EXHIBIT 10.30
Page 134
THIS INDENTURE made this 15/th/ day of March, 1999.
BETWEEN:
KANATA RESEARCH PARK CORPORATION
(Hereinafter called the "Landlord")
OF THE FIRST PART
AND:
NEWBRIDGE NETWORKS CORPORATION (Carrying on
Business as Newbridge Learning Services)
(Hereinafter called the "Tenant")
OF THE SECOND PART
WITNESSETH that in consideration of the rents, covenants, conditions and
agreements herein contained, the Landlord and the Tenant covenant and agree as
follows:
1.00 LEASED PREMISES
The Landlord hereby leases to the Tenant all those premises consisting of
approximately Six Thousand Eight Hundred & Thirty Two (6,832) rentable
square feet of space on the Seventh (7th) floor (herein called the
"Leased Premises") of the building known municipally as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ "▇" (herein called the "Building") in the City of Kanata which said
building is erected on the lands (herein called the "Lands") described in
Schedule "A" annexed hereto. The Leased Premises are more particularly
outlined on the floor plan annexed hereto and marked Schedule "B". The
parties acknowledge that the foregoing calculation of the area of the
Leased Premises has been estimated only and that the actual area of the
Leased Premises shall be subject to certification by the Landlord.
1.01 ADDITIONAL DEFINITIONS
For the purposes of this Lease and any additions or amendments thereto:
(a) "Improvements" means all improvements located on the Lands,
including the Building, the parking lot or structure servicing the
Building and other facilities and physical structures which are for
the exclusive use of occupants of the Building;
Page 135
(b) "Common Areas" means at any time those portions of the Lands and
Building not leased or designated for lease to tenants but provided
to be used in common by (or by the sublesses, agents, employees,
customers or licensees of) the Landlord, Tenant and other tenants of
the Building, whether or not they are open to general public and
shall include any fixtures, chattels, systems, decor, signs,
facilities or landscaping contained in those areas or maintained or
used in connection with them, and shall be deemed to include the
city sidewalks adjacent to the Lands and any pedestrian walkway
system (either above or below ground), park, or other public
facility in respect of which the Landlord is from time to time
subject to obligations arising from the Lands and Building.
(c) "Tenant's Proportionate Share" means percent Six point Sixty Seven
percent (6.67%) provided the said percentage may be varied based on
the actual area of the Leased Premises as certified by the Landlord.
2.00 TERM
To have and to hold the Leased Premises for and during the Term,
(hereinafter called the "Term") of Five (5) years to be computed from the
1st day of May, 1999 or from the date the Tenant takes occupancy of the
Leased Premises, whichever is sooner, and from thenceforth next ensuing
and fully to be completed and ended on the last day of April, 2004.
2.01 INABILITY TO GIVE OCCUPANCY
It is hereby agreed that if the Landlord is unable to deliver vacant
possession of the Leased Premises on the date of commencement of the Term
by reason of the Leased Premises or the Building being uncompleted or by
reason of any previous tenant or occupant overholding (but not by reason
of circumstances beyond the Landlord's control or by reason of the
failure of the Tenant to complete Tenant's Work herein or by reason of
the Tenant failing on or before the date occurring six (6) weeks prior to
the commencement of the Term herein to supply all necessary approvals and
specifications which the Landlord requires in order to complete the
Leasehold Improvements herein,) the Landlord shall diligently exercise
all of its rights to obtain completion and vacant possession of the
Leased Premises and the rent payable hereunder shall ▇▇▇▇▇ at a rental
per day equal to 1/365/th/ of the Annual Rent payable until such
completion or vacant possession is obtained but the Landlord shall not be
liable to the Tenant for damages of any nature whatsoever and this Lease
shall continue in full force and effect subject only to the abatement of
rent as aforesaid.
2.02 EARLY OCCUPANCY
If the Tenant occupies the Leased Premises prior to the commencement of
the Term, then during the period up to the date of commencement the
Tenant shall be a tenant of the Landlord subject to all the covenants,
conditions and agreements set out in this Lease and at a rental per day
equal to 1/365/th/ of
Page 136
the Annual Rent and Additional Rent and such rental shall be paid on or
before the commencement of the Term.
2.03 OVERHOLDING
If the Tenant shall continue to occupy the Leased Premises after the
expiration of this Lease with or without the consent of the Landlord and
without any further written agreement, the Tenant shall be a monthly
tenant at a rent equivalent to 150% of the Monthly Rent and Additional
Rent hereby reserved and subject to all the terms and conditions herein
set out except as to length of tenancy.
3.00 RENT - Basic Rent
In each year during the Term of this Lease the Tenant covenants and
agrees to pay without any set-off or deduction whatsoever, to the
Landlord, as rent for the Leased Premises, and for the non-exclusive use
of the common areas of the Building on which the Leased Premises is
located (which common area allocation shall be 12% of the area of the
Leased Premises), the following:
Rental Rate Per For Leased For Common Total Per
Year Sq. Foot Per Annum Premises Area Annum
---- ------------------ -------- ---- -----
1-5 $15.00 $91,500 $10,980 $102,480
herein called "Annual Rent". The Annual Rent will be adjusted
proportionately for any lease year which is other than twelve months.
3.01 MONTHLY RENTAL
The Annual Rent shall be payable in equal monthly installments
(hereinafter called the "Monthly Rent") in advance on the first day of
each calendar month during the Term. If the Term commences on any day
other than the first (1/st/) or ends on any day other than the last of a
calendar month, rent for the fraction of a month at the commencement and
at the end of the Term shall be prorated at a rate per day equal to
1/365/th/ of the Annual Rent payable. The Annual Rent and the Monthly
Rent may be varied based on the actual area of the Leased Premises as
certified by the Landlord.
3.02 ADDITIONAL RENT
The Tenant covenants to pay as additional rent all sums to be paid to the
Landlord hereunder including, without limiting the generality of the
foregoing, all tax on the Tenant's leasehold improvements, Goods and
Services Tax and the Tenant's Proportionate Share of the Tax, Capital
Tax, Landlord's Business Tax and Operating Costs (herein called
"Additional Rent").
3.03 ESTIMATED ADDITIONAL RENTALS
Page 137
During the Term, the Tenant shall pay to the Landlord monthly in advance
on the 1st day of each and every month during the Term, one-twelfth
(1/12) of the amount of such annual Additional Rent as reasonably
estimated by the Landlord to be due from the Tenant. Such estimates may
be adjusted from time to time and re-adjusted by the Landlord and the
Tenant shall pay to the Landlord monthly installments of Additional Rent
according to such estimates, as so adjusted.
3.04 DEFICIENCY OF ADDITIONAL RENT
If the aggregate amount of such estimated Additional Rent payments made
by the Tenant in any year should be less than the Additional Rent due for
such year, then the Tenant shall pay to the Landlord as Additional Rent
within ten (10) days of receipt of notice thereof from the Landlord the
amount of such deficiency.
3.05 EXCESS OF ADDITIONAL RENTAL INSTALLMENTS
If the aggregate amount of such Additional Rent payments made by the
Tenant in any year of the Term should be greater than the Additional Rent
due for such year, then should the Tenant not be otherwise in default
hereunder, the amount of such excess will be applied by the Landlord to
the next succeeding installments of such Additional Rent due hereunder;
and if there be any such excess for the last year of the Term, the amount
thereof will be refunded by the Landlord to the Tenant within thirty (30)
days after the completion of the Landlord's year-end review provided the
Tenant is not otherwise in default under the terms of the Lease.
3.06 PRO-RATING OF ADDITIONAL RENT
If only part of any calendar year is included within the Term the amount
of the Additional Rent payable by the Tenant for such partial year shall
be prorated and shall be based upon the estimates made by the Landlord
and upon a final determination of such Additional Rent, the amount
remaining unpaid at the termination of this Lease shall, notwithstanding
such termination, be adjusted and paid within a reasonable time
thereafter.
3.07 PREPAYMENT OF ADDITIONAL RENT
Notwithstanding the foregoing, if the Landlord is required to pay any
amount, which it is entitled to collect from the tenants of the Building,
more frequently than provided for in this Lease or if the Landlord is
required to prepay any such amount, the Tenant shall pay to the Landlord
its portion of such amount calculated in accordance with this Lease,
forthwith upon demand.
3.08 DISPUTE AS TO AMOUNT OF ADDITIONAL RENT
In the event of any dispute by the Tenant as to the amount of any
Additional Rent claimed by the Landlord or the amount of the Tenant's
Proportionate
Page 138
Share thereof, the opinion of the Landlord's auditors shall be conclusive
and binding as to the amount thereof for any period to which the opinion
relates.
3.09 POST-DATED CHEQUES
The Tenant shall, on or before the commencement of each and every Lease
Year of the Term, including the first Lease Year, deliver to the Landlord
a series of post-dated cheques, one for each month of the Lease Year,
drawn for an amount equal to the amount of Monthly Rent and the
Additional Rent (as estimated by the Landlord) payable in each month of
such Lease Year, provided that the first such payment is to include also
any pro-rated Monthly Rent and Additional Rent for the period from the
date of the commencement of the Term to the first day of the first full
calendar month in the Term, provided further that the obligation in the
first Lease Year shall be adjusted to take into account all advance
rental paid hereunder.
3.10 ADVANCE RENTAL
The Landlord hereby acknowledges receipt from the Tenant of the sum of
Thirty Two Thousand Five Hundred & Thirty Dollars and Fifty Six Cents
($32,530.56) inclusive of G.S.T. to be held without interest and applied
against the first and last months' Monthly Rent and Additional Rent.
3.11 MANNER AND PLACE OF PAYMENT OF RENT
All rent shall, until further written notice is received from the
Landlord, be paid by the Tenant without any prior demand therefor to
Kanata Research Park Corporation, at par in the City of Kanata at the
principal office of, Kanata Research Park Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, or at such other place in
Canada as Kanata Research Park Corporation may designate in writing from
time to time and shall be payable in lawful money of Canada. The
Landlord agrees that payments made to Kanata Research Park Corporation
pursuant to this Lease shall be deemed to be payments made to the
Landlord and the Tenant shall not be required to see to the application
thereof.
3.12 DEFAULT
Any sums received by the Landlord from or for the account of the Tenant
when the Tenant is in default hereunder may be applied at the Landlord's
option to the satisfaction, in whole or part, of any of the obligations
of the Tenant then due hereunder in such manner as the Landlord sees fit,
and regardless of any designation or instructions of the Tenant to the
contrary.
3.13 ACCRUAL OF RENT
Rent shall be considered as annual and accruing from day to day, and
where it becomes necessary for any reason to calculate such rent for an
irregular period of less than one (1) year an appropriate apportionment
and adjustment shall be made. Where the calculation of any Additional
Rent is not made until
Page 139
after the termination of this Lease, the obligation of the Tenant to pay
such Additional Rent shall survive the termination of this Lease and such
amounts shall be payable by the Tenant upon demand by the Landlord.
3.14 NET LEASE
The Tenant acknowledges and agrees that it is intended that this Lease
shall be a completely carefree net lease for the Landlord and that the
Landlord shall not be responsible during the Term for any costs, charges,
expenses or outlays of any nature whatsoever arising from or relating to
the Leased Premises, whether foreseen or unforeseen and whether or not
within the contemplation of the parties at the commencement of the Term
except as shall be otherwise expressly provided for in this Lease and
other than Income Tax due by the Landlord, the Tenant shall be
responsible for any business transfer tax, value added tax, multi-stage
sales tax, goods and services tax or any other tax or levy on rental
income that may be charged, levied or assessed by any government or other
applicable taxing authority against the Landlord whether known as a goods
and services tax or any other name ("Goods and Services Tax").
