EXHIBIT 4.2
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PHASE V LEASE AGREEMENT
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DATE: MARCH 27, 2001
LANDLORD: MITEL RESEARCH PARK CORPORATION
TENANT: MITEL CORPORATION
PREMISES: PHASE V, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
INDEX
ARTICLE 1 DEFINITIONS.............................................................................................1
ARTICLE 2 DEMISE, DELIVERY AND SURRENDER..........................................................................7
2.1 Demise and Leased Premises......................................................................7
2.2 Shared Areas and Facilities.....................................................................7
2.3 Examination of Leased Premises..................................................................7
2.4 Measurement of the Leased Premises..............................................................8
2.5 Installation and Removal of Trade Fixtures......................................................8
2.6 Overholding by Tenant...........................................................................9
ARTICLE 3 RENTAL .................................................................................................9
3.1 Basic Rent......................................................................................9
3.2 Payment of Additional Rent for Complex Operating Costs..........................................9
3.3 Annual Estimation of the Complex Operating Costs...............................................10
3.4 Annual Adjustment of Basic Rent Based Upon the Actual Complex Operating Costs..................10
3.5 Rent Covenant..................................................................................10
3.6 Waiver of Set-Off..............................................................................11
3.7 Interest on Overdue Rent.......................................................................11
3.8 Net Lease......................................................................................11
ARTICLE 4 OTHER AMOUNTS TO BE PAID BY TENANT.....................................................................11
4.1 Business Taxes, GST and Other Taxes............................................................11
4.2 Third Party Services...........................................................................11
4.3 Additional Services of the Landlord............................................................12
4.4 Upgrading Building Systems.....................................................................12
4.5 Leased Premises Heating, Ventilating and Air Conditioning Systems..............................12
ARTICLE 5 OPERATION OF COMPLEX...................................................................................12
5.1 Utility Services...............................................................................12
5.2 Taxes..........................................................................................13
5.3 Building and Pedestal Signage..................................................................13
ARTICLE 6 INSURANCE AND INDEMNITY................................................................................13
6.1 Landlord's Insurance...........................................................................13
6.2 Tenant's Insurance.............................................................................14
6.3 Premium Increases and Cancellation.............................................................15
6.4 Compliance with Landlord's Insurance Requirements..............................................16
6.5 Limitation of Landlord's Liability.............................................................16
6.6 Indemnity by Tenant............................................................................17
6.7 Limitation of Tenant's Liability...............................................................17
ARTICLE 7 REPAIRS AND ALTERATIONS................................................................................17
7.1 Tenant's Repairs...............................................................................17
7.2 Tenant to Notify of Defects....................................................................18
7.3 Tenant Work....................................................................................18
7.4 Construction or Mechanic's Lien................................................................19
7.5 No Interference with Tenant's Operations.......................................................20
7.6 Installation of Meters.........................................................................20
7.7 Repair Where Tenant at Fault...................................................................20
7.8 Repairs by Landlord............................................................................20
7.9 Door Locks.....................................................................................21
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ARTICLE 8 DAMAGE OR DESTRUCTION..................................................................................21
8.1 Right to Terminate.............................................................................21
8.2 Repair and Rebuilding..........................................................................21
8.3 Abatement of Rent..............................................................................22
8.4 Certificate of Architect Binding...............................................................22
ARTICLE 9 LANDLORD'S COVENANTS...................................................................................22
9.1 Landlord's Covenant for Quiet Enjoyment........................................................22
ARTICLE 10 TITLE OF COMPLEX......................................................................................22
10.1 Subordination..................................................................................22
10.2 Attornment.....................................................................................23
10.3 Status of Lease Statement......................................................................23
10.4 Registration of Lease Prohibited...............................................................23
ARTICLE 11 USE OF LEASED PREMISES................................................................................23
11.1 Type of Business Permitted.....................................................................23
11.2 Compliance With Applicable Laws and Government Requirements....................................23
11.3 Waste/Nuisance.................................................................................24
11.4 Rules and Regulations..........................................................................24
11.5 Environment....................................................................................24
ARTICLE 12 ASSIGNMENT AND SUB-LETTING............................................................................25
12.1 Assignment by Landlord.........................................................................25
12.2 Assignment and Subletting by Tenant............................................................25
12.3 Request to Assign..............................................................................26
12.4 Assignment Agreement...........................................................................26
12.5 Changes in Corporate Control...................................................................27
ARTICLE 13 DEFAULT OF TENANT.....................................................................................27
13.1 Landlord's Right of Re-Entry...................................................................27
13.2 Bankruptcy of Tenant and Other Events of Default...............................................27
13.3 Excuse of Performance..........................................................................28
13.4 Cross - Default................................................................................28
ARTICLE 14 LANDLORD'S RIGHT OF ACCESS............................................................................28
14.1 Right of Access and Method of Re-Entry.........................................................28
14.2 Building Systems...............................................................................29
14.3 Obligations of Tenant and Landlord.............................................................29
ARTICLE 15 SHARED AREAS AND FACILITIES...........................................................................29
15.1 Non-Exclusive Right to Use Shared Areas and Facilities.........................................29
15.2 Alterations to Shared Areas and Facilities.....................................................30
ARTICLE 16 INTERPRETATION AND MISCELLANEOUS......................................................................30
16.1 No Partnership.................................................................................30
16.2 Agency.........................................................................................30
16.3 Lease is Entire Agreement......................................................................30
16.4 Joint and Several Liability....................................................................30
16.5 Governing Law..................................................................................31
16.6 Interpretation.................................................................................31
16.7 Successors and Assigns.........................................................................31
16.8 Reasonableness.................................................................................31
16.9 Counterparts and Facsimile.....................................................................31
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ARTICLE 17 SPECIAL PROVISIONS....................................................................................32
17.1 Exercise of Rights by Landlord.................................................................32
17.2 Parking........................................................................................32
17.3 Security.......................................................................................32
17.4 Cleaning/Janitorial Services/Garbage Removal...................................................32
17.5 Emergency Response Team........................................................................32
ARTICLE 18 CONSTRUCTION..........................................................................................32
18.1 Construction Obligations of the Tenant.........................................................32
ARTICLE 19 IMPROVEMENT ALLOWANCE.................................................................................35
19.1 Improvement Allowance..........................................................................35
19.2 Option to Purchase.............................................................................36
SCHEDULE "A-1" LEGAL DESCRIPTION OF THE LAND.....................................................................40
SCHEDULE "A-2" LEGAL DESCRIPTION OF THE PHASE V LANDS............................................................43
SCHEDULE "B-1" SITE PLAN SHOWING THE LANDS.......................................................................44
SCHEDULE "B-2" SITE PLAN SHOWING THE PHASE V LANDS...............................................................45
SCHEDULE "C" LEASED PREMISES SHOWN IN HEAVY BLACK OUTLINE........................................................46
SCHEDULE "D" RULES AND REGULATIONS...............................................................................47
SCHEDULE "E" METHODOLOGY TO DETERMINE ADJUSTMENTS TO THE BASIC RENT RATE.........................................50
SCHEDULE "F" CONSENT BY LANDLORD TO SUBLEASE.....................................................................51
SCHEDULE "G" TENANT SIGNAGE......................................................................................54
Form 6...........................................................................................................55
ACKNOWLEDGEMENT OF RENT COMMENCEMENT DATE AND BASIC RENT PAYABLE.................................................56
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THIS LEASE made the 27th day of March, 2001
BETWEEN:
MITEL RESEARCH PARK CORPORATION
(hereinafter called the " Landlord ")
AND:
MITEL CORPORATION
(hereinafter called the "Tenant")
WHEREAS:
A. The parties have entered into an Acquisition Agreement which contemplates
this Lease.
NOW THEREFORE this indenture witnesses that for good and valuable
consideration, the receipt and sufficiency of which is expressly acknowledged,
the parties covenant and agree as follows:
ARTICLE 1
DEFINITIONS
1.1 In this Lease,
"Accounting Period" means the twelve (12) month accounting period adopted by the
Landlord from time to time for the Complex which is as of the date of this Lease
based on a calendar year.
"Acquisition Agreement" means the Acquisition Agreement between the Tenant,
3755461 Canada Inc. and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ made as of January 2, 2001.
"Additional Rent" means all amounts payable by the Tenant under this Lease other
than Basic Rent, whether or not characterised as rent under this Lease.
"Amortization" means, for each Accounting Period, the annual amortization of the
Landlord's capitalized cost of replacements and repairs to the Complex (in each
case over such asset, repair or replacement's (as the case may be) useful life)
which are not expensed during such Accounting Period in accordance generally
accepted accounting principles, together with simple interest on the unamortized
portion of such costs, such interest to be calculated each month at a rate
consistent with the Landlord's standard amortization practices.
"Applicable Laws" means all statutes, laws, by-laws, regulations, ordinances and
requirements having the force of law of governmental or other public authorities
having jurisdiction over the Complex, and all amendments thereto at any time and
from time to time in force which are applicable in the circumstances.
"Architect" means an independent, duly qualified architect named by the Landlord
from time to time under the provisions of this Lease.
"Area of the Leased Premises" means the rentable area of the Leased Premises
measured in accordance with the BOMA Standard of Measurement (ANSI Z65.1 -
1996).
"Basic Rent" means for each Accounting Period during the Term, the sum total of
the Rental Rate multiplied by the Area of the Leased Premises.
"Business" shall have the same meaning as in the Acquisition Agreement but
restricted to the activities carried on, in or about the Complex;
"Commencement Date" means March 27, 2001.
"Common Facilities" means those parts of the Complex together with all
facilities from time to time provided by the Landlord near the Complex to serve
the occupants of the Complex, including as applicable, without limitation, the
Shared Areas and Facilities, exterior weather walls and facade, roofs, exterior
and interior structural elements and bearing walls of the Complex, music and
public address systems, first aid stations, property management offices related
to the Complex, fire prevention and fire detection systems, plumbing, heating,
ventilation, humidification, air-conditioning and drainage equipment and
installations, fountains, furniture, furnishings, directory boards, general
signs including pylon signs, maintenance equipment, service, janitorial and
mechanical rooms, transformer vaults, electrical distribution rooms and water
meter rooms.
"Completion" or "Completed" means when the construction of the Phase V Work has
been completed, as such term is defined in the Construction Lien Act, as
amended.
"Complex" means the Lands, the integrated buildings and improvements erected
thereon and the Common Facilities, as may be varied from time to time, located
at municipal address 340, 350 and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, are
being in the City of Ottawa (formerly Kanata), Ontario.
