Exhibit 10.9
LEASE EXTENSION AGREEMENT
- BETWEEN -
AVESTA TECHNOLOGIES CANADA INC.
(formerly CARAVELLE NETWORKS CORPORATION
- AND -
▇▇▇▇▇ DEVELOPMENTS
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This shall form as a legal and binding agreement between the two parties
mentioned above with respect to the Lease dated January 13, 1995 between ▇▇▇▇▇
DEVELOPMENTS and CARAVELLE NETWORKS CORPORATION for the premises known as Suites
301, 303 and 203, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, containing a total area
of 7004 Square Feet.
Renewal
The Tenant shall renew the Lease for the above-noted premises, for a further
period of three (3) years under the same terms and conditions, save and except
for the net rental rate and additional work to be performed by the Landlord as
set forth on Page 2 hereof. The new three (3) year term shall commence on the
first day of February, 2000, ending on the 31st day of January, 2003.
1. Net Rent
The Net Rent payable by the Tenant shall be the amounts per annum and per month
set out below in the manner provided for in Article 4.00 of the Lease.
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FROM TO: ANNUAL MONTHLY RATE PER
---- --- ------ ------- --------
NET RENT NET RENT SQUARE FOOT
-------- -------- -----------
February 1, 2000 January 31, 2003 $56,032.00 $4,669.33 $8.00
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2. Option to Renew
Provided the Tenant is not, and at no time has been in default during the Term,
the Tenant shall have the option to renew the Lease for a further period of
THREE (3) YEARS at a net rent of $9.00 PER SQUARE FOOT. Said Option to Renew is
to be exercised by the Tenant no later than six (6) months prior to expiration
of the renewal term, failing which this option shall be null and void.
3. Landlord's Work
The following work shall be completed by the Landlord at the Landlord's sole
cost and expense:
(I) The Landlord shall remove the walls highlighted in yellow on Schedule "A"
and "B" attached hereto;
(II) The Landlord shall repair the ceiling grid and match ceiling tiles in the
upper area;
(III) The Landlord shall remove the drywall ceiling in offices 4A, 4B, 5A and 5B
and replace with T-Bar ceiling and (2'X 4') fluorescent lighting.
(IV) The Landlord shall reconfigure existing kitchen and telephone room as
shown on Schedule "A";
(V) The Landlord shall construct a men's washroom with shower and a ladies
washroom as shown on Schedule "A" attached;
(VI) The Landlord shall replace the carpeting in the entire premises;
(VII) The Landlord shall patch and paint all walls throughout the premises;
(VIII) The Landlord shall install vinyl tile in the kitchen and washrooms;
Said work shall commence within (30) days of receipt of executed Agreement;
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ALL OTHER TERMS AND CONDITIONS OF THE LEASE BETWEEN ▇▇▇▇▇ DEVELOPMENTS and
CARAVELLE NETWORKS CORPORATION (now known as AVESTA TECHNOLOGIES CANADA INC.)
dated January 13, 1995, SHALL REMAIN IN FULL FORCE AND EFFECT
PLEASE SIGNIFY YOUR ACCEPTANCE OF THE ADDENDUM TO LEASE BY SIGNING WHERE
INDICATED AT THE BOTTOM OF THIS AGREEMENT AND RETURNING THE DUPLICATE NO LATER
THAN JULY 30th, 1999.
▇▇▇▇▇ DEVELOPMENTS
per: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ADDENDUM TO LEASE executed by the Tenant this 29th day of July ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
per: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (affix corporate seal)
------------------------------
Authorized Signing Officer
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LANDLORD: ▇▇▇▇▇ DEVELOPMENTS
TENANT: CARAVELLE NETWORKS CORPORATION
PREMISES: ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Rentable Area: 4100 Square Feet
DATE: January 13, 1995
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INDUSTRIAL LEASE
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▇▇▇▇▇ DEVELOPMENTS
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇-▇
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TABLE OF CONTENTS
PAGE
ARTICLE I FUNDAMENTAL PROVISIONS 1
Section 1.1 Fundamental Provisions 1
ARTICLE 11 DEFINITIONS 3
Section 2.1 Definitions 3
ARTICLE III TERM AND USE 10
Section 3.1 Grant and Premises 10
Section 3.2 Term 10
Section 3.3 Construction of Premises 10
Section 3.4 Overholding 10
Section 3.5 Compliance with Planning Legislation 11
ARTICLE IV RENT 11
Section 4.1 Covenant to Pay 11
Section 4.2 Net Rent 12
Section 4.3 Additional Rent 12
Section 4.4 Operating Costs 12
Section 4.5 Taxes 12
Section 4.6 Payment of Taxes and Operating Costs 13
Section 4.7 Utilities 14
Section 4.8 Rent Past Due 14
Section 4.9 Adjustment of Areas 15
Section 4.10 Rent Deposit 15
Section 4.11 Security Deposit 15
Section 4.12 Net Lease 15
Section 4.13 Penalty Charge 16
Section 4.14 Place of Payment 16
Section 4.15 Adjustment of Costs 16
ARTICLE V PERMITTED USE 16
Section 5.1 Permitted Use and Conduct of Business 16
Section 5.2 Overloading 17
Section 5.3 Roof 17
Section 5.4 Signage 17
Section 5.5 Heating, Ventilating & Air Conditioning,
System Maintenance Program 17
Section 5.6 Nuisance 18
Section 5.7 Windows 18
Section 5.8 Cleanliness 18
ARTICLE VI ACCESS AND ENTRY 19
Section 6.1 Right of Examination 19
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Section 6.2 Right to Show Premises 19
Section 6.3 Entry not Forfeiture 19
ARTICLE VII MAINTENANCE, REPAIRS AND ALTERATIONS 20
Section 7.1 Maintenance by Landlord 20
Section 7.2 Maintenance and Repairs by Tenant;
Compliance with Laws 20
Section 7.3 Approval of Tenant's Alterations 21
Section 7.4 Repair Where Tenant at Fault 22
Section 7.5 Repair Due to Tenant's Use of Premises 22
Section 7.6 Removal of Improvements and Trade Fixtures 22
Section 7.7 Liens 23
Section 7.8 Notice by Tenant 23
Section 7.9 Tenant's Repair 23
Section 7.10 Environmental Matters 24
ARTICLE VIII INSURANCE AND INDEMNITY 25
Section 8.1 Tenant's Insurance 25
Section 8.2 Increase in Insurance Premiums 26
Section 8.3 Cancellation of Insurance 27
Section 8.4 Loss or Damage 27
Section 8.5 Landlord's Insurance 29
Section 8.6 Indemnification of Landlord 29
Section 8.7 Release of Landlord 30
ARTICLE IX DAMAGE AND DESTRUCTION 30
Section 9.1 No Abatement 30
Section 9.2 Damage to Premises 30
Section 9.3 Right of Termination 31
Section 9.4 Destruction of Building 31
Section 9.5 Architect's Certificate 31
ARTICLE X ASSIGNMENT AND SUBLETTING; TRANSFERS 32
Section 10. 1 Assignment and Subletting; Transfers 32
Section 10.2 Landlord's Right to Terminate 32
Section 10.3 Conditions of transfer 33
Section 10.4 Change of Control 34
Section 10.5 No Advertising 34
Section 10.6 Assignment by Landlord 34
ARTICLE XI DEFAULT 34
Section 11.1 Default and Remedies 34
Section 11.2 Distress 35
Section 11.3 Costs 36
Section 11.4 Allocation of Payments 36
Section 11.5 Survival of Obligations 36
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ARTICLE XII STATUS STATEMENT, ATTORNMENT
AND SUBORDINATION 36
Section 12.1 Status Statement 36
Section 12.2 Subordination 36
Section 12.3 Attornment 37
Section 12.4 Non-Disturbance Agreement 37
Section 12.5 Execution of Documents 37
Section 12.6 Registration of Lease 37
ARTICLE XIII CONTROL OF DEVELOPMENT 38
Section 13,11 Use and Maintenance of Common Areas 38
Section 13.2 Alterations by Landlord 38
Section 13.3 Relocation of Premises by Landlord 38
Section 13.4 Expropriation 39
Section 13.5' Premises for Sale 39
ARTICLE XIV GENERAL PROVISIONS 39
Section 14.1 Rules and Regulations 39
Section 14.2 Unavoidable Delay 40
Section 14.3 No Waiver 40
Section 14.4 Notices 40
Section 14.5 Successors 40
Section 14.6 Joint and Several Liability 41
Section 14.7 Captions and Section Numbers 41
Section 14.8 Extended Meanings 41
Section 14.9 Partial Invalidity 41
Section 14.10 Entire Agreement 41
Section 14.11 Governing Law 41
Section 14.12 Time of Essence 42
Section 14.13 No Partnership 42
Section 14.14 Quiet Enjoyment 42
Section 14.15 Name of Building or Development 42
Section 14.16 Exercise of Rights 42
Section 14.17 Parking 42
ARTICLE XV SPECIAL PROVISIONS 43
Section 15.1 Leased Premises Taken "As Is" 43
Section 15.2 Option to Renew 43
Section 15.3 Right of First Refusal 45
Section 15.4 Signage 45
Section 15.5 Operating Costs, Taxes and Utilities 45
Section 15.6 Lease Cancellation 45
Section 15.7 Street Front Entrance 45
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THIS LEASE dated January 13, 1995, is made
BETWEEN:
▇▇▇▇▇ DEVELOPMENTS
OF THE FIRST PART
AND
CARAVELLE NETWORKS CORPORATION
OF THE SECOND PART
AS the Landlord is the owner of the lands described in Schedule "A" attached to
this Lease (referred to throughout as the "Lands") on which a building (referred
to throughout as the "Building"), municipally known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, located in the Development known as COLONNADE BUSINESS CENTRE
(referred throughout as the "Development"), in the City of Nepean, is erected;
AND AS the Landlord has agreed to lease to the Tenant that portion of the
building which is shown outlined in red on the plan attached to this Lease as
Schedule "B", known as ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
ARTICLE I
FUNDAMENTAL PROVISIONS
1.1 Fundamental Provisions
In addition to the other definitions contained in this Lease, the following
terms where used with the first letter of each word capitalized shall have the
meaning set forth in this Section 1.1.
(a) Premises: That portion of the Building known as Suite 301 shown outlined in
red on the plan attached to this Lease as Schedule "B" comprising approximately
4100 square feet of Rentable Area (the "Premises") and includes Leasehold
Improvements in such premises, and also means the premises after relocation
pursuant to Section 13.3, and includes Leasehold Improvements in such premises
after relocation.
(b) Term: The Term of this Lease is the period of Five (5) years, plus, if the
first day of the Term is not the first day of a calender month, that part of the
month from the first day of the Term to the last day of the calender month in
which the first day of the Term occurs.
(c) Commencement Date: shall be the first day of February, 1995.
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(d) Net Rent: The Net Rent payable by the Tenant shall be the amounts per annum
and per month set out below in the manner provided for in Section 4.2 of this
Lease:
ANNUAL MONTHLY
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FROM TO NET RENT NET RENT
---- -- -------- --------
February 1, 1995 January 31, 1996 $17,015.00 $1,417.92
February 1, 1996 January 31, 1997 $18,040.00 $1,503.34
February 1, 1997 January 31, 2000 $20,500.00 $1,708.34
The Net Rent is based on the following annual rate(s) per square foot of the
Rentable Area of the Premises:
FROM TO RATE PER SQUARE FOOT
---- -- --------------------
February 1, 1995 January 31, 1996 $4.15
February 1, 1996 January 31, 1997 $4.40
February 1, 1997 January 31, 2000 $5.00
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(e) Rental Deposit: $7,640.70 (first and last month's gross rent including
G.S.T.)
(f) Security Requirement: n/a
(g) Permitted Use: The Leased Premises shall be used for office purposes
(h) Tenant's Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇-▇
(i) Indemnifier's Address for Notice: n/a
(j) Offer to lease: December 20th, 1994
(k) Development Name: COLONNADE BUSINESS CENTRE
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ARTICLE II
DEFINITIONS
2.1 Definitions
In this Lease and in the Schedules to this Lease:
(a) "Additional Rent" means all sums of money required to be paid by the
Tenant under this Lease (except Net Rent) whether or not the same are
designated "Additional Rent" or are payable to the Landlord or otherwise:
(b) "Adjusted Proportionate Share" means:
(i) with respect to Taxes, the amount to which the Tenant's
Proportionate Share of Taxes may be increased or decreased by the
Landlord to more accurately reflect the fair and proper share of
taxes which should be payable by the Tenant under this Lease as
determined by the Landlord in its sole discretion. Without limiting
the generality of the foregoing, some of the factors and criteria
which the Landlord may consider in determining an Adjusted
Proportionate Share of Taxes include:
(A) any separate bills for Taxes, or separate assessments
issued by taxing authorities with respect to the Premises and
other portions of the Development for the taxation period for
which the Tenant's share of the Taxes is to be determined;
(B) the assessment of the Premises and other portions of the
Development made by taxing authorities in previous periods;
(C) the value or nature of all construction or installation of
improvements in the Premises;
(D) the use of the Premises and adjoining areas by Tenant, its
employees or customers;
(E) the location of the Premises in the Development; and
(F) any act or election of the Tenant or any other occupant of
the Development which results in an increase or decrease of
Taxes which would otherwise have been charged against the
Development; and
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(ii) with respect to Operating Costs, the amount to which the
Tenant's Proportionate Share of Operating Costs may be increased or
decreased by the Landlord to more accurately reflect the fair and
proper share of Operating Costs which should be payable by the
Tenant under this Lease as determined by the Landlord in its sole
discretion. Without limiting the generality of the foregoing, some
of the factors and criteria which the Landlord may consider in
determining an Adjusted Proportionate Share of Operating Costs
include:
(A) the use of the Premises and adjoining areas by Tenant, its
employees or customers;
(B) the location of the Premises in the Development;
(C) Tenant's use of any services or utilities; and
(D) repair, maintenance or cleaning costs or other costs of
services attributable to Tenant, its customers or employees
(c) "Alterations" means all repairs, replacements, improvements or alterations
to the Premises by the Tenant.
(d) "Architect" means the architect from time to time named by the Landlord.
(e) "Building" means the building known by the Building Name, including all
premises rented or intended to be rented therein, whether for office, retail,
warehouse, showroom or other purposes; and the areas, building systems and
facilities serving the Building or having utility in connection therewith, as
determined by the Landlord, whether or not located directly under the building,
which areas and facilities may include, without limitation, lobbies, sidewalks
and plazas, storage and mechanical areas, janitor rooms, mail rooms, telephone,
mechanical and electrical rooms, stairways, elevators, truck and receiving
areas, driveways, parking facilities, loading docks and corridors.
(f) "Business Tax" means all Taxes (whether imposed on the Landlord or Tenant)
attributable to the personal property, trade fixtures, business, income,
occupancy or sales of the Tenant or any other occupant of the Premises and to
the use of the Development by the Tenant.