4.00 TENANT'S BUSINESS TAX
In each and every year during the Term the Tenant covenants to pay and
discharge prior to the same becoming due and payable all taxes, rates,
duties and assessments and other charges that may be levied, rated,
charged or assessed against or in respect of the Tenant's or other
occupant's use and occupancy of the Leased Premises or in respect of the
Tenant's or other occupant's leasehold improvements, equipment,
machinery, trade fixtures and facilities situate or installed on or in
the Leased Premises and every tax and licence fee in respect of any and
every business carried on in the Leased Premises or in respect of the use
or occupancy thereof by the Tenant (and any and every subtenant, licensee
or occupant thereof) whether such taxes, rates, duties, assessments and
licence fees are charged by any municipal, parliamentary, school or other
body during the term hereby demised. The Tenant will indemnify and keep
indemnified the Landlord from and against payment of all loss, costs,
charges and expenses occasioned by, or arising from any and all such
taxes, rates, duties, assessments, licence fees, and any and all taxes
which may in future be levied or charged in lieu of such taxes; and any
such loss, costs, charges and expenses suffered by the Landlord may be
collected by the Landlord as rent with all rights of distress and
otherwise as reserved to the Landlord in respect of rent in arrears. The
Tenant further covenants and agrees that upon written request of the
Landlord, the Tenant will promptly deliver to the Landlord for inspection
receipts for payment of all such taxes, rates, duties, assessments,
licence fees and other charges in respect of all improvements, equipment
and facilities of the Tenant on or in the Leased Premises or in respect
of any business carried on in the Leased Premises which were due and
payable up to one (1) month prior to such request.
4.01 LANDLORD'S BUSINESS TAX
Page 140
In the event that there are any taxes, rates, duties, assessments or
charges levied, rated, charged or assessed against the Landlord by any
municipal or other governmental authority with respect to the Landlord's
use or occupancy of any part of the Building or the Land which the Tenant
is entitled to use in common with other persons or with respect to any
other part of the Building which the Landlord uses or occupies for the
purpose of supplying services to the Leased Premises (such taxes, rates,
duties, assessments or charges hereinafter called the "Landlord's
Business Tax"), then it is agreed that in addition to all other sums, the
Tenant is required to pay pursuant to this Lease, the Tenant shall pay to
the Landlord as Additional Rent, the Tenant's Proportionate Share of such
Landlord's Business Tax.
4.02 TAX ON TENANT'S LEASEHOLD IMPROVEMENTS
The Tenant shall pay to the Landlord as Additional Rent, in respect of
each applicable tax year, an amount equal to that portion of the Tax for
such tax year, as determined by the Landlord, which may reasonably be
regarded as being attributable to the fixtures, improvements,
installations, alterations, additions and equipment from time to time
made, erected or installed by or on behalf of the Tenant in the Leased
Premises.
4.03 PROPERTY TAX
"Tax" in this Lease means an amount equivalent to all taxes, rates,
duties, levies and assessments whatsoever levied, rated, charged or
assessed by any municipal, parliamentary, educational, school or other
governmental authority charged upon the Building, the Lands, the property
and all improvements now or hereafter appurtenant thereto or upon the
Landlord on account thereof including all taxes, rates, duties, levies
and assessments for local improvements and including any tax which has
been attracted by the Tenant's leasehold improvements and equipment and
for which the Tenant is responsible hereunder and excluding any portion
of Tax payable solely by any other tenant and excluding any Tax charged
against or applicable to the other office buildings constructed on the
Lands and the parking spaces (excluding visitor parking) applicable to
such buildings and excluding such taxes as corporate income, capital
gains, profits or excess profits, taxes assessed upon the income of the
Landlord, and shall also include any and all taxes which may in future be
levied in lieu of Tax as hereinbefore defined.
4.04 ALLOCATION OF TAX
If the Tax or any portion thereof that may be payable by the Tenant by
reason of this Lease, depends upon an assessment or an approximation of
an assessment which has not been made by the taxing authority or
authorities having jurisdiction, the Landlord shall determine the same;
any such determination made by the Landlord shall be binding upon the
Tenant unless shown to be unreasonable or erroneous in some substantial
respect. The Landlord shall have the right from time to time to
reasonably allocate and
Page 141
re-allocate Taxes not charged separately to the various buildings
(including the Building) and the parking garages located on the Lands.
4.05 SEPARATE SCHOOL TAXES
If the Tenant or any subtenant or licensee of the Tenant or any occupant
of the Leased Premises shall elect to have the Leased Premises or any
part thereof assessed for separate school taxes, the Tenant shall pay to
the Landlord, as additional rent, as soon as the amount of the separate
school taxes is ascertained, any amount by which the amount of separate
school taxes exceeds the amount which would have been payable for Tax had
such election not been made and if the Tenant or any subtenant or
licensee of the Tenant shall elect to have the Leased Premises or any
part thereof assessed for separate school taxes as aforesaid and if such
separate school taxes are less than the taxes which would have been
payable for school taxes had such election not been made, then and in
that event, the Tenant shall be entitled to deduct from the rent for the
first month of the year following which such taxes were payable, the
amount by which the separate school taxes were less than the amount which
would have been payable for school taxes in the year prior to such month.
4.06 TAX APPEAL
Any expense incurred by the Landlord in obtaining or attempting to obtain
a reduction in the amount of the Tax or the assessment upon which the Tax
may be based, shall be added to and included in the amount of the Tax and
if the Tenant shall have paid its Proportionate Share of the Tax and the
Landlord shall thereafter receive a refund of any portion of the Tax, the
Landlord shall make an appropriate refund to the Tenant.
4.07 CAPITAL TAX
"Capital Tax" means the tax or excise imposed or capable of being imposed
upon the Landlord by any government authority having jurisdiction which
is measured or based in whole or in part upon the taxable capital
employed by the Landlord, which said taxable capital shall be deemed to
be the cost to the Landlord of said Building and Lands computed as if the
amount of such tax were that amount due if the Building and the Lands
were the only property of the Landlord, the Landlord was entitled to no
capital deduction, investment allowance or any other deduction
whatsoever. For the purpose of this paragraph the Term "investment
allowance" and "capital deduction" shall be defined by reference to the
applicable taxing statute.
5.00 OPERATING COSTS
"Operating Costs" in this Lease means the total charges, expenses, costs,
fees, rentals, disbursements or outlays incurred, accrued, paid, payable
or attributable whether by the Landlord or others on behalf of the
Landlord for complete repair, maintenance, operation, cleaning and
management of the Building, Lands and all the improvements thereon and
the components of
Page 142
each of them (herein collectively called the "Property") such as are in
keeping with maintaining the standard of a first class commercial
Property so as to give it high character and distinction; and including,
without limiting the generality of the foregoing, the cost of all repairs
and replacements required for such operation and maintenance, the cost of
maintaining and repairing the heating, air-conditioning, ventilating and
mechanical systems and equipment in the Building, the cost of operating
and maintaining any elevators, (including the cost of service contracts);
the costs of providing hot and cold water; the costs of providing
electricity not otherwise chargeable to tenants; the costs of all fuel,
gas and steam used in heating, ventilating and air-conditioning; the cost
of energy conservation devices or equipment; the cost of snow removal;
landscape maintenance including the cost of replacing any landscaping on
the Lands; the cost of window cleaning; the cost of insurance premiums
for fire, casualty, liability, rental and any other insurance coverage
maintained by the Landlord in connection with the Property; telephone and
other utility costs; the amount paid or payable for all salaries, wages
and benefits and other payments paid to or on behalf of persons engaged
in the cleaning, supervision, maintenance and repair of the Property
(including wages of the on site Property Manager); the cost of accounting
services necessary to prepare the statements and opinions for the tenants
and to compute the rents and other charges payable by the tenants of the
Building; the cost of porters, guards and other protection services; the
cost of providing security services; the cost of garbage or refuse
removal from the Building not otherwise chargeable to tenants; the cost
of repair and maintenance of the roadways, curbs, paving, walkways,
pools, landscaping, lighting and other common facilities and outside
areas; cost of services provided for the common use of the tenants;
building management fees or an administrative fee (not exceeding the
going rate charged by trust companies or first class building Management
Companies for building management in the Regional Municipality of Ottawa-
Carleton for similar buildings); the cost of service contracts with
independent contractors and all other expenses, paid or payable by the
Landlord in connection with the operation of the Property, but such
Operating Costs shall not include any interest on any debt or capital;
retirement of any debt; any amounts directly chargeable by the Landlord
to any tenant or tenants of the Building and the cost of any repairs paid
for by insurance proceeds or for which the Landlord was reimbursed by
insurance proceeds.
5.01 ALLOCATION OF OPERATING COSTS
In determining the Operating Costs attributable to the Building, the
Landlord shall have the right from time to time to reasonably allocate
and re-allocate such Operating Costs which represent operating costs
incurred for facilities or services shared by the Building and such other
buildings as are owned or operated by the Landlord and which are not
charged or allocated separately against the Building and any such other
building or buildings. Any such determination made by the Landlord shall
be binding upon the Tenant unless shown to be unreasonable or erroneous
in some substantive respect. The Tenant shall have the right to
reasonable access to the books and records of
Page 143
the Landlord to conduct an examination and to ascertain whether
allocations of Operating Costs made by the Landlord have been made
reasonably.
5.02 FULL OCCUPANCY
If in any year the Building has not been fully occupied for the whole
year, the amount of the Operating Costs for such year may be adjusted by
the Landlord, acting reasonably, to an amount which reflects what the
amount of the Operating Costs would be if the Building had been fully
occupied for the whole year.
5.03 USE OF ELECTRICITY
The Tenant's use of electricity in the Leased Premises shall be for the
operation of office lighting and business machines, such as typewriters,
desktop computers and other small office machines and shall not at any
time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Leased Premises. In order to ensure
that such capacity is not exceeded and to avert possible adverse effect
upon the Building's electrical service, the Tenant shall not, without the
Landlord's prior written consent in each instance, connect any additional
fixtures, appliances or equipment (other than normal office electrical
fixtures, lamps, typewriters and similar small office machines) to the
Building's electric distribution system or make any alteration or
addition to the electrical system of the Leased Premises existing at the
commencement of the Term. If the Landlord grants such consent, the cost
of all additional risers and other equipment required therefor shall be
paid as Additional Rent by the Tenant to the Landlord upon demand. As a
condition to granting such consent, the Landlord may require the Tenant
to agree to pay an increase in the Additional Rent for Operating Costs by
an amount which will reasonably reflect the increased cost of the
Landlord of the additional electrical services to be furnished to the
Leased Premises by the Landlord.
5.04 METERS
The Tenant covenants to pay for the cost of any additional metering which
may be required by the Landlord to be installed in the Building for the
purpose of determining the amount of electricity consumed by the Tenant
in the Leased Premises.