"Complex Operating Costs" means, for each Accounting Period, the total cost to
the Landlord, calculated in accordance with generally accepted accounting
principles for operating and insuring the Complex, and maintaining , repairing,
replacing, refurbishing and furnishing the Common Facilities for such Accounting
Period, including the Amortization of costs and expenses of a capital nature,
costs of electricity, fuel, gas, steam, water, sewage, and other utility costs
and consumptions for the Complex, but excluding all costs with respect to
Leasable Areas of the Complex of a character for which the Tenant is billed
directly for the Leased Premises (such as, by way of example, but without
limiting the generality of the foregoing, costs charged directly to the Tenant
(rather than being included in Complex Operating Costs and payable as Basic
Rent) pursuant to sections 4.3 (Additional Services of the Landlord), 4.4
(Upgrading Building Systems), 5.1 (Utility Services) and 6.3 (Premium Increases
and Cancellation). Complex Operating Costs shall include, without duplication or
limitation, the Landlord's costs for Taxes assessed against the Complex and
contract administration costs incurred in connection with the Complex, 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 City of Ottawa for similar buildings); the cost of service
contracts with independent contractors and the Landlord's costs for cleaning,
painting, controlling pests,
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supervising, policing, gardening, landscaping, striping, snow removal,
electricity, water, heating, ventilation, humidification, air conditioning,
materials, supplies, equipment rental, wages, salaries and benefits paid and
provided for employees to the extent they are directly involved with the
maintenance, operation and repair of the Common Facilities, maintenance,
repairs, replacements, and all other expenditures of a nature required to be
made by a prudent owner. Complex Operating Costs shall exclude fees, costs or
commissions incurred in leasing the Complex and the cost of installing,
operating and maintaining any specialty service for which the Tenant does not
enjoy equal benefit with the other occupants of the Complex, such as by way of
example, a daycare, athletic or recreation club.
"Date of Substantial Completion" means the date when the Leased Premises have
been Substantially Completed as evidenced by the Tenant's Architect delivering
to the Landlord a certificate of the Tenant's Architect certifying same or as
determined by arbitration.
"Environment" means all, or any part, of the air, water and soils in or on the
Complex. "Environmental Law" has the meaning set out in the Acquisition
Agreement.
"Environmental Losses" means all fines, penalties, costs, losses, damages,
expenses or liabilities (including reasonable legal and other professional
expenses) resulting from any failure to comply with any Environmental Law.
"Expiry Date" means the last day of the Term.
"Gross Building Area" means the aggregate area of all floors of all buildings in
the Complex (excluding for this purpose the building on the Phase V Lands until
the Rent Commencement Date) as measured by the Landlord using its standard
measurement methodology, which area is as at the Commencement Date, comprised of
approximately 624,035 square feet, subject to adjustment based on increases or
decreases in the areas of the buildings comprising the Complex.
"Hazardous Substance" means any material or substance that may impair the
quality of the Environment and as to which liabilities or standards of conduct
are imposed pursuant to Environmental Laws, including any material or substance
that is deemed pursuant to any Environmental Law to be "hazardous", "toxic",
"deleterious", "caustic", "dangerous", a "contaminant", a "pollutant",
"dangerous", "toxic", a "hazardous waste", or a "source of contamination".
"Lands" means the lands more particularly described in Schedule "A-1" and shown
in heavy black outline on Schedule "B-1", together with any additions thereto or
subtractions therefrom as may be designated from time to time by the Landlord in
its sole discretion for use in connection with the Complex. If at any time
during the Term, the Landlord sells, transfers or otherwise assigns its interest
in the Phase V Lands, or if the Mortgagee enforces its Mortgage and forecloses
the Landlord's interest in the Phase V Lands or sells, transfers or otherwise
assigns its interest in the Phase V Lands, "Lands" as defined herein shall
thereafter be deemed to be limited to the Phase V Lands, to the exclusion of all
other lands.
"Landlord" means Mitel Research Park Corporation and its respective successors
and assigns.
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"Landlord's Address" means ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, to the attention of: Treasurer.
"Lease" means this lease as from time to time amended in writing and includes
all schedules hereto.
"Leasable Areas of the Complex" means that part of the Complex not forming part
of the Common Facilities.
"Leasehold Improvements" means all improvements, installations, alterations and
additions made from time to time from and after the Rent Commencement Date to
the Leased Premises, including without limitation, all fixed partitions, light
fixtures, and all items which cannot be removed without material damage to the
Leased Premises, and including trade fixtures installed by or for the benefit of
the Tenant.
"Leased Premises" means those premises forming part of the Complex, which
premises are shown in heavy black outline on Schedule "C" hereto.
"Methodology" means the agreed methodology for adjusting the Basic Rent, a copy
of which methodology is attached as Schedule "E".
"Mortgage" means any mortgage, hypothec, charge (including a deed of trust and
mortgage securing bonds and all indentures supplemental thereto), lien
(resulting from any other method of financing or refinancing), or blanket
mortgage (affecting the Complex as well as other property) now or hereafter
secured upon the Lands and the Complex or any part thereof and includes all
renewals, modifications, consolidations, replacements and extensions thereof.
"Mortgagee" means the holder of any Mortgage.
"Notice" means any notice, statement or request herein required or permitted to
be given by either party to the other pursuant to this Lease and shall be in
writing and, if to the Landlord, addressed to the Landlord at the Landlord's
Address and, if to the Tenant, addressed to the Tenant at the Tenant's Address.
Each notice shall be either hand delivered, sent by confirmed facsimile
transmission, or mailed by registered post (return receipt requested) and the
date of receipt of such notice shall be deemed to be the date of such hand
delivery, the next business day if sent by confirmed facsimile transmission or
the day of return receipt.
"Option" shall have the meaning described to this term in section 19.2 of this
Lease.
"Permitted Use" means the use of the Leased Premises, only for the purposes of
offices and related uses to carry on the Business in substantially the same
manner as that carried on by the Tenant immediately prior to the Commencement
Date.
"Phase V Mortgage Financing" means the mortgage financing of the Phase V Lands
to be on terms no less favourable to the Landlord as would prevail in an arm's
length mortgage transaction.
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"Phase V Lands" means the Lands more particularly described in Schedule "A-2"
and shown in heavy outline on Schedule "B-2" together with any additions thereto
or subtractions therefrom as may be designated from time to time by the Landlord
in its sole discretion for use in connection with the Leased Premises.
"Phase V Work" shall have the meaning ascribed to this term in section 18.1 of
this Lease.
"Plans and Specifications" means the plans and specifications in existence as of
the date of the Acquisition Agreement as disclosed to the Landlord, amended as
is necessary for the Phase V Lands to be serviced as a stand-alone site,
including without limitation, the separate provision of water, sewer,
electricity, gas (if applicable) and all other utilities, and as further amended
from time to time by written amendment approved in writing by both the Landlord
and the Tenant.
"Rent" means Basic Rent and Additional Rent.
"Rent Commencement Date" means the earlier of: (i) September 27, 2002; or (ii)
the Date of Substantial Completion of the Leased Premises.
"Rental Rate" means, Fifteen Dollars ($15) per square foot per year subject to
adjustment in accordance with section 3.1.
"Rules and Regulations" means those rules and regulations stipulated in Section
11.4 hereof and any further reasonable rules and regulations of which the Tenant
receives written notification from the Landlord which the Landlord acting
reasonably may from time to time stipulate for the proper operation of the
Complex, and all such further rules and regulations shall be read as forming
part of this Lease as if the same were embodied herein.
"Shared Areas and Facilities" means those parts of the Common Facilities which
are provided by the Landlord for the common use and enjoyment or benefit of the
Tenant, the Landlord and other occupants of the Complex, and their respective
employees, contractors, agents and invitees including, without limitation, any
fitness facility, cafeteria, recreational areas, landscaped areas, parking
areas, public transit shelters, roadways, driveways, walkways, sidewalks,
skywalks, tunnels, lobbies, entrances, exits, common corridors, halls, stairways
and passageways, public lavatories, truck courts, truck docks, common loading
areas and elevators, and shall be deemed to include any pedestrian walkways,
parks or other facilities located on the Lands.
"Site Plan" means the site plan drawings (i) identified as L1 and L2 as of
January 10, 2001, (ii) identified as C1, C2 and C3 as of January 10, 2001, (iii)
identified as A051 as of January 18, 2001, and (iv) identified as A201 as of
January 8, 2001, in each case amended as is necessary for the Phase V Lands to
be serviced as a stand-alone site, including without limitation, the separate
provision of water, sewer, electricity, gas (if applicable) and all other
utilities, and as may be further amended from time to time by written amendment
approved in writing by both the Landlord and the Tenant. Copies of the above
described drawings (L1, L2, Cl, C2, C3, A051 and A201) together with all
existing amendments thereto shall be delivered by the Tenant to the Landlord by
April 3, 2001, it being agreed and understood that all such existing amendments
shall be subject to the Landlord's approval as described in subsection 18.1(a).
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"Stipulated Rate of Interest" means the standard rate of interest charged or
imputed by the Landlord, acting reasonably, in respect of the operation of the
Complex, as adjusted from time to time.
"Substantial Completion" or "Substantially Complete" means when the construction
of Phase V Work has been substantially performed, as such term as defined in the
Construction Lien Act, as amended.
"Taxes" means, for each Accounting Period, the amount paid by the Landlord for
all taxes, rates, duties and assessments whatsoever, whether municipal,
provincial, parliamentary or otherwise, now charged or hereafter to be charged
upon the Complex or upon the Landlord in respect thereof for such Accounting
Period. The total of such costs to the Landlord shall include, without
duplication or limitation, school taxes, municipal taxes and taxes for local
improvements or works assessed against the Complex and any costs and fees
reasonably incurred by the Landlord in reasonably contesting or negotiating with
the public authorities as to the same. Taxes shall not include capital taxes or
large corporations taxes or any other taxes based upon or computed with
reference to the Landlord's paid-up capital or place of business, income taxes
of the Landlord to the extent such income taxes are not levied in lieu of taxes,
rates, duties and assessments against the Complex.
"Tenant" means Mitel Corporation and its successors and permitted assigns.
"Tenant's Address" means ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ to the
attention of (i) Manager of Facilities Engineering and Real Estate; and (ii)
General Counsel.
"Tenant's Architect" means an independent, duly qualified architect named by the
Tenant from time to time under the provisions of this Lease.
"Tenant's Share" means the share allocated or re-allocated by the Landlord to
the Tenant pursuant to section 3.2, and with respect to those component costs of
the Complex Operating Costs for which no such allocation or re-allocation is so
made by the Landlord, a fraction which has as its numerator the Area of the
Leased Premises and which has as its denominator the Gross Building Area.
