATION RIGHTS
(a) If:
(i) the Tenant is a Permitted Tenant;
(ii) the Tenant has not been notified of a default in the performance
of its obligations under this lease which it has failed to cure
within the times required by this lease, and, subject to such
notice but irrespective of cure, has not otherwise been in
persistent default of its obligations under this lease; and
(iii) the Tenant is itself in actual possession, occupancy and use of
at least 45,000 square feet of Rentable Space in the Building
at the time it elects to exercise the within option,
the Tenant shall have the one time right and option to terminate this lease
with respect to the Initial Premises and, if the Tenant has exercised its
rights in this Lease to lease such space, the Cafeteria Premises, the First
Expansion Premises and the Second Expansion Premises (collectively, the
"Terminated Space"), effective July 31, 2000 (the "Termination Date").
(b) In order to exercise such right the Tenant shall give Notice to the
Landlord to that effect by no later than July 31, 1999, failing which the
Tenant's right to so terminate shall be null and void and of no further
effect.
(c) Such termination, if exercised, shall be effective only if, on the
Termination Date, the Tenant pays to the Landlord, by certified cheque or
bank draft, a sum equal to the aggregate of:
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(i) $839,662.00 (representing the Landlord's lease restructuring costs and
real estate fees with respect to the Initial Premises);
(ii) an amount equal to the unamortized balance of all leasehold
improvement allowances paid by the Landlord with respect to the
Terminated Space and all real estate brokerage fees and commissions
incurred or paid by the Landlord with respect to either the Cafeteria
Premises, the First Expansion Premises or the Second Expansion
Premises, together with interest at the rate of ten per cent (10%) per
annum, calculated monthly to the date of payment on such unamortized
balance, leasehold allowances, real estate fees and lease
restructuring costs.
Failure to make all of such payments on the Termination Date shall render
the Tenant's exercise of such option to terminate ineffective, and the
lease shall continue on in full force and effect as if never terminated.
6. OPTION TO LEASE THE CAFETERIA PREMISES
(a) At the written request of the Tenant by Notice, to be given no later than
September 30, 1995, the Tenant may elect to include the existing ground
floor cafeteria space of up to 7,000 square feet of Rentable Space
(approximately) in One Park Centre as shown cross-hatched on the plan of
such floor forming part of Schedule "A" (the "Cafeteria Premises") as part
of the Premises. If the Tenant elects to include such Cafeteria Premises
within the Premises they shall be leased on the same terms and conditions,
and at the same rates of Fixed Rent per square foot per annum as that part
of the Initial Premises located in One Park Centre (namely, $6.05 per
square foot) and the Cafeteria Premises shall become part of the Premises
on the tenth business day following the date that the Tenant advises the
Landlord of its election.
(b) The parties will enter into an appropriate lease amending agreement to
include such Cafeteria Premises within the Premises and to amend the
provisions relating to Fixed Rent accordingly.
(c) If the Tenant exercises such right to acquire the Cafeteria Premises, the
Landlord agrees that it will use its reasonable best efforts to assist the
Tenant to acquire the existing cafeteria equipment located in the Cafeteria
Premises from the owner thereof at a price acceptable to the Tenant, but
the Landlord shall not be obliged to incur any financial cost or expense
whatsoever with respect to the acquisition of such equipment.
(d) If the Tenant does not exercise its right to include such Cafeteria
Premises within the Premises by September 30, 1995 then, after such date,
the Tenant will have the right of first offer on such Cafeteria Premises
until March 31, 1996. In the period from October 1, 1995 to March 31, 1996
the Landlord shall advise the Tenant of any serious interest expressed by
any third party in leasing the Cafeteria Premises and the Tenant may elect
to submit an offer to lease the Cafeteria Premises as a result of
Landlord's advice. If the Tenant elects to do so, the Landlord shall be
free to accept or reject the Tenant's offer, it being understood and agreed
that the Landlord has no obligation to accept the Tenant's offer or to
lease such Cafeteria Premises to the Tenant, whether pursuant to such offer
or otherwise.