6.00 ASSIGNING OR SUBLETTING
The Tenant covenants that it will not assign or sublet the Leased
Premises or any part thereof without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld save and
except in the event of any of the following, in which case the Landlord
may arbitrarily withhold its consent:
(a) an assignment or sublet of the whole of the Leased Premises, the
terms of which have a net present value that are less or more than
the
Page 144
net present value of the terms of the Lease (not including the
value of initial leasehold improvements, leasing commissions or
inducements of any kind under the Lease) and in the latter event if
the Landlord consents to such assigned or sublet the Tenant shall
pay the increased value to the Landlord as Additional Rent.;
(b) a sublet of a part of the Leased Premises;
(c) where the assignee or subtenant is then a tenant of the Landlord at
the Building and the Landlord has or will have during the next
following six (6) months, vacant space for rent in the Building.
6.01 REQUEST TO ASSIGN OR SUBLET
If the Tenant requests the Landlord's consent to an assignment of this
Lease or to a subletting of the whole or any part of the Leased Premises,
the Tenant shall submit to the Landlord the name and address of the
proposed assignee or subtenant together with a copy of an offer or
agreement to assign or sublet or the sublease or assignment and such
additional information as to the nature of its business and its financial
responsibility and standing (including financial statements) as the
Landlord may reasonably require ("required information").
6.02 LANDLORD'S RIGHT TO CANCEL
Upon receipt of such request and the required information from the
Tenant, the Landlord shall have the right, exercisable in writing within
thirty (30) days after such receipt, to cancel and terminate this Lease
if the request is to assign this Lease or to sublet all of the Leased
Premises, or, if the request is to sublet a portion of the Leased
Premises only, to cancel and terminate this Lease with respect to such
portion, in each case as of the date set forth in the Landlord's notice
of exercise of right ("Landlord's notice of termination"), which shall be
neither less than sixty (60) days nor more than one hundred and twenty
(120) days following the delivery of the Landlord's notice of
termination. If the Landlord shall exercise such right, the Tenant shall
surrender possession of the entire Leased Premises or the portion which
is the subject of the right, as the case may be, on the date set forth in
the Landlord's notice of termination in accordance with the provisions of
this Lease relating to the surrender of the Leased Premises at the
expiration of the Term. If this Lease shall be cancelled as to a portion
of the Leased Premises only, the rent payable by the Tenant under this
Lease shall be abated proportionately. In the event that the Landlord
shall not exercise the right to cancel this Lease, then the Landlord's
consent to any such request to assign or sublet shall not be unreasonably
withheld.
6.03 ASSIGNMENT AGREEMENT
The Landlord's consent to any assignment may be conditional upon the
assignee entering into an assignment in form and content satisfactory to
the Landlord, to perform, observe and keep each and every covenant,
condition
Page 145
and agreement in this Lease on the part of the Tenant to be performed,
observed and kept including the payment of rent and all other sums and
payments agreed to be paid or payable under this Lease on the days and
times and in the manner specified.
6.04 CONSENT NOT TO RELEASE TENANT
In no event shall any assignment or subletting to which the Landlord may
have consented release or relieve the Tenant from his obligations fully
to perform all the terms, covenants and conditions of this Lease to be
performed.
6.05 CHANGE IN CORPORATE CONTROL
If the Tenant is a corporation or if this Lease, with the written consent
of the Landlord, is assigned to a corporation, and if at any time during
the Term any part or all of the corporate shares or voting rights of
shareholders shall be transferred by sale, assignment, bequest,
inheritance, trust, operation of law or other disposition, or treasury
shares be issued, so as to result in a change in the control of such
corporation by the person or persons now owning a majority of the
corporate shares thereof, the Landlord may terminate this Lease at any
time after such change in control by giving the Tenant thirty (30) days
prior written notice of such termination. The Tenant shall, at the
request of the Landlord, make available to the Landlord for inspection or
copying, or both, all books and records of the Tenant which, alone or
with other data, show the applicability or inapplicability of this
paragraph. If any stockholder or shareholder of the Tenant shall, after
the request of the Landlord so to do, fail or refuse to furnish forthwith
to the Landlord any data verified by the affidavit of such stockholder or
shareholder or other credible person, which data, alone or with other
data show the applicability or inapplicability of this paragraph, the
Landlord may terminate this Lease by giving the Tenant thirty (30) days'
prior written notice of such termination.
6.06 NOTICE OF CHANGE OF CONTROL
Where there is a change in corporate control of the Tenant, the Tenant
shall forthwith so advise the Landlord in writing.
6.07 COST OF CONSENT
The Tenant further agrees that prior to any consent for assignment,
subletting or change in control being effective and binding upon the
Landlord, the Tenant shall pay on demand the Landlord's reasonable costs
(including the Landlord's own administrative costs) incurred in
connection with the Tenant's request for such consent.
7.00 TENANT'S COVENANTS
The Tenant further covenants with the Landlord as follows:
7.01 TENANT REPAIRS
Page 146
To repair, maintain and keep the Leased Premises and all trade fixtures
and improvements therein in good and substantial repair subject only to
defects in construction of the structural members of the Building,
reasonable wear and tear and damage by fire, lightning and tempest or
other casualty against which the Landlord is insured (herein collectively
referred to as "Tenant Repair Exceptions"); and that the Landlord may
enter and view state of repair and that the Tenant will repair according
to notice in writing, except for Tenant Repair Exceptions and that the
Tenant will leave the Leased Premises in good repair, except for Tenant
Repair Exceptions. Notwithstanding anything hereinbefore contained, the
Landlord may in any event make repairs to the Leased Premises without
notice if such repairs are, in the Landlord's opinion, necessary for the
protection of the Building and the Tenant covenants and agrees with the
Landlord that if the Landlord exercises any such option to repair, the
Tenant will pay to the Landlord together with the next instalment of
Monthly Rent which shall become due after the exercise of such option all
sums which the Landlord shall have expended in making such repairs and
that such sums, if not so paid within such time, shall be recoverable
from the Tenant as rent in arrears. Provided further that in the event
that the Landlord from time to time makes any repairs as hereinbefore
provided, the Tenant shall not be deemed to have been relieved from the
obligation to repair and leave the Leased Premises in a good state of
repair.
7.02 RULES AND REGULATIONS
That the Tenant and his employees and all persons visiting or doing
business with him on the Leased Premises shall be bound by and shall
observe rules and regulations annexed hereto or as may hereafter be
reasonably set by the Landlord of which notice in writing shall be given
to the Tenant and upon such notice being delivered all such rules and
regulations shall be deemed to be incorporated into and form part of this
Lease.
7.03 USE OF PREMISES
The Leased Premises shall be used only for office purposes.
7.04 INCREASE IN INSURANCE PREMIUMS
That it will not keep, use, sell or offer for sale in or upon the Leased
Premises any article which may be prohibited by any insurance policy in
force from time to time covering the Building including any regulations
made by any fire insurance underwriters applicable to such policies. In
the event the Tenant's occupancy or conduct or business in, or on the
Leased Premises, whether or not the Landlord has consented to the same,
results in any increase in premiums for the insurance carried from time
to time by the Landlord with respect to the Building, the Tenant shall
pay any such increase in premiums as Additional Rent within ten (10) days
after bills for such additional premiums shall be rendered by the
Landlord. In determining whether increased premiums are a result of the
Tenant's use or occupancy of the Leased Premises, a schedule issued by
the organization computing the insurance rate
Page 147
on the Building showing the various components of such rate, shall be
conclusive evidence of the several items and charges which make up such
rate. The Tenant shall promptly comply with all reasonable requirements
of the insurance authority or of any insurer now or hereafter in effect
relating to the Leased Premises.
7.05 CANCELLATION OF INSURANCE
If any policy of insurance upon the Building or any part thereof or upon
the Lands or any part thereof shall be cancelled or rendered voidable by
the insurer by reason of any act, omission or occupation of the Leased
Premises or any part thereof by the Tenant, any assignee or subtenant of
the Tenant or by anyone permitted by the Tenant to be upon the Leased
Premises, and the Tenant, after receipt of notice from the Landlord,
shall have failed to immediately reinstate such insurance policies or
avoid cancellation of such insurance policies, the Landlord may at its
option determine this Lease forthwith by leaving upon the Leased Premises
notice in writing of its intention so to do and thereupon rent and any
other payments for which the Tenant is liable under this Lease shall be
apportioned and paid in full to the date of such determination and the
Tenant shall immediately deliver up possession of the Leased Premises to
the Landlord and the Landlord may re-enter and take possession of the
same or the Landlord shall pay any increased cost of such insurance and
the Tenant shall pay as Additional Rent, on demand, the amount by which
the premiums for such insurance are so increased.
7.06 OBSERVANCE OF LAW
To comply promptly at its own expense with all provisions of law
including without limitation, federal and provincial legislative
enactments, building by-laws, and any other governmental or municipal
regulations which relate to the partitioning, equipment, operation and
use of the Leased Premises, and to the making of any repairs,
replacements, alterations, additions, changes, substitutions or
improvements of or to the Leased Premises. And to comply with all
police, fire and sanitary regulations imposed by any federal, provincial
or municipal authorities or made by fire insurance underwriters, and to
observe and obey all governmental and municipal regulations and other
requirements governing the conduct of any business conducted in the
Leased Premises. Provided that in default of the Tenant so complying the
Landlord may at its option where possible comply with any such
requirement and the cost of such compliance shall be payable on demand by
the Tenant to the Landlord as Additional Rent.
7.07 WASTE AND OVERLOADING OF FLOORS
Not to do or suffer any waste or damage, disfiguration or injury to the
Leased Premises or the fixtures and equipment thereof or permit or suffer
any overloading of the floors thereof; and not to place therein any safe,
heavy business machine or other heavy thing without first obtaining the
consent in writing of the Landlord; and not to use or permit to be used
any part of the Leased Premises for any dangerous, noxious or offensive
trade or business
Page 148
and not to cause or permit any nuisance in, at or on the Leased Premises;
and without the prior consent in writing of the Landlord, the Tenant will
not bring onto or use in the Leased Premises or permit any person subject
to the Tenant to bring onto or use on the Leased Premises any fuel or
combustible material for heating, lighting or cooking nor will it allow
onto the Leased Premises any stove, burner, kettle, apparatus or
appliance for utilizing the same and the Tenant will not purchase,
acquire or use electrical current or gas for consumption on the Leased
Premises except from such supplier thereof as shall have been approved in
writing by the Landlord.
7.08 INSPECTION
To permit the Landlord, its servants or agents to enter upon the Leased
Premises at any time and from time to time for the purpose of inspection
and of making repairs, alterations or improvements to the Leased Premises
or to the Building and the Tenant shall not be entitled to compensation
for any inconvenience, nuisance or discomfort occasioned thereby. The
Landlord, its servants or agents may at any time and from time to time
enter upon the Leased Premises to remove any article or remedy any
condition which, in the opinion of the Landlord, reasonably arrived at,
would be likely to lead to cancellation of any policy of insurance and
such entry by the Landlord shall not be deemed to be a re-entry. The
Tenant shall, upon written request of the Landlord, produce audited
Financial Statements of the Tenant, which statements shall include a
Balance Sheet, Income Statement, Statement of Retained Earnings,
Statement of Source and Application of Funds.
7.09 INDEMNITY TO LANDLORD
To promptly indemnify and save harmless the Landlord for any and all
liabilities, damages, costs, claims, suits or actions of any nature or
kind including the full cost to the Landlord in resisting or defending
the same to which the Landlord shall or may become liable or suffer
arising out of or by reason of:
(a) any breach, violation or non-performance by the Tenant of any of its
covenants and obligations under this Lease;
(b) any damage to property while said property shall be in or about the
Leased Premises including the systems, furnishings and amenities
thereof, as a result of the negligence, misuse or wilful act of the
Tenant, its express or implied invitees, licensees, agents, servants
or employees; and
(c) any injury to any invitee, licensee, agent, servant or employee of
the Tenant, including death resulting at any time therefrom,
occurring on or about the Leased Premises, the Property or the
Lands;
and this indemnity shall survive the expiry or sooner determination of
this Lease.