(g) "Capital Tax" means an amount imputed by the Landlord to the Building in
respect of any taxes. rates, duties, levies, fees, charges and assessments
levied, rated, charged, assessed or imposed from time to time by any
governmental authority on or against the Landlord or payable by the Landlord
based upon or computed by reference to the taxable capital of the Landlord, the
taxable capital employed in Canada by the Landlord, or other similar criteria as
determined for the
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purposes of such taxes, rates, duties, levies, fees, charges and assessments, or
any similar taxes, rates, duties, levies, fees, charges and assessments levied,
rated, charged, assessed or imposed in the future in lieu thereof or in addition
thereto by any governmental authority. Capital Tax shall be imputed by the
Landlord to the Building on the basis of the amount of costs, capital,
deductions and credits attributable to or allocated to the Building, the
Landlord, and related corporations, all as determined by the Landlord in its
sole discretion. If any portion of Capital Tax is not deductible for the income
tax purposes of the Landlord, then Capital Tax shall include a grossed up
amount, determined by the Landlord in its sole discretion to satisfy the after
tax cost to the Landlord of the Capital Tax included in Operating Costs.
(h) "Change of Control" means, in the case of any corporation or partnership,
the transfer or issue by sale, assignment, subscription, transmission on death,
mortgage, charge, security interest, operation of law or otherwise, of any
shares, voting right or interest which would result in any change in the
effective control of such corporation or partnership unless such change occurs
as a result of trading in the shares of a corporation listed on a recognized
stock exchange in Canada or the United States, and then only so long as the
Landlord receives assurances reasonably satisfactory to it that there will be a
continuity of management and of the business practices of such corporation
notwithstanding such change of Control.
(i) "Common Areas" means those areas, facilities, utilities, improvements,
equipment and installations in or adjacent to the Development which serve or are
for the benefit of the Tenants of more than one component of the Development and
which are not designated or intended by the Landlord to be leased, from time to
time, and which are provided or designated (and which may be changed from time
to time) by the Landlord for the benefit or use of the Tenants in the
Development, their employees, customers and invitees, in common with others
entitled to the use or benefit of same;
(j) "Development" means all of the building components located on the Lands
which now form part of, or hereinafter become part of the development known by
the Development Name, and without limiting the generality of the foregoing
includes all areas, building systems and facilities serving the Development.
(k) An "Event of Default" shall occur whenever: (i) any Net Rent is in arrears,
whether or not any demand for payment has been made by the Landlord; (ii) any
Additional Rent is in arrears for more than (5) days; (iii) the Tenant has
breached any of its obligations in this Lease (other than the payment of Rent)
and: (A) fails to remedy such breach within fifteen (15) days (or such shorter
period as may be provided in this Lease); or (B) if such breach cannot
reasonably be remedied within fifteen (15) days or such shorter period, the
Tenant fails to commence to remedy such breach within fifteen (15) days or such
shorter period or thereafter fails to proceed diligently to remedy such breach,
in either case after notice in writing from the Landlord; (iv) the Tenant or any
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Indemnifier becomes bankrupt or insolvent or takes the benefit of any statute
for bankrupt or insolvent debtors or makes any proposal, assignment or
arrangement with its creditors, or any steps are taken or proceedings commenced
by any Person for the dissolution, winding-up or other termination of the
Tenant's existence or the liquidation of its assets; (v) a trustee, receiver,
receiver/manager or like Person is appointed with respect to the business or
assets of the Tenant or any Indemnifier; (vi) the Tenant makes a sale in bulk of
all or a substantial portion of its assets other than in conjunction with a
Transfer approved by the Landlord, (vii) this Lease or any of the Tenant's
assets are taken under a writ of execution; (viii) the Tenant purports to make a
Transfer other than in compliance with the provisions of this Lease, (ix) the
Tenant abandons or attempts to abandon the Premises or disposes of its goods so
that there would not after such disposal be sufficient goods of the Tenant on
the Premises subject to distress to satisfy Rent for at least three (3) months,
or the Premises become vacant and unoccupied for a period of ten (10)
consecutive days or more without the consent of the Landlord; (x) any insurance
policies covering any part of the Development or any occupant thereof are
actually or threatened to be cancelled or adversely changed as a result of any
use or occupancy of the Premise; or (xi) if an Event of Default as defined in
this paragraph occurs with respect to any lease or agreement under which the
Tenant occupies other premises in the Development.
(l) "Hazardous Materials" shall include, without limitation, flammables,
explosives, radio-active materials, urea formaldehyde foam, asbestos, P.C.B.'s,
chemicals known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous wastes, toxic substances or related materials, petroleum
products and substances declared to be hazardous or toxic under any law, by-law,
regulation or ordinance, now or hereinafter enacted or promulgated by any
federal provincial, municipal or other governmental authority.
(m) "Indemnifier" means the Person who has executed or agreed to execute the
Indemnity Agreement (if any) attached as a Schedule to this Lease, or who
otherwise guarantees the Tenant's obligations under this Lease.
(n) "Landlord" means the party of the First Part and includes the Landlord and
its duly authorized representatives and agents.
(o) "Lands" means the lands situated in the Province of Ontario on which the
Building, which forms an integral part of the Development is or will be
constructed, as more particularly hereinbefore described in Schedule "A" or as
such lands may be expanded or reduced from time to time.
(p) "Lease" means this Agreement and all Schedules hereto.
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(q) "Leasehold Improvements" means leasehold improvements in the Premises
determined according to common law, and shall include, without limitation: all
fixtures, improvements, installations, alterations and additions from time to
time made, erected or installed in the Premises by or on behalf of the Tenant or
any previous occupant of the Premises, including signs and lettering,
partitions, doors and hardware however affixed and whether or not movable, all
mechanical, electrical and utility installations and all carpeting and drapes
with exception only of furniture and equipment not in the nature of fixtures.
(r) "Mortgage" means any and all mortgages, charges, debentures, security
agreements, trust deeds, hypothecs or like instruments resulting from any
financing, refinancing or collateral financing (including renewals or extensions
thereof) made or arranged by the Landlord of its interest in all or any part of
the Building or Lands.
(s) "Mortgagee" means the holder of, or secured party under, any Mortgage and
includes any trustee for bondholders.
(t) "Normal Business Hours" means the minimum hours identified by the Landlord
from time to time, unless any such day is a holiday.
(u) "Operating Costs" means (without duplication) any amounts paid or payable
whether by the Landlord or by others on behalf of the Landlord for maintenance,
operation, repair, replacement to and administration of the Development or
allocated by the Landlord to the Building, calculated as if the Building were
100% occupied by Tenants during the Term, including without limitation:
(i) the cost of insurance which the Landlord is obligated or permitted
to obtain under this Lease and any deductible amount applicable to
any claim made by the Landlord under such insurance;
(ii) the cost of security, janitorial, landscaping, window cleaning,
garbage removal and snow removal services;
(iii) the cost of heating, ventilating and air-conditioning, to the
extent incurred with respect to Common Areas or with respect to
any shared systems;
(iv) the cost of all fuel, steam, water, electricity, telephone and
other utilities used in the maintenance, operation or
administration of the Building, including charges and imposts
related to such utilities to the extent such costs, charges and
imposts are not recovered from other Tenants;
(v) salaries, wages and other amounts paid or payable for all
personnel involved in the repair, maintenance, operation, leasing,
security, supervision or cleaning of the Building, including
fringe benefits, unemployment and worker's compensation insurance
premiums, pension plan contributions and other employment costs
and the cost of engaging contractors for the repair, maintenance,
security, supervision or cleaning of the Building;
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(vi) auditing and accounting costs incurred in determining Tenant's
Proportionate Share of Operating Costs or Adjusted Proportionate
Share of Operating Costs and in the preparation of certificates of
operating and other costs, together with legal and consulting fees
and disbursements;
(vii) the cost of repairing, operating, and maintaining the Building and
the equipment serving the Building and the cost of all
replacements, additions and modifications to the Building or such
equipment, except where such costs are attributable to inherent
structural defects in the Building;
(viii) the cost of the rental of any equipment and signs, and the cost of
supplies used by the Landlord in maintaining or operating the
Building;
(ix) all costs incurred by the Landlord in installing energy
conservation equipment or systems and life safety systems:
(x) Capital Tax attributable to the Building;
(xi) depreciation or amortization of the following (unless charged
fully in the period of estimated Additional Rent pursuant to
Section 4.6 (a) in which they are incurred) all as determined by
the Landlord in accordance with sound accounting principles:
(a) the costs referred to in Section 2.1(u)(vii) and (ix) above;
and
(b) the cost of alterations, replacements and additions to the
Building which are intended to reduce operating costs, or
improve the operation of the Building;
(xii) interest calculated at 2 percentage points above the average daily
prime bank commercial lending rate charged during such period of
estimated Additional Rent pursuant to Section 4.6 (a) by any
Canadian chartered bank designated from time to time by the
Landlord upon the undepreciated or unamortized balance of the
costs referred to in Section 2.1 (u)(xi) above; and
(xiii) a management fee equal to fifteen (15%) of the costs referred to
in Sections 2.1 (u)(i) to 2.1 (u)(ix) above inclusive and Section
2.1 (cc).
Operating Costs shall not include:
(i) all amounts which otherwise would be included in Operating Costs
which are recovered by the Landlord from Tenants as a result of
any act, omission, default or negligence of such Tenants;
(ii) such of the Operating Costs as are recovered from insurance
proceeds; and
(iii) interest on debt and capital retirement of debt.
The costs incurred in maintaining and operating the Development may be
attributed by the Landlord to the various components of the Development
including the Building, in accordance with reasonable and current practices
relevant to a multi-use commercial development on a basis consistent with the
nature of the particular costs being attributed, as hereinafter set out in
Section 4.1 2(b) of the Lease.
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(v) "Owners" means the registered owner or owners of the free-hold or leasehold
title of the Building from time to time, in sections that contain a release or
other exculpatory language in favour of an Owner, and includes the officers,
employees and agents of the Owner.
(w) "Person" means any person, firm, partnership or corporation, or any group or
combination of persons, firms, partnerships or corporations.
(x) "Proportionate Share" means a fraction which has as its numerator the
Rentable Area of the Premises and as its denominator the Rentable Area of the
Building.
(y) "Rent" means the aggregate of Net Rent and Additional Rent.
(z) "Rentable Area of the Building" is the sum of the gross area of each floor
level included within the principal outside faces of the exterior walls of the
Building, including, without limitation, electrical and service rooms, exterior
shipping and receiving platforms which are enclosed and all mezzanines and
balconies, but excluding Common Areas.
(aa) "Rentable Area of Premises" is the sum of the gross area of the Premises
computed by measuring from the principal outside faces of permanent outer
Building walls to the outside faces of abutting corridor walls or other
permanent partitions, and to the centre of partitions that separate the Premises
from adjoining rentable areas, and including electrical and service rooms,
exterior shipping and receiving platforms which are enclosed, and all mezzanines
and balconies.
(bb) "Rules and Regulations" means the rules and regulations adopted and
promulgated by the Landlord from time to time pursuant to Section 14.1. The
Rules and Regulations existing as at the Commencement Date are those set out in
Schedule "C".
(cc) "Taxes" means all taxes, levies, rates, duties, fees, charges, local
improvement rates and assessments whatsoever now or in the future imposed,
levied, rated, assessed or charged against the Development or any part thereof
and/or against the Landlord on account of its ownership thereof or interest
therein by any lawful taxing authority or allocated or attributed by the
Landlord to the Building or any part thereof and including, without limitation,
any amounts assessed, imposed, levied, rated or charged in substitution for or
in lieu of or in addition to any of the foregoing whether of the foregoing
character or not or in existence at the Commencement Date or not, but excluding
only such taxes as capital gains taxes, or corporate, income, profit or excess
profit taxes to the extent such taxes are not so levied in lieu of any of the
foregoing and to the extent such taxes are not expressly included in this
Section or in any other Section of this Lease. Notwithstanding the foregoing,
Taxes shall include, without limitation, any commercial concentration, density
or similar levy, tax, rate, duty, charge or assessment (such as, without
limitation, any commercial concentration levy imposed on the Development or on
the Landlord on account of the Landlord's ownership of the Development or
interest in it). whether characterized as such or otherwise. Taxes
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shall in every instance be calculated on the basis of the Building being
entirely completed and operational and entirely occupied by occupants having no
special exemptions with respect to Taxes.
(dd) "Tenant" means the party of the Second Part and is deemed to include the
word "lessee" and includes every Person mentioned as Tenant in this Lease.
(ee) "Trade Fixtures" means trade fixtures as determined at common law, but for
greater certainty, shall not include: (i) heating, ventilating or air
conditioning systems, facilities and equipment in or serving the Premises; (ii)
floor covering affixed to the floor of the Premises; (iii) light fixtures; (iv)
internal stairways and doors; and (v) any fixtures, facilities, equipment or
installations installed by or at the expense of the Landlord pursuant to the
Offer to Lease or otherwise, all of which are deemed to be leasehold
Improvements.
(ff) "Transfer" means an assignment of this lease in whole or in part, a
sublease of all or any part of the Premises; any transaction whereby the rights
of the Tenant under this Lease or to the Premises are transferred to another-,
any transaction by which any right or use or occupancy of all or any part of the
Premises is conferred upon anyone; any mortgage, charge or encumbrance or other
arrangement under which either this Lease or the Premises become security for
any indebtedness or other obligations and includes any transaction or occurrence
whatsoever (including, but not limited to, expropriation, receivership
proceedings, seizure by legal process and transfer by operation of law) which
has changed or might change the identity of the Persons having lawful use or
occupancy of any part of the Premises.
(gg) "Transferee" means the Person or Persons to whom a Transfer is to be made.
(hh) "Unavoidable Delay" means a delay by a party in the performance of an act
or compliance with a covenant or obligation caused by fire, strike, lockout,
inability to procure material, restrictive laws or governmental regulations or
other cause of any kind beyond the reasonable control of the party obliged to
perform or comply, excepting a delay by the Tenant caused by lack of funds or
other financial reason.
ARTICLE III
TERM AND USE
3.1 Grant and Premises
In consideration of the Tenant's covenants contained in this Lease, the Landlord
leases the Premises to the Tenant.
3.2 Term
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The Term of this Lease shall be as set forth in Section I.I(b) of this Lease,
commencing on the commencement date.
3.3 Construction of Premises
The provisions (if any) of the Offer to Lease relating to construction of the
Premises and delay in the availability of the Premises for occupancy by the
Tenant shall remain in effect and shall not merge upon the execution of this
Lease,
3.4 Overholding
Despite any statutory provision or legal presumption to the contrary, if the
Tenant remains in possession of all or any part of the Premises after the expiry
of the Term or any renewal or written extension of it:
(a) with the consent of the Landlord and without any further written
agreement, then it shall be deemed to be a monthly Tenant at will,
or
(b) without the consent of the Landlord, then it shall be deemed to be a
Tenant at will and the Landlord shall be entitled to recover
possession of the Premises immediately at any time without notice to
the Tenant and in such peaceable or forceful manner as the Landlord
deems fit.
In either case, there shall be no tacit renewal or extension of this Lease and
the Tenant shall be deemed conclusively to be occupying the Premises on the same
terms and conditions as set forth in this Lease (including the payment of
Additional Rent) so far as such terms would be applicable to a monthly tenancy
or a tenancy at will (as the case may be), except that the monthly net Rent
shall be the greater of: (i) twice the aggregate of the monthly amount of the
Net Rent payable by the Tenant during the last twelve (12) consecutive months of
the Term or any renewal or written extension of it or (ii) 150% of the monthly
Net Rent prevailing at the date of such overholding for renting of improved
premises in the Building which are either identical or similar to the Premises,
all as determined by the Landlord in its sole discretion. The Tenant shall
promptly indemnify and hold harmless the Landlord from and against any and all
claims, losses, actions, suits, proceedings, causes of action, demands, damages
(direct, indirect, consequential or otherwise), judgements, executions,
liabilities, responsibilities, costs, charges, payments and expenses, including,
without limitation, any professional and legal fees (on a solicitor and his own
client basis) incurred by the Landlord as a result of the Tenant remaining in
possession in all or any part of the Premises after expiry of the Term or any
renewal or written extension of it.