7. ADDITIONAL CONDUIT
Within sixty (60) days following commencement of the Term, the Landlord
will provide the Tenant with sufficient additional conduit between the
portions of the Premises in One Park Centre and Two Park Centre in order to
connect the Tenant's cabling requirements between such portions of the
Premises. The amount of conduit required and its type and location shall
be as mutually agreed between the Landlord and Tenant, acting reasonably.
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8. STORAGE
(a) The Tenant shall have the right, by Notice given to the Landlord by no
later than February 1, 1996, to elect to lease up to 8,000 square feet of
storage space in the basement level of the Building. The Tenant's Notice
shall specify the amount of storage space required by the Tenant. If the
Tenant exercises such right, the actual location of the storage space shall
be determined by the Landlord, acting reasonably, in good faith and in
accordance with the requirements stipulated by the Tenant in its Notice.
The Landlord shall advise the Tenant of the location of the Storage Space
to be leased to the Tenant within 15 business days of receiving the
Tenant's Notice and the commencement date for the lease of the Storage
Space shall commence on the tenth business day following the date that the
Landlord so advises the Tenant.
(b) The Tenant shall pay a gross rental of $6.50 per square foot per annum of
the area of such storage space until the expiry of the first five (5) years
of the Term and a gross rental of $8.50 per square foot per annum of the
area of such storage space for the last five (5) years of the Term of this
lease, all of which shall be paid in equal monthly instalments in advance.
If the Tenant elects to retain such storage space during any renewal term
of this lease, the gross rent payable by the Tenant during such period or
periods shall be at then current market rates applicable for comparable
storage space as agreed upon by the Landlord and the Tenant. Failing
agreement, the gross rent shall be determined in accordance with the
arbitration regime set out in Schedule "C" to this lease.
(c) If the Tenant does not exercise its right to lease such storage space by
February 1, 1996, the Tenant's rights to lease storage space in the
basement of the Building shall be subject to availability of such space
from time to time thereafter. To the extent storage space is available, it
will be leased to the Tenant at the same gross rental and on the same terms
as set out above.
9. SIGNAGE
If and only so long as:
(i) the Tenant is a Permitted Tenant;
(ii) the Tenant has not been notified of a default in the performance of
its obligations under this lease which it has failed to cure within
the times required by this lease, and, subject to such notice but
irrespective of cure, has not otherwise been in persistent default
of its obligations under this lease; and
(iii) the Tenant is and remains throughout the Term in continuous actual
possession and occupancy and use of no less than 45,000 square feet
of Rentable Space in the Building,
the Tenant will be entitled to install and maintain signage on the top
floor exterior fascia of Two Park Centre, subject to the following terms:
(a) the Tenant shall have the right to install a sign on two sides of
the top floor exterior fascia of Two Park Centre;
(b) the cost of installation, maintenance and repair of such signage and
the cost of all necessary permits and municipal and other
governmental approvals necessary to install and maintain such
signage shall be paid for by the Tenant;
(c) the Tenant shall have the sole obligation to obtain all necessary
permits, licences and other approvals necessary for such signage;
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(d) all of such signage (and any changes to such signage) shall be
subject to the Landlord's prior approval, not to be unreasonably
withheld or delayed, to ensure that such signage complements the
architectural integrity of the Building and the overall building
complex;
(e) the Tenant shall, on the expiration or termination of this lease,
promptly cause such signage to be removed and shall repair and
restore any damage caused to the Building resulting from either the
installation, maintenance or removal of such signage. If the Tenant
fails to do so, the Landlord may remove such signage and the Tenant
shall forthwith pay to the Landlord on demand all of the Landlord's
costs incurred for such removal and for the repair and restoration
of any such damage. Such signage shall also be forthwith removed by
the Tenant if at any time during the Term or any renewal thereof the
preconditions to the installation and maintenance of such signage,
as recited in this section, are no longer met.