"Term" means the period commencing on the Commencement Date and expiring ten
(10) years after the Rent Commencement Date.
"Termination Date" means, the last day of the Term or such earlier date as this
Lease may be terminated pursuant to the provisions hereof.
"Unavoidable Delay" means any delay by a party in the performance of its
obligations under this Lease caused in whole or in part by any acts of God,
strikes, lockouts or other industrial disturbances, acts of the Queen's enemies,
sabotage, war, blockades, insurrections, riots, epidemics, washouts, nuclear and
radiation activity or fallout, arrests, restraints of rulers and people, civil
disturbances, explosions, breakage of or accident to machinery, any legislative,
administrative or judicial action which has been resisted in good faith by all
reasonable legal means, any act, omission or event whether of the kind herein
enumerated or otherwise not within the control of such party and which by the
exercise of reasonable foresight of such party, could
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not have been prevented, but lack of funds on the part of such party shall not
constitute an Unavoidable Delay. Notwithstanding the foregoing, in no event
shall the Tenant be excused from the payment of Rent hereunder by reason of
Unavoidable Delay.
ARTICLE 2
DEMISE, DELIVERY AND SURRENDER
2.1 Demise and Leased Premises
In consideration of the covenants and agreements hereinafter set out, the
Landlord hereby leases the Leased Premises to the Tenant, to have and to hold
during the Term upon the conditions contained in this Lease. The Tenant
covenants to pay Rent and to observe and perform all the covenants and provisos
to be observed and performed by the Tenant pursuant to this Lease. The parties
further acknowledge and agree that, in respect of certain areas comprising the
Leased Premises, and in addition to the rights of access otherwise afforded to
the Landlord under the provisions of this Lease, the Landlord reserves for its
employees, agents and contractors, upon reasonable notice to the Tenant (except
in the case of emergencies or urgent repairs and/or maintenance), a right of
passage through, above and below the Leased Premises for people, equipment,
machinery and apparatus for the purpose of allowing access to the Leased
Premises to facilitate the Landlord's performance of its obligations pursuant to
this Lease and to maintain, repair, clean, operate and respond to emergencies in
the Complex. The Landlord shall undertake reasonable efforts to co-operate with
any "Risk Work Plan" (as defined in section 14.2) process of the Tenant where
such repairs and/or maintenance impact on the Tenant's operations.
2.2 Shared Areas and Facilities
Subject to section 17.2 and to the Landlord's security procedures and
requirements with respect to the Complex, the Landlord hereby grants to the
Tenant, its employees, contractors, agents, visitors and other persons
transacting business with it, in common with the Landlord and other occupants of
the Complex from time to time, the right to use the Shared Areas and Facilities
for their intended purpose.
2.3 Examination of Leased Premises
The Tenant acknowledges having examined the Complex and the Leased Premises and
accepts same in their present condition. The Landlord has commissioned a Phase
II environmental site assessment in respect of the Complex for completion prior
to the Commencement Date. The Tenant shall deliver to the party engaged to carry
out such environmental assessment a copy of all other environmental reports in
its possession relating to the Complex. The Landlord shall deliver to the Tenant
prior to the Commencement Date a copy of such report, together with a reliance
letter from the party preparing such reporting confirming that it may be relied
upon by the Tenant.
The Tenant confirms that, save as disclosed in the Acquisition Agreement, it has
not received notice of any non-compliance with any Applicable Laws,
Environmental Law or the mandatory recommendations of Factory Mutual Global in
relation to the Complex which have not or will not have been complied with prior
to the Commencement Date.
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The Tenant agrees that there is no promise, representation or undertaking by or
binding upon the Landlord with respect to any environmental matter or any
alteration, remodelling or decoration of the Leased Premises or with respect to
the installation of equipment or fixtures in the Leased Premises, except as
expressly provided in this Lease.
2.4 Measurement of the Leased Premises.
Forthwith after the Date of Substantial Completion, the Landlord shall direct
Fairhill ▇▇▇▇▇▇▇ and Woodland Limited, Ontario Land Surveyors to measure the
Area of the Leased Premises and to deliver to both the Landlord and the Tenant a
certificate confirming the same, the cost of which shall be shared equally
between the parties.
2.5 Installation and Removal of Trade Fixtures
The Tenant may, with the prior approval of the Landlord, which approval not to
be unreasonably withheld or delayed, install trade fixtures, including
Production Equipment, of a type usual for the Permitted Use, in good and
sufficient manner but not so as to damage or impair the structure or the
heating, ventilating, air-conditioning (if applicable), plumbing, electrical and
mechanical systems of the Leased Premises or the Complex. The Landlord shall
either give its approval or its reasons for denying the same within ten (10)
business days of the Tenant's request for approval. Provided the Landlord has
approved the installation of such trade fixtures, the Tenant shall arrange,
coordinate and supervise the performance and completion of all such work in a
diligent and good and workmanlike manner. The total cost of the work shall be
paid by the Tenant. The Tenant shall also forthwith reimburse the Landlord for
all costs, expenses and charges incurred by the Landlord with respect to such
work, including without limitation, building system modification or enhancement
costs or engineering review fees, if any.
On or before the Termination Date, the Tenant shall have the right, if not in
default beyond the applicable cure period, to remove, and shall remove if
required by the Landlord, all its trade fixtures, furniture and equipment,
making good at the Tenant's expense any damage caused by such removal, and the
Tenant shall vacate and surrender the Leased Premises to the Landlord in the
condition required under Section 7.1. The Tenant further agrees that all
Leasehold Improvements, whether by or for the benefit of the Tenant, shall
immediately upon affixation or installation become the property of the Landlord
and shall remain upon the Leased Premises, provided that at the end of the Term,
if so directed by the Landlord, the Tenant shall remove such of the Leasehold
Improvements as the Landlord shall have previously indicated require removal,
and any change, alteration, major repair, addition or improvement to the
Leasehold Improvements made without the consent of the Landlord being required,
and such Production Equipment, trade fixtures and ancillary telephone,
telegraphic, electric or other cabling or wiring installed in the Leased
Premises without the consent of the Landlord being required, as the Landlord
may, in its sole discretion, require (excluding, for the purpose of clarity, the
demising walls and other separation, security measures and partitioning work
carried out pursuant to section 2.4), and make good at the Tenant's expense any
damage caused by such removal. The Landlord may also elect to require the Tenant
to rebuild partitioning at the end of the Term in the Office Areas of the Leased
Premises to a partitioned area to open area ratio of 30:70. All property of the
Tenant remaining upon the Leased Premises after the termination of the tenancy
shall be deemed to have been abandoned by the Tenant in favour of the Landlord
and may be
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disposed of by the Landlord at its discretion without prejudice to the rights of
the Landlord to claim damages from the Tenant for failure to remove the same.
Nothing herein prohibits the Tenant from claiming the cost of Leasehold
Improvements incurred by the Tenant as deductions for income tax purposes. For
the purpose of clarity, the Tenant acknowledges that in respect of the removal
of certain of its trade fixtures and Production Equipment, it shall be required
to repair as set out in Schedule "E".
2.6 Overholding by Tenant
If the Tenant remains in possession of the Leased Premises subsequent to the end
of the Term without the execution and delivery of a new lease, there shall be no
tacit renewal, and the Tenant shall be deemed to be occupying the Leased
Premises as a tenant from month to month upon the same terms and conditions as
are set forth in this Lease insofar as the same are applicable to a month to
month tenancy, subject to Sections 58 and 59 of the Commercial Tenancies Act.
Such month to month tenancy may be terminated by either party at any time upon
ninety (90) days Notice.
ARTICLE 3
RENTAL
3.1 Basic Rent
The Tenant shall pay to the Landlord as rent for the Leased Premises the Basic
Rent in advance on the first day of each and every month from the Rent
Commencement Date to the Termination Date, and if the Rent Commencement Date or
the Termination Date are not the first and last days of a month respectively
then the Basic Rent for the first and last months of the Teen shall be
appropriately prorated.
The Basic Rent as set forth in section 1.1 is based in part on the Landlord's
estimated cost of the Phase V Mortgage Financing amortized over twenty-five (25)
years and calculated at an estimated interest rate of 8.5 percent for ten (10)
years, compounded semi-annually and payable monthly in arrears. If there is a
change (i) in the interest rate charged by the Landlord's lender from the
estimated rate of 8.5 percent, compounded semi-annually and payable monthly in
arrears, or (ii) in either the assumed twenty-five (25) year amortization period
or the ten (10) year term, the cost or benefit of the change shall be paid by or
credited to the Tenant in accordance with the Methodology and the Basic Rent
payable by the Tenant shall be adjusted accordingly for each month of the Term.
3.2 Payment of Additional Rent for Complex Operating Costs
The Tenant shall in addition to the Basic Rent, pay the Tenant's Share of
Complex Operating Costs to the Landlord as Additional Rent throughout the Term,
in advance on the first day of each and every month during the Term commencing
with the Rent Commencement Date, in equal and consequent monthly instalments on
account of the Tenant's Share of Complex Operating Costs based upon the
Landlord's estimate of Complex Operating Costs determined in accordance with
section 3.3.
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Additionally, for the period from the Commencement Date to the day preceding the
Rent Commencement Date, the Tenant shall pay to the Landlord the Tenant's Share
of Taxes and shall also be responsible for the cost of garbage and waste removal
and all utilities consumed by the Tenant with respect to its possession and
construction of the Leased Premises during such period.
3.3 Annual Estimation of the Complex Operating Costs
Prior to the commencement of each Accounting Period, the Landlord shall estimate
the Complex Operating Costs for the next Accounting Period and in so doing shall
analyse, weight and if necessary, re-allocate the component costs of the Complex
Operating Costs to ensure an equitable and reasonable allocation of such costs
and expenses to the various uses and users in the Complex. Such estimates may be
adjusted and re-adjusted from time to time by the Landlord. The Tenant shall pay
to the Landlord monthly in advance on the first day of each and every month
during the Term, one twelfth (1/12) of the amount of the estimated annual
Complex Operating Costs, as adjusted or re-adjusted, as the case may.
3.4 Annual Adjustment of Basic Rent Based Upon the Actual Complex Operating
Costs
Within one hundred and eighty (180) days following the end of each Accounting
Period the Landlord shall compute the actual Complex Operating Costs for such
Accounting Period and the Tenant's Share of the same and shall submit a
statement to the Tenant disclosing in reasonable detail the various components
of the same. If the Complex Operating Costs paid by the Tenant in respect of
such Accounting Period are less than the actual Complex Operating Costs for such
Accounting Period, the Tenant shall pay the difference to the Landlord
forthwith. If the Complex Operating Costs comprising the Basic Rent paid by the
Tenant in respect of such Accounting Period are greater than the amount of
actual Complex Operating Costs for such Accounting Period, the difference shall
be applied in payment of other amounts then owing by the Tenant to the Landlord,
and the balance, if any, shall be repaid to the Tenant concurrent with the
delivery of such statement.