Page 149
7.10 DAMAGE BY TENANT
That if the Building including the Leased Premises, the elevators,
boilers, engines, pipes and other apparatus (or any of them) used for the
purpose of heating, ventilating or air-conditioning the Building or
operating the elevators, or if the water pipes, drainage pipes, electric
lighting or other equipment of the Building or the roof or outside walls
or other parts of the Building will not function properly or become
damaged or destroyed through the negligence, carelessness or misuse of
the Tenant, or of any of its invitees, licensees, agents, servants,
employees, clients, customers or contractors, or through it or them in
any way stopping up or injuring any heating, ventilating or air-
conditioning apparatus, elevators, water pipes, drainage pipes or other
equipment or parts of the Building, the expense of the necessary repairs,
replacements or alterations shall be borne by the Tenant and paid
forthwith on demand to the Landlord as Additional Rent.
7.11 TENANT INSURANCE
(a) To maintain in force during currency of this Lease at the Tenant's
expense insurance policies to cover the following:
(i) comprehensive general liability insurance with limits of not
less than Five Million Dollars ($5,000,000.00) (including
bodily injury and property damage, tenant's legal liability,
cross liability and contractual liability) to cover all
responsibilities assumed by the Tenant with respect to the
use or occupancy of and the business carried on, in or from
the Leased Premises, in amounts acceptable to the Landlord;
(ii) all risk insurance covering leasehold improvements made or
installed by or on behalf of the Tenant in an amount equal
to the full replacement value thereof; and
(iii) any other insurance that the Landlord (or the Landlord's
mortgagee, if any) may reasonably require from time to time
in form and amounts and for insurance risks against which a
prudent Tenant would protect itself;
(b) That all Tenant's insurance required hereunder shall be with
insurers and upon terms and conditions to which the Landlord has no
reasonable objection. Copies of all policies, or certificates
evidencing the insurance or its renewal shall be delivered to the
Landlord at the Landlord's request;
(c) That all policies of insurance to be maintained by the Tenant shall,
in the case of general liability insurance, include the Landlord
(and, where applicable, the Landlord's mortgagee) as additional
insured and, in the case of all other insurance coverage, contain a
waiver by the insurer and Tenant of any rights of subrogation or
indemnity or any other claim
Page 150
to which the insurer might otherwise be entitled against the
Landlord (and mortgagee) or the agents or employees of the Landlord.
All such insurance policies shall also contain a provision
prohibiting the insurer from cancelling or altering the insurance
coverage without first giving the Landlord thirty (30) days prior
written notice thereof;
(d) That if the Tenant fails to take out or maintain in force such
insurance, the Landlord may take out the necessary insurance and pay
the premium therefor and the Tenant shall pay to the Landlord the
amount of such premium immediately on demand as Additional Rent; and
(e) That if both the Landlord and the Tenant have claims to be
indemnified under any such insurance, the indemnity shall be applied
first to the settlement of the claim of the Landlord and the
balance, if any, to the settlement of the claim of the Tenant.
7.12 NO ABATEMENT OF RENT
That there shall be no abatement or reduction of rent and that the
Landlord shall not be liable for any damage howsoever caused to property
of the Tenant or of any person subject to the Tenant which is in or upon
or being brought to or from the Leased Premises or the Building or for
personal injury (including death) sustained in any manner by the Tenant
or any person subject to the Tenant while the Tenant or any such person
is on or upon entering or leaving the Leased Premises or Building unless
such property damage or personal injury may have been attributable to
fault or neglect on the part of the Landlord or of any person for whom
the Landlord is at law responsible, and that the Tenant will indemnify
and save harmless the Landlord from and against all claims and demands
made against the Landlord by any person for or arising out of any such
property damage or personal injury.
7.13 EXHIBITING PREMISES
To permit the Landlord or its agents or servants to enter and show the
Leased Premises, during normal business hours, to prospective purchasers
of the Building and may after notice of termination of this Lease has
been given or within the last six (6) months of the Term, enter and show
the Leased Premises to prospective tenants and erect signs stating that
the premises are "To Let".
7.14 SIGNS
The Tenant shall not paint, display, inscribe or place any sign, symbol,
notice or lettering of any kind anywhere outside the Leased Premises or
within the Leased Premises so as to be visible from the outside of the
Building or the common areas thereof with the exception only of an
identification sign at the entrance to the Leased Premises (which sign
shall be subject to the Landlord's written approval as to size, design
and location) and the Tenant's name on the directory listing (if any) in
the main lobby of the Building.
Page 151
7.15 NAME OF BUILDING
Not to refer to the Building by any name other than that designated from
time to time by the Landlord and the Tenant shall use the name of the
Building for the business address of the Tenant but for no other purpose.
7.16 KEEP TIDY
The Tenant shall provide its own cleaning and janitorial services. At
the end of each business day, the Tenant shall leave the Leased Premises
in a tidy condition.
7.17 DELIVERIES
The Tenant shall receive, ship, take delivery of and allow and require
suppliers or others to deliver or take delivery of merchandise, supplies,
fixtures, equipment, furnishings, wares or merchandise only through the
loading entrance and other facilities provided for that purpose and at
the times set by the Landlord.
7.18 NOTICE OF DAMAGE
To notify the Landlord promptly of any damage to or defect in the Leased
Premises or the Building or any part thereof including any electrical,
plumbing, heating, ventilating, air-conditioning, water, sprinkler or gas
systems or equipment, or the water pipes, gas pipes, telephone lines or
electrical apparatus within or leading to the Leased Premises, and in
case of fire to give immediate notice thereof to the Fire Department.
7.19 ALTERATIONS, ETC
The Tenant will not make or erect in or to the Leased Premises any
installations, alterations, additions or partitions or remove or change
the location or style of any installations, alterations, equipment,
outlets, piping or wiring relating to the electrical, plumbing, water,
gas, air-conditioning, heating or ventilating systems without submitting
drawings and specifications to the Landlord and obtaining the Landlord's
prior written consent in each instance. The Tenant must further obtain
the Landlord's prior written consent to any change or changes in such
drawings and specifications submitted as aforesaid. The Tenant's request
for such consent shall be in writing and accompanied by an adequate
description of contemplated work and with appropriate working drawings
and specifications thereof. The Landlord's cost of having its architects
or engineers examine such drawings and specifications shall be payable by
the Tenant. The Landlord may require that any and all work be performed
by the Landlord's contractors or workmen or by contractors or workmen
engaged by the Tenant but in each case only under written contract
approved in writing by the Landlord and subject to all reasonable
conditions which the Landlord may impose and subject to inspection by and
reasonable supervision of the Landlord (including a
Page 152
supervision fee to be paid by the Tenant to the Landlord equal to fifteen
percent (15%) of the total cost of such work). The Landlord may at its
option require that only the Landlord's contractors be engaged for any
mechanical, electrical, plumbing, structural or sprinkler work to be done
in the Leased Premises. Any work performed by or for the Tenant shall be
performed by competent workmen whose labour union affiliations are not
incompatible with those of any workmen who may be employed in the
Building by the Landlord, its contractors or subcontractors. The cost of
all such work and of all materials, labour and services involved therein
and of all services, necessitated thereby shall be at the sole cost and
expense of the Tenant and shall be completed in a good and workmanlike
manner and with reasonable diligence in accordance with the description
of the work approved by the Landlord. Any such alterations, additions,
and fixtures shall, when made or installed, be and become the property of
the Landlord without payment being made therefor; provided that upon the
determination of this Lease the Landlord may at its option require the
Tenant, or itself at the Tenant's expense, to remove the same and to
restore the Leased Premises to the condition in which they were at the
commencement of this Lease.
7.20 CONSTRUCTION LIENS
The Tenant covenants that he will not suffer or permit during the Term
hereof any construction or other liens for work, labour, services or
material ordered by him or for the cost of which he may be in any way
obligated to attach to the Leased Premises or the Building or the Land
and that whenever and so often as any such liens shall attach or claims
therefor shall be filed, the Tenant shall within twenty (20) days after
the Tenant has notice of the claim for lien, procure the discharge
thereof by payment or by giving security or in such manner as is or may
be required or permitted by law.
7.21 SECURITY
The Tenant will maintain on the Leased Premises sufficient moveable
property to guarantee the payment of one (1) year's Annual Rent and
Additional Rent.
7.22 HAZARDOUS SUBSTANCES
(a) The Tenant shall not cause or permit any Hazardous Substances to
be brought onto, created in, released or discharged from, placed
or disposed of, at or near the Leased Premises, Building or
Lands;
(b) The Tenant shall not cause or permit to occur any violation of
any federal, provincial, municipal or local law, ordinance, or
regulation, now or hereinafter enacted (the "Laws"), relating to
environmental conditions on, under, at, near or about the Leased
Premises, Building or Lands, or relating to the Landlord, the
Tenant or the Building, air, soil or ground water condition,
including without limitation, the generation, storage or disposal
of Hazardous Substances;
Page 153
(c) For the purposes of this section, "Hazardous Substances" means
any substance, or class of substance or mixture of substances
which may be detrimental to the environment, plant or animal
life, or human health and includes, without limitation,
flammable, explosives, or radioactive materials, asbestos,
polychlorinated biphenyls (PCBs), chemicals believed to cause
cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances and related materials,
petroleum and petroleum products, any substance that, if added to
water, may degrade or alter or form part of a process of
degradation or alteration of the quality or temperature of that
water to the extent that it is detrimental to its use by man or
by any animal, fish or plant, and substances declared to be
hazardous or toxic under any law or regulation now or hereafter
enacted or promulgated by any governmental authority having
jurisdiction over the Landlord, the Tenant, the Leased Premises
or the Building (the "Authorities");
(d) The Tenant shall, at its own expense, comply with the Laws;
(e) The Tenant shall, at its own expense, make all submissions to,
provide all information required by, and comply with all
requirements of the Authorities under the Laws;
(f) The Tenant shall indemnify, defend and hold harmless the
Landlord, the Landlord's mortgagees, any manager of the building,
and their respective officers, directors, beneficiaries,
shareholders, partners, agents and employees, from all fines,
suits, procedures, claims and actions of every kind, and all
costs associated therewith (including legal fees on a solicitor
and his own client basis and consultants' fees) arising out of or
in any way connected with any deposit, spill, discharge, or other
release of Hazardous Substances that occurs during the Term or
any renewal or extension period, at or from the Leased Premises,
or which arises at any time from the Tenant's use or occupancy of
the Leased Premises, or from the Tenant's failure to provide all
information, make all submissions, and take all steps required by
this Section or by the Authorities;
(g) Notwithstanding any other provision of this Lease, if the Tenant
creates or brings to the Leased Premises any Hazardous Substances
or if the conduct of the Tenant's business shall cause there to
be any Hazardous Substances at or near the Leased Premises, or
discharged or released on, under or about the Leased Premises,
the building or the lands upon which the building is constructed,
the air, soil or ground water, then, notwithstanding any rule of
law to the contrary, such Hazardous Substances shall be and
remain the sole and exclusive property of the Tenant and shall
not become the property of the Landlord, notwithstanding the
degree of affixation to the Premises of the Hazardous Substances
or the goods containing the Hazardous Substances. This
Page 154
affirmation of the Tenant's interest in the Hazardous Substances
or the goods containing the Hazardous Substances shall not
however prohibit the Landlord from dealing with such material as
otherwise provided for in this Lease.