10. RELOCATION
(a) If, at any time during the Term or any renewal of the Term, the Landlord
requires possession of all or any portion of the Premises located from to
time in One Park Centre for any purpose whatsoever, the Landlord may, on no
less than three (3) months' prior Notice to the Tenant (the "Relocation
Notice"), require the Tenant to vacate all or any portion of the Premises
located in One Park Centre as specified in the Relocation Notice (the
"Vacated Space") on the date specified in the Relocation Notice (the
"Relocation Date") and relocate into other premises in Two Park Centre (the
"Relocated Premises"). If a Relocation Notice is given, this lease,
insofar as it relates to the Vacated Space, shall terminate on the
Relocation Date, but only if the Landlord has completed the Relocated
Premises in accordance with its obligations set out in paragraph 10(b);
(b) The Relocated Premises shall be comparable in all material respects to the
Vacated Premises and shall be fully fixtured (not including the Tenant's
trade fixtures) and in "turn-key" condition and available for the Tenant's
occupancy on the Relocation Date, the Landlord being fully responsible for
performing all work required to make the Relocated Premises so available.
(c) The Landlord shall pay all direct costs of preparing the Relocated Premises
for occupation by the Tenant (which costs shall include, without
limitation, all costs in wiring the Relocated Premises for the Tenant's
use) and of relocating the Tenant and all of the Tenant's property,
fixtures and furniture therein. The Landlord shall not be liable for any
other or consequential costs, damages or losses to or of the Tenant as a
result of such relocation.
(d) To the extent that the Rentable Space of the Relocated Premises is not
identical to that of the Vacated Premises, the Fixed Rent shall be adjusted
upwards or downwards, as the case may be, at the same rate per square foot
per annum as was payable with respect to the Vacated Premises, but Fixed
Rent may be increased only to the extent that the Rentable Space of the
Relocated Premises is no more than 2% greater than the Rentable Space of
the Vacated Premises (the "Allowable Increase"). If the Rentable Space of
the Relocated Premises exceeds the Rentable Space of the Vacated Premises
by more than the Allowable Increase, no Fixed Rent shall be payable by the
Tenant for the increased area of the Relocated Premises in excess of the
Allowable Increase. The parties agree that in no circumstances shall the
Relocated Premises have a Rentable Space more than 10% greater or less than
the Rentable Space of the Vacated Premises.
(e) The parties shall enter into such lease amending agreements as necessary to
effect the foregoing.
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11. PARKING
(a) The Landlord shall make available to the Tenant throughout the initial Term
(but not any Renewal Term), 3.3 covered parking stalls in the Garage per
1,000 square feet of Rentable Space of the Premises from time to time (the
"Base Stalls"). In addition, the Landlord will, subject to availability of
parking stalls and at the Tenant's request, provide the Tenant with
additional covered parking on a month to month basis at a ratio of 1 stall
per 1,000 square feet of Rentable Space of the Premises from time to time
(the "Monthly Stalls").
(b) The Tenant shall pay for the Base Stalls and Monthly Stalls allocated to it
in each month during the first 3 years of Term a monthly charge of $15.00
per stall per month. Thereafter, the monthly fee payable by the Tenant for
the Base Stalls and Monthly Stalls allocated to the Tenant in each month
shall be based on the fair market monthly rates for comparable parking
facilities in the general geographic area in North York/Xxx Xxxxx in which
the Building is located. For greater certainty, in determining the parking
rates, the parties shall not take into account parking rates in buildings
located on or near a subway line.
(c) The Tenant shall pay the basic monthly charge for Base Stalls and Monthly
Stalls allocated to it in any month irrespective of the Tenant's use of
such stalls.
(d) If, in any month, the Tenant utilizes parking stalls in excess of the Base
Stalls and Monthly Stalls allocated to it in such month, the Tenant shall
pay for such stalls, apart from the Excess Stall Charge set out in
subparagraph 11(f), a daily charge for each business day in which such
stalls are utilized calculated pro rata based upon the then current monthly
charge payable by the Tenant for Base Stalls and Monthly Stalls and the
number of business days in such month. The Landlord shall invoice the
Tenant monthly for any parking stalls to which the foregoing charges apply.