The Landlord shall at the Tenant's expense provide to the Tenant reasonable
supporting documentation for its calculation of the actual Complex Operating
Costs and the Tenant's Share of the same for the current or immediately
preceding Accounting Period on the written request of the Tenant.
3.5 Rent Covenant
The Tenant shall pay to the Landlord without demand, in lawful money of Canada,
at the times provided in this Lease, at the Landlord's Address or at such other
place as the Landlord may designate from time to time, the Basic Rent and
Additional Rent, without any deduction, set-off, counter claim or abatement
whatsoever. All amounts payable under this Lease, unless otherwise provided,
become due with the next instalment of Basic Rent. If the Tenant defaults in
payment of any sum due hereunder the Landlord shall have the same rights and
remedies upon default as if the sum were Rent in arrears.
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3.6 Waiver of Set-Off
The Tenant hereby waives and renounces any and all existing and future claims,
offsets and compensation against any Basic Rent or Additional Rent, and agrees
to pay all Basic Rent and Additional Rent regardless of any claim, offset or
compensation which may be asserted by the Tenant or on its behalf. The Tenant
agrees that the Landlord may at its option apply all sums received from the
Tenant or due to the Tenant against amounts due or payable hereunder as the
Landlord determines notwithstanding any instructions or designations to the
contrary. No endorsement on any cheque or statement in any letter accompanying a
cheque shall be deemed an accord or satisfaction and the Landlord may accept any
payment without prejudice to any rights the Landlord may have at law or under
this Lease.
3.7 Interest on Overdue Rent
If the Tenant fails to pay within ten (10) days from when due any Basic Rent or
Additional Rent, the unpaid amount will bear interest from the due date to the
date of payment at the Stipulated Rate of Interest and such interest shall be
calculated and payable monthly.
3.8 Net Lease
It is the intent of the parties that this Lease be absolutely net to the
Landlord and that the Tenant shall pay all costs and expenses relating to the
Leased Premises and the business carried on therein except as expressly provided
in this Lease. Any amount or obligation herein relating to the Leased Premises
which is not expressly declared to be that of the Landlord shall be deemed to be
an obligation of the Tenant to be performed by or at the Tenant's expense.
ARTICLE 4
OTHER AMOUNTS TO BE PAID BY TENANT
4.1 Business Taxes, GST and Other Taxes
The Tenant shall pay every tax and license fee imposed in respect of all
business carried on in the Leased Premises, or in respect of the use or
occupancy thereof, and all such amounts shall be paid promptly to the
authorities responsible for collection.
If any business transfer tax, valued-added tax, multi-stage sales tax, sales
tax, goods and services tax, or any like tax is imposed on the Landlord by any
governmental authority on the Rent or any other payment, cost or charge payable
by the Tenant under this Lease, the Tenant shall pay directly or reimburse the
Landlord for the amount of such tax forthwith upon demand (or at any time
designated from time to time by the Landlord) as Additional Rent.
4.2 Third Party Services
The Tenant shall be solely responsible for and promptly pay to the appropriate
third party all charges for services used or consumed in or provided to the
Leased Premises, but excluding services supplied by the Landlord and charged to
the Tenant as Rent. In no event will the Landlord be liable to the Tenant in
damages or otherwise for any failure to supply any third party
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services to the Leased Premises. Nothing herein shall disentitle the Tenant from
pursuing any third party supplier of such services for any damages suffered as a
result of such failure.
4.3 Additional Services of the Landlord
The cost of all additional services requested in writing by the Tenant and
elected by the Landlord to be provided to the Tenant by the Landlord or its
agents or contractors shall be payable forthwith by the Tenant upon demand by
the Landlord together with the Landlord's management fee in respect thereof.
4.4 Upgrading Building Systems
The cost to the Landlord of upgrading the building systems of the Leased
Premises to service any extraordinary requirements of the Tenant shall be
payable forthwith by the Tenant upon demand by the Landlord, provided the
Landlord gives the Tenant prior Notice of the necessity of such upgrade and the
Landlord's estimate of the cost to the Tenant for such upgrade, whereafter the
Tenant shall have the option of reducing its requirements or having the proposed
upgrade proceed.
4.5 Leased Premises Heating, Ventilating and Air Conditioning Systems
The Tenant covenants to operate the heating, ventilating and air-conditioning
systems serving the Leased Premises as would a prudent owner and to maintain,
repair and replace such systems in accordance with the standards and
specifications provided to the business prior to the Commencement Date. Where
any such heating, ventilating and air-conditioning systems shall be damaged or
destroyed, or in the opinion of the Landlord require repairs, inspection,
overhauling or replacement, the Tenant shall, at its sole cost and expense,
commence and carry out any necessary work with reasonable speed.
ARTICLE 5
OPERATION OF COMPLEX
5.1 Utility Services
The Landlord shall permit the Tenant to connect its equipment, machinery and
trade fixtures to the utility services serving the Complex. In the event that
the Tenant overloads the capacity of any of such utility services, the Tenant
shall pay all costs and expenses resulting from the Tenant's overloading of the
said capacity as Additional Rent. The Tenant shall advise the Landlord within
twenty (20) business days after written request therefore of the nature and
quantity of all lights, equipment and machines using electricity in the Leased
Premises and shall permit the Landlord or its authorized agents to make periodic
inspection of all facilities using electricity located within the Leased
Premises. Where the utility services of the Complex or any part thereof shall be
damaged or destroyed, or in the opinion of the Landlord require repairs,
inspection, overhauling or replacement, the Landlord shall commence and carry
out such necessary work as would a prudent owner with reasonable speed, unless
such utility services are wholly within and solely relate to the Leased
Premises, in which case the Tenant shall, at its sole cost and expense, commence
and carry out such necessary work as would a prudent owner with
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reasonable speed. To the extent such damage or destruction is caused by the act
or omission of the Tenant or those for whom the Tenant is responsible in law,
the Landlord's cost, if any, of such necessary work shall be charged to and paid
by the Tenant as Additional Rent.
5.2 Taxes
Subject to the payment by the Tenant of Rent, the Landlord covenants to pay all
Taxes on or before their due date. The Landlord may appeal any official
assessment, any Taxes based on such assessment or the amount of the Taxes
relating to the Complex. In connection with any such appeal the Landlord may
defer payment of any taxes payable by it under the provisions of this Section
5.2 to the extent permitted by law without penalty or interest, and the Tenant
shall cooperate with the Landlord and provide the Landlord with all relevant
information reasonably required by the Landlord in connection with any such
appeal.
5.3 Building and Pedestal Signage
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 Leased Premises
without the prior written consent of the Landlord. Any signage consented to by
the Landlord shall comply with the Landlord's then current policies and
procedures regarding signage in the Complex and include only the corporate name,
business name or logo of the Tenant. The exact size, location and style of
identification shall also be subject to the Landlord's prior approval and to all
Applicable Laws and the obtaining of all required consents and licenses relating
thereto. Any signage permitted by this section shall be promptly removed by the
Tenant at its sole cost and expense on the termination or other expiration of
this Lease and the Tenant shall promptly make good any and all damage caused by
either or both the installation and removal of such signage. The Landlord hereby
confirms that it consents to the signage described in Schedule "G".
ARTICLE 6
INSURANCE AND INDEMNITY
6.1 Landlord's Insurance
The Landlord, acting reasonably, shall carry such insurance with such
deductibles and exclusions as would a prudent owner for the account and benefit
of the Landlord as the Landlord from time to time considers useful, expedient or
beneficial, it being agreed and understood however that such insurance shall
include, the following:
6.1.1. insurance against All Risks of loss or damage including sprinkler
leakage and damage due to flood or earthquake, covering all property
owned by the Landlord or for which the Landlord is responsible under
this Lease relative to the Complex including the buildings, the Common
Facilities and the Leased Premises, but excluding all trade fixtures,
furniture and stock-in-trade belonging to the Tenant;
6.1.2. insurance against loss of the Landlord's gross profits including loss of
Basic Rent;
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6.1.3. insurance against mechanical break-down, explosion, rupture or failure
of boilers, pressure vessels, heating, ventilating and air-conditioning
equipment, electrical apparatus and other like apparatus owned by the
Landlord;
6.1.4. comprehensive general liability insurance with respect to the Landlord's
operation of the Complex covering bodily injury, death and damage to
property of others; and
6.1.5. insurance against any other form or forms of loss which the Landlord or
any Mortgagee may require from time to time.
Notwithstanding any contribution by the Tenant to the Landlord for insurance
premiums as provided in this Lease, no insurable interest is conferred upon the
Tenant under policies carried by the Landlord, and the Tenant shall have no
right to receive any proceeds of insurance from policies carried by the
Landlord. The Landlord shall in no way be accountable to the Tenant regarding
the use of any insurance proceeds arising from any claim, and the Landlord shall
not be obliged to account for such proceeds, nor to apply such proceeds to the
repair or restoration of that which was insured except to the extent provided
herein. If the Tenant desires to receive indemnity by way of insurance for any
property, work or thing whatever including Leasehold Improvements, the Tenant
shall insure same for its own account and shall not look to the Landlord for
reimbursement or recovery in the event of loss or damage from any cause, whether
or not the Landlord has insured same and recovered therefor. All such policies
of insurance shall exclude the exercise of any claim of the insurers, whether by
subrogation or otherwise, against the Tenant or those for whom the Tenant is in
law responsible.
6.2 Tenant's Insurance
The Tenant shall keep in force during the Term at its own expense the following:
6.2.1. insurance against All Risks of loss or damage to Tenant's property and
property for which Tenant is responsible under this Lease, including
damage due to floods or earthquakes for the full replacement value of
the equipment, inventory and Leasehold Improvements;
6.2.2. comprehensive general liability insurance, including Tenant's All Risk
legal liability insurance in respect of the Leased Premises, in an
amount not less than Ten Million Dollars ($10,000,000), or such greater
amount as may be stipulated by the Landlord from time to time, in
respect of injury to or death of one or more than one person, and for
damage to tangible personal property, regardless of the number of claims
arising as a result of any one occurrence;
6.2.3. insurance for boilers, machinery, rotating apparatus, pressure vessels,
electrical apparatus, and production equipment, tools and systems issued
on a broad form basis in an amount not less than the full insurable
value, calculated on a replacement cost basis without deduction for
depreciation, covering all objects in or on the Leased Premises
insurable under this form of insurance, and resulting business
interruption coverages;
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6.2.4. motor vehicle insurance having third party liability limits not less
than Five Million Dollars ($5,000,000) covering all vehicles owned or
operated by the Tenant from the Complex;
6.2.5. insurance against any acts of infidelity or sabotage by the Tenant or
its officers, directors, employees, agents, contractors, customers or
invitees in such forms and with such limits as may be requested by the
Landlord from time to time; and
6.2.6. such other insurance as the Landlord or any Mortgagee may reasonably
require from time to time with respect to the property and operations of
the Tenant from the Complex.