7.23 NUISANCE
The Tenant shall not cause or maintain any nuisance in or about the
Leased Premises, and shall keep the Leased Premises free of debris,
rodents, vermin and anything of a dangerous noxious or offensive nature
or which could create a fire hazard (through undue load on electrical
circuits or otherwise) or undue vibration, heat or noise.
8.00 LANDLORD'S COVENANTS
The Landlord further covenants with the Tenant:
8.01 QUIET ENJOYMENT
The Landlord covenants with the Tenant that if the Tenant pays the Annual
Rent, Additional Rent and all other sums reserved herein and observes and
performs the covenants, conditions and agreements set out in this Lease,
the Tenant shall and may peaceably possess and enjoy the Leased Premises
during the Term without interruption or disturbance from the Landlord.
8.02 TAXES, ETC.
To pay or cause to be paid all taxes and rates, municipal, parliamentary
or otherwise, including, without limiting the generality of the
foregoing, water rates with respect to the Lands, the Building or
assessed against the Landlord in respect thereof, except those directly
assessed or charged to or payable by the Tenant or assessed or charged
with reference to the use or occupation of the Leased Premises and except
as otherwise provided in this Lease.
8.03 HEATING AND AIR-CONDITIONING
To provide for heating and air-conditioning so that when heat is
reasonably required for the reasonable use of the Leased Premises the
Landlord will furnish heat therefor up to a reasonable temperature and
when the heating system is not in use and the Landlord considers that
air-conditioning is reasonably required it will operate the air-
conditioning systems in the Building. The said heating and air-
conditioning systems will be maintained by the Landlord during normal
business hours except during the making of repairs and should the
Landlord make default in so doing, it shall not be liable for any
indirect or consequential damages for personal discomfort or illness due
to such default. The Landlord reserves the right to stop the services of
the heating and/or air-conditioning equipment when necessary by reason of
any accident or any repairs, alterations or improvements which, in the
judgment of the Landlord, are desirable or necessary to be made until
such repairs, alterations or improvements shall have been completed. The
Landlord shall
Page 155
have no further responsibility or liability for failure to supply the
said heating and/or air-conditioning service when prevented from doing
so, by strikes or by any cause beyond the Landlord's reasonable control
or by orders or regulations by any body or authority having jurisdiction
or by other reason of any failure of electrical current, steam or water
or suitable power supply or inability upon the exercise of reasonable
diligence to obtain such electrical current, steam or water for the
operation of the heating or air-conditioning equipment.
8.04 REPAIR OF STRUCTURE
To repair, replace and maintain the structural parts of the Building, and
to perform such repairs, replacements and maintenance with reasonable
dispatch, and in a good and workmanlike manner, at any time and from time
to time, and notwithstanding anything contained herein to the contrary,
the Tenant shall not be entitled to compensation for any inconvenience,
nuisance or discomfort occasioned thereby.
8.05 JANITORIAL SERVICES
To provide janitorial and cleaning services to the common areas of the
Building. The Landlord shall not be responsible for any act of omission
or commission on the part of any person or persons employed to clean the
Leased Premises or the Building.
8.06 DELAYS IN PROVISION OF SERVICES
It is understood and agreed that whenever and to the extent that the
Landlord shall be unable to fulfil, or shall be delayed or restricted in
the fulfilment of any obligation hereunder in respect of the supply or
provision of any service or utility or the doing of any work or the
making of any repairs by reason of being unable to obtain the material,
goods, equipment, service, utility or labour required to enable it to
fulfil such obligation or by reason of any statute, law or order-in-
council or any regulation or order passed or made pursuant thereto or by
reason of the order or direction of any administrator, controller or
board, or any governmental department or officer or other authority, or
by reason of not being able to obtain any permission or authority
required thereby, or by reason of any other cause beyond its control
whether of the foregoing character or not, the Landlord shall be entitled
to extend the time for fulfilment of such obligation by a time equal to
the duration of such delay or restriction, and the Tenant shall not be
entitled to compensation for any inconvenience, nuisance, discomfort,
direct or indirect or consequential damage or damages thereby occasioned.
9.00 TENANT'S FIXTURES
The Tenant may install its usual trade fixtures in the usual manner,
provided such installation does not damage the structure of the Leased
Premises or the Building and provided further that the Tenant shall have
submitted detailed
Page 156
plans and specifications for such trade fixtures to the Landlord and
obtained its written consent thereto which consent shall not be
unreasonably withheld.
9.01 REMOVAL OF TENANT'S FIXTURES
Provided that the Tenant may remove his trade or tenant's fixtures;
provided further, however, that all installations, alterations,
additions, partitions, and fixtures other than trade or tenant's fixtures
in or upon the Leased Premises, whether placed there by the Tenant or the
Landlord, shall immediately upon such placement, be the Landlord's
property without compensation therefor to the Tenant and, except as
hereinafter mentioned in this paragraph shall not be removed from the
Leased Premises by the Tenant at any time either during or after the
term. Notwithstanding anything herein contained, the Landlord shall be
under no obligation to repair or maintain the Tenant's installations,
alterations, additions, partitions and fixtures or anything in the nature
of a leasehold improvement made or installed by the Tenant or Landlord or
third party; and further, notwithstanding anything herein contained, the
Landlord shall have the right upon termination of this Lease by affluxion
of time or otherwise or within six (6) months thereafter to require the
Tenant to remove, or require the Tenant to pay to the Landlord the cost
to remove, any installations, alterations, additions, partitions and
fixtures or anything in the nature of a leasehold improvement made or
installed by the Tenant, the Landlord or a third party, whether for the
Tenant or a previous occupant, and make good any damage caused to the
Leased Premises by such installation or removal.
10.00 DAMAGE OR DESTRUCTION OF LEASED PREMISES
Provided that if during the continuation of this Lease, the Building or
the Leased Premises are destroyed or damaged by any cause whatsoever,
then the following provisions shall apply:
10.01 PARTIAL DAMAGE
If damage shall occur to the Building or the Leased Premises so that all
or part of the Leased Premises are rendered untenantable by damage from
fire or other casualty which, in the reasonable opinion of the Landlord's
architect, can be substantially repaired under applicable laws and
governmental regulations within ninety (90) days from the date of such
casualty (employing normal construction methods without overtime or other
premium), the Landlord shall cause such damage to be repaired with all
reasonable speed.
10.02 TOTAL DAMAGE
If the Building or the Leased Premises are damaged to such an extent that
the Leased Premises are rendered untenantable by damage from fire or
other casualty which, in the reasonable opinion of the Landlord's
architect, cannot be substantially repaired under applicable laws and
governmental regulations within ninety (90) days from the date of such
casualty (employing normal construction methods without overtime or other
premium), then either the
Page 157
Landlord or Tenant may elect to terminate this Lease as of the date of
such casualty by written notice delivered to the other not more than ten
(10) days after receipt of such architect's opinion (failing which the
Landlord shall cause such damage to be repaired at its own expense with
all reasonable speed).
10.03 OBLIGATION TO REPAIR
The Landlord's obligation to repair as set forth in the preceding two
paragraphs hereof is conditional upon the Landlord receiving adequate
proceeds from policies of insurance maintained in respect of such
casualties or, if such proceeds are not made available to the Landlord,
the Landlord electing to obtain its own financing for such repairs. In
the event that no such proceeds of insurance are available to the
Landlord and if the Landlord elects not to obtain its own financing for
such repairs, then the Landlord shall, by notice in writing to the Tenant
delivered within ten (10) days after receipt of the opinion of the
Landlord's architect, notify the Tenant that the Lease is terminated,
which termination shall be effective as of the date of such casualty. In
calculating the amount of insurance proceeds available, the Landlord will
be deemed to have received the deductible portion of any insurance
policy.
10.04 ABATEMENT OF RENT
If the Landlord is required to repair the damage pursuant to the
provisions hereof and does not elect to terminate the Lease, the Annual
Rent and Additional Rent payable by the Tenant under this Lease shall be
proportionately reduced to the extent that the Leased Premises are
thereby rendered unusable by the Tenant in its business from the date of
such casualty until completion by the Landlord of the repairs to the
Leased Premises and the Building so that the Leased Premises are
thereafter fully usable by the Tenant in its business.
10.05 DAMAGE TO 50% OF BUILDING
Notwithstanding anything otherwise contained in this Lease, if fifty
percent (50%) or more of the rentable area of the Building is damaged or
destroyed and if, in the reasonable opinion of the Landlord's Architect,
the said rentable area cannot be rebuilt or made fit for the purposes of
the tenants thereof within ninety (90) days of the date of such casualty,
the Landlord may, at its option, terminate this Lease by giving notice of
termination to the Tenant within thirty (30) days of the date of such
casualty and the Tenant shall, with reasonable dispatch and expedition,
but in any event within sixty (60) days after delivery of the notice of
termination, deliver up possession of the Leased Premises to the Landlord
and the rent and other payments for which the Tenant is liable hereunder
shall be apportioned and paid to the date possession is so delivered up.
10.06 COMPLETION OF REPAIR
Page 158
Provided that, if, upon the completion by the Landlord of any repairs
required as a result of any such destruction or damage, a dispute shall
arise between the Landlord and the Tenant as to whether or not the Leased
Premises have been made fit for the purposes of the Tenant under this
Lease, the Landlord may, at its option, terminate this Lease by giving
thirty (30) days notice to the Tenant and if such notice shall be given
this Lease shall, at the expiration of such period, be at an end and the
Tenant shall deliver up the Leased Premises to the Landlord or whom it
may appoint and the Landlord may, on demand, recover the full rental
hereby reserved computed from the date on which such repairs were
completed up to the date on which the Tenant is required to vacate.
11.00 LIABILITY FOR DAMAGE TO PROPERTY
In the absence of negligence or wilful act or default on the part of the
Landlord, its servants, agents or workmen, the Landlord shall not be
liable or responsible in any way for any loss, damage or injury to any
person or for any loss of or damage to any property belonging to the
Tenant, to employees of the Tenant or to any other person while such
property is in the Leased Premises or in the Building or in or on the
surrounding, Lands and buildings owned by the Landlord, the areaways, the
parking garages, the parking areas, lawns, sidewalks, reflective pools,
steps, platforms, corridors, stairways or elevators whether or not any
such property has been entrusted to employees of the Landlord and without
limiting the generality of the foregoing, the Landlord shall not be
liable for any damage to any such property caused by theft or breakage or
by steam, water, rain or snow which may leak into, issue or flow from any
part of the Building or from the water, steam or drainage pipes or
plumbing works of the Building or from any other place or quarter or for
any damage caused by or attributable to the condition or arrangement of
any electric or other wiring or for any damage caused by smoke or
anything done or omitted by any other tenant in the Building or for any
other loss whatsoever with respect to the Leased Premises, goods placed
therein or any business carried on therein.