(e) The Landlord will provide the Tenant with additional parking access cards
with respect to the Garage for the Tenant's employees. The Tenant shall
pay a deposit of $10.00 per parking access card to the Landlord.
(f) While the Tenant will be invoiced for excess parking stall usage in
accordance with subparagraph 11(d), the Tenant shall not under any
circumstances allow its directors, officers or employees to utilize more
than 5 parking stalls per 1,000 square feet of Rentable Space at the
Premises at any time and the Landlord shall be entitled to take such steps
as reasonably necessary to prevent such excess use. To the extent that the
Tenant utilizes more than 4.3 parking stalls per 1,000 square feet of
Rentable Space at any time the Landlord, in addition to the charges under
subparagraph (d), shall be entitled to levy an additional charge of $2.50
per excess stall per day (the "Excess Stall Charge") for each day or part
thereof in which excess parking stalls are utilized and the Tenant shall
pay all amounts so charged by the Landlord forthwith on demand as
additional rent.
(g) The Landlord shall have the right to reduce or cancel the Tenant's rights
to the Monthly Stalls on the basis of lack of availability or the need to
provide such parking to other tenants of the Building, in which event the
maximum utilization of parking stalls permitted to the Tenant and its
employees, and for which an Excess Stall Charge will be made shall be 4
parking stalls per 1,000 square feet of Rentable Space of the Premises.
(h) 7 of the Tenant's parking stalls located within the Garage shall be
designated as reserved stalls and may be marked by the Tenant at its own
expense as being so reserved for its use. The Landlord shall have no
obligations to police the exclusive use of such reserved stalls by the
Tenant and shall not be liable in any way to the Tenant if persons
unauthorized to use same park vehicles in such reserved stalls.
-x-
(i) In order to determine excess use of parking stalls, the Landlord agrees to
install and maintain a system which shall provide reporting of the actual
number of motor vehicles of the Tenant and its employees occupying the
Garage on each day. The Landlord shall provide a monthly report outlining
the number of parking stalls occupied each day by the Tenant and its
employees, the number of days on which the Tenant's maximum parking stall
allocation was exceeded and by how many stalls the allocation was exceeded.
The Landlord's invoicing of the Tenant for use of excess stalls as set out
above shall be based on such monthly report.
12. TERMINATION OF EXISTING LEASES
(a) Effective at 11:59 p.m. July 31, 1995 (the "Termination Date"), the parties
acknowledge and agree that all leases, agreements and lease obligations
between them in respect of the Building (collectively, the "Existing
Leases") including, without limitation, the Tenant's leases of the ground
floor, the third floor, the fourth floor, the fifth floor and a portion of
the seventh floor in Two Park Centre and the Tenant's lease commitments on
the fifth and sixth floors of One Park Centre and with respect to storage
space and parking shall be null and void and replaced by this lease (except
to the extent described in paragraph I of Schedule "C" and as set out
below) and the parties hereby release one another from any and all claims,
losses, damages (direct, indirect, consequential or otherwise), suits,
judgments, causes of action, legal proceedings, demands, penalties or other
sanctions of every nature and kind whatsoever which they may have against
the other in respect of the Existing Leases; provided that nothing in this
paragraph shall release the Tenant from the payment of those sums, or the
performance of those obligations, required to be performed pursuant to
subparagraph 12(b).
(b) The Tenant agrees to pay all rent, additional rent (including, without
limitation, operating costs, property taxes, utilities, parking and storage
charges and insurance premiums) and all other costs, charges and expenses
reserved under the Existing Leases to and including July 31, 1995. If such
amounts have not been calculated as of the date hereof, the Tenant shall
pay such amounts as and when calculated forthwith on demand. The Tenant
shall also fully perform all of its obligations under the Existing Leases
until the Termination Date and the termination of the Existing Leases shall
not extinguish such obligations, unless inconsistent with this lease.