All such policies of insurance shall be placed with insurers licensed to do
business in Canada or the United States of America and shall exclude the
exercise of any claim of the insurer or insurers, whether by subrogation or
otherwise, against the Landlord or any Mortgagee or those for whom any of them
are in law responsible and the Tenant shall deliver certificates of insurance to
the Landlord evidencing such coverages in a form acceptable to the Landlord on
or before the Commencement Date. Each such policy shall include the Landlord and
any Mortgagee of whom the Tenant has been given Notice as additional insureds as
their interests may appear and shall contain a waiver, in favour of the Landlord
and any such Mortgagee and those for whom any of them are in law responsible, of
any breach or violation of any warranties, representations, declarations or
conditions contained in the policies. All such insurance shall be primary
insurance and shall not call into contribution any insurance carried by the
Landlord or any Mortgagee. All policies of comprehensive general liability
insurance shall contain a severability of interest clause and a cross-liability
clause as between the Tenant, the Landlord and any Mortgagee included as an
additional insured on such policy. All policies shall contain a provision
requiring that at least thirty (30) days' written notice be given to the
Landlord and any Mortgagee included as an additional insured as aforesaid by the
insurer prior to cancellation or expiry, and the Tenant shall obtain
undertakings from all insurers to that effect. If after three (3) business days'
Notice of default to the Tenant, the Tenant fails to perform its obligations
pursuant to this Section 6.2 the Landlord may effect such insurance on behalf of
the Tenant, and any premium paid by the Landlord which is otherwise the
responsibility of the Tenant hereunder shall be payable forthwith by the Tenant
upon demand by the Landlord as Additional Rent.
6.3 Premium Increases and Cancellation
The Tenant shall promptly comply with all requirements of the Landlord's and
Mortgagee's insurance underwriters regarding the use and occupation of the
Leased Premises, and the Tenant shall not do, omit, or permit to be done or
omitted anything which shall cause any insurance premium with respect to the
Complex or any part thereof to be increased, or which may cause any policy of
insurance of the Landlord with respect to the Complex to be cancelled. To the
extent anything done or omitted to be done by the Tenant causes any insurance
premium of the Landlord with respect to the Complex to be so increased the
Tenant shall pay to the Landlord forthwith upon demand the amount of such
increase. If any insurer threatens to cancel, cancels or refuses to renew any
insurance policy of the Landlord upon the Complex by reason of the use or
occupation of the Leased Premises or any part thereof by the Tenant, the Tenant
shall forthwith remedy or rectify such use or occupation within the time limit
required by the insurer upon being requested to do so by Notice by the Landlord,
and if the Tenant shall fail to do so within a
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reasonable period of time after such Notice, the Landlord may at its option,
without prejudice to any other rights it may have, terminate this Lease by
Notice to the Tenant. Thereupon the Tenant shall pay Basic Rent and Additional
Rent owing to the date of such termination and shall immediately deliver up
possession of the Leased Premises to the Landlord, and, without prejudice to all
other rights and remedies available to it for breach of this Lease, the Landlord
shall have the right to re-enter the Leased Premises.
6.4 Compliance with Landlord's Insurance Requirements
In its use and occupation of the Leased Premises and of the Complex, the Tenant
shall comply with all fire protection and loss prevention requirements imposed
by Factory Mutual Global in respect of Level I Priority Recommendations, and in
all other cases as negotiated with the Factory Mutual Global, and, without
limiting the generality of the foregoing, shall ensure that all of its
operations, equipment modifications, equipment installation, tools, emergency
organizations, fire protection and loss prevention response team procedures
comply with all Factory Mutual Global standards and requirements as aforesaid.
The Landlord and the Landlord's underwriter shall consult with Tenant in respect
of the negotiation of compliance issues taking into consideration a reasonable
cost risk benefit analysis in relation thereto. The Tenant shall undertake its
best efforts to ensure that the Landlord receives the benefit of any
"grandfathering" status presently held by the Tenant in respect of current
exceptions relevant to the Business. If within a reasonable period of time after
Notice the Tenant fails to comply with the foregoing requirements and standards,
the Landlord shall have the right, at its option, to implement or enforce
necessary corrections, and the cost thereof shall be payable forthwith by the
Tenant upon demand by the Landlord as Additional Rent.
6.5 Limitation of Landlord's Liability
Except to the extent caused or contributed by an act or omission of the Landlord
or those for whom it is responsible in law, the Landlord shall not be liable or
responsible in any way for any death or any injury of any nature whatsoever that
may be suffered or sustained by the Tenant or any employee, contractor, agent or
customer of the Tenant or any other person who may be upon the Leased Premises,
or for any loss or damage or injury to any property belonging to the Tenant or
its employees, agents or contractors or to any other person while such property
is on the Leased Premises. Without limiting the generality of the foregoing,
except to the extent caused or contributed by an act or omission of the Landlord
or those for whom it is responsible in law, the Landlord shall not be liable for
any damage or damages of any nature whatsoever to persons or property on the
Leased Premises caused by explosion, fire, theft or breakage, by sprinkler,
drainage or plumbing systems, by failure for any cause to supply adequate
drainage or snow or ice removal, by the interruption of any public utility or
service, by steam, gas, water, rain, snow, or other substances leaking, issuing
or flowing into any part of the Leased Premises, or by anything done or omitted
to be done by any other tenant, occupant or person in the Complex. In addition
the Landlord shall not be liable for any loss or damage for which the Tenant is
required to insure pursuant to Section 6.2.
The Landlord shall not be liable for any indirect or consequential damage of any
type, or for damages for personal discomfort or illness of the Tenant, its
officers, directors, employees, contractors, invitees, clients, customers or
other persons. The Tenant shall not be entitled to any
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compensation, any diminution or abatement of Rent, any claim for constructive or
actual eviction or any claim of breach of the Landlord's covenant of quiet
enjoyment by reason of the operation or non-operation of any of the equipment or
systems referred to in this Lease, or by failure of the Landlord to provide any
of the services referred to in this Lease, or for any act or omission on the
part of any third parties employed or retained by the Landlord to perform any
work or perform any service under this Lease.
6.6 Indemnity by Tenant
The Tenant shall indemnify the Landlord against and from all loss, costs,
claims, or demands in respect of any injury, loss or damage of the type referred
to in Section 6.5 or resulting from a default under Section 6.4, to the extent
caused by an act or omission of the Tenant or those for whom the Tenant is at
law responsible, and against and from any breach by the Tenant of any provision
of this Lease.
6.7 Limitation of Tenant's Liability
Notwithstanding anything in this Lease to the contrary, the Tenant shall not be
liable for any loss or damage for which the Landlord is insured or required to
be insured pursuant to section 6.1. The Landlord shall indemnify the Tenant
against and from all losses, costs, claims, or damages in respect of any injury,
loss or damage to the extent caused by an act or omission of the Landlord or
those for whom the Landlord is law responsible, or any breach by the Landlord of
any provision of this Lease.
The Tenant shall not be liable for any indirect or consequential damage of any
type, or for damages for personal discomfort or illness of the Landlord, its
officers, directors, employees, contractors, invitees, clients, customers or
other persons.
ARTICLE 7
REPAIRS AND ALTERATIONS
7.1 Tenant's Repairs
Subject to the Landlord's obligations pursuant to Section 7.8, throughout the
Term, the Tenant shall repair, maintain and keep in proper operating condition,
subject to normal wear and tear, all as would a careful owner, the Leased
Premises and every part thereof including without limitation the Leasehold
Improvements, equipment, fixtures, furnishing, all glass, every part of the
structural, heating, cooling, ventilating, air-conditioning, plumbing and other
mechanical installations serving the Leased Premises, whether or not any such
items were installed or furnished by the Tenant. It is further agreed and
understood that so long as Mitel Corp. is in actual occupation of not less than
eighty-five percent (85%) of the area of the Leased Premises, the Tenant shall
in addition to the foregoing, throughout the Term at its sole cost and expense,
also repair, maintain and keep in proper operating condition, all as would a
careful owner, the structural components and roof of the Leased Premises and the
Landlord shall be relieved of such responsibility pursuant to section 7.8.
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7.2 Tenant to Notify of Defects
The Tenant shall promptly notify the Landlord of any damage to or defect in any
part of the Leased Premises, or in any equipment or utility system serving the
Leased Premises, of which the Tenant becomes aware and which may cause or result
in death or injury to any person or damage to property.
7.3 Tenant Work
The Tenant shall not, without the Landlord's prior written approval, which
approval may not be unreasonably withheld by the Landlord, make any change,
alteration, repair, addition or improvement in or to the Leased Premises which
affects in a material way the structure or perimeter walls, any sprinkler
system, life safety equipment or systems, heating, ventilating, and/or
air-conditioning equipment or systems, the plumbing, electrical and mechanical
equipment or systems, the bearing floors, the signage, the ceilings, the columns
or the roof. The Tenant shall submit to the Landlord adequate details of any
such proposed work which requires the Landlord's approval including drawings and
specifications conforming to good engineering practice which have been prepared
by qualified engineers and designers. Within ten (10) business days of receipt
of the Tenant's request for approval, the Landlord shall either give its
approval or describe in writing with reasonable particularity the reasons for
denying the same. At the time of granting the approval, the Landlord shall
advise the Tenant as to whether the Tenant shall be required on the Termination
Date, to remove such alterations and restore the Leased Premises in accordance
with Section 2.5. All work carried out by the Tenant (whether or not requiring
the Landlord's consent) shall be carried out in a good and workmanlike manner,
with quality materials and in accordance with all Applicable Laws and the
drawings and specifications approved by the Landlord, and shall be performed by
contractors and subcontractors who have been approved in advance by the Landlord
and by competent workers. The Tenant shall submit to the Landlord's supervision
over construction and promptly pay when due the cost of all such work and of all
materials, labour and services involved therein. Upon the completion of the
work, the Tenant shall deliver to the Landlord "as built" CAD drawings with
respect to such work.