12.00 DEFAULT OF TENANT
Provided and it is hereby expressly agreed that if and whenever the
Annual Rent or Additional Rent hereby reserved or any part thereof shall
not be paid on the day appointed for payment thereof, whether lawfully
demanded or not, or in case of breach or non-observance or non-
performance of any of the covenants, agreements, provisos, conditions or
Rules and Regulations on the part of the Tenant to be kept, observed or
performed, or in case the Leased Premises shall be vacated or remain
unoccupied for fifteen (15) days or in case the Term shall be taken in
execution or attachment for any cause whatever, then and in every such
case, it shall be lawful for the Landlord thereafter to enter into and
upon the Leased Premises or any part thereof in the name of the whole and
the same to have again, repossess and enjoy as of its former estate,
anything in this Lease contained to the contrary notwithstanding other
than the proviso to this paragraph; PROVIDED that the Landlord shall not
at any time have the right to re-enter and forfeit this Lease
Page 159
by reason of the Tenant's default in the payment of the rent reserved by
this Lease, unless and until the Landlord shall have given to the Tenant
written notice setting forth the default complained of and the Tenant
shall have the right during five (5) business days next following the
date on such notice to cure any such default in payment of rent. In case
without the written consent of the Landlord, the Leased Premises shall be
used by any other person than the Tenant or for any other purpose than
that for which the same were let or in case the Term or any of the goods
and chattels of the Tenant shall be at any time seized in execution or
attachment by any creditor of the Tenant or if the Tenant makes any bulk
sale, then in any such case this lease shall, at the option of the
Landlord, cease and determine and the Term shall immediately become
forfeited and void in accordance with the provisions of Section 15, RIGHT
OF TERMINATION, herein.
13.00 BANKRUPTCY
Provided further that, in case without the written consent of the
Landlord, the Leased Premises shall be used by any other person than the
Tenant or for any other purposes than that for which the same were let or
in case the Term or any of the goods and chattels of the Tenant shall be
at any time seized in execution or attachment by any creditor of the
Tenant or by the Tenant making any assignment for the benefit of
creditors or any bulk sale or become bankrupt or insolvent or take the
benefit of any act now or hereafter in force for bankrupt or insolvent
debtors, or, if the Tenant is a corporation and any order shall be made
for the winding up of the Tenant, or other termination of the corporate
existence of the Tenant, then in any such case this Lease shall, at the
option of the Landlord, cease and determine and the Term shall
immediately become forfeited and void and the then current month's rent
and the next ensuing three (3) months rent and in addition, all cash
allowances, tenant inducement payments and the value of any other benefit
paid to or conferred on the Tenant by or on behalf of the Landlord in
connection with this Lease shall immediately become due and be paid and
the Landlord may re-enter and take possession of the Leased Premises as
though the Tenant or other occupant or occupants of the Leased Premises
was or were holding over after the expiration of the Term without any
right whatever.
14.00 RE-ENTRY BY LANDLORD -
The Tenant further covenants and agrees that on the Landlord's becoming
entitled to re-enter upon the Leased Premises under any of the provisions
of this Lease, the Landlord, in addition to all other rights, shall have
the right to enter the Leased Premises as the agent of the Tenant either
by force or otherwise, without being liable for any prosecution therefor
and to relet the Leased Premises as the agent of the Tenant, and to
receive the rent therefor and as the agent of the Tenant, to take
possession of any furniture or other property on the Leased Premises and
to sell the same at public or private sale without notice and to apply
the proceeds of such sale and any rent derived from reletting the Leased
Premises upon account of the rent under this Lease, and the Tenant shall
be liable to the Landlord for the deficiency, if any.
Page 160
15.00 RIGHT OF TERMINATION
The Tenant further covenants and agrees that on the Landlord becoming
entitled to re-enter upon the Leased Premises under any of the provisions
of this Lease, the Landlord, in addition to all other rights, shall have
the right to determine forthwith this Lease and the Term by leaving upon
the Leased Premises notice in writing of its intention so to do, and
thereupon, rent shall be computed, apportioned and paid in full to the
date of such determination of this Lease and any other payments for which
the Tenant is liable under this Lease shall be paid and the Tenant shall
immediately deliver up possession of the Leased Premises to the Landlord,
and the Landlord may re-enter and take possession of the same without
limiting the generality of the foregoing, in addition to any other rights
the Landlord may have against the Tenant, in the event the Tenant wishes
to terminate this Lease early, the Tenant shall be liable for the
unamortized balance of the cost of the Leasehold Improvements, amortized
over the Term of the Lease on a straight line basis.
16.00 DISTRESS
The Tenant waives and renounces the benefit of any present or future
statute taking away or limiting the Landlord's right of distress, and
covenants and agrees that notwithstanding any such statute, none of the
goods and chattels of the Tenant on the Leased Premises at any time
during the Term shall be exempt from levy by distress for rent in
arrears. In the event that the Tenant shall remove or permit the removal
of any of its goods or chattels from the Leased Premises, the Landlord
may within thirty (30) days thereafter and if the Tenant is in arrears of
rent, seize such goods and chattels wherever the same may be found and
may sell or otherwise dispose of the same as if they had actually been
distrained upon the Leased Premises by the Landlord for arrears of rent.
17.00 NON-WAIVER
No condoning, excusing or overlooking by the Landlord of any default,
breach or non-observance by the Tenant at any time or times in respect of
any covenant, proviso or condition herein contained shall operate as a
waiver of the Landlord's rights hereunder in respect of any continuing or
subsequent default, breach or non-observance, or so as to defeat or
affect in any way the rights of the Landlord herein in respect of any
such continuing or subsequent default or breach, and no waiver shall be
inferred from or implied by anything done or omitted by the Landlord save
only express waiver in writing. All rights and remedies of the Landlord
in this Lease contained shall be cumulative and not alternative.
18.00 CHANGES TO BUILDING
The Landlord hereby reserves the right at any time and from time to time
to make changes in, additions to, subtractions from or rearrangements of
the Building including, without limitation, all improvements at any time
thereon, all entrances and exits thereto, and to grant, modify and
terminate easements or
Page 161
other agreements pertaining to the use and maintenance of all or parts of
the Building and to make changes or additions to the pipes, conduits,
utilities and other necessary building services in the Leased Premises
which serve other premises, provided that prior to the commencement of
the Term, the Landlord may alter or relocate the Leased Premises to the
extent found necessary by the Landlord to accommodate changes in
construction design or facilities including major alterations and
relocations. The Landlord agrees that in performing such alterations, it
shall do so in a manner so as to minimize any material interference with
the Tenant's use and enjoyment of the Leased Premises. The Landlord shall
also have the right during the Term at its reasonable expense to relocate
the Leased Premises to an alternate location within the Building.
19.00 SEVERANCE OF LAND
The Landlord shall have the right from time to time to sever (for
purposes of sale, lease, mortgage, charge or otherwise) any part or parts
of the Land or any buildings or improvements thereon, including the
creation of rights-of-way, easements and parking arrangements which the
Landlord deems necessary and the Tenant hereby consents to any such
severance and agrees to execute, at no cost to the Landlord, any
documents or consents which the Landlord may request for these purposes.
If any part or parts of the Land or the buildings or improvements on the
lands are so severed and are deemed by the Landlord to no longer form
part of the property, such part or parts shall be excluded from the Lands
and the property for the purposes of this Lease at the time designated by
the Landlord and the Tenant shall when requested by the Landlord,
execute, at no cost to the Landlord, a release of any interest in the
Lands so excluded.
20.00 COSTS OF COLLECTION
The Tenant shall pay, as Additional Rent, all costs, expenses and legal
fees (on a solicitor and his client basis) that may be incurred or paid
by or on behalf of the Landlord in enforcing the covenants and provisions
of this Lease.
21.00 PROFITS AND REMEDIES BY LANDLORD
In addition to all rights and remedies available to the Landlord under
the provisions of this Lease or by statute or the general law in the
event of any default by the Tenant of the provisions of this Lease:
21.01 PAYMENTS TO THIRD PARTIES
The Landlord shall have the right at all times to remedy or attempt to
remedy any default of the Tenant, and in so doing, may make any payments
due or alleged to be due by the Tenant to third parties and may enter
upon the Leased Premises to do any work or other things therein, and in
any such event, all costs and expenses of the Landlord in remedying or
attempting to remedy such default shall be payable by the Tenant to the
Landlord forthwith upon demand as Additional Rent.
Page 162
21.02 NON-PAYMENT OF ADDITIONAL RENT
The Landlord shall have the same rights and remedies in the event of any
non-payment by the Tenant of any amounts payable by the Tenant under any
provision of this Lease and the parking agreement as in the case of non-
payment of rent and may be recovered by the Landlord as rent by any and
all remedies available to the Landlord for the recovery of rent in
arrears.
21.03 INTEREST ON ARREARS
The Landlord shall, if the Tenant shall fail to pay any Monthly Rent,
Additional Rent or other amounts from time to time payable by it to the
Landlord hereunder promptly when due, be entitled to interest on all such
Annual Rent, Additional Rent and other amounts which are unpaid and
overdue under this Lease and the parking agreement, such interest to be
compounded monthly thereon and to be computed at a rate equal to six
percent (6%) per annum in excess of the minimum lending rate to prime
commercial borrowers from time to time charged by the Royal Bank of
Canada or such other chartered bank as the Landlord may designate, from
the date upon which such Monthly Rent, Additional Rent and other amounts
was due until actual payment thereof.
22.00 NOTICE
Any notice required or contemplated by any provisions of this Lease shall
be given in writing, enclosed in a sealed envelope addressed, in the case
of notice to the Landlord c/o Kanata Research Park Corporation, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and in
the case of notice to the Tenant, to it at the Leased Premises and mailed
by registered mail, postage prepaid or telefaxed. The time of giving of
such notice shall be conclusively deemed to be, if mailed the third (3rd)
business day after the day of such mailing, if telefaxed, the next
business day following the date sent as evidenced by the sender's
transmittal record. Such notice shall also be sufficiently given if and
when the same shall be delivered, in the case of notice to the Landlord,
to an executive officer of the Landlord, and in the case of notice to the
Tenant, to him personally or to an executive officer, manager or a person
who appears to be in charge, of the Tenant if the Tenant is a
corporation. Such notice, if delivered, shall be conclusively deemed to
have been given and received at the time of such delivery. If, in this
Lease, two or more persons are named as Tenant, such notice shall also be
sufficiently given if and when the same shall be delivered personally to
any one of such persons. Provided that either party may, by notice to
the other, from time to time, designate another address in Canada to
which notices mailed more than ten (10) days thereafter shall be
addressed. The word "notice" in this paragraph shall include any
request, demand, direction, or statement in this Lease provided or
permitted to be given by the Landlord to the Tenant or by the Tenant to
the Landlord.
23.00 SUBORDINATION, POSTPONEMENT, ATTORNMENT
Page 163
The Tenant shall promptly upon the written request of the Landlord, enter
into an agreement:
(a) subordinating the Term and the rights of the Tenant hereunder to any
mortgage, charge, ground lease, trust deed or debenture present or
future and all renewals, modifications, replacements or extensions
thereof, which may affect the Leased Premises, the Property, the
Lands or the Building;
(b) agreeing that the Term hereof shall be subsequent in priority to any
such mortgage, charge, ground lease, trust deed or debenture;
provided that the Tenant's obligations under this paragraph shall be
conditional upon any such mortgagee or secured party entering into a non-
disturbance agreement with the Tenant under which the Tenant's continued
possession of the Leased Premises is ensured notwithstanding any act
taken by the mortgagee or secured party.