3.5 Compliance With Planning Legislation
It is a condition of this Lease that all applicable planning, zoning or
subdivision control legislation be complied with. If any such legislation
restricts the length of the term of the Lease, and the Term (including any
extensions thereof) would extend beyond such permitted period, then unless and
until any necessary consent to or approval of the Lease is obtained under such
legislation, the Term (including any extensions thereof) of the lease and the
Tenant's rights under the lease shall
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extend only for such permitted period, less one day, from the commencement Date.
The Tenant shall apply for any necessary approval or consent forthwith upon the
execution of this Lease, and shall diligently prosecute such application and
shall be fully responsible for any expenses, taxes or levies imposed or charged
as a result of such application in order to obtain such consent or approval, and
shall keep the Landlord fully advised of its progress with respect to such
application. If required, the Landlord shall at the Tenant's expense co-operate
with the Tenant in such application. The Landlord reserves the right at any time
to apply for such consent in lieu of the Tenant, but at the Tenant's sole
expense.
ARTICLE IV
RENT
4.1 Covenant to Pay
The Tenant shall pay Rent during the Term, in Canadian funds and without prior
demand. If the Commencement Date does not occur on the first day of a calendar
month, then all amounts payable by the Tenant for the partial first month of the
Term shall be pro-rated on a per them basis, based upon a period of 365 days,
and adjusted accordingly. The Tenant agrees that its covenant to pay Rent is an
independent covenant and that all such amounts are payable without counterclaim,
set-off, deduction, abatement or reduction whatsoever, except as expressly
provided for in this lease. The Tenant shall deliver post-dated cheques to the
Landlord prior to such portions of the Term, as the Landlord may designate from
time to time, for net Rent and estimated Additional Rent as required by the
Landlord.
4.2 Net Rent
The Tenant shall pay to the Landlord as Net Rent during the Term the amounts per
annum set out in Section 1.1(d) of this Lease, which shall be payable in equal
monthly instalments in advance on the FIRST day of each calendar month of each
year of the Term in the amounts indicated in Section 1.1(d) of this Lease.
4.3 Additional Rent
Except as otherwise provided in this Lease, all Additional Rent shall be payable
by the Tenant to the Landlord within five (5) business days after demand. If
such amounts are not paid in the manner or at the times required by this Lease,
then in such event all remedies of the Landlord for non-payment of Rent shall be
available in respect of the default. All obligations of the Landlord and Tenant
with respect to the payment of Additional Rent by the Tenant, or with respect to
the adjustment of amounts paid on account of Additional Rent by the Tenant,
shall survive the expiration or termination of this Lease until such amounts
have been paid or properly adjusted in accordance with this Lease, as the case
may be.
4.4 Operating Costs
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The Tenant shall pay to the Landlord as Additional Rent the Tenant's
Proportionate Share of Operating Costs or if the Landlord so elects, the
Adjusted Proportionate Share of Operating Costs, at the times and in the manner
described in Section 4.6 of this Lease.
4.5 Taxes
(a) The Tenant shall pay when due all Business Tax. If the Tenant's
Business Tax is payable by the Landlord to the relevant taxing
authority, the Tenant shall pay the amount thereof on demand to the
Landlord or as it directs. If no separate tax bills for business Tax
are issued with respect to the Tenant or the Premises, the Landlord
may allocate Business Tax charged, assessed or levied against the
Building to the Tenant on the basis of the Tenant's Proportionate
Share.
(b) The Tenant shall promptly pay to the Landlord as Additional Rent,
its Proportionate Share or if the Landlord so elects, its Adjusted
Proportionate Share of Taxes at the times and in the manner
described in Section 4.6 of this Lease. At the Landlord's option,
the Landlord may direct the Tenant to pay its Proportionate Share of
Taxes direct to the relevant taxing authority not later than the due
date thereof.
(c) The Landlord shall pay all Taxes to the taxing authorities, subject
to the payments on account of, or contributions towards, Taxes
required to be made by the Tenant pursuant to this lease.
(d) The Landlord may, in making any estimate of the amount of Taxes
payable by the Tenant pursuant to Section 4.6 of this Lease, base
such estimate upon the Tenant's Adjusted Proportionate Share of such
Taxes.
(e) The Landlord may: Contest any taxes and appeal any assessments with
respect thereto; withdraw any such contest or appeal; and agree with
the taxing authorities on any settlement or compromise with respect
to Taxes. The Tenant will co-operate with the Landlord in respect of
any such contest or appeal and will provide the Landlord with all
relevant information, documents and consents required by the
Landlord in connection with any such contest or appeal. the Tenant
will not contest any Taxes or appeal any assessments related thereto
without the Landlord's prior written consent.
(f) All costs incurred by the Landlord in contesting or appealing Taxes
or related assessments (including legal, appraisal and other
professional fees, administration and overhead costs) and in
determining any Tenant's Adjusted Proportionate Share of Taxes,
shall be included in Operating Costs.
(g) If the Landlord cannot obtain from the taxing authorities separate
allocations of Taxes, business Tax, or tax assessments in order to
determine the Tenant's Proportionate Share of Taxes or Adjusted
Proportionate Share of Taxes, such allocation shall be made by the
Landlord acting reasonably and shall be conclusive.
(h) The Tenant shall promptly deliver to the Landlord on receipt, copies
of assessment notices, tax bills and other documents received by the
Tenant
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13
relating to Taxes and receipts for payment of Taxes and business Tax
payable by the Tenant.
4.6 Payment of Taxes and Operating Costs
(a) The amount of taxes and Operating Costs payable to the Landlord
pursuant to Sections 4.4 and 4.5 of this Lease may be estimated by
the Landlord for such period (not to exceed 24 months) as the
Landlord determines from time to time, and the Tenant agrees to pay
to the Landlord the amounts so estimated in equal instalments in
advance on the first day of each month during such period.
Notwithstanding the foregoing, when bills for all or any portion of
the said amounts so estimated are received, the Landlord may ▇▇▇▇
the Tenant for the Tenant's Proportionate Share thereof, and if the
Landlord so elects, the Tenant's Adjusted Proportionate Share
thereof and the Tenant shall pay the Landlord such amounts so billed
after crediting against such amount any monthly payments of
estimated Taxes and Operating Costs previously made by the Tenant,
and the amount so billed shall be paid within five (5) business days
after demand.
(b) Within a reasonable period of time after the end of the period for
which such estimated payments have been made, the Landlord shall
submit to the Tenant a statement from the Landlord setting forth the
actual amounts payable by the Tenant pursuant to Sections 4.4 and
4.5 of this Lease. If the amount the Tenant has paid is less than
the amount due, the Tenant shall pay such deficiency within five (5)
business days after submission of such statement. If the amount paid
by the Tenant is greater than the amount due, the amount of such
excess may be retained by the Landlord to be credited and applied by
the Landlord to the next succeeding instalments of the Tenant's
Proportionate Share of Taxes and Operating Costs (either actual or
as estimated by the Landlord), but if such excess has been paid with
respect to the last year of the Term, then the Landlord shall pay
such excess to the Tenant within five (5) business days after
submission of such statement.
(c) If the Landlord, acting equitably, determines that the Tenant's
Proportionate Share of Taxes and Operating Costs payable in
accordance with Sections 4,6(a) and (b) of this Lease does not
accurately reflect the Tenant's fair and proper share of Taxes and
Operating Costs, then the Landlord shall determine the Tenant's
Adjusted Proportionate Share of such Taxes and Operating Costs.
(d) If the Landlord so determines the Tenant's Adjusted Proportionate
Share of the Taxes and Operating Costs, which may be an amount
either less or greater than the Tenant's Proportionate Share of
Taxes and Operating Costs, the Tenant shall pay such Adjusted
Proportionate Share of Taxes and Operating Costs rather than its
Proportionate Share thereof, in the same manner as set out in
Sections 4.6(a) and (b) of this Lease.
4.7 Utilities
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The Tenant shall pay when due all charges for public utilities used in the
Premises, including but not limited to, water rates, electrical rates, telephone
rates, and gas rates. The Tenant shall also pay for apparatus, meters, and other
things leased or purchased in connection with public utility services, and for
all work performed by anyone in connection with such public utilities. If
utility charges are not charged specifically to the Premises or to the Tenant
but are charged to the Landlord in connection with the entire Development, the
Landlord shall charge the Tenant with utility charges applicable to the
Premises, calculated if possible on the basis of the Tenant's connected load, or
otherwise as estimated by the Landlord on a reasonable and equitable basis and
the Tenant shall pay to the Landlord all of the utility charges so calculated in
monthly instalments in advance, together with payment of its instalments of
Rent.
4.8 Rent Past Due
All other amounts (other than the fixed Net Rent reserved by this Lease)
required to be paid by the Tenant under this Lease shall be considered to be
Additional Rent. If any Net Rent or Additional Rent is not paid to the Landlord,
or is paid by the Landlord on behalf of the Tenant, the Landlord shall have the
right to recover such amounts as if they were Rent in arrears, together with
interest on such amount from the date on which the same became due until the
date of payment at five percent (5%) per annum in excess of the prime interest
rate for commercial demand loans charged by any Canadian chartered bank
designated by the Landlord.
4.9 Adjustment of Areas
The Landlord may from time to time re-measure or recalculate the Rentable Area
of the Premises and may re-adjust the Net Rent and/or the Tenant's Proportionate
Share of Additional Rent accordingly. The effective date of any such
re-adjustment shall: (a) in the case of an adjustment to the Rentable Area, be
the date on which such change occurred; and (b) in the case of a correction to
any measurement or calculation error, be the date as of which such error was
introduced in the calculation of any Rent.
4.10 Rent Deposit
The Landlord acknowledges receipt from the Tenant of the Rent Deposit, to be
applied as a deposit against Net Rent and Additional Rent accruing in the first
month Net Rent is due under this Lease and the last month of the Term.
4.11 Security Deposit
The Tenant shall deposit with the Landlord prior to the date the Tenant occupies
the Premises a security deposit in the amount of the Security Requirement to be
held by the Landlord, without liability for interest thereon, as security for
the performance by the Tenant of the terms a conditions of this Lease. In the
event of default by the Tenant of any of its covenants or obligations under this
Lease, the Landlord may at its option, but without prejudice to any other rights
which the Landlord may have, apply all or part of the security deposit to
compensate the Landlord for any loss, damage
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15
or expense sustained by the Landlord as a result of such default. If all or any
part of the security deposit is so applied, the Tenant shall on demand and of
the Landlord restore the security deposit to its original amount. On termination
of this Lease, if the Tenant is not then in default, the security deposit will
be returned by the Landlord to the Tenant. If the Landlord sells its interest in
the Premises, it may deliver the security deposit to the purchaser, and the
Landlord will be released from any further liability with respect to the
security deposit or its return to the Tenant.
4.12 Net Lease
(a) This Lease is a completely carefree net Lease to the Landlord,
except as expressly herein set out. The Landlord is not responsible
for any expenses or outlays of any nature arising from or relating
to the Premises or the use or occupancy thereof, or the contents
therein or the business carried on therein. The Tenant shall pay all
charges, impositions and outlays of every nature and kind relating
to the Premises except as expressly herein set out.
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(b) The Tenant acknowledges that the Building forms an integral part of
the Development and that the Operating Costs to which the Tenant is
to contribute its Proportionate Share or Adjusted Proportionate
Share may be attributed by the Landlord from time to time to the
various components of the Development in accordance with reasonable
and current practices relevant to a multi-use development, and on a
basis consistent with the nature of the particular costs being
incurred, and the Tenant shall pay its Proportionate Share or
Adjusted Proportionate Share of Operating Costs in the manner as is
reasonably so attributed from time to time by the Landlord.
4.13 Penalty Charge
In the event that any cheque tendered by the Tenant to the Landlord is not
honoured in full by the financial institution on which it is drawn, then in
addition to all other rights and remedies of the Landlord, the Tenant shall
forthwith pay to the Landlord, as Additional Rent, liquidated damages in the
amount of FIFTY ($50.00) dollars on account of the Landlord's costs in
presenting such cheque, having it rejected and attempting to obtain a
replacement for it.
4.14 Place of Payment
The Tenant shall make all rental and other payments required by this Lease by
cheque payable to the Landlord. All payments shall be made to the Landlord at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ or such other place as the
Landlord may notify the Tenant.
4.15 Adjustment of Costs
The Landlord and Tenant shall adjust between themselves on the commencement and
termination of this Lease, all realty taxes, water rates, insurance premiums and
other charges relating to the Premises, with the intention that the Landlord
shall bear such charges until commencement Date of this Lease and the Tenant
shall bear such charges thereafter and until it delivers possession of the
Premises to the Landlord in accordance with the provisions of this Lease,
ARTICLE V
PERMITTED USE
5.1 Permitted Use and Conduct of Business
The Tenant shall use the Premises for none other than the Permitted Use.
The use of the Premises by the Tenant shall be subject to the overriding
provision of any applicable laws and regulations of any governmental authority.
In its use of the Premises the Tenant shall not keep or display any merchandise,
equipment or fixtures on, or otherwise obstruct, the Common
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17
Areas of the Lands and Development; shall not conduct business on or from the
Common Areas; and shall affix no article or thing to the exterior of the
Building or any other portion of the Common Areas. The Tenant shall not use,
either in the Premises or outside of the Premises, any travelling or flashing
lights or signs, or any loudspeakers, television, phonographs, radio or other
audio-visual or mechanical devices in a manner so that they could be heard or
seen outside the Premises.
5.2 Overloading
The Tenant shall not bring into the Premises anything which by reason of its
weight, size or use, might damage the Premises. If any damage is caused to the
Premises by any such thing or by overloading the floors of the Premises or by
any act or omission on the part of the Tenant or those for whom it is in law
responsible, the Tenant will forthwith repair such damage.
5.3 Roof
The Tenant shall not place anything on, nor make any opening in, the roof of the
Premises without the prior written consent of the Landlord, which consent may be
withheld or given on such terms as the Landlord may determine. On the
termination of this Lease, or at such time as the Tenant vacates the Premises or
is declared bankrupt, the Tenant or its trustee in bankruptcy, as the case may
be, shall repair any damage caused to the Premises or any other part of the
Building as a result of having placed anything on or having made openings in or
having attached anything to the roof, and shall restore the roof to its former
condition, all to the satisfaction of the Landlord.
5.4 Signage
The Tenant shall not place any sign on the Premises without the prior written
consent of the Landlord as to the size, content, design, character and location
of such sign. Any sign placed by the Tenant shall serve only as identification
of the Tenant's premises and not as advertising, and any such sign shall be
complimentary with the signs of other Tenants of the Building as to style and
dimensions, and shall conform with any standardized sign policy instituted by
the Landlord for the Building. The Tenant shall not remove any sign or sign
panels without the written consent of the Landlord. Any damage caused to the
Building as a result of the Tenant having attached or removed such signs shall
be repaired by the Tenant to the reasonable satisfaction of the Landlord prior
to the expiration of the Term. Upon expiration or earlier termination of the
Term of this Lease all signs and panels shall become the property of the
Landlord, and shall be removed from the Premises by the Tenant only in the event
that the Landlord requires or permits the Tenant to do so.