The Tenant shall ensure that its general contract or takes out and keeps in
force contractor's general liability insurance, all risks property insurance
insuring physical loss or damage during the course of construction, including
without limitation, damage due to flood or earthquakes, for the full replacement
value of the work, and boiler and pressure vessel insurance issued on a broad
form basis in an amount not less than replacement value (collectively, the
"Contractor's Insurance"). The term of each policy of insurance comprising the
Contractor's Insurance shall be from the date of the commencement of the work
until ten (10) days after the work has been completed. The Tenant shall during
the term of the Contractor's Insurance monitor the limit of both the all risks
property insurance and the boiler and pressure insurance included in the
Contractor's Insurance to include the cost of changes in the work. The Tenant
shall also ensure that the Landlord is added as an additional insured to the
Contractor's Insurance. Prior to the commencement of any such work, the Tenant
shall require its general contractor to provide the Landlord with proof that the
Contractor's Insurance is in place and in good standing and to promptly provide
the Landlord, on request, a certified true copy of each insurance policy
comprising the Contractor's Insurance. If the general contractor fails to
provide or maintain the
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Contractor's Insurance as required by this section, the Landlord shall have the
right to provide and maintain such insurance, in which case the cost thereof
shall be payable by the Tenant to the Landlord on demand. In the case of an
insured loss, any deductible amount payable under the Contractor's Insurance and
paid or absorbed by the Landlord shall be reimbursed by the Tenant forthwith on
demand.
During the course of construction, the Landlord and its employees and
consultants shall have reasonable access to the Leased Premises to inspect and
examine all work being carried out, provided that such right of inspection and
examination shall not be exercised in a manner which would interfere with the
construction and completion of such work. If the Landlord gives the Tenant
Notice that the work being carried out is deficient or is otherwise not in
compliance with the approved drawings and specifications, which Notice shall
contain particulars of the alleged deficiency or non-compliance, the Tenant
shall immediately provide a copy of such Notice to the Tenant's architect and
shall immediately attempt to cure such deficiency or non-compliance by enforcing
its remedies as appropriate in accordance with the provisions of the
construction contract with its general contractor or otherwise with the
intention that such alleged deficiency or non-compliance be rectified in the
shortest possible time. The Tenant's architect shall promptly notify the
Landlord whether or to the extent he/she concurs with the provisions of the
Landlord's Notice. Either the Landlord or Tenant may refer the decision of the
Tenant's Architect to arbitration.
Within thirty (30) days of substantial completion (as such term in defined in
the Construction Lien Act, as amended or replaced from time to time) of such
work, the Tenant shall deliver to the Landlord (i) copies of all guarantees and
warranties provided by any contractors, subcontractors, or material suppliers
with respect to the work, and (ii) a certificate issued by the Tenant's
Architect certifying that the work has been completed in accordance with all
Applicable Laws and in accordance with the approved drawings and specifications.
The Tenant agrees to use its best efforts to complete any incomplete work as
noted in the Tenant's Architect's certificate (or as determined by arbitration)
promptly and in a good and workmanlike manner and agrees to use its best efforts
to cause any noted deficiencies or incomplete work to be remedied within a
reasonable period given the nature of the deficiency.
Any dispute between Landlord and Tenant arising under any provisions of this
Article which cannot be resolved by good faith negotiations shall be determined
by arbitration in accordance with the Arbitration Act, 1991 of Ontario, as
amended or replaced from time to time.
7.4 Construction or Mechanic's Lien
The Tenant shall promptly pay all charges incurred by or on behalf of the Tenant
for any work materials or services which may give rise to a privilege or
construction, mechanic's or other lien. If any such privilege or lien is
registered against the Complex or any part thereof, the Tenant shall cause such
privilege or lien to be discharged forthwith, and if the Tenant fails to do so
within ten (10) business days of Notice from the Landlord, then in addition to
any other right or remedy of the Landlord, the Landlord may but shall not be
obligated to discharge such privilege or lien by paying the amount claimed to be
due into court. The Landlord shall charge to the Tenant all costs and expenses,
including legal fees, incurred by the Landlord in discharging the
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privilege or lien, and such amount shall be payable forthwith by the Tenant upon
demand by the Landlord as Additional Rent.
7.5 No Interference with Tenant's Operations
Any work undertaken by the Landlord pursuant to this Article 7 shall be carried
out in a good and workmanlike manner at a cost structure not exceeding the cost
structure of comparable work performed by the Landlord for its own purposes, and
in such a manner as to minimize any interference, disruption or conflict with
any activities of the Tenant in the Leased Premises.
7.6 Installation of Meters
At the Tenant's request and expense, the Landlord shall install, at locations
appropriate for such purposes, devices to measure temperature and humidity
within the Leased Premises, and separate meters or sub-meters for measuring the
amount of electricity, water, chilled water, fuel, gas, steam or other material
supplied to the Leased Premises. If as a result of such metering there is a
material discrepancy between the actual consumption values and the values
allocated by the Landlord to the Tenant as the Tenant's Share of the such
components of the Complex Operating Costs for the Accounting Period in question,
the Landlord shall, within ninety (90) days thereof, adjust the Tenant's Share
of such components of the Complex Operating Costs to reflect such actual
consumption values. If the actual consumption values determined by such metering
are not material, the adjustments to reflect the metered data shall not be made
until the next Accounting Period.
7.7 Repair Where Tenant at Fault
If the Complex or any part thereof, including the Shared Areas and Facilities,
require repair or become damaged or destroyed through any act, omission,
negligence or carelessness of the Tenant, its servants, agents, employees,
contractors, sublessees, or licensees, where such damage or destruction exceeds
$10,000, the Landlord shall effect the necessary alterations, replacements or
repairs and shall charge the Tenant the cost thereof, and such amount shall be
payable forthwith by the Tenant upon demand by the Landlord as Additional Rent.
7.8 Repairs by Landlord
Subject to Section 7.7 and Article 8, the Landlord shall maintain and make such
repairs and replacements to the Common Facilities, and provided Mitel Corp. is
in actual occupation of less than eighty-five (85%) of the area of the Leased
Premises, the structural components and roof of the Leased Premises, as would a
prudent owner, and the cost thereof shall be included in Complex Operating
Costs. Notwithstanding the foregoing, so long as Mitel Corp. is in actual
occupation of not less than eighty-five percent (85%) of the area of the Leased
Premises, the Landlord shall be relieved of its obligations hereunder with
respect to the Leased Premises, it being agreed and understood that Mitel Corp.
shall assume such obligations pursuant to Section 7.1.
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7.9 Door Locks
If the Tenant replaces any lock in the Leased Premises with a high security
device, the Tenant shall on or before the Termination Date, if requested by the
Landlord, replace such high security lock with a lock equal in quality and
comparable in design to the original lock and shall surrender to the Landlord
all keys, passcodes and access codes to the Leased Premises and the Complex. The
Tenant shall provide keys or passcode access to the Landlord for all areas of
the Leased Premises for purposes of emergency maintenance, repair and loss
prevention.
ARTICLE 8
DAMAGE OR DESTRUCTION
8.1 Right to Terminate
If twenty-five percent (25%) or more of the Area of the Leased Premises is
damaged or destroyed by any cause whatsoever, to the extent that in the opinion
of the Architect the Leased Premises cannot be repaired or rebuilt with
reasonable diligence within six (6) months of the date of the occurrence of such
damage or destruction, then either party may, at its option to be exercised by
Notice to the other within the thirty (30) days next following such occurrence,
elect to terminate this Lease. If either or both parties so elect, the Term of
this Lease and the tenancy hereby created shall expire by lapse of time upon the
thirtieth (30th) day after such Notice is given, and the Tenant shall, within
such thirty (30) day period, vacate the Leased Premises and surrender the same
to the Landlord, failing which the Landlord shall have the right to re-enter and
repossess the Leased Premises discharged of this Lease and to remove all persons
and property therefrom. In no event shall the Landlord be liable to reimburse
the Tenant for damage to or replacement or repair of fixtures, floor coverings,
furniture, equipment or Leasehold Improvements.
8.2 Repair and Rebuilding
If neither party elects to terminate this Lease pursuant to Section 8.1, the
Landlord shall proceed to repair or rebuild the Complex with due diligence,
including the structural and infrastructural component of the Leased Premises,
to the extent possible with the insurance proceeds received by the Landlord from
the Landlord's insurers, or which would have been received had the Landlord
insured as required by this Lease. In repairing, reconstructing, or rebuilding
the Complex or any part thereof the Landlord may use designs, plans, and
specifications other than those used in the original construction, and may alter
or relocate, or both, any or all of the buildings, facilities and improvements,
including the Leased Premises, provided that the Leased Premises as altered or
relocated shall be of substantially the same size, and be in all material
respects reasonably comparable to the Leased Premises as defined herein,
excluding only the Leasehold Improvements. Upon its completion of its repair and
rebuilding, the Tenant shall forthwith commence and expeditiously finish the
repair and rebuilding of the interior of the Leased Premises and the Leasehold
Improvements in accordance with the provisions of Section 7.1. All such repair
and rebuilding of the interior of the Leased Premises and the Leasehold
Improvements shall be at the Tenant's cost.
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8.3 Abatement of Rent
The Rent shall ▇▇▇▇▇ in proportion to the Area of the Leased Premises rendered
untenantable by the occurrence of damage or destruction to the Complex. The
abatement of Rent shall continue until the earlier of thirty (30) days following
Notice to the Tenant from the Landlord confirming that the Landlord has repaired
or rebuilt the Leased Premises to the extent required, or the day the Tenant
opens the repaired and rebuilt portion of the Leased Premises for business.
8.4 Certificate of Architect Binding
The certificate of the Architect shall be binding upon the parties as to the
percentage of the Area of the Leased Premises and the percentage of the Gross
Building Area destroyed or damaged, the state of tenantability of the Leased
Premises, and the date upon which the Landlord's reconstruction and repair is
substantially completed.
ARTICLE 9
LANDLORD'S COVENANTS
9.1 Landlord's Covenant for Quiet Enjoyment
The Landlord hereby covenants to perform all of the obligations of the Landlord
hereunder and further covenants that if the Tenant pays the Basic Rent and
Additional Rent and continuously and strictly performs all its obligations
hereunder, the Tenant shall and may, subject to the terms and conditions of the
Lease, peaceably possess and enjoy the Leased Premises throughout the Term
without any interruption or disturbance from the Landlord or any other person or
persons lawfully claiming by, from or under the Landlord.