(c) This paragraph 12 constitutes a full surrender of the Existing Leases by
the Tenant, so that the term or terms of years granted by the Existing
Leases will merge and be extinguished in the Landlord's reversion
thereunder on the Termination Date. The Tenant covenants with the Landlord
that it has full power and right to surrender the Existing Leases, and that
it has done no act by which the unexpired residue of the term or terms of
the Existing Leases are or may be charged or encumbered.
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SCHEDULE "D"
REGULATIONS
Pursuant to section 4.1 of the Office Premises Lease the Landlord hereby imposes
the following regulations:
1. Deliveries of building materials, major pieces of equipment and furniture
and bulky goods shall only be made by prior arrangement with the Building
management and through the Delivery Facilities and underground passages.
2. The Tenant shall only use the Building key system and shall obtain all keys
and cards providing access to the Building, the Garage and the Premises
from the Landlord. No additional locks shall be installed on the doors to
the Premises.
3. No bicycles or other vehicles shall be brought into the Building.
4. No inflammable oils or other dangerous materials shall be kept in the
Building.
5. The Common Areas shall not be obstructed.
6. The Tenant shall provide the Landlord with the names of all persons
entitled to enter the Premises outside normal business hours. The Landlord
shall only be required to allow access to the Premises by such persons.
7. The Tenant shall not install any power or water consuming machinery and
equipment, except normal office equipment, without the approval of the
Landlord and, if required by the Landlord, shall connect such machinery and
equipment to separate meters.
8. If required by the Landlord, the Tenant shall arrange for pest control.
9. The Tenant shall not remove or alter the Building standard window coverings
or except with the approval of the Landlord install any additional window
coverings.
10. The Tenant shall keep all window blinds down so as to prevent direct
sunlight from penetrating the Premises.
11. The Landlord may restrict canvassing or peddling in the Building.
12. The Tenant shall maintain with the Landlord current lists of the names and
licence plate numbers of each employee using the Garage and shall cause its
employees to affix to their automobiles whatever manner of identification
the Landlord may require.
13. The Tenant shall observe the directions of the Landlord as to parking
locations in the Garage according to automobile size.
14. The Tenant shall leave the Premises in a condition suitable for the
performance by the Landlord of its janitorial services.
SCHEDULE "E"
INDEMNITY
In order to induce SHERWAY CENTRE LIMITED ("Landlord") to enter into
the lease made as of July 31, 1995 ("Lease") with DELRINA (CANADA) CORPORATION
("Tenant") for premises initially comprising 74,171 square feet in One Park
Centre and Two Park Centre, 000 Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx, DELRINA
CORPORATION ("Indemnifier") agrees with the Landlord as follows:
1. To pay on their due dates all rent, additional rent, operating
costs, taxes and other amounts from time to time payable by the Tenant under the
Lease during its term and any renewals; to perform all of the obligations of the
Tenant contained in the Lease; and to indemnify the Landlord from any loss,
costs or damages arising out of any failure of the Tenant to pay rent or any
other amounts under the Lease or the failure of the Tenant to perform any of its
obligations contained in the Lease. Without limitation, this indemnity applies
to the Lease as from time to time amended or renewed, to the premises from time
to time demised thereunder and to the rent and all other amounts payable from
time to time thereunder, it being acknowledged by the Indemnifier that the Lease
contains provisions for the expansion and contraction of the premises demised by
the Lease and for the adjustment of rent and other amounts payable by the Tenant
under it.
2. This indemnity is absolute, unconditional and irrevocable and the
obligations of the Indemnifier will not be released or affected by any
extensions of time, indulgences or modifications which the Landlord may extend
to or make with the Tenant under the Lease or any waiver by or failure of the
Landlord to enforce any provision of the Lease, or any assignment of the Lease
by the Tenant or by any trustee, receiver or liquidator; or by any consent which
the Landlord may give to any assignment; or by the expiration or termination of
the term of the Lease.
3. The Indemnifier waives any right to require the Landlord to proceed
against the Tenant or pursue any rights or remedies under the Lease, or to
proceed against any security of the Tenant held by the Landlord or to pursue any
other remedy within the power of the Landlord.