5.5 Heating, Ventilating and Air Conditioning; System Maintenance Program
The Tenant shall heat, ventilate and air condition the Premises at its own
expense to such temperature as may be necessary to prevent damage to the
Premises or any other part of the Building; and the Tenant shall operate and
maintain and replace as necessary all heating, ventilating and air conditioning
equipment serving the Premises.
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NOTWITHSTANDING the above,
(a) the Landlord may, at its sole option, elect to place and maintain a
comprehensive preventative maintenance program (utilizing such
persons, firms or corporations as it may see fit) for all heating,
ventilating and air-conditioning equipment in the Premises
notwithstanding the fact that the Tenant has the obligation to
repair same, and if the Landlord so elects, the Tenant shall pay all
costs incurred by the Landlord or its contractor for such service in
accordance with Section 5.5(b).
(b) If the Landlord elects to place and maintain a comprehensive
maintenance program for the heating, ventilating and air
conditioning equipment in the Premises, the Tenant shall participate
in such program, shall retain the Landlord's contractor designated
for such purpose and shall pay to the Landlord or such contractor,
as designated by the Landlord, on demand, and as Additional Rent,
all costs and expenses incurred by the Landlord or charged by such
contractor with respect to such program, it being understood and
agreed that the Landlord may require such payment to be made by the
Tenant in monthly instalments, fixed from time to time by the
Landlord, subject to annual adjustment in accordance with the terms
of this Lease.
5.6 Nuisance
The Tenant shall not, by its act or omission, permit anything to occur in the
Premises which shall be or shall result in a nuisance.
5.7 Windows
The Tenant shall throughout the Term and at its expense, install and maintain
covering over all windows of the Premises from the inside using blinds, curtains
or other coverings acceptable to the Landlord in its sole and absolute
discretion. Without limiting the generality of the foregoing, such window
coverings shall be sufficient to present a uniform exterior appearance of the
Building and such that the Tenant's goods and activities are not visible from
the outside of the Premises.
5.8 Cleanliness
The Tenant shall keep the Premises and the sidewalks and other areas adjacent to
the Premises clean and free of refuse and other obstructions, and shall comply
with any laws governing the condition or cleanliness of the Premises.
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ARTICLE VI
ACCESS AND ENTRY
6.1 Right of Examination
The Landlord shall be entitled at all reasonable times (and at any time in the
case of an emergency) to enter the Premises to examine them; to make such
repairs, alterations or improvements thereto as the Landlord considers necessary
or desirable; to have access to underfloor ducts and access panels to mechanical
shafts and to check, calibrate, adjust and balance controls and other parts of
the heating, air conditioning, ventilating and climate control systems. The
Landlord reserves to itself the right to use the exterior walls and the roof,
and the right to install, maintain use and repair pipes, ducts, conduits, vents,
wires and other installations leading in, through, over, or under the Premises
and for this purpose, the Landlord may take all material into and upon the
Premises which is required therefor. The Tenant shall not unduly obstruct any
pipes, conduits or mechanical or other electrical equipment so as to prevent
reasonable access thereto. The Landlord shall exercise its rights under this
Section 6.1, to the extent possible in the circumstances, in such manner so as
to minimize interference with the Tenant's use and enjoyment of the Premises. If
any excavation is made on the Lands, the person making such excavation may enter
the Premises to do any work considered necessary to preserve and protect the
walls of the Building and to support them by proper foundations. Rent will not
▇▇▇▇▇ or be reduced while the repairs, alterations, or improvements are being
made and the Landlord is not liable for damage, injury or death caused to any
person or to property of the Tenant or others located on the Premises as a
result of the entry regardless of how the damage, injury or death is caused.
6.2 Right to Show Premises
The Landlord and its agents may enter the Premises at all reasonable times to
show them to prospective purchasers or mortgagees. The Landlord may within six
(6) months before the expiration of the Term, unless the Term has been renewed,
or within six (6) months before the expiration of the renewal term (if any)
place on the premises a notice of reasonable dimensions stating that the
Premises are for rent and the Tenant shall not permit such notice to be removed,
and during such period the Landlord and its agents may enter the Premises at all
reasonable times to show them to prospective Tenants.
6.3 Entry not Forfeiture
No entry into the Premises or anything done therein by the Landlord pursuant to
a right granted by this Lease shall constitute a breach of any covenant for
quiet enjoyment, or (except where expressed by the Landlord in writing) shall
constitute a re-entry or forfeiture, or an actual or constructive eviction. The
Tenant shall have no claim for injury, damages or loss suffered as a result of
any such entry or thing and the Landlord shall in no event be responsible for
the acts or negligence of any Persons providing cleaning services in the
Building.
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ARTICLE VII
MAINTENANCE, REPAIRS AND ALTERATIONS
7.1 Maintenance by Landlord
(a) The Landlord covenants to keep the following in good repair as a
prudent owner; (i) the structure of the Building including exterior
walls and roofs; (ii) the mechanical, electrical and other base
building systems; and (iii) the entrance, lobbies, plazas,
stairways, corridors, parking areas and other facilities from time
to time provided for use in common by the Tenant and other Tenants
of the Building. Subject to Sections 7.4 and 7.5 of this Lease, the
cost of such maintenance and repairs (other than the repair of
inherent structural defects) shall be included in Operating Costs.
(b) The Landlord shall not be responsible for any damages caused to the
Tenant by reason of failure of any equipment or facilities serving
the Building or delays in the performance of any work for which the
Landlord is responsible under this Lease. The Landlord shall have
the right to stop, interrupt or reduce any services, systems or
utilities provided to, or serving, the Building or Premises to
perform repairs, alterations or maintenance or to comply with laws
or regulations, or binding requirements of its insurers, or for
causes beyond the Landlord's reasonable control or as a result of
the Landlord exercising its right under Section 13.2 of this Lease.
The Landlord shall not be in breach of its covenant for quiet
enjoyment or liable for any loss, costs or damages, whether direct
or indirect, incurred by the Tenant due to any of the foregoing, but
the Landlord shall make reasonable efforts to restore the services,
utilities or systems so stopped, interrupted or reduced. The Tenant
acknowledges that the Landlord may require one year after the Tenant
has fully occupied the Premises in order to adjust and balance the
climate control systems and the Landlord shall not be responsible
for any inconvenience, discomfort, damages, loss or claims
whatsoever arising out of the process of such adjustment or
balancing.
(c) If the Tenant fails to carry out any maintenance, repairs or work
required to be carried out by it under this Lease and to the
reasonable satisfaction of the Landlord, the Landlord may at its
option carry out such maintenance or repairs without any liability
for any resulting damage to the Tenant's property or business. The
cost of such work, plus a sum equal to fifteen (15%) percent of such
cost representing the Landlord's overhead, shall be paid by the
Tenant to the Landlord.
7.2 Maintenance and Repairs by Tenant; Compliance with Laws
(a) The Tenant shall, at its expense, maintain and repair both the
interior and exterior of the Premises and all utility and mechanical
systems installed therein
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21
(including plumbing, electrical, heating, ventilating and air
conditioning systems) in good order and condition in the same manner
as a careful and prudent owner would, including the repair of wear
and tear to the extent that such repair is necessary to maintain the
improvements and equipment in or serving the Premises in such manner
so that they shall function properly, having regard to their nature
and the purposes for which they are intended to be used, and is
necessary to keep the appearance of the Premises neat, clean and
presentable, but excluding the repair of damage caused by fire or
other insured casualties to the extent the repair thereof is
provided for in Section 9.2 of this Lease, and excluding such
repairs as may be specifically required to be performed by the
Landlord pursuant to this Lease. The Tenant's obligation to maintain
and repair the exterior of the Premises shall extend only to (i) the
maintenance and repair of those elements of the exterior of the
Premises exclusively utilized in connection with the Premises or
exclusively forming part of the Premises, namely the doors and
entranceways, overhead and loading doors, loading docks, windows and
window frames, exterior Tenant identification signs and exterior
lighting; and (ii) the repair of any damage to the exterior of the
Premises caused by the wilful act or negligence of the Tenant or
those for whom it is in law responsible.
(b) The Tenant shall promptly comply with the requirements of all laws
at any time in force during the Term which affect the condition or
use of the Premises, and with every reasonable recommendation or
requirement of the Insurers Advisory Organization or by any
recognized body having similar functions or any insurance company by
which either the Landlord or the Tenant may be insured during the
Term. If the Tenant defaults under the provisions of this Section
7.2, the Landlord may itself comply with the requirements of this
Section 7.2, and all expenses (including insurance premiums)
incurred by the Landlord in so doing, together with a sum equal to
fifteen (15%) percent of such cost representing the Landlord's
overhead, shall be paid by the Tenant to the Landlord as Additional
Rent on demand.
7.3 Approval of Tenant's Alterations
(a) No Alterations shall be made to the Premises without the Landlord's
written approval. The Tenant shall submit to the Landlord details of
the proposed work including drawings and specifications prepared by
qualified architects or engineers conforming to good engineering
practice. All such Alterations shall be performed: (i) at the sole
cost of the Tenant, (ii) by contractors and workmen approved by the
Landlord; (iii) in a good and workmanlike manner; (iv) in accordance
with drawings and specifications approved by the Landlord, (v) in
accordance with all applicable laws and regulations; (vi) subject to
the reasonable regulations, supervision, control and inspection of
the Landlord, and (vii) subject to such indemnification against
liens and expenses as the Landlord
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22
reasonably requires. The Landlord's reasonable costs of supervising
all such work shall be paid by the Tenant.
(b) If any Alterations would affect the structure of the Building or any
of the electrical, plumbing, mechanical, heating, ventilating or air
conditioning systems or other base building systems, such work shall
at the option of the Landlord be performed by the Landlord at the
Tenant's cost, On completion of such work, the cost of the work plus
a sum equal to fifteen (15%) percent of said cost representing the
Landlord's overhead shall be paid by the Tenant to the Landlord.
7.4 Repair Where Tenant at Fault
Notwithstanding any other provision of this Lease, if the Building is damaged or
destroyed or requires repair, replacement or alteration as a result of the Act
or omission of the Tenant, its employees, agents, invitees, licensees,
contractors or others for whom it is in law responsible, the cost of the
resulting repairs, replacements or alterations plus a sum equal to fifteen (15%)
percent of such cost representing the Landlord's overhead, shall be paid by the
Tenant to the Landlord.
7.5 Repair Due to Tenant's Use of Premises
If the Landlord, acting reasonably, determines that any repairs, replacements or
improvements to any part of the Building, including, without limitation, to any
of the systems of the Building, are required as a result of the use of the
Premises by the Tenant, then the cost of such repairs, replacements or
improvements shall be borne by the Tenant and shall be payable by the Tenant on
demand together with an amount equal to fifteen (15%) percent thereof
representing the Landlord's administrative and overhead charges. For the
purposes of this Section 7.5, it shall be reasonable for the Landlord to
determine that such repairs, replacements or improvements are the result of the
Tenant's use of the Premises if such repairs, replacements or improvements are
effected to rectify any nuisance, noise or discomfort (including, without
limitation, as a result of noxious or unpleasant odours) caused to other Tenants
as a result of the Tenant's use of the Premises.
7.6 Removal of Improvements and Trade Fixtures
All Leasehold Improvements (other than Trade Fixtures) shall immediately upon
their placement become the Landlord's property without compensation to the
Tenant. Except as otherwise agreed by the Landlord in writing, no Leasehold
Improvements shall be removed from the Premises by the Tenant either during or
at the expiration or sooner termination of the Term except that: (a) the Tenant
may, during the Term, in the usual course of business, remove its Trade
Fixtures, provided that the Tenant is not in default under this Lease; and (b)
the Tenant shall, at the expiration or earlier termination of the Term, at its
sole cost remove such of the Leasehold Improvements and Trade Fixtures in the
Premises as the Landlord shall require to be removed, and restore the Premises
to the Landlord's then current building standard to the extent required by the
Landlord. The Tenant shall at its own expense repair any damage caused to the
Building by such removal. If the Tenant does not remove its Trade Fixtures at
the expiry or earlier termination of the Term, the
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23
trade Fixtures shall, at the option of the Landlord, become the property of the
Landlord and may be removed from the Premises and sold or disposed of by the
Landlord in such manner as it deems advisable. If the Tenant fails to complete
any work referred to in this Section 7.6 by the expiry or earlier termination of
the Term, the Tenant shall pay compensation to the Landlord for each day
following such expiration or earlier termination of the Term, until the
completion of such work at a rate equal to double the per diem Rent payable
during the last month preceding the expiry or earlier termination of the Term,
which sum is agreed by the parties to be a reasonable estimate of the damages
suffered by the Landlord for loss of use of the Premises. The Tenant shall close
off all electrical wiring which may have previously served any machinery or
equipment installed by the Tenant in the Premises.
7.7 Liens
The Tenant shall promptly pay for all materials supplied and work done in
respect of the Premises so as to ensure that no lien is registered against any
portion of the Lands or the Building or against the Landlord's or Tenant's
interest therein. If a lien is registered or filed, the Tenant shall discharge
it at its expense forthwith, failing which the Landlord may at its option
discharge the same by paying the amount claimed to be due into court or directly
to any such lien claimant and the amount so paid and all expenses of the
Landlord including legal fees (on a solicitor and his client basis) incurred by
the Landlord shall be paid by the Tenant to the Landlord within five (5)
business days after demand.
7.8 Notice by Tenant
The Tenant shall notify the Landlord of any accident, defect, damage or
deficiency in any part of the Premises or the Building, which comes to the
attention of the Tenant, its employees or contractors notwithstanding that the
Landlord may have no obligation in respect thereof.
7.9 Tenant's Repair
The Landlord may enter the Premises to view the state of repair. If the Landlord
notifies the Tenant of the need for repairs, the Tenant will repair in
accordance with such notice, subject to the exceptions set out in Section 7.2.
On the expiration or date of early termination of this Lease, the Tenant shall
surrender the Premises to the Landlord in a good state of repair. No provision
of this Section 7.9 shall require the Tenant on the expiration or other
termination of this Lease to repair reasonable wear and tear, except to the
extent that repair of wear and tear is necessary to maintain the improvements
and equipment of the Premises in such manner so that they shall function
properly, having regard to their nature and the purpose for which they are
intended to be used, and except to the extent that repair of wear and tear is
necessary to keep the appearance of the Premises neat, clean and presentable.
All repairs required to be made pursuant to this Section 7.9 shall be completed
prior to the date upon which this Lease terminates.
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24
7.10 Environmental Matters
(a) The Tenant will not cause or permit to occur any violation of the
ENVIRONMENTAL PROTECTION ACT (Ontario), CANADA ENVIRONMENT ACT or
any other federal, provincial, municipal, intermunicipal or other
law, by-law, ordinance or regulation now or hereinafter promulgated
which relates to environmental conditions, on, under or about the
Premises, or arising from the Tenant's use or occupancy of the
Premises, including but not limited to, soil and ground water
conditions, to the use, generation, release, manufacturing,
refining, production, processing, storage or disposal of any
Hazardous Materials on, under or about the Premises or
transportation to or from the Premises of any Hazardous Materials;
or any discharge, leak or emission of any material in the
atmosphere, ground, sewer system or any body of water, if that
material, as reasonably determined by any governmental authority,
does or may pollute or contaminate the same or may adversely affect
the health, welfare or safety of persons, if located on the
Premises.