23.01 TENANT'S RIGHT TO POSSESSION
Notwithstanding any postponement or subordination referred to herein, the
Tenant acknowledges that its obligations under this Lease shall remain in
full force and effect notwithstanding any action at any time taken by a
mortgagee, chargee or ground lessor to enforce the security of any
mortgage charge, ground lease, trust deed or debenture; provided,
however, that any postponement or subordination given hereunder shall
reserve to the Tenant the right to continue in possession of the Leased
Premises under the terms of this Lease so long as the Tenant shall not be
in default hereunder.
23.02 ATTORNMENT BY TENANT
The Tenant, whenever requested by any mortgagee (including any trustee
under a deed of trust and mortgage), chargee or ground lessor, shall
attorn to such mortgagee, chargee or ground lessor as a tenant upon all
the terms of this Lease.
24.00 CERTIFICATE
The Tenant agrees that he will at any time and from time to time upon not
less than five (5) days' prior notice execute and deliver to the Landlord
or any mortgagee of the Lands (including a deed of trust and mortgage) a
statement in writing certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the modifications and that the
same is in full force and effect as modified), the amount of the Annual
Rental then being paid hereunder, the dates to which the same, by
instalments or otherwise, and other charges hereunder have been paid, and
whether or not there is any existing default on the part of the Landlord
of which the Tenant has notice.
25.00 REGISTRATION
Page 164
The Tenant covenants and agrees with the Landlord that the Tenant will
not register this Lease in this form in any Registry Office or the Land
Titles Office. If the Tenant desires to make a registration for the
purposes only of giving notice of this Lease, then the parties hereto
shall contemporaneously with the execution of this Lease execute a short
form thereof solely for the purpose of supporting an application for
registration of notice thereof.
26.00 PLANNING ACT
Where applicable, this Lease shall be subject to the condition that it is
effective only if The ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended is complied with.
Pending such compliance the Term and any renewal thereof shall be deemed
to be for a total period of one (1) year less than the maximum lease Term
permitted by law without such compliance.
27.00 TRANSFER BY LANDLORD
In the event of a sale, transfer or lease by the Landlord of the
Building, the Lands or a portion thereof containing the Leased Premises
or the assignment by the Landlord of this Lease or any interest of the
Landlord hereunder, the Landlord shall, without further written
agreement, to the extent that such purchaser, transferee or lessee has
become bound by the covenants and obligations of the Landlord hereunder,
be freed, released and relieved of all liability or obligations under
this Lease incurred or arising after the date of such sale, transfer or
lease.
28.00 NO ADVERTISING OF LEASED PREMISES
The Tenant shall not print, publish, post, display or broadcast any
notice or advertisement to the effect that the whole or any part of the
Leased Premises are for rent, and it shall not permit any broker or other
person to do so without the consent in writing of the Landlord.
29.00 TIME OF ESSENCE
Time shall be of the essence of this Lease.
30.00 LAWS OF ONTARIO
This Lease shall be deemed to have been made in and shall be construed in
accordance with the Laws of the Province of Ontario.
Page 165
31.00 SEVERABILITY OF COVENANTS
The Landlord and the Tenant agree that all of the provisions of this
Lease are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate
paragraph hereof. Should any provision or provisions of this Lease be
illegal or not enforceable it or they shall be considered separate and
severable from the Lease and its remaining provisions shall remain in
force and be binding upon the parties hereto as though the said provision
or provisions had never been included.
32.00 HEADINGS
The captions appearing in the margin or the headings contained in this
Lease have been inserted as a matter of convenience and for reference
only and in no way define, limit or enlarge the scope or meaning of this
Lease or of any provision hereof.
33.00 SCHEDULES
The following Schedules attached hereto form part of this Lease:
Schedules:
34.00 LEASE ENTIRE AGREEMENT
The Tenant acknowledges that there are no covenants, representations,
warranties, agreements or conditions expressed or implied, collateral or
otherwise forming part of or in any way affecting or relating to this
Lease save as expressly set out in this Lease and that this Lease
constitutes the entire agreement between the Landlord and the Tenant and
may not be modified except as herein explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by the
Landlord and the Tenant.
35.00 INTERPRETATION
IN THIS INDENTURE:
(a) "herein", "hereof", "hereby", "hereunder", "hereto", "hereinafter",
and similar expressions refer to this indenture and not to any
particular paragraph, section or other portion thereof, unless there
is something in the subject matter or context inconsistent
therewith.
(b) "business day(s)" means any of the days from Monday to Friday of
each week inclusive unless such day is a statutory holiday or public
holiday.
(c) "normal business hours" means the hours from 8:00 a.m. to 6:00 p.m.
on business days.
36.00 SUCCESSORS
Page 166
This indenture and everything herein contained shall enure to the benefit
of and be binding upon the respective heirs, executors, administrators,
permitted successors and assigns, of the Tenant and other legal
representatives as the case may be, of each and every of the parties
hereto, and every reference herein to any party hereto shall include the
heirs, executors, administrators, permitted successors, assigns and other
legal representatives of such party, and where there is more than one
tenant or there is a female party or a corporation, the provisions hereof
shall be read with all grammatical and gender changes thereby rendered
necessary and all covenants shall be deemed joint and several.
Page 167
37.00 JOINT AND SEVERAL COVENANT
If more than one person executes this Lease as Tenant, each such person
shall be bound jointly and severally with the other(s), waiving the
benefit of division and discussion, for the fulfilment of all of the
obligations of Tenant hereunder.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their
corporate seals duly attested to by the hands of their proper signing officers
authorized in that behalf.
SIGNED, SEALED AND DELIVERED )
in the presence of: ) KANATA RESEARCH PARK
) CORPORATION
)
)
)
)
) Per:_________________________________________
) Name:
) Title: c/s
) I have the authority to bind the corporation.
)
) NEWBRIDGE NETWORKS
) CORPORATION (Carrying on
) Business as Newbridge
) Learning Services)
)
)
)
______________________ ) Per:_________________________________________
Witness ) Name:
) Title: c/s
)
)
______________________ ) Per:_________________________________________
Witness ) Name:
) Title:
)
) I/We have the authority to bind the
) corporation.
Page 168
SCHEDULE "A"
------------
LEGAL DESCRIPTION
-----------------
FIRSTLY: Parcel 2-1, Section 4M-642, Part of Block 2, Plan 4M-642, in the
City of Kanata, Regional Municipality of Ottawa Carleton, designated as
Parts 1 and 2 on Plan 4R-13076.
(PIN 04517-0740)
SECONDLY: Part of Parcel 8-1, Section March-4 being part of the Northwest
half of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (formerly Township of March)
Regional Municipality of Ottawa Carleton, designated as Parts 3 and 4 on
Plan 4R-13076.
(Part of PIN 04517-0747)
THIRDLY: Part of Parcel 8-1, Section March-4 being part of the Northwest
half of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (formerly Township of March)
Regional Municipality of Ottawa Carleton, designated as Part 5 on Plan 4R-
13076.
(Part of PIN 04517-0617)
Page 169
SCHEDULE "B
-----------
FLOOR PLAN
----------
Page 170
SCHEDULE "C"
------------
RULES AND REGULATIONS
---------------------
The Tenant and its invitees and employees shall observe the following rules and
regulations (as added to, amended or modified from time to time by the
Landlord).
1. The sidewalks, entrances, elevators, stairways, passageways, shipping
areas and corridors of the Building shall not be obstructed or used for
any other purpose by the Tenant than for ingress and egress to and from
the Leased Premises; the Tenant shall not place or allow to be placed in
such areas or facilities any waste paper, garbage, refuse or anything
that shall tend to make them appear unclean or untidy.
2. The Tenant and its employees shall use washrooms only for the purpose for
which they were designed and nothing shall be placed in toilets that
might cause them to block.
3. Between peak periods, the elevators will be used for transporting
passengers only and during these periods no large parcels or items of
equipment will be permitted on the elevators. Peak periods are between 8
a.m. and 10 a.m. in the morning, between 12 noon and 2 p.m. in the
afternoon and between 4 p.m. and 6 p.m. in the evening.
4. The Tenant shall make arrangements with the Landlord ahead of time when
elevators are to be used for carrying freight or furniture, etc..
Elevators must not be used for this purpose until the Landlord has given
its consent and the elevator cabs have been properly protected.
5. The Landlord's janitors shall be permitted prompt access to the Leased
Premises for the purpose of cleaning the office areas thereof.
6. The Tenant shall not make any noise which might disturb other tenants and
no animals or bicycles or other vehicles shall be brought into the Leased
Premises or the Building.
7. The Leased Premises shall not be used as overnight sleeping
accommodation, for public sales nor for entertaining purposes.
8. The Tenant shall make arrangements with the Landlord ahead of time if any
public meeting is to be held in the Leased Premises and the meeting shall
not be held until the Landlord's written consent is obtained.
9. The Tenant shall make arrangements with the Landlord ahead of time to
install any business machines, electric appliances, etc. and these
installations will not be made until the Landlord's consent is obtained.
10. Windows will not be left open so as to admit rain or snow.
11. The Tenant will not alter any existing locks nor will any additional
locks or similar devices be attached to any door or window.
Page 171
12. Keys or other devices which are made available to the Tenant for the
purpose of providing access to the exterior doors of the Building shall
not be duplicated and shall be returned to the Landlord immediately upon
termination of the Lease.
13. All adjustments to mechanical equipment such as thermostats, radiators,
diffusers, etc. shall be made by the Landlord's staff and no one else.
14. If the Tenant wishes to install any drapes or blinds in any of the
windows on the exterior of the Building or on any window of the Leased
Premises facing the interior of the Building, the Landlord's prior
written consent must be obtained and further the drapes or blinds
installed must conform to a uniform colour which the Landlord may at its
absolute discretion establish.
15. The Tenant shall not place anything next to or have displayed in the
windows of the Leased Premises facing into the common areas so as to
visible therein, without the prior written consent of the Landlord.
16. No admittance by the Tenant or its agents is permitted on the roof or
equipment rooms of the Building.
17. It shall be the responsibility of the Tenant to prevent any person from
throwing objects out of windows or into the ducts or stairwells of the
Building, and the Tenant shall pay for any cost, damage or injury
resulting from any such acts.
18. The Tenant shall provide adequate receptacles for garbage, refuse and
waste paper and all such garbage, refuse and waste paper shall be placed
in such containers. The Leased Premises shall be kept in a tidy, healthy
and clean condition.
19. The Tenant shall not bring upon the Leased Premises any safes, heavy
equipment, motors or any other thing which might overload floors or
damage the Leased Premises or the Building.
20. The Landlord may require that all persons entering and leaving the
Building at any time other than normal business hours satisfactorily
identify themselves and register in books kept for the purpose, and may
prevent any person from entering the Leased Premises unless provided with
a key thereto and a pass or other authorization from the Tenant in a form
satisfactory to the Landlord, and may prevent any person removing any
goods therefrom without written authorization.
21. The Tenant shall not use or keep inflammable materials in the Leased
Premises.
22. The Landlord shall not be responsible for any theft, loss or damage to
vehicles parked therein whatsoever, or for any injury to the Tenant or
others in or on the parking facilities whether or not parking charges are
imposed.
Page 172
23. The Landlord shall have the right to establish rules and regulations
governing the use of the parking facilities from time to time and the
Tenant hereby agrees to observe and abide by all such rules and
regulations.
24. All moving of the Tenant's chattels and trade fixtures and other fixtures
from or to the Leased Premises shall be performed after business hours
and shall be supervised by the Landlord, its agents or a security guard
all at the Tenant's expense.