ARTICLE 10
TITLE OF COMPLEX
10.1 Subordination
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; and
(b) agreeing that the Term hereof shall be subsequent in priority to any
such Mortgage;
provided that the Tenant's obligations under this paragraph shall be conditional
upon any such Mortgagee entering into a non-disturbance agreement with the
Tenant under which the Tenant's continued possession of the Leased Premises
under the terms of this Lease is ensured so long as the Tenant is not in default
hereunder notwithstanding any act taken by the Mortgagee.
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10.2 Attornment
The rights of the Landlord under this Lease may be hypothecated, mortgaged,
pledged, ceded, charged, transferred or assigned to a purchaser or Mortgagee.
Upon any request of the Landlord, the Mortgagee or any purchaser, the Tenant
shall attorn to and become the tenant of such Mortgagee or such purchaser
(provided the Mortgagee or purchaser, as the case may be, accepts such
attornment) on the same terms as are contained in this Lease.
10.3 Status of Lease Statement
Upon any request of either party, the other party shall execute, acknowledge and
transmit forthwith to the requesting party a statement in writing certifying to
the requesting party (and its Mortgagee or purchaser, as applicable) that this
Lease is in full force and effect, certifying the extent of any prepayment of
Basic Rent or Additional Rent, certifying the existence or non-existence of
defaults of which such party has actual knowledge, and certifying any other
matters pertaining to this Lease as to which the requesting party shall
reasonably request a certificate.
10.4 Registration of Lease Prohibited
Each of the parties covenants with the other that it will not register this
Lease in this form against the title to the Lands, except by way of notice or
short form of lease, which notice or short form of lease shall not disclose any
financial terms of this Lease, which financial terms include, without limiting
the generality of the foregoing, rental rates, rent free, rent deferred and rent
reduced periods, and any other form of tenant inducement. The Landlord hereby
agrees to execute a short form of lease which complies with this section, if
necessary for the purpose of supporting of an application for registration of
notice of this Lease.
ARTICLE 11
USE OF LEASED PREMISES
11.1 Type of Business Permitted
The Tenant covenants not to use or permit the Leased Premises or any part
thereof to be used for any unlawful purpose, lodging, cooking, sleeping or any
other purpose other than the Permitted Use.
11.2 Compliance With Applicable Laws and Government Requirements
Subject to the provisions of section 11.5, the Tenant shall at its own expense
comply with all Applicable Laws, including Environmental Laws, applicable to the
Leased Premises and the business conducted therein, and all other present and
future requirements of all municipal, provincial, federal and other applicable
governmental authorities pertaining to the Leased Premises or the Tenant's use
thereof.
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11.3 Waste/Nuisance
The Tenant shall not commit or permit any waste or injury to the Leased Premises
including without limitation the Leasehold Improvements and trade fixtures
therein. The Tenant shall not commit or permit any nuisance in the Complex. The
Tenant shall not cause annoyance to the other occupants of the Complex by any
means including the creation of objectionable or offensive noises, vibrations or
odours and the Landlord shall determine in its sole discretion, acting
reasonably, whether such annoyance is being caused.
11.4 Rules and Regulations
The Tenant covenants and agrees that the Rules and Regulations shall in all
respects be observed and performed by the Tenant, its employees, contractors and
agents and, to the extent the Tenant can require the same, by its invitees and
others over whom the Tenant can reasonably be expected to exercise control. The
Landlord shall have available to it all remedies provided in this Lease and all
other legal remedies available at law or in equity upon a breach of the Rules
and Regulations by the Tenant. The Landlord may terminate this Lease forthwith
upon such breach if, after Notice of such breach, the Tenant fails to remedy or
commence to remedy such breach within fifteen (15) days or fails to diligently
continue to rectify such breach. The Tenant acknowledges that the Landlord has
no obligation and there shall be no liability upon the Landlord for
non-enforcement of the Rules and Regulations. The current Rules and Regulations
are set out in Schedule "D" hereto.
11.5 Environment
The Tenant's storage, generation, use, handling, manufacture, processing,
labelling, transportation, treatment, emission, discharge or release of general
wastes and Hazardous Substances in the Leased Premises and in the Complex shall
be in compliance with Environmental Law. The Tenant further covenants to provide
written notification to the Landlord of any Hazardous Substance which the Tenant
intends to bring into the Complex, unless such Hazardous Substances are in use
in the Complex as at the Commencement Date, so as to enable the Landlord to
determine whether its existing Environmental Process Management and Hazardous
Substance Control systems are capable of accommodating such Hazardous Substance.
A list of the Hazardous Substances in use in the Complex as at the Commencement
Date shall be provided to the Landlord by the Tenant on the Commencement Date.
If the Tenant wishes to bring into the Complex any Hazardous Substances which
cannot safely be accommodated by the Landlord's then existing Environmental
Process Management and Hazardous Substance Control systems, the Tenant shall on
Notice to the Landlord confirming the Tenant's intention to proceed to bring
such Hazardous Substances into the Complex, and after such time as the Landlord
shall require to implement appropriate safety measures in that regard, pay all
costs associated with the modifications or upgrades required to be made to such
systems, and for all permits and licenses required to be obtained in that
regard.
The Tenant, prior to the expiry of the Term, at its expense, shall cause an
environmental engineering firm or environmental consultant, acceptable to the
Landlord, which acceptance will not be unreasonably withheld, to conduct a Phase
II Environmental Assessment of the Environment, excluding any location where
waste from the Leased Premises has been disposed,
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to determine whether there has been any release or discharge of Hazardous
Substances to the Environment during the Term (the "Study"), the scope and
commencement date of such Study to be acceptable to the Landlord, which
acceptance will not be unreasonably withheld, and to summarise the results of
the Study in a report to the Tenant (the "Report"), which report the Tenant
shall disclose to the Landlord at least thirty (30) days prior to the expiry of
the Term. The Tenant shall undertake at its expense such remedial work, if any,
in respect of releases or discharges of Hazardous Substances to the Environment
identified in the Report as are required to bring the Environment into
compliance with Environmental Law so as not to give rise to liability on the
part of the Landlord for the removal or remediation of such Hazardous Substances
or generally for Environmental Losses (the "Remedial Work") provided it is
established that the Hazardous Substance has been released or discharged by the
Tenant.
To the extent that the Remedial Work, or any portion thereof, is required to be
undertaken or completed after the expiry of the Term, the Landlord shall ensure
the Tenant is granted a free, unlimited and unrestricted right of access to the
Complex for the purpose of allowing the Tenant, its employees, agents and
subcontractors to undertake and complete the Remedial Work. The Tenant shall use
reasonable efforts to minimize any disruption to the business of the Landlord or
any other occupant of the Complex likely to be caused by the Tenant's
undertaking the Remedial Work after the expiry of the Tenn.
Notwithstanding anything to the contrary in this Lease, Tenant shall not be
liable for or responsible for nor liable to pay any costs with respect to: (i)
Environmental Losses arising from the migration during the Term of Hazardous
Substances from another property to the Lands or from the Lands to another
property (in each case except to the extent the release of such Hazardous
Substances was caused by Tenant); and the Landlord shall indemnify and hold
harmless the Tenant, its officers and directors, and those for whom it is at law
responsible, from any claim, liability or damage arising therefrom.
ARTICLE 12
ASSIGNMENT AND SUB-LETTING
12.1 Assignment by Landlord
To the extent that the Landlord's covenants and obligations under this Lease are
assumed by a purchaser or lessee of the Complex or a portion thereof, or are
assumed by an assignee of this Lease or any interest therein, the Landlord shall
without further written agreement be freed and relieved of such covenants and
obligations.
12.2 Assignment and Subletting by Tenant
The Tenant shall not assign this Lease or part with or share the occupation,
control or possession of the Leased Premises or any part thereof without the
prior written consent of the Landlord, which consent may not be unreasonably
withheld. The Tenant may, however, without the consent of the Landlord, assign
this Lease to any corporation which is an affiliate of the Tenant (such transfer
being called an "Excepted Transfer") provided that as soon as is reasonably
practicable (and in any event prior to the effective date of the Excepted
Transfer), the Tenant shall give the Landlord Notice of such Excepted Transfer
and deliver to the Landlord an
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agreement wherein such assignee covenants to the Landlord to perform, observe
and keep each and every covenant, condition and agreement in this Lease on the
part of the Tenant to be performed, observed or kept, and further provided the
Tenant shall, notwithstanding such Excepted Transfer, remain responsible to the
Landlord for the performance of all terms, covenants, conditions and agreements
imposed upon the Tenant by this Lease. If subsequent to an Excepted Transfer,
such affiliate is no longer affiliated with the Tenant (unless the shares of
such company are listed and traded on any recognized public stock exchange or
the Tenant remains its largest single common shareholder), such event shall be
deemed to be an assignment of this Lease to which the provisions of sections
12.2 and 12.3 shall apply. For the purposes of this Section, the term
"affiliate" or "affiliated" shall have the meanings ascribed thereto in the
Canada Business Corporations Act, as amended from time to time.
Provided that the Tenant may, without the consent of the Landlord, enter into a
short term licence of a portion of the Leased Premises to a third party whose
presence in the Leased Premises is required to assist in the Tenant's business
operations ( as for example for system design or consulting purposes). In such
event, the Tenant shall give the Landlord Notice of such short term licence and
ensure that such third party observes all requirements of this Lease relating to
the use and occupation of the Complex, and notwithstanding such licence, the
Tenant shall continue to be responsible for the due and timely performance in
full of all of its obligations under this Lease.
Provided further, that the Tenant may sublease the Leased Premises, in whole or
in part, without the Landlord's prior consent but on Notice to the Landlord,
provided the Tenant first delivers to the Landlord an agreement by the subtenant
in the form attached as Schedule "F" to this Lease. Notwithstanding such
sublease, the Tenant shall continue to be responsible for the due and timely
performance in full of all of its obligations under this Lease.
12.3 Request to Assign
If the Tenant requests the Landlord's consent to an assignment of this Lease,
the Tenant shall submit to the Landlord the name and address of the proposed
assignee together with a copy of an offer or agreement to assign 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.
12.4 Assignment Agreement
The Landlord's consent to any assignment shall be conditional upon the assignee
entering into an assignment agreement in form and content satisfactory to the
Landlord, to perform, observe and keep each and every covenant, condition 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. In no event shall any assignment to which the Landlord may have
consented release or relieve the Tenant from its obligations fully to perform
all the terms, covenants and conditions of this Lease to be performed.