(b) The Tenant will, at its own expense, effect all clean ups as may be
required by governmental authorities and provide all information
regarding the use, generation, storage, transportation of Hazardous
Materials that is requested by the Landlord or any other
governmental authority, insurer or secured lender from time to time.
(c) If the Tenant fails to fulfill all of its obligations under Section
7.10 (a) and (b) of this Lease, the Landlord may do so at the
Tenant's expense, together with an administration fee of fifteen
(15%) percent of the cost thereof, all of which will be payable on
demand as Additional Rent without prejudice to the Landlord's other
rights and recourse in the circumstances.
(d) The Tenant hereby agrees that it shall be fully responsible for the
use, storage and disposal of Hazardous material kept on the Premises
by the Tenant. The Tenant shall defend, indemnify and hold harmless
the Landlord and its employees and agents, from and against any
claims, demands, penalties, fines, liabilities, settlements,
damages, costs of expenses (including, without limitation,
reasonable legal fees, court costs and litigation expenses) of
whatever kind or nature including any loss or reduction in the value
of the Building and any loss of income therefrom, arising out of or
related to (i) the presence, disposal, release or threatened release
by the Tenant of any Hazardous Material that is on, from, or
affecting the soil, water, vegetation, buildings, personal property,
persons, animals or otherwise; (ii) any personal injury (including
wrongful death) or property damage (real or personal) arising out of
or related to that Hazardous material kept or brought on to the
Premises by the Tenant; (iii) any lawsuit
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25
brought or threatened or government order relating to that hazardous
material kept or brought on the Premises by the Tenant; or (iv) any
violation of any laws applicable to any Hazardous material kept or
brought on to the Premises by the Tenant.
ARTICLE VIII
INSURANCE AND INDEMNITY
8.1 Tenant's Insurance
(a) The Tenant shall, throughout the Term, maintain at its sole cost the
following insurance: -
(i) "All Risks" (including flood and earthquake) property
insurance, naming the Tenant, the Landlord, the owner of the
Building and the Mortgagee as insured parties, containing a
waiver of subrogation rights which the Tenant's insurers may
have against the Landlord and against those for whom the
Landlord is in law responsible including, without limitation,
its directors, officers and employees, and (except with
respect to the Tenant's chattels) incorporating the
Mortgagee's standard mortgage clause. Such insurance shall
insure: (A) property of every kind owned by the Tenant or for
which the Tenant is legally liable located on or in the
Building including, without limitation, plate glass, and
Leasehold Improvements, in an amount not less than the full
replacement cost thereof (new), with such cost to be adjusted
no less than annually; and (B) extra expense insurance in such
amount as will reimburse the Tenant for loss attributed to all
perils referred to in this subsection 8.1 (a) (i) or resulting
from prevention of access to the Premises. Such policy or
policies, except with respect to extra expense insurance,
shall provide that loss thereon shall be adjusted and payable
to the Landlord, with the proceeds to be held in trust to be
used for repair and replacement of the property so insured.
(ii) Comprehensive General Liability insurance which includes the
following coverages: owners protective, bodily injury
(including death); property damage; employers' contingent
liability; blanket contractual liability; and, where
applicable, products liability and malpractice liability. Such
policies shall, contain inclusive limits of not less than
$2,000,000.00; provide for severability of interests, cross
liability; and name the Landlord as an insured.
(iii) Tenant's legal liability insurance for the actual cash value
for the Premises including loss of use thereof.
(iv) Automobile liability insurance on a non-owned form including
contractual liability, and on an owner's form covering all
licensed vehicles operated by or on behalf of the Tenant,
which insurance shall have inclusive limits of not less than
$2,000,000.00.
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26
(v) Any other form of insurance which the Tenant or the Landlord,
acting reasonably, or the Mortgagee requires from time to time
in form, in amounts and for risks against which a prudent
Tenant would insure.
(b) All policies referred to in this Section 8.1 shall: (i) be taken out
with insurers reasonably acceptable to the Landlord; (ii) be in a
form reasonably satisfactory to the Landlord; (iii) be
non-contributing with, and shall apply only as a primary and not as
excess to any other insurance available to the Landlord; (iv) not be
invalidated as respects the interests of the Landlord or the
Mortgagee by reason of any breach of or violation of any warranty,
representation, declaration or condition of the policies and/or of
the Lease; and (v) contain an undertaking by the insurers to notify
the Landlord by registered mail not less than thirty (30) days prior
to any material change, cancellation or termination. Certificates of
insurance on the Landlord's standard form or, if required by the
Landlord, certified copies of such insurance policies, shall be
delivered to the Landlord forthwith upon request. If the Tenant
fails to take out or to keep in force any insurance referred to in
this Section 8.1 or should any such insurance not be approved by
either the Landlord or the Mortgagee and should the Tenant not
commence to diligently rectify (and thereafter proceed to diligently
rectify) the situation within 48 hours after written notice by the
Landlord to the Tenant (stating, if the Landlord or the Mortgagee,
from time to time, does not approve of such insurance, the reasons
therefor) the Landlord has the right without assuming any obligation
in connection therewith, to effect such insurance at the sole
expense of the Tenant and all costs incurred by the Landlord in
connection therewith, together with a sum equal to fifteen (15%)
percent of such cost representing the Landlord's overhead, shall be
paid by the Tenant to the Landlord as Additional Rent without
prejudice to any other rights or remedies of the Landlord under this
Lease.
8.2 Increase in Insurance Premiums
The Tenant shall not keep or use in the Premises any article which may be
prohibited by any fire insurance policy in force from time to time covering the
Premises or the Development. The Tenant will comply promptly with the
requirements of the Insurer's Advisory Organization and of any insurer,
pertaining to the Premises or the Development. If: (a) the conduct of business
in the Premises; or (b) any acts or omissions of the Tenant in the Development
or any part thereof, cause or result in any increase in premiums for the
insurance carried from time to time by the Landlord with respect to the
Development, the Tenant shall pay any such increase in premium. In determining
whether increased premiums are caused by or result from the use or occupancy of
the Premises, a schedule issued by the organization computing the insurance rate
on the Development showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up such rate.
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8.3 Cancellation of Insurance
If any insurance policy upon the Development or any part thereof shall be
cancelled or shall be threatened by the insurer to be cancelled or the coverage
thereunder reduced in any way by the insurer by reason of the use of the
Premises by the Tenant or any assignee or subTenant of the Tenant, or by anyone
permitted by the Tenant to be upon the Premises, and if the Tenant fails to
remedy such condition within 48 hours after notice thereof by the Landlord, the
Landlord may, at its option, either; (a) re-enter the Premises forthwith by
leaving upon the Premises a notice in writing of its intention so to do and
thereupon the Landlord shall have the same rights and remedies as are contained
in Article Xl; or (b) enter upon the Premises and remedy the condition giving
rise to such cancellation, threatened cancellation or reduction, including
removal of any offending article, and the Tenant shall pay the cost thereof to
the Landlord and the Landlord shall not be liable for any damage or injury
caused to any property of the Tenant or of others located on the Premises as a
result of any such entry.
8.4 Loss or Damage
The provisions of this Section 8.4 shall govern notwithstanding any other
provision of this Lease.
(a) The Landlord shall not be liable for any death or injury arising
from or out of any occurrence whatsoever in, upon, at, or relating
to the Premises or Development, or any part thereof, or damage to
property of the Tenant or of others located on the Premises or
elsewhere in the Development from any cause whatsoever, nor shall
the Landlord be responsible for any loss of or damage to any
property of the Tenant or others from any cause whatsoever, whether
or not such property is entrusted to the care or control of the
Landlord or any of the Landlord's employees, nor shall the Landlord
be responsible for any direct, indirect or consequential damages
that may be suffered or sustained by the Tenant or any others from
any cause whatsoever, and in each case whether or not any such
death, injury, loss damage or damages results from the negligence or
fault of the Landlord or any of the Landlord's employees.
(b) Without limiting the generality of the foregoing, the Landlord shall
not be liable or responsible in any way for any death, injury
(including without limitation, personal discomfort or illness) loss,
damage or damages of or to Persons or property resulting, directly
or indirectly, from any of the following, whether or not such
results from the negligence or fault of the Landlord or any of the
Landlord's employees: (i) fire, explosion, theft, breakage, falling
plaster, falling ceiling tile, falling fixtures, steam, gas,
electricity, water, rain, flood, ice, snow, or leaks into, in or
from any part of the Premises or Development or from any pipes
(including, without limitation, water, steam, sprinkler and drainage
pipes), sprinklers, appliances, drainage or plumbing works, roof,
windows, or exterior walls or subsurface or any floor or ceiling of
the Premises or Development, or any part thereof, or from the street
or any other source or place whatsoever, or by dampness, or by the
existence, discharge, spillage, or leakage of Hazardous
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28
Materials or by any other cause whatsoever, (ii) any suspension,
non-operation. failure, reduction, interruption or failure to supply
or perform, for any reason or for any period of time, of or in any
of the services, equipment, facilities, systems (such as, without
limitation, the HVAC System) or Utilities or any public Utilities or
any services serving the Premises, or the Development, or any other
part thereof; (iii) delays in the performance of any repairs,
replacements, maintenance or restoration for which the Landlord is
responsible under this Lease, (iv) by reason of the Landlord or any
of the Landlord's employees entering upon the Premises to undertake
any examination thereof or any work or cleaning or performance of
other services therein; (v) by reason of the supply or performance
of any cleaning, janitorial, pest extermination or fire protection
or security obligations or services in any part of the Premises or
Development, (vi) by reason of inconvenience, annoyance or injury to
business arising from the Landlord, the Tenant or any others making
or failing to diligently make, for whatever reason or cause, any
repairs, alterations, additions, renovations, improvements or
restorations in or to any part of the Development, or (vii) by
reason of the Landlord or any of the Landlord's employees acting,
monitoring or responding, or failing to act, monitor or respond, in
any manner whatsoever, in connection with any fire protection system
or security system, or any alarm or signal therefrom, which system
serves exclusively the Premises or any part thereof and is not a
Building standard system, the parties hereby expressly acknowledging
and agreeing that the Landlord and the Landlord's employees have no
obligation or responsibility whatsoever to so act, monitor or
respond.
(c) The Landlord shall not be liable or responsible in any way for any
such death, injury, loss or damage caused by other Tenants,
occupants or Persons on or in the Development, or any part thereof
or by any occupants of any adjacent property thereto, or by the
public, or caused by construction or by any private, public or
quasi-public work.
(d) All property of the Tenant or of any of the Tenant's employees kept
or stored on the Premises (including, without limitation, all
Leasehold Improvements leased by the Tenant herein) shall be so kept
or stored at the sole risk of the Tenant, and the Tenant releases
and agrees to indemnify the Landlord and save it harmless from and
against any claims arising out of any loss or damage to such
property including without limitation, any subrogation claims by the
Tenant's or any others' insurers, and the Tenant shall make all
claims for loss, damage or destruction of or to any such property
against the policies of insurance required to be maintained by the
Tenant under this Lease. Without limiting the foregoing or any other
provision of Section 8.3 or 8.4 of this Lease, the parties agree
that, whether or not the Landlord installs or requires the Tenant to
install any particular type of demising wall or partition, and even
if such is open at the top and thereby accessible to easy
unauthorized entry, the Landlord shall not be liable for any losses
or damages sustained thereby on or in respect of the Premises or any
Persons or property thereon, howsoever, caused or arising and the
Tenant shall be responsible for its own security and alarm systems
(subject to the Landlord's
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29
consent, but the giving or withholding of consent shall not impose
any liability whatsoever on the Landlord) and shall indemnify the
Landlord and save it harmless from and against any such losses or
damages.
8.5 Landlord's Insurance
The Landlord shall throughout the Term carry: (a) insurance on the Building
(excluding the foundations and excavations) and the machinery, boilers and
equipment in or servicing the Building and owned by the Landlord or the owners
of the Building (excluding any property which the Tenant and other Tenants are
obliged to insure under Section 8.1 or similar section of their respective
leases) against damage by fire and extended perils coverage; (b) public
liability and property damage insurance with respect to the Landlord's
operations in the Development; and (c) such other form or forms of insurance as
the Landlord or the Mortgagee reasonably considers advisable. Such insurance
shall be in such reasonable amounts and with such reasonable deductibles as
would be carried by a prudent owner of a reasonably similar building, having
regard to size, age and location. The Landlord covenants and agrees that it
shall, if same is obtainable, obtain a waiver of subrogation in favour of the
Tenant in all policies of insurance placed by the Landlord in respect of the
Premises. If as a result of obtaining such waiver of subrogation, insurance
premiums required to be paid by the Landlord are increased, the amount of such
increase attributable to obtaining such waiver of subrogation shall be paid by
the Tenant on demand from the Landlord and upon the Landlord delivering
appropriate evidence of such increased premium to the Tenant. Notwithstanding
the Landlord's covenant in this Section 8.5 and notwithstanding any contribution
by the Tenant to the cost of the Landlord's insurance premiums, the Tenant
acknowledges and agrees that: (i) the Tenant is not relieved of any liability
arising from or contributed to by its negligence or its wilful act or omissions;
(ii) no insurable interest is conferred upon the Tenant under any insurance
policies carried by the Landlord; and (iii) the Tenant has no right to receive
any proceeds of any insurance policies carried by the Landlord.
8.6 Indemnification of Landlord
Notwithstanding any other provision of this Lease, the Tenant shall indemnify
the Landlord and save it harmless from and against any and all loss (including
loss of Net Rent and Additional Rent payable in respect of the Premises),
claims, actions, damages, liability and expense in connection with loss of life,
personal injury, damage to property or any other loss or injury whatsoever
arising from or out of this Lease, or any occurrence in, upon or at the
Premises, or the occupancy or use by the Tenant of the Premises or any part
thereof, or occasioned wholly or in part by any act or omission of the Tenant or
by anyone permitted to be on the Premises by the Tenant. If the Landlord shall,
without fault on its part, be made a party to any litigation commenced by or
against the Tenant, then the Tenant shall protect, indemnify and hold the
Landlord harmless and shall pay all expenses and reasonable legal fees incurred
or paid by the Landlord in connection with such litigation. The Tenant shall
also pay all expenses and legal fees (on a solicitor and his client basis)
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30
that may be incurred or paid by the Landlord in enforcing the terms of this
Lease, unless a court shall decide otherwise.
8.7 Release of Landlord
The Tenant releases and discharges the Landlord from all claims and demands of
any kind which the Tenant might have or acquire against the Landlord arising out
of damage to or destruction of the Building, or any part of the Building,
occasioned by any reason whatsoever.
ARTICLE IX
DAMAGE AND DESTRUCTION
9.1 No Abatement
If the Premises or Building are damaged or destroyed in whole or in part by fire
or any occurrence, this Lease shall continue in full force and effect and there
shall be no abatement of Rent except as provided in this Article IX.