25. Smoking is prohibited in all common areas of the Building.
The foregoing rules and regulations, as from time to time amended, are not
necessarily of uniform application, but subject to 7.02 may be waived in whole
or in part in respect of other tenants without affecting their enforceability
with respect to the Tenant or the Leased Premises. There is no obligation on the
Landlord to enforce the rules and regulations, and the Landlord shall not be
liable by reason of their non-enforcement.
Page 173
SCHEDULE "D"
------------
PARKING
-------
1. During the Term the Landlord hereby agrees to allow the Tenant to park
One (1) vehicle per Three Hundred and Twenty-Three (323) rentable square
feet of Leased Premises, in the parking facilities located on the Lands
("parking facilities"). In the event the Landlord constructs a parking
structure on the Lands, the Tenant shall then be called upon to pay for
parking.
2. The Landlord shall not be responsible for any theft, loss or damage to
the Tenant's vehicles whatsoever, or for injury to the Tenant or others
in the parking facilities.
3. The Landlord shall have the right to establish rules and regulations
governing the use of the parking facilities from time to time and the
Tenant hereby agrees to observe and abide by all such rules and
regulations.
Page 174
SCHEDULE "E"
------------
OPTION TO RENEW
---------------
1. Provided the Tenant is in good standing, during the Term has not been in
substantial default under this Lease and has not assigned this Lease or
sublet all or a portion of the Leased Premises, the Tenant shall have and
is hereby granted an option to renew this Lease for a further term of
five (5) years provided that in order to exercise this option, the Tenant
shall be required to give to the Landlord notice of the exercise of such
option in writing not less than six (6) months prior to the date of
expiry of the initial Term.
2. Any renewal pursuant to this proviso shall be on the same terms and
conditions contained in this Lease except:
(a) there shall be no additional right of renewal and no Leasehold
Improvements;
(b) the Annual Rent payable by the Tenant for such renewal period shall
be as agreed upon by the Landlord and Tenant and shall in no event
be less than the Annual Rent paid during the last year of the Term;
such agreement to be reached not later than three (3) months prior
to the expiry of the original Term. Failing such agreement, this
option shall be null and void and of no further force and effect.
Page 175
SCHEDULE "F"
------------
LEASEHOLD IMPROVEMENTS
----------------------
The Landlord shall, at its sole cost and expense, construct on behalf of the
Tenant and install on a turnkey basis to building standards up to a maximum
value equal to Twelve dollars ($12.00) per rentable square foot of Leased
Premises with the Tenant paying the overrun, if any, those leasehold
improvements agreed upon by both Landlord and Tenant as chosen from the
Landlord's samples. The turnkey cost shall include the Landlord's administrative
costs which relate to the work. The Tenant shall be required to provide to the
Landlord a complete set of approved construction drawings and specifications for
the Leased Premises six (6) weeks prior to commencement of the Term, failing
which rent shall still commence on the commencement date of the Term.
Page 176
SCHEDULE "G"
------------
ADDITIONAL TERMS
----------------
The Landlord warrants that any installation of unitized movable walls within the
Leased Premises by the Tenant during the Lease Term shall be permitted to be
removed by the Tenant upon lease termination and the Tenant shall repair any and
all damage caused to the Leased Premises and or Building as a result of the
unitized movable walls' installation and or removal.
Page 177
DATED THE 15TH DAY OF MARCH, 1999.
--------------------------------------------------------------------------------
BETWEEN:
KANATA RESEARCH PARK CORPORATION
OF THE FIRST PART
AND:
NEWBRIDGE NETWORKS CORPORATION (Carrying on Business
as Newbridge Learning Services)
OF THE SECOND PART
--------------------------------------------------------------------------------
L E A S E
--------------------------------------------------------------------------------
Page 178
Prepared by: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Date Edited: July 28, 1999
KANATA RESEARCH PARK CORPORATION
AND
NEWBRIDGE NETWORKS CORPORATION
(Carrying On Business As Newbridge Learning Services)
1.00 LEASED PREMISES....................................................... 1
1.01 ADDITIONAL DEFINITIONS................................................ 1
2.00 TERM.................................................................. 2
2.01 INABILITY TO GIVE OCCUPANCY........................................... 2
2.02 EARLY OCCUPANCY....................................................... 2
2.03 OVERHOLDING........................................................... 2
3.00 RENT - Basic Rent..................................................... 2
3.01 MONTHLY RENTAL........................................................ 3
3.02 ADDITIONAL RENT....................................................... 3
3.03 ESTIMATED ADDITIONAL RENTALS.......................................... 3
3.04 DEFICIENCY OF ADDITIONAL RENT......................................... 3
3.05 EXCESS OF ADDITIONAL RENTAL INSTALLMENTS.............................. 3
3.06 PRO-RATING OF ADDITIONAL RENT......................................... 4
3.07 PREPAYMENT OF ADDITIONAL RENT......................................... 4
3.08 DISPUTE AS TO AMOUNT OF ADDITIONAL RENT............................... 4
3.09 POST-DATED CHEQUES.................................................... 4
3.10 ADVANCE RENTAL........................................................ 4
3.11 MANNER AND PLACE OF PAYMENT OF RENT................................... 4
3.12 DEFAULT............................................................... 5
3.13 ACCRUAL OF RENT....................................................... 5
3.14 NET LEASE............................................................. 5
4.00 TENANT'S BUSINESS TAX................................................. 5
4.01 LANDLORD'S BUSINESS TAX............................................... 6
4.02 TAX ON TENANT'S LEASEHOLD IMPROVEMENTS................................ 6
4.03 PROPERTY TAX.......................................................... 6
4.04 ALLOCATION OF TAX..................................................... 7
4.05 SEPARATE SCHOOL TAXES................................................. 7
4.06 TAX APPEAL............................................................ 7
4.07 CAPITAL TAX........................................................... 7
5.00 OPERATING COSTS....................................................... 7
5.01 ALLOCATION OF OPERATING COSTS......................................... 8
5.02 FULL OCCUPANCY........................................................ 9
5.03 USE OF ELECTRICITY.................................................... 9
5.04 METERS................................................................ 9
6.00 ASSIGNING OR SUBLETTING............................................... 9
6.01 REQUEST TO ASSIGN OR SUBLET........................................... 10
6.02 LANDLORD'S RIGHT TO CANCEL............................................ 10
6.03 ASSIGNMENT AGREEMENT.................................................. 10
6.04 CONSENT NOT TO RELEASE TENANT......................................... 10
6.05 CHANGE IN CORPORATE CONTROL........................................... 10
6.06 NOTICE OF CHANGE OF CONTROL........................................... 11
Page 179
6.07 COST OF CONSENT....................................................... 11
7.00 TENANT'S COVENANTS.................................................... 11
7.01 TENANT REPAIRS........................................................ 11
7.02 RULES AND REGULATIONS................................................. 12
7.03 USE OF PREMISES....................................................... 12
7.04 INCREASE IN INSURANCE PREMIUMS........................................ 12
7.05 CANCELLATION OF INSURANCE............................................. 12
7.06 OBSERVANCE OF LAW..................................................... 12
7.07 WASTE AND OVERLOADING OF FLOORS....................................... 13
7.08 INSPECTION............................................................ 13
7.09 INDEMNITY TO LANDLORD................................................. 13
7.10 DAMAGE BY TENANT...................................................... 14
7.11 TENANT INSURANCE...................................................... 14
7.12 NO ABATEMENT OF RENT.................................................. 15
7.13 EXHIBITING PREMISES................................................... 15
7.14 SIGNS................................................................. 15
7.15 NAME OF BUILDING...................................................... 16
7.16 KEEP TIDY............................................................. 16
7.17 DELIVERIES............................................................ 16
7.18 NOTICE OF DAMAGE...................................................... 16
7.19 ALTERATIONS, ETC...................................................... 16
7.20 CONSTRUCTION LIENS.................................................... 17
7.21 SECURITY.............................................................. 17
7.22 HAZARDOUS SUBSTANCES.................................................. 17
7.23 NUISANCE.............................................................. 18
8.00 LANDLORD'S COVENANTS.................................................. 19
8.01 QUIET ENJOYMENT....................................................... 19
8.02 TAXES, ETC............................................................ 19
8.03 HEATING AND AIR-CONDITIONING.......................................... 19
8.04 REPAIR OF STRUCTURE................................................... 19
8.05 JANITORIAL SERVICES................................................... 20
8.06 DELAYS IN PROVISION OF SERVICES....................................... 20
9.00 TENANT'S FIXTURES..................................................... 20
9.01 REMOVAL OF TENANT'S FIXTURES.......................................... 20
10.00 DAMAGE OR DESTRUCTION OF LEASED PREMISES............................. 21
10.01 PARTIAL DAMAGE....................................................... 21
10.02 TOTAL DAMAGE......................................................... 21
10.03 OBLIGATION TO REPAIR................................................. 21
10.04 ABATEMENT OF RENT.................................................... 21
10.06 COMPLETION OF REPAIR................................................. 22
10.05 DAMAGE TO 50% OF BUILDING............................................ 22
11.00 LIABILITY FOR DAMAGE TO PROPERTY..................................... 22
12.00 DEFAULT OF TENANT.................................................... 22
13.00 BANKRUPTCY........................................................... 23
14.00 RE-ENTRY BY LANDLORD................................................. 23
15.00 RIGHT OF TERMINATION................................................. 24
16.00 DISTRESS............................................................. 24
17.00 NON-WAIVER........................................................... 24
18.00 CHANGES TO BUILDING.................................................. 24
19.00 SEVERANCE OF LAND.................................................... 25
20.00 COSTS OF COLLECTION.................................................. 25
21.00 PROFITS AND REMEDIES BY LANDLORD..................................... 25
21.01 PAYMENTS TO THIRD PARTIES............................................ 25
21.02 NON-PAYMENT OF ADDITIONAL RENT....................................... 25
21.03 INTEREST ON ARREARS.................................................. 26
22.00 NOTICE............................................................... 26
23.00 SUBORDINATION, POSTPONEMENT, ATTORNMENT.............................. 26
23.01 TENANT'S RIGHT TO POSSESSION......................................... 27
23.02 ATTORNMENT BY TENANT................................................. 27
24.00 CERTIFICATE.......................................................... 27
25.00 REGISTRATION......................................................... 27
Page 180
26.00 PLANNING ACT......................................................... 27
27.00 TRANSFER BY LANDLORD................................................. 27
28.00 NO ADVERTISING OF LEASED PREMISES.................................... 28
29.00 TIME OF ESSENCE...................................................... 28
30.00 LAWS OF ONTARIO...................................................... 28
31.00 SEVERABILITY OF COVENANTS............................................ 28
32.00 HEADINGS............................................................. 28
33.00 SCHEDULES............................................................ 28
34.00 LEASE ENTIRE AGREEMENT............................................... 28
35.00 INTERPRETATION....................................................... 29
36.00 SUCCESSORS........................................................... 29
37.00 JOINT AND SEVERAL COVENANT........................................... 30
SCHEDULE "A"............................................................... 31
-----------
SCHEDULE "B"............................................................... 32
-----------
SCHEDULE "C"............................................................... 33
-----------
SCHEDULE "D"............................................................... 36
-----------
SCHEDULE "E"............................................................... 37
-----------
SCHEDULE "F"............................................................... 38
-----------
SCHEDULE "G"............................................................... 39
-----------
Page 181