4. The Indemnifier waives notice of the acceptance of this indemnity
and any notice of non-performance, non-payment or non-observance on the part
of the Tenant of any of the terms of the Lease.
5. The liability of the Indemnifier will not be waived or released by
reason of the release or discharge of the Tenant under the Lease in any
receivership, bankruptcy, winding-up or other creditors' proceedings or the
rejection, repudiation or disclaimer of the Lease in any proceeding or
otherwise, and this indemnity shall continue for the entire term and any
renewals or extensions of the Lease, including, without limitation, any
overholding by the Tenant after the expiration of the term of the Lease or any
renewal or extension thereof. The liability of the Indemnifier shall not be
affected by any repossession of the premises demised by the Lease by the
Landlord.
6. No action brought under this indemnity and no recovery under this
indemnity shall act as a bar or defence to any further action which might be
brought under this indemnity by reason of any further default under the terms of
the Lease.
7. This indemnity contains the entire agreement between the Indemnifier
and the Landlord concerning this indemnity. No modification of this indemnity
shall be effective unless made in writing, executed by the Indemnifier and the
Landlord.
8. The Indemnifier shall be bound by this indemnity in the same manner
as though the Indemnifier were the tenant named in the Lease. Notwithstanding
the foregoing, or any performance in whole or in part by the Indemnifier of any
obligations under this indemnity or of the tenant under the Lease, the
Indemnifier shall not have any entitlement
-i-
to occupy the premises demised by the Lease or otherwise enjoy any of the
benefits to which the Tenant is entitled under the Lease, and the Indemnifier
shall not be entitled to be subrogated to any rights of the Landlord whatsoever.
9. In the event of the termination of the Lease or in the event of
surrender, whether or not accepted by the Landlord, or disclaimer or repudiation
of the Lease pursuant to any statute or otherwise, then, in either case at the
sole option of the Landlord exercisable at any time within six (6) months of
such termination, surrender, disclaimer or repudiation, as the case may be, the
Indemnifier shall enter into and agrees to execute and deliver a written lease
for the premises then demised by the Lease with the Landlord, as landlord and
the Indemnifier, as tenant for a term commencing on the date of such
termination, surrender, disclaimer or repudiation and expiring on the date on
which the Lease would have expired if it had run its full term without default
by the Tenant and without such termination, surrender, disclaimer or
repudiation. Such lease shall contain the same terms as are contained in the
Lease which would apply to and be in force for that portion of the term of the
Lease which by the original terms of the Lease would have remained unexpired at
the date of such termination, surrender, disclaimer or repudiation.
12. All of the terms of this indemnity shall extend to and be binding on
the Indemnifier, its successors and assigns and shall enure to the benefit of
and may be enforced by the Landlord and its successors and assigns, including,
without limitation, any mortgagee, chargee, trustee under a deed of trust or
other encumbrancer of all or any part of the lands and premises of which the
premises demised by the Lease form part. The Indemnifier has full power and
authority to enter into this indemnity and to perform its obligations under this
indemnity.
13. The obligations of the Indemnifier shall be assignable by the
Landlord and an assignment of the Lease by the Landlord shall constitute an
assignment of the obligations of the Indemnifier and the benefit of this
indemnity.
15. The Indemnifier shall be bound by any account settled between the
Landlord and the Tenant.
17. If any provision of this indemnity is determined to be illegal or
unenforceable, such provision shall be severable from this indemnity and all
other provisions of it shall remain effective.
18. The Indemnifier acknowledges receiving a fully executed copy of the
Lease.
19. This indemnity shall be governed by and construed in accordance with
the laws of Ontario.
IN WITNESS of which the Indemnifier has executed this indemnity as
of and effective from July 31, 1995.
DELRINA CORPORATION
By: /s/ Xxxxxx Xxxxxx A.S.O.
-----------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx A.S.O.
-----------------------------------
/s/ Xxxx Xxxxxxx A.S.O.
-----------------------------------
Witness
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