9.2 Damage to Premises
If the Premises are at any time destroyed or damaged as a result of fire or any
other casualty required to be insured against by the Landlord under this Lease
or otherwise insured against by the Landlord and not caused or contributed to by
the Tenant, then the following provisions shall apply:
(a) if the Premises are rendered unTenantable only in part, the Landlord
shall diligently repair the Premises to the extent only of its
obligations under Section 7.1 of this Lease and Net Rent shall ▇▇▇▇▇
proportionately to the portion of the Premises rendered unTenantable
from the date of destruction or damage until the Landlord's repairs
have been completed;
(b) If the Premises are rendered wholly unTenantable, the Landlord shall
diligently repair the Premises to the extent only of its obligations
pursuant to Section 7.1 of this Lease and Net Rent shall ▇▇▇▇▇
entirely from the date of destruction or damage to such date which
is the earlier of (i) the date useable, or (ii) thirty (30) days
after Landlord's repairs have been completed;
(c) if the Premises are not rendered unTenantable in whole or in part,
the Landlord shall diligently perform such repairs to the Premises
to the extent only of its obligations under Section 7.1 of this
Lease but in such circumstances Net Rent shall not terminate or
▇▇▇▇▇;
(d) upon being notified by the Landlord that the Landlord's repairs have
been substantially completed, the Tenant shall diligently perform
all repairs to the Premises which are the Tenant's responsibility
under Section 7.2 of this Lease, and all other work required to
fully restore the Premises for use in the Tenant's business, in
every case at the Tenant's cost and without any contribution to such
cost by the Landlord, whether or not the Landlord has at any time
made any contribution to the cost of supply, installation or
construction of Leasehold Improvements in the Premises; and
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31
(e) nothing in this Section 9.2 shall require the Landlord to rebuild
the Premises in the condition which existed before any such damage
or destruction so long as the Premises as rebuilt will have
reasonably similar facilities to those in the Premises prior to such
damage or destruction, having regard, however, to the age of the
Building at such time.
9.3 Right of Termination
Notwithstanding Section 9.2 of this Lease, if the damage or destruction which
has occurred in the Premises is such that in the reasonable opinion of the
Landlord the Premises cannot be rebuilt or made fit for the purposes of the
Tenant within 180 days of the happening of the damage or destruction, the
Landlord may, at its option, terminate this lease on notice to the Tenant given
within thirty (30) days after such damage or destruction and the Tenant shall
immediately deliver vacant possession of the Premises in accordance with the
terms of this Lease.
9.4 Destruction of Building
(a) Notwithstanding any other provision of this Lease, if:
(i) 20% or more of the Rentable Area of the Building is destroyed
or damaged by any cause; or
(ii) portions of the Building or Lands which affect access or
services essential thereto are damaged or destroyed and, in
the reasonable opinion of the Landlord, cannot reasonably be
repaired within 180 days after the occurrence of the damage or
destruction;
then the Landlord may, by notice to the Tenant given within thirty
(30) days of such damage or destruction, terminate this Lease, in
which event neither the Landlord nor Tenant shall be bound to repair
and the Tenant shall surrender the Premises to the Landlord within
thirty (30) days after delivery of its notice of termination and
Rent shall be apportioned and paid to the date on which the Tenant
delivers vacant possession of the Premises, subject to any abatement
to which the Tenant may be entitled under Section 9.2 of this Lease.
(b) If the Landlord is entitled to, but does not elect to terminate this
Lease pursuant to Section 9.4(a) the Landlord shall, following such
damage or destruction diligently repair if necessary that part of
the Building damaged or destroyed, but only to the extent of the
Landlord's obligations under the terms of the various leases for
premises in the Building and exclusive of any Tenant's
responsibilities with respect to such repair. If the Landlord elects
to repair the Building, the Landlord may do so in accordance with
plans and specifications other than those used in the original
construction of the Building.
9.5 Architect's Certificate
The certificate of the Architect shall bind the parties to: (a) the percentage
of the Rentable Area of the Building damaged or destroyed; (b) whether or not
the Rentable Area of the Premises are rendered unTenantable and the percentage
of the Rentable Area of the Premises rendered unTenantable, (c) the date upon
which either the Landlord's or Tenant's work of reconstruction or
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repair is completed or substantially completed and the date when the Rentable
Area of the Premises are rendered Tenantable, and (d) the state of completion of
any work of the Landlord or the Tenant.
ARTICLE X
ASSIGNMENT AND SUBLETTING: TRANSFERS
10.1 Assignment and Subletting; Transfers
The Tenant shall not enter into, consent to or permit any Transfer without the
prior written consent of the Landlord in each instance, which consent shall not
be unreasonably withheld but shall be subject to the Landlord's rights under
Section 10.2 of this Lease. Notwithstanding any statutory provision to the
contrary, it shall not be considered unreasonable for the Landlord to take into
account the following factors in deciding whether to grant or withhold its
consent: (a) whether such Transfer is in violation or in breach of any covenants
or restrictions made or granted by the Landlord to other Tenants or occupants or
prospective Tenants or occupants of the Building; (b) whether in the Landlord's
opinion, the financial background, business history and capability of the
proposed Transferee is satisfactory; (c) if the Transfer is to an existing
Tenant of the Landlord; and (d) Net Rent is comparable to the net rent sought by
the Landlord on comparable premises. Consent by the Landlord to any Transfer if
granted shall not constitute a waiver of the necessity for such consent to any
subsequent Transfer. This prohibition against Transfer shall include a
prohibition against any Transfer by operation of law and no Transfer shall take
place by reason of the failure of the Landlord to give notice to the Tenant
within thirty (30) days required by Section 10.2 of this Lease.
10.21 Landlord's Right to Terminate
If the Tenant intends to effect a Transfer, the Tenant shall give prior notice
to the Landlord of such intent specifying the identity of the Transferee, the
type of Transfer contemplated, the portion of the Premises affected thereby, and
the financial and other terms of the Transfer, and shall provide such financial,
business or other information relating to the proposed transferee and its
principals as the Landlord or any Mortgagee requires, together with copies of
any documents which record the particulars of the proposed Transfer. The
Landlord shall, within ten (10) days after having received such notice and all
requested information, notify the Tenant either that:
(a) it consents or does not consent to the Transfer in accordance with
the provisions and qualifications of this Article X or
b) it elects to cancel this Lease as to the whole or part. as the case
may be, of the Premises affected by the proposed Transfer, in
preference to giving such consent.
If the Landlord elects to terminate this Lease it shall stipulate in its notice
the termination date of this Lease, which date shall be no less than thirty (30)
days nor more than ninety (90) days
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33
following the giving of such notice of termination. If the Landlord elects to
terminate this Lease, the Tenant shall notify the Landlord within ten (10) days
thereafter of the Tenant's intention either to refrain from such Transfer or to
accept termination of this Lease or the portion thereof in respect of which the
Landlord has exercised its rights. If the Tenant fails to deliver such notice
within such ten (10) days or notifies the Landlord that it accepts the
Landlord's termination, this Lease will as to the whole or affected part of the
Premises, as the case may be, be terminated on the date of the termination
stipulated by the Landlord in its notice of termination. If the Tenant notifies
the Landlord within such ten (10) days that it intends to refrain from such
Transfer, then the Landlord's election to terminate this Lease shall become void
in such instance.
10.3 Conditions of Transfer
(a) If there is permitted Transfer, the Landlord may collect Rent from
the Transferee and apply the net amount collected to the Rent
payable under this Lease but no acceptance by the Landlord of any
payments by a Transferee shall be deemed a waiver or release of the
Tenant's covenants, or any acceptance of the Transferee as Tenant,
or a release of the Tenant from the further performance by the
Tenant of its obligations under this Lease. Any consent by the
Landlord shall be subject to the Tenant and Transferee executing an
agreement with the Landlord agreeing:
(i) that the Transferee will be bound by all of the terms of this
Lease as if such Transferee had originally executed this Lease
as Tenant; and
(ii) to amend this Lease as to incorporate such terms, covenants
and conditions as are necessary so that this Lease will be in
accordance with the Landlord's standard form of industrial
lease in use for the Development at the time of the Transfer,
and so as to incorporate any conditions imposed by the
Landlord in its consent or required by the provisions of this
Section 10.3
(b) Notwithstanding any Transfer permitted or consented to by the
Landlord, the Tenant shall remain liable under this Lease and shall
not be released from performing any of the terms of this Lease.
(c) The Landlord's consent to any Transfer shall be subject to the
conditions that: (i) the Net Rent and Additional Rent payable by the
Transferee shall not be less than the Net Rent and Additional Rent
payable by the Tenant under this Lease as at the effective date of
the Transfer, (including any increases provided in this Lease), and
(ii) if the Net Rent and Additional Rent to be paid by the
Transferee under such Transfer exceeds the Net Rent and Additional
Rent payable under this Lease, the amount of such excess shall be
paid by the Tenant to the Landlord. If the Tenant receives from any
Transferee, either directly or indirectly, any consideration other
than Net Rent or Additional Rent for such Transfer, either in the
form of cash, goods or services (other than the proceeds of any
financing as a result of a Transfer involving a mortgage, charge or
similar security interest in this Lease) the Tenant shall forthwith
pay to the Landlord an amount
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equivalent to such consideration. The Tenant and the Transferee
shall execute any agreement required by the Landlord to give effect
to the foregoing terms.
(d) Notwithstanding the effective date of any permitted Transfer as
between the Tenant and the Transferee, all Net Rent and Additional
Rent for the month in which such effective date occurs shall be paid
in advance by the Tenant so that the Landlord will not be required
to accept partial payments of Net Rent and Additional Rent for such
month from either the Tenant or Transferee.
(e) Any document evidencing any Transfer permitted by the Landlord, or
setting out any terms applicable to such Transfer or the rights and
obligations of the Tenant or Transferee thereunder, shall be
prepared by the Landlord or its solicitors and all associated costs
shall be paid by the Tenant.
10.4 Change of Control
If the Tenant is at any time a corporation or partnership, any actual or
proposed Change of Control in such corporation or partnership shall be deemed to
be a Transfer and subject to all of the provisions of this Article X. The Tenant
shall make available to the Landlord or its representatives all of its corporate
or partnership records, as the case may be, for inspection at all reasonable
times, in order to ascertain whether any Change of Control has occurred.
10.5 No Advertising
The Tenant shall not erect, post or display on the premises any sign, notice or
advertisement of any kind indicating that the Premises are available for rent or
for sublet or that occupancy of the Premises is available pursuant to any other
arrangement. The Tenant shall not advertise the whole or any part of the
Premises for the purposes of a Transfer and shall not permit any broker or other
person to do so unless the complete text and format of any such advertisement is
first approved in writing by the Landlord. No such advertisement shall contain
any reference to the rental rate of the Premises.
10.6 Assignment by Landlord
The Landlord shall have the unrestricted right to sell, lease, convey or
otherwise dispose of all or any part of the Development or Lands and this Lease
or any interest of the Landlord in this Lease. To the extent that the purchaser
or assignee from the Landlord assumes the obligations of the Landlord under this
Lease, the Landlord shall thereupon and without further agreement be released of
all liability under this Lease.
ARTICLE XI
DEFAULT
11.1 Default and Remedies
If and whenever an Event of Default occurs, then without prejudice to any other
rights which it has pursuant to this Lease or at law, the Landlord shall have
the following rights and remedies, which are cumulative and not alternatives:
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(a) to terminate this Lease;
(b) to enter the Premises as agent of the Tenant and to relet the
Premises for whatever term, and on such terms as the Landlord in its
discretion may determine and to receive the Rent therefor and as
agent of the Tenant to take possession of any property of the Tenant
on the Premises, to store such property at the expense and risk of
the Tenant or to sell or otherwise dispose of such property in such
manner as the Landlord may see fit without notice to the Tenant; to
make alterations to the Premises to facilitate their reletting; and
to apply the proceeds of any such sale or reletting first, to the
payment of any expenses incurred by the Landlord with respect to any
such reletting or sale; second, to the payment of any indebtedness
of the Tenant to the Landlord other than Rent; and third, to the
payment of Rent in arrears; with the residue to be held by the
Landlord and applied in payment of future Rent as it becomes due and
payable. The Tenant shall remain liable for any deficiency to the
Landlord;
(c) to remedy or attempt to remedy any default of the Tenant under this
Lease for the account of the Tenant and to enter upon the Premises
for such purposes. No notice of the Landlord's intention to perform
such covenants need be given the Tenant unless expressly required by
this Lease. The Landlord shall not be liable to the Tenant for any
loss injury or damage caused by acts of the Landlord in remedying or
attempting to remedy such default and the Tenant shall pay to the
Landlord all expenses incurred by the Landlord in connection with
remedying or attempting to remedy such default;
(d) to recover from the Tenant all damages and expenses incurred by the
Landlord as a result of any breach by the Tenant including, if the
Landlord terminates this Lease, any deficiency between those amounts
which would have been payable by the Tenant for the portion of the
Term following such termination and the net amounts actually
received by the Landlord during such period of time with respect to
the Premises;
(e) to recover from the Tenant the full amount of the current month's
Rent together with the next three (3) months' instalments of Rent,
all of which shall accrue on a day-to-day basis and shall
immediately become due and payable as accelerated Rent.
11.2 Distress
Notwithstanding any provision of this Lease or any provision of applicable
legislation, none of the goods and chattels of the Tenant on the Premises at any
time during the Term shall be exempt from levy by distress for Rent in arrears,
and the Tenant waives any such exemption. If the Landlord makes any claim
against the goods and chattels of the Tenant by way of distress, this provision
may be pleaded as an estoppel against the Tenant in any action brought to test
the right of the Landlord to levy such distress.
11.3 Costs
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The Tenant shall pay to the Landlord on demand all damages and costs (including,
without limitation, all legal fees on a solicitor and his client basis) incurred
by the Landlord in enforcing the terms of this Lease, or with respect to any
matter or thing which is the obligation of the Tenant under this Lease, or in
respect of which the Tenant has agreed to insure, or to indemnify the Landlord,
In addition to and notwithstanding any claim made by the Landlord for payment of
such damages and costs, the Tenant shall pay the sum of FIFTY ($50.00) DOLLARS
to the Landlord as Additional Rent on demand upon any default by the Tenant
under the terms of this Lease or any breach of its obligations thereunder in
order solely to re-imburse the Landlord for its administrative costs incurred as
a result of such default or breach, and the Tenant agrees that such charge is
reasonable and appropriate to so re-imburse the Landlord upon any such breach or
default.
11.4 Allocation of Payments
The Landlord may at its option apply sums received from the Tenant against any
amounts due and payable by the Tenant under this Lease in such manner as the
Landlord sees fit.
11.5 Survival of Obligations
If the Tenant has failed to fulfil its obligations under this Lease with respect
to the maintenance, repair and alteration of the Premises and removal of
improvements and fixtures from the Premises during or at the end of the Term,
such obligations and the Landlord's rights in respect thereto shall remain in
full force and effect notwithstanding the expiration or sooner termination of
the Term.
ARTICLE XII
STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
12.1 Status Statement
Within ten (10) days after written request by the Landlord, the Tenant shall
deliver in a form supplied by the Landlord a statement or estoppel certificate
to the Landlord as to the status of this Lease, including as to whether this
Lease is unmodified and in full force and effect (or, if there have been
modifications that this Lease is in full force and effect as modified and
identifying the modification agreements); the amount of Net Rent and Additional
Rent then being paid and the dates to which same have been paid; whether or not
there is any existing or alleged default by either party with respect to which a
notice of default has been served and if there is any such default, specifying
the nature and extent thereof; and any other matters pertaining to this Lease as
to which the Landlord shall request such statement or certificate.
12.2 Subordination
This Lease shall be subordinate to any mortgages or charges created by the
Landlord on the Lands and the Tenant shall promptly at the request of the
Landlord execute such documents as may be required to postpone and subordinate
its rights to the holder of any such mortgage or charge. The
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Tenant irrevocably appoints the Landlord its attorney with power to execute such
documents of postponement and subordination for the Tenant if the Tenant fails
to do so on request. The Tenant agrees that it will, whenever reasonably
required by the Landlord, consent and become a party to any document relating to
this Lease which may be required by a purchaser, mortgagee, or financial
institution in connection with the Premises. Except as otherwise provided in
this Lease, the rights of the Tenant shall not be altered or varied by the terms
of such document.
12.3 Attornment
The Tenant shall promptly on request attorn to any Mortgagee, or to the owners
of the Building and Lands, or the lessee under any ground, operating,
overriding, underlying, or similar Lease of all or substantially all of the
Building made by the Landlord or otherwise affecting the Building and Lands or
the purchaser on any foreclosure or sale proceedings taken under any Mortgage,
and shall recognize such Mortgagee, owner, lessee or purchaser as the Landlord
under this Lease.
12.4 Non-Disturbance Agreement
The Landlord undertakes upon receipt of a written request by the Tenant, and
agrees to use reasonable efforts to obtain a written undertaking binding upon
any Mortgagee, owner, lessee, or purchaser, and enforceable by and for the
benefit of the Tenant under applicable law, that despite any subordination or
attornment by the Tenant, this Lease and the Tenant's rights hereunder shall
continue undisturbed so long as the Tenant is not in default.
12.5 Execution of Documents
The Tenant irrevocably constitutes the Landlord the agent and attorney of the
Tenant for the purpose of executing any agreement, certificate, attornment or
subordination required by this Lease and for registering postponements in favour
of any Mortgagee if the Tenant fails to execute such documents within ten (10)
days after request by the Landlord.
12.6 Registration of Lease
Neither the Tenant nor anyone claiming under the Tenant shall register this
Lease or any Transfer without the prior written consent of the Landlord. If the
Tenant or any permitted Transferee wishes to register a document for the
purposes of giving notice of this Lease or a Transfer, then the Landlord shall
at the request and expense of the Tenant execute a notice, caveat or short form
of Lease for the purposes of registration in such form as approved by the
Landlord and without disclosure of any terms which the Landlord does not desire
to have disclosed. If the Lands comprise more than one parcel of land, the
Landlord may direct the Tenant or Transferee as to the parcel or parcels against
which registration may be affected. The Tenant, or any permitted Transferee,
shall on registration of any notice of lease or other memorandum, give the
Landlord a notice of withdrawal of any such notice of lease or other memorandum,
which the Landlord shall hold and only use upon the expiration or earlier
termination of this Lease.
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ARTICLE XIII
CONTROL OF DEVELOPMENT
13.1 Use and Maintenance of Common Areas
The Tenant and those doing business with it, for purposes associated with the
Tenant's business on the Premises, shall have a non-exclusive right to use the
Common Areas for their intended purposes during Normal business Hours in common
with others entitled thereto and subject to any Rules and Regulations imposed by
the Landlord. The Landlord shall keep the Common Areas in good repair and
condition and shall clean the Common Areas when reasonably necessary. The Tenant
acknowledges that all Common Areas shall at all times be under the exclusive
control and management of the Landlord.
13.2 Alterations by Landlord
The Landlord may: (a) alter, add to, subtract from, construct improvements to,
rearrange, build additional storeys on and construct additional facilities in,
adjoining or near the building; (b) relocate the facilities and improvements in
or comprising the Building erected on the Lands; (c) do such things on or in the
Lands or Building as required to comply with any laws, by-laws, regulations,
orders or directives affecting the Lands or any part of the Building; and (d) do
such other things on or in the Lands or Building as the Landlord, in any use of
good business judgment, determines to be advisable. The Landlord shall not be in
a breach of its covenant for quiet enjoyment or liable for any loss, costs or
damages, whether direct or indirect, incurred by the Tenant due to any of the
foregoing.
13.3 Relocation of Premises by Landlord
The Landlord shall have the right at any time upon sixty (60) days' written
notice (the "Notice of Relocation") to relocate the Tenant to other premises in
the Building (the "Relocated Premises") and the following terms and conditions
shall be applicable:
(a) the Relocated Premises (which term shall mean the Premises after
relocation) shall have a Rentable Area approximately the same as, or
greater than, the Premises;
(b) the Landlord shall provide at its expense Leasehold Improvements in
the Relocated Premises equal to the standards of the Leasehold
Improvements in the Premises which have been completed or which the
Landlord is obliged herein to provide in the Premises;
(c) the Landlord shall pay for the reasonable moving costs (if any) from
the Premises to the Relocated Premises of the Tenant's Trade
Fixtures and furnishings;
(d) as compensation for all other costs, expenses and damages which the
Tenant may suffer or incur in connection with the relocation
including disruption and loss of business, annual Net Rent and
Additional Rent for the Relocated Premises for the period of the
first one (1) month of occupancy shall ▇▇▇▇▇;
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(e) annual Net Rent and Tenant's Proportionate Share or Adjusted
Proportionate Share, of Additional Rent for the Relocated Premises
shall be no greater than the annual Net Rent and Tenant's
Proportionate Share or Adjusted Proportionate Share of Additional
Rent for the Premises, notwithstanding the Relocated Premises may
contain a greater Rentable Area; and
(f) all other terms and conditions of this Lease shall apply to the
Relocated Premises except as are inconsistent with the terms and
conditions of this Section 13.3.
13.4 Expropriation
In the event of expropriation of all or part of the Premises, neither the
Landlord nor Tenant will have a claim against the other for the shortening of
the Term, nor the reduction or alteration of the Premises, and the Landlord and
Tenant shall each look only to the expropriating authority for compensation. In
the event of expropriation of fifteen (15%) percent or more of the Lands or ten
(10%) percent or more of the Rentable Area of the Building, then in either such
event the Landlord shall have the right, to be exercised by notice in writing to
the Tenant within ninety (90) days following such expropriation, to elect to
terminate this Lease. If the Landlord gives such notice the Term of this Lease
shall terminate as of the date actual physical possession is taken by the
expropriating authority and all rental shall be paid up to that date and the
Tenant shall have no claim against the Landlord for the value of any unexpired
Term of this Lease or for damages or for any other reason whatsoever. If the
Landlord does not so terminate this Lease, this Lease shall continue on in full
force and effect, with the Premises being adjusted to reflect any portion
thereof taken by the expropriating authority.
13.5 Premises for Sale
The Landlord may at any time during the Term or any renewal term of this Lease
place on the exterior of the Premises and/or the exterior of the Building a
notice of reasonable dimensions stating that the Building and Lands or part
thereof are for sale and the Tenant shall not permit such notice to be removed.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Rules and Regulations
The Tenant shall comply with all rules and regulations and amendments thereto
adopted by the Landlord from time to time with respect to the Building and
Lands, including, without limitation, the Rules and Regulations attached hereto
as Schedule "C", so long as such Rules and Regulations are not inconsistent with
and do not contradict this Lease. Such Rules and Regulations may differentiate
between different types of businesses in the Building, and the Landlord shall
have no obligation to enforce any Rule and Regulations or the provisions of any
other Lease against any other Tenant, and the Landlord shall have no liability
to the Tenant with respect thereto.
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14.2 Unavoidable Delay
Except as expressly provided in this Lease, whenever the Landlord or Tenant is
delayed in the fulfilment of any obligation under this Lease (other than the
payment of Rent and surrender of the Premises on termination) by an unavoidable
occurrence which is not the fault of the party delayed in performing such
obligation, then the time for fulfilment of such obligation shall be extended
during the period in which such circumstances operate to delay the fulfilment of
such obligation.
14.3 No Waiver
If the Landlord or Tenant excuses or overlooks any default by the other under
this Lease, such excusing or overlooking shall not be a waiver of the Landlord's
or Tenant's rights under this Lease in respect of any later default by the
other, nor in any way defeat the rights of the Landlord or Tenant, as the case
may be, under this Lease for any such later default. All rights and remedies of
the Landlord under this Lease are cumulative and not alternative.
14.4 Notices
Notices required or permitted to be given by this Lease shall be considered to
have been given if personally delivered or if mailed by prepaid registered mail
to the parties at the following addresses or to such other addresses as from
time to time designated by the parties in writing. Any notice so given by
prepaid registered mail shall be considered to have been received on the fourth
business day following the date of mailing of the notice, and any notice by
personal delivery shall be considered to have been received on the date of
personal delivery.
(a) Landlord's Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇-▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
(b) Tenant's Address:
The Tenant's Address for Notice as set forth in Section 1.1(i) of
this Lease
(c) Indemnifier's Address:
The Indemnifier's Address for Notice as set forth in Section 1.1(i)
of this Lease
In the case of strikes, lock outs or other stoppages in the Canadian Postal
system, any such notices or other communications required or permitted to be
given by this Lease shall be delivered personally to the party to whom
addressed.
14.5 Successors
This lease shall be binding upon and shall enure to the benefit of the Landlord
and Tenant, and their respective successors and assigns, but only if the consent
of the Landlord has been obtained
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to an assignment, sublease, licence or other parting with possession of the
Premises by the Tenant in the manner provided in Section 10.1 of this Lease.
14.6 Joint and Several Liability
If there is at any time more than one Tenant or more than one Person
constituting the Tenant, their covenants shall be considered to be joint and
several and shall apply to each and every one of them. If the Tenant is or
becomes a partnership, each Person who is a member, or shall become a member, of
such partnership or its successors shall be and continue to be jointly and
severally liable for the performance of all covenants of the Tenant pursuant to
this Lease, whether or not such Person ceases to be a member of such partnership
or its successor.
14.7 Captions and Section Numbers
Captions, section numbers, article numbers and table of contents appearing in
this Lease are inserted only as a matter of convenience and in no way affect the
substance of this Lease.
14.6 Extended Meanings
The words "hereof", "hereto" and similar expressions used in this Lease relate
to the whole of this Lease and not only to the provisions in which such
expressions appear. The Lease shall be read with all changes in number and
gender as may be appropriate or required by the context. Any reference to the
Tenant includes, where the context allows, the employees, agents, invitees and
licensees of the Tenant and all others over whom the Tenant might reasonably be
expected to exercise control.
14.9 Partial Invalidity
All of the provisions of this Lease are to be construed as covenants even though
not expressed as such. If any such provision is held or rendered illegal or
unenforceable it shall be considered separate and severable from this Lease and
the remaining provisions of this Lease shall remain in force and bind the
parties as though the illegal or unenforceable provision had never been included
in this Lease.
14.10 Entire Agreement
This Lease and its schedules and riders, if any, and the Offer to Lease, if any,
between the Landlord and Tenant to the extent that the provisions thereof are
stated not to merge on the execution of this Lease, set forth the entire
agreement between the Landlord and Tenant and there are no agreements or
understandings between them other than as set out therein. This Lease and its
schedules and riders may not be modified except by agreement in writing executed
by the Landlord and Tenant.
14.11 Governing Law
This Lease shall be construed in accordance with and governed by the laws of the
Province of
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Ontario.
14.12 Time of Essence
Time is of the essence of this Lease.
14.13 No Partnership
Nothing in this Lease creates any relationship between the parties other than
that of the Landlord and Tenant and nothing in this Lease constitutes the
Landlord a partner of the Tenant or a joint venturer or member of a common
enterprise with the Tenant.
14.14 Quiet Enjoyment
If the Tenant pays Rent, fully performs all of its obligations under this Lease,
and there has been no Event of Default, the Tenant shall be entitled to peaceful
and quiet enjoyment of the Premises for the Term without interruption or
interference by the Landlord or any Person claiming through the Landlord.
14.15 Name of Building or Development
The Landlord shall have the right, after thirty (30) days notice to the Tenant,
to change the name, number or designation of the Building or Development,
without liability to the Tenant.
14.16 Exercise of Rights
All rights and powers reserved to the Landlord by this Lease may be exercised by
either the Landlord or its agents or other representatives.
14.17 Parking
The Tenant shall have the right during the Term of this Lease to the use in
common with others entitled to such use of the areas for parking of automobiles
designated by the Landlord from time to time. The Landlord shall have no
obligation to supervise, police or control the exclusivity of such parking
areas, nor to prevent their use by persons other than Tenants of the Building.
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ARTICLE XV
SPECIAL PROVISIONS
15.1 Leased Premises Taken "As Is"
The Tenant agrees that there is no promise, representation or undertaking by or
binding upon the Landlord with respect to any alteration, remodelling or
decoration of the Premises, or installation of equipment or fixtures in the
Premises and that the Tenant is taking the Premises "as is", SAVE AND EXCEPT for
the following work to be completed by the Landlord, at the Landlord's sole cost
and expense, prior to the commencement date:
(1) The Landlord shall demise a Reception Area complete with door and
hardware as shown on Schedule "B";
(2) The Landlord shall stretch all carpet;
(3) The Landlord shall clean all carpet and hardwood flooring;
(4) The Landlord shall install vertical blinds on west wall of Office #4
and Office #5;
(5) The Landlord shall install a dishwasher in the existing kitchen;
15.2 Option to Renew
(a) Provided that:
(i) the Tenant is not, and at no time has been, in default during
the term of this Lease, under any of the covenants, terms,
conditions and provisions of this Lease; and
(ii) the Tenant has given to the Landlord written notice of the
Tenant's intent to renew this Lease not less than six (6)
months and not more than twelve (12) months before the date of
expiry of the Term of this Lease;
The Landlord hereby grants to the Tenant the option to renew this
Lease for a further term of five (5) years under the terms and
conditions specified in Section 15.2(b) of this Lease.
(b) Any renewal pursuant to this Section 15.2 shall be on the Landlord's
then current Standard Lease Form except:
(i) any additional option to renew the renewal term shall be
negotiated upon the Tenant's notice to renew under Section
15.2(a) (ii) of this Lease;
(ii) any net rent free period for the renewal term shall be
negotiated upon the Tenant's notice to renew under Section
15.2(a)(ii) of this Lease; and
(iii) any leasehold improvement allowance for the renewal term shall
be negotiated upon the Tenant's notice to renew under Section
15.2(a)(ii) of this Lease.
(c) The annual Net Rent payable by the Tenant for the renewal term shall
be agreed upon by the parties no later than ninety (90) days prior
to the date of expiry of the
================================================================================
44
Term of this Lease, or an amount as determined pursuant to an
arbitration conducted in accordance with the Arbitrations Act of
Ontario. If applicable, this Option shall constitute the required
submission to arbitration. Notwithstanding anything contained in
this Lease or in the Arbitrations Act of Ontario, the following
provisions shall apply to any arbitration conducted hereunder:
(i) the request for arbitration shall be deemed to be made upon
the 90th day prior to the date of expiry of the Term of this
Lease;
(ii) each party shall then have fifteen (15) days within which to
either agree upon the appointment of a sole arbitrator, or to
appoint their respective arbitrators, who shall in turn select
a Chairman of the Board of Arbitration within a further period
of ten (10) days;
(iii) if either party fails to appoint its arbitrator within the
aforesaid fifteen (15) day period, then any arbitrator
appointed within that period by the other party shall have the
authority to act as the sole arbitrator;
(iv) in awarding a new annual Net Rent, the arbitrator or
arbitrators shall consider the fair market rental of the
Premises as improved (whether at the expense of the Landlord
or the Tenant), the rent to be or expected to be received by
the Landlord for similar premises within the Development
increases in the consumer Price Index over the period of years
comprising the Term, prevailing rents for similar premises
within the vicinity, and the Landlord's rental plan for the
Development indicating the highest and best use for the
Premises.
(v) in any event, the annual Net Rent so awarded shall not be less
than the annual Net Rent payable by the Tenant to the Landlord
during the Rental Year immediately preceding the Renewal Term;
and
(vi) the arbitrator or arbitrators shall do all things necessary to
ensure that the award is rendered prior to the expiry date of
the Term, and may, in his or their discretion, if the award
must be rendered thereafter, order interest to be paid by the
Tenant to the Landlord (at the rate specified in Section 4.8
of this Lease) on the amount of any difference between the
annual Net Rent payable during the last Rental year of the
Term, and the annual Net Rent so awarded, from the date of the
expiry of the Term to the date of payment. For the purposes
hereof, "Consumer Price Index" shall mean the index for Ottawa
- All items as published by Statistics Canada in its monthly
catalogue report, or any replacement index or publication
designed to convey relatively similar information.
15.3 Right of First Refusal
PROVIDED the Tenant is not in default of its obligations under the terms
of the Lease the Tenant shall be granted a once only first right of refusal to
lease the remaining 815 square feet of the premises, as shown in blue on
Schedule "B". The Tenant shall also be given a once only first right of refusal
to lease the adjacent space on the second floor which may become available
during
================================================================================
45
the term of the Lease. The Tenant shall also be granted a once only first right
of refusal to lease the ground floor unit designated as Bay 8 and comprising of
1600 square feet.
15.4 Signage
SUBJECT TO the provisions set forth in Section 5.4 of the Lease, the
Landlord shall provide access to the metal street front facade over the premises
for the Tenants signage;
15.5 Operating Costs, Taxes and Utilities
NOTWITHSTANDING the provisions of Section 4.6 of the Lease, the Operating
Costs, Taxes and Utilities shall not exceed $5.25 per square foot for the year
ending December 31, 1995; thereafter, increases shall be capped at an annual
rate of not more than 8%.
15.6 Lease Cancellation
PROVIDED the Tenant is not in default of its obligations under the terms
of the Lease, the Tenant may, upon six (6) months written notice, cancel the
Lease upon the following conditions: - (i) during the first year of the term,
upon payment of nine (9) month's gross rent as penalty for such cancellation;
(ii) during the third year of the term, upon payment of six (6) month's gross
rent as penalty for such cancellation; and (iii) during the fourth year of the
term, upon payment of three (3) months gross rent as penalty for such
cancellation.
▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Landlord shall construct a new street front entrance as shown on
Schedule "D"; said entrance shall be suitably finished in materials similar in
nature to the existing street front entrance;
Schedules "A" to "D" inclusive form part of and are included in this Lease.
IN WITNESS WHEREOF the parties have executed this Lease under seal.
OTTAWA HOUSE OF ▇▇▇▇▇ LIMITED
carrying on business under the firm
name and style of
▇▇▇▇▇ DEVELOPMENTS
per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
(affix corporate seal) CARAVELLE NETWORKS CORPORATION
per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
authorizing signing officer
================================================================================
46
SCHEDULE "A"
LEGAL DESCRIPTION OF LANDS
ALL AND SINGULAR that certain parcel or tract of land and premises situate,
lying and being in the city of Nepean, in the Regional Municipality of
Ottawa-Carleton, and BEING COMPOSED OF Part of ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇
▇▇▇▇▇, and being more particularly described as Parts 7 and 8 on Plan 5R-5700
deposited in the Registry Office for the Registry Division of Ottawa-Carleton
No. 5 reserving thereout and therefrom unto The Corporation of the City of
Nepean, its successors and assigns the right and easement in perpetuity upon,
under, over, along and across the said part 7 on Reference Plan 5R-5700.
================================================================================
SCHEDULE "B"
FLOOR PLANS OF PREMISES
[FLOOR PLAN]
================================================================================
SCHEDULE "C"
RULES AND REGULATIONS
The Tenant covenants and agrees to comply with the following rules and
regulations:
(i) The Tenant shall not perform any acts or carry on any practice which may
damage the Common Areas or be a nuisance to any other tenant in the
building.
(ii) In regard to the use and occupancy of the Premises and Common Areas, the
Tenant will:
(a) Keep the inside and outside of all glass in the doors and windows of
the Premises clean;
(b) Keep all exterior storefront surfaces of the Premises clean;
(c) Replace promptly at its expense, any cracked or broken window glass
of the Premises with glass of like kind and quality;
(d) Maintain the Premises, at its expense, in a clean, orderly and
sanitary condition and free of insects, rodents, vermin and other
pests;
(e) Keep any garbage, trash, rubbish or refuse in ratproof containers
within the interior of the Premises until removed as herein
provided;
(f) Have such garbage, trash, rubbish or refuse removed at its expense
on a regular basis as prescribed by the Landlord;
(g) Keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the Premises;
(h) Comply with all laws, by-laws, rules and regulations of governmental
authorities now or hereafter in effect; and
(i) Conduct its business in all respects in a dignified manner in
accordance with the highest standards of store operation;
(iii) In regard to the use and occupancy of the Premises and Common Areas, the
Tenant will not:
(a) Place or maintain any merchandise or other articles in any vestibule
or entry of the Premises, on the footwalks adjacent thereto or
elsewhere on the exterior of the Premises or Common Areas;
(b) Use or permit the use of any objectionable advertising medium such
as, without limitation, loud speakers, phonographs, public address
systems, sound amplifiers, radio broadcast or television apparatus
within the Development which is in any manner audible or visible
outside of the Premises;
(c) Permit undue accumulations of garbage, trash, rubbish or other
refuse within or without the Premises;
(d) Cause or permit objectionable odors to emanate or be dispelled from
the Premises;
(e) Solicit business in the parking or other Common Areas;
================================================================================
1
(f) Distribute handbills or other advertising matter to, or in upon any
automobile parked in any parking areas or in any other Common Areas;
(g) Permit the parking of delivery vehicles so as to interfere with the
use of any driveway, walkway parking area, or other Common Areas of
the Development;
(h) Receive, ship, load or unload articles of any kind including
merchandise, supplies, materials, debris, garbage, trash, refuse and
other chattels except through service access facilities designated
from time to time by the Landlord;
(i) Mount or place an antenna of any nature on the exterior of the
Premises or the Common Areas;
(j) Use the plumbing facilities for any other purposes than for which
they are constructed, and no foreign substance of any kind shall be
thrown therein, and the expense of any breakage, stoppage provision
shall be borne by the Tenant;
(k) Use any part of the Premises for lodging, sleeping or any illegal
purposes; and
(l) Cause, permit or suffer any machines selling merchandise, rendering
services or providing, however operated, entertainment, including
vending machines, to be present on the Premises unless consented to
in advance in writing by the Landlord;
(iv) The Tenant shall mention the name of the Building in its advertising
relating to the business carried on in the Premises and such name shall be
used only for the Premises during the Term; the Tenant's use of the
Building name shall be subject to such reasonable regulations as the
Landlord may from time to time impose. The Tenant shall acquire no rights
in any such name;
(v) When required by any governmental authority having jurisdiction the Tenant
will provide (within the Premises) facilities or accomodation for garbage
and waste and its disposal and pick-up in accordance with such
requirements.
(vi) Any reference in these Rules and Regulations to the Tenant shall include,
where the context allows, the servants, employees, agents, invitees,
concessionaires and licencees of the Tenant and all others over whom the
Tenant might reasonably be expected to exercise control.
(vii) The Landlord reserves the right to limit the weight and to describe the
position in the Premises of all safes, furniture, equipment, machinery and
stock of merchandise.
================================================================================
2
SCHEDULE "D"
Street Front Entrance
[FLOOR PLAN]
================================================================================
ADDENDUM TO THE LEASE AGREEMENT
- BETWEEN -
CARAVELLE NETWORKS CORPORATION
- AND -
▇▇▇▇▇ DEVELOPMENTS
================================================================================
This shall form as a legal and binding agreement between the two parties
mentioned above with respect to the Lease dated January 13, 1995 for the
premises known as ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
The Landlord has agreed to lease to the Tenant the remaining space on its floor,
presently vacant, upon the following terms and conditions:
1. Premises: ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, comprising approximately
935 Square Feet
2. Net Rent
The Net Rent payable by the Tenant shall be the amounts per annum and per month
set out below in the manner provided for in Section 4.2 of the Lease.
================================================================================
FROM TO: ANNUAL MONTHLY RATE PER
---- --- ------ ------- --------
NET RENT NET RENT SQUARE FOOT
-------- -------- ----------
January 1, 1996 January 31, 1997 $4,114.00 $342.83 $4.40
February 1, 1997 January 31, 2000 $4,675.00 $389.58 $5.00
================================================================================
================================================================================
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
3. Term
The Term of this Lease Amendment is for a period of FOUR (4) YEARS, ONE (1)
MONTH commencing on the FIRST DAY OF JANUARY, 1996 and ending on the 31st DAY
OF JANUARY, 2000.
4. Additional Rent
Upon execution of this Agreement, the Tenant will occupy the entire floor which
is separately metered for gas and hydro consumption. EFFECTIVE JANUARY 1ST,
1996, the Tenant will be billed directly for gas and hydro charges and the
Landlord shall, therefore, reduce the estimated taxes and operating costs to
$4.50 PER SQUARE FOOT as of January Ist, 1996.
5. Landlord's Work
Upon receipt of the executed Addendum to Lease, the Landlord will complete the
following work, at the Landlord's sole cost and expense:
(i) The Landlord will install 28 oz. carpeting complete with underpad and carpet
base in the office as shown on Schedule "A" attached;
(ii) The Landlord will remove all remaining office walls;
(iii) The Landlord will paint all walls;
(iv) The Landlord will install vinyl asbestos tile in the remainder of the
premises;
ALL OTHER TERMS AND CONDITIONS OF THE LEASE BETWEEN ▇▇▇▇▇ DEVELOPMENTS and
CARAVELLE NETWORKS CORPORATION DATED JANUARY 13, 1995 SHALL REMAIN IN FULL FORCE
AND EFFECT
PLEASE SIGNIFY YOUR ACCEPTANCE OF THE ADDENDUM TO LEASE BY SIGNING WHERE
INDICATED AT THE BOTTOM OF THIS AGREEMENT AND RETURNING THE DUPLICATE NO LATER
THAN FRIDAY, DECEMBER 8TH, 1995,
▇▇▇▇▇ DEVELOPMENTS
per: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ADDENDUM TO LEASE executed by the Tenant this 7 day of December, 1995
CARAVELLE NETWORKS CORPORATION
per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (affix corporate seal)
------------------------------
================================================================================
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE "A"
[FLOOR PLAN]
ADDENDUM TO THE LEASE AGREEMENT
- BETWEEN -
CARAVELLE NETWORKS CORPORATION
- AND -
▇▇▇▇▇ DEVELOPMENTS
================================================================================
This shall form as a legal and binding agreement between the two parties
mentioned above with respect to the Lease dated January 13, 1995 for the
premises known as ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
The Landlord has agreed to lease to the Tenant additional space at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, presently occupied by Pelyco Systems Inc., upon the following terms and
conditions:
1. Premises: ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, comprising approximately
1969 Square Feet
2. Net Rent
The Net Rent payable by the Tenant shall be the amounts per annum and per month
set out below in the manner provided for in Section 4.2 of the Lease.
================================================================================
FROM TO ANNUAL MONTHLY RATE PER
---- -- ------ ------- --------
NET RENT NET RENT SQUARE FOOT
-------- -------- ----------
July 1, 1996 January 31, 2000 $10,829.50 $902.46 $5.50
================================================================================
================================================================================
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
2
3. Term
The Term of this Lease Amendment is for a period of FORTY-THREE MONTHS
commencing on the FIRST DAY OF JULY, 1996 and ending on the 31ST DAY OF
JANUARY, 2000.
4. Landlord's Work
The following work shall be completed by the Landlord, at the Landlord's sole
cost and expense, prior to the commencement date:
(1) The Landlord shall paint all walls in the premises;
(2) The Landlord shall clean all carpets in the premises;
(3) The Landlord shall install a steel door and frame at the rear of the
premises opening out to the mid landing of their existing premises as
indicated on Schedule "A" attached hereto;
5. Relocation of Existing Tenant
The Landlord shall relocate the present Tenant of Suite 203, PELYCO SYSTEMS INC.
to an alternate Suite at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, and the Tenant, Caravelle Networks
Corporation, shall be responsible for all relocation costs, not to exceed the
sum of $6,500.00, as more particularly set forth in the Lease Proposal dated
April 23rd, 1996;
ALL OTHER TERMS AND CONDITIONS OF THE LEASE BETWEEN ▇▇▇▇▇ DEVELOPMENTS and
CARAVELLE NETWORKS CORPORATION DATED JANUARY 13, 1995 SHALL REMAIN IN FULL FORCE
AND EFFECT
PLEASE SIGNIFY YOUR ACCEPTANCE OF THE ADDENDUM TO LEASE BY SIGNING WHERE
INDICATED AT THE BOTTOM OF THIS AGREEMENT AND RETURNING THE DUPLICATE NO LATER
THAN FRIDAY, MAY 10, 1996
▇▇▇▇▇ DEVELOPMENTS
per /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ADDENDUM TO LEASE executed by the Tenant this day of May, 1996
CARAVELLE NETWORKS CORPORATION
per: __________________________ (affix corporate seal)
================================================================================
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Networks Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Vice-President, Finance & Administration
Dear Sir: -
Re: Suite 301 (4100 square feet) Suite 303 (935 square feet) - and -
Suite 203 (1969 square feet)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
--------------------------------------------------------------------------------
As you are probably aware, the Business Opportunity Tax (B.O.T.) was eliminated
on January 1st, 1998. In the past, this tax was assessed and billed directly to
you. The elimination of this tax has resulted in increased property taxes, and
we have estimated the increase to be approximately ninety cents per square foot
based on the 1998 interim billing. This amount will be adjusted, if necessary,
once the 1998 final tax figures become known. We are, therefore, increasing your
monthly portion of taxes and operating COSTS EFFECTIVE APRIL 1ST, 1998, as
follows: -
Basic Rent - (Suite 301) $ 1,708.34
Basic Rent - (Suite 303) 389.58
Basic Rent - (Suite 203) 902.46
Additional Rent - (Suite 301) 1,879.17
Additional Rent - (Suite 303) 428.54
Additional Rent - (Suite 203) 1,066.54
G. S. T. 446.23
----------
TOTAL $ 6,820.86
===== ==========
================================================================================
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
The Additional Rent for Suites 301 and 303 has been increased from $4.60 per
square foot to $5.50 per square foot. The Additional Rent for Suite 203
(including utilities) has been increased from $5.60 per square foot to $6.50 per
square foot. The utilities are not separately assessed for Suite 203.
We trust you will find the enclosed satisfactory and we look forward to
receiving the April rent cheque in the amended amount.
Yours truly,
▇▇▇▇▇ DEVELOPMENTS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
================================================================================
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