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12.5 Changes in Corporate Control
If the Tenant is a private corporation whose shares and those of its parent
company are not listed on a recognized public securities exchange, and if for
any reason the effective voting control of such corporation is transferred from
the person or persons having effective control of such corporation at the
Commencement Date (unless such transfer of control is to an affiliated company
of the Tenant), such transfer shall be deemed to be an assignment of this Lease
to which the provisions of sections 12.2 and 12.3 shall apply (it being agreed
and understood that if subsequent to such transfer, the transferee is no longer
affiliated with the Tenant, (unless the shares of such company are listed on a
recognized public securities exchange or the Tenant remains its largest single
common shareholder), such event shall be deemed to be an assignment of this
Lease to which the provisions of sections 12.2 and 12.3 shall apply. The Tenant
shall advise the Landlord in writing forthwith of any such change in effective
voting control and shall make available to the Landlord for inspection, copying
or both, all books and records of the Tenant and affiliated company which alone
or with other data show the person, persons or entity having effective voting
control of the Tenant and affiliated company. The Landlord may terminate this
Lease upon thirty (30) days' Notice if such books and records are not made
available as requested by the Landlord. For the purposes of this section, the
term "affiliate" or "affiliated" shall have the meanings ascribed thereto in the
Canada Business Corporations Act, as amended from time to time.
ARTICLE 13
DEFAULT OF TENANT
13.1 Landlord's Right of Re-Entry
If the Tenant shall be in default of any of its covenants hereunder, the
Landlord shall give to the Tenant Notice in writing stating that the said
default is to be remedied and that if such default is not remedied by the Tenant
within fifteen (15) days after the receipt of such Notice, or such longer period
as may be reasonably necessary in view of the nature of the default, the
Landlord may, at its option, either enter into and upon the said Leased Premises
or any part thereof in the name of the whole, and this Lease shall be
terminated; or the Landlord itself may take such steps and do or cause to be
done such things as may be necessary to remedy and correct such defaults and may
thereupon charge its total reasonable costs and expenses, including legal fees,
incurred in respect thereof to the Tenant, who hereby covenants and agrees to
pay the same forthwith and further covenants that any and all such costs and
expenses incurred by the Landlord and unpaid by the Tenant shall be recoverable
by the Landlord as Additional Rent as if the same were and in the same manner as
Rent reserved and in arrears under the terms of this Lease.
13.2 Bankruptcy of Tenant and Other Events of Default
All arrears of Basic Rent, together with the Basic Rent and Additional Rent for
the next ensuing three (3) months shall immediately become due and be paid as
accelerated rent in the same manner as if it were Basic Rent in arrears in each
of the following cases: if any of the Tenant's goods and moveable effects and
chattels on the Leased Premises are seized or taken in execution or attachment
by any creditor of the Tenant, or if the Tenant shall make any assignment for
the
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benefit of creditors, or if the Tenant makes any bulk sale other than a bulk
sale to an assignee or sublessee pursuant to an assignment or sublease consented
to under Article 12, or if the Tenant becomes bankrupt or insolvent or takes the
benefit of any statute now or hereafter in force for bankrupt or insolvent
debtors, or if any order is made or proceedings taken for the winding-up of the
Tenant or for the termination of its existence, or if the Leased Premises are
used by any other persons than those entitled to use them under the terms of
this Lease, or if a trustee or receiver or any person, firm or corporation in
any capacity whatsoever takes or obtains possession or effective control of the
assets of the Tenant, or a substantial portion thereof, or of the conduct of the
Tenant's business, or a substantial portion thereof, pursuant to any security or
other agreement other than pursuant to a permitted assignment. In each of the
above cases the Landlord may terminate this Lease by Notice to the Tenant and
may re-enter and take possession of the Leased Premises as though the Tenant or
any other occupant of the Leased Premises were holding over after the expiration
of the Term, and any Notices required to be given in such circumstances being
deemed to have been given and the notice period prescribed therein expired.
13.3 Excuse of Performance
Notwithstanding anything contained in this Lease, neither the Landlord nor the
Tenant shall be deemed to be in default with respect to the performance of any
of the terms, covenants and conditions of this Lease, except the Tenant's
obligations to pay Basic Rent and Additional Rent, if such default is due to
Unavoidable Delay.
13.4 Cross - Default
A default by the Tenant of its obligations under any other lease between the
Tenant and the Landlord shall constitute a default under this Lease and any
default under this Lease by the Tenant shall constitute a default by the Tenant
under such other lease.
ARTICLE 14
LANDLORD'S RIGHT OF ACCESS
14.1 Right of Access and Method of Re-Entry
The Landlord and its representatives, employees, contractors and agents who have
received prior security clearances and have been issued contractor badges shall
have the right to enter the Leased Premises during the Tenant's normal business
hours upon reasonable prior Notice, or at any time without notice during an
emergency, as determined by the Landlord, to examine the state of the Leased
Premises and of the Leasehold Improvements, equipment and fixtures therein, to
make such changes, repairs, alterations, improvements, additions or
installations in and to the Complex as the Landlord is otherwise entitled or
required to carry out pursuant to this Lease and to take into the Leased
Premises all material and equipment required in connection with the foregoing.
The Landlord or its employees, contractors or agents shall have the right to
enter the Leased Premises in the company of a representative of the Tenant,
during normal business hours upon reasonable prior Notice to show the Leased
Premises to any prospective assignee of the Head Lease or Mortgagee. In the case
of emergency, if the Leased Premises are locked the Landlord or its employees,
contractors or agents may enter the Leased Premises using a master
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key or passcode, if available, and, in the case of an emergency, by force if
necessary without liability of any type of the Landlord to the Tenant.
14.2 Building Systems
Where any part of the building systems adjacent to the Leased Premises require
maintenance or repair, the Tenant shall on reasonable prior Notice permit the
Landlord to enter upon the Leased Premises in the company of a representative of
the Tenant to do such work as the Landlord deems necessary. The Landlord shall
undertake its reasonable efforts to co-operate with the "Risk Work Plan" process
of the Tenant where such repairs and/or maintenance may impact on the Tenant's
operations. For the purposes of this Section, "Risk Work Plan" shall mean those
policies and procedures which the Tenant itself has in place ensuring that no
detrimental impact is made on and protection is given to the manufacturing
process or other work being carried out in the Leased Premises.
14.3 Obligations of Tenant and Landlord
No entry under Article 14 shall constitute an eviction of the Tenant in whole or
in part, and the Basic Rent and Additional Rent shall not ▇▇▇▇▇ while changes,
repairs, alterations, improvements, additions or installations in and to the
Complex are being made. Nor shall any such entry affect the obligations and
covenants of the Tenant under this Lease, and the Tenant shall have no claim by
reason of loss or interruption of business. Nothing in this Article 14 shall be
deemed or construed to impose upon the Landlord any obligation, responsibility
or liability for the care, maintenance or repair of the Leased Premises, or any
part thereof save as otherwise expressly set out in this Lease.
ARTICLE 15
SHARED AREAS AND FACILITIES
15.1 Non-Exclusive Right to Use Shared Areas and Facilities
Subject to section 17.2 and the other terms and conditions of this Lease, the
Tenant, its officers, employees and customers shall have the right, in common
with others designated by the Landlord or otherwise entitled, to use the Shared
Areas and Facilities for their proper and intended purpose provided, however, no
access shall be permitted to service, janitorial and mechanical rooms,
transformer vaults, electrical distribution rooms or water meter rooms. The
Tenant acknowledges that the Shared Areas and Facilities are under the exclusive
control and management of the Landlord and that the Tenant is permitted to use
the Shared Areas and Facilities under an irrevocable licence. If changes are
made to the Shared Areas and Facilities by the Landlord, the Landlord shall not
be subject to any liability nor shall the Tenant be entitled to any compensation
or any diminution or abatement of Rent and such changes shall not be deemed to
be a constructive or actual eviction or a breach of the Landlord's covenant for
quiet enjoyment, unless such changes represent a material interference with the
normal business operations of the Tenant at the Leased Premises.
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15.2 Alterations to Shared Areas and Facilities
The Landlord shall have the right at any time from time to time during the Term
to change, add to, subtract from, rearrange or alter the Shared Areas and
Facilities and other parts of the Complex including the Lands and all buildings
thereon, to dedicate portions of the Lands for municipal and other governmental
purposes and to convey portions of the Lands to others for any purposes
whatsoever. The Landlord shall use its best efforts not to materially interfere
with the normal business operations of the Tenant, but the Landlord shall not be
liable to the Tenant for any interference or inconvenience caused by any action
of the Landlord under the provisions of this Section 15.2 unless such actions
represent a material interference with the normal business operations of the
Tenant at the Leased Premises.
ARTICLE 16
INTERPRETATION AND MISCELLANEOUS
16.1 No Partnership
Nothing contained in this Lease or in any acts of the parties hereto shall be
construed to create any relationship between the parties other than that of
Landlord, Tenant and Covenantor, if any, or to create a relationship of
partnership or of joint venture between the parties hereto, or to constitute
this Lease as an emphyteutic lease, or to create any right of ownership in the
Tenant.
16.2 Agency
The Tenant acknowledges that the Landlord may perform any or all of the
Landlord's obligations or exercise any of the Landlord's rights hereunder
through or by means of such manager, or other agency or agencies as the Landlord
may from time to time determine.
16.3 Lease is Entire Agreement
With the exception of the Acquisition Agreement, this Lease sets forth the
entire agreement between the Tenant and the Landlord with respect to the Leased
Premises. Any offer to lease or agreement to lease entered into by the Landlord
and Tenant prior to the execution of this Lease shall be deemed to have been
merged and extinguished in this Lease. No amendment or addition to this Lease
will bind the Landlord or the Tenant unless such amendment or addition is in
writing and signed by all parties to this Lease.
16.4 Joint and Several Liability
The liability to pay Rent and perform all other obligations under this Lease of
each individual, corporation, partnership or business association signing this
Lease and of each member of any such partnership or business association, the
members of which are by law subject to personal liability, shall be deemed to be
joint and several.
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16.5 Governing Law
This Lease shall be construed and governed by the laws of the Province of
Ontario and the laws of Canada applicable therein, and for this purpose each
party attorns to the exclusive jurisdiction of the courts of the Province of
Ontario in respect of any dispute under this Lease.
16.6 Interpretation
Words importing the singular number shall include the plural and words importing
firms and corporations shall include persons. Each obligation of the Tenant in
this Lease, although not expressed as a covenant, is considered to be a covenant
for all purposes. The article and section headings and index of this Lease form
no part hereof and are inserted for convenience only. If any section, article,
paragraph, sub-paragraph, clause or sub-clause in this Lease is held invalid or
unenforceable by any court of competent jurisdiction, this Lease shall be
interpreted as if such section, article, paragraph, sub-paragraph, clause or
sub-clause had not been a part of this Lease.
16.7 Successors and Assigns
This Lease shall be binding upon, extend to and enure to the benefit of the
Landlord, Tenant and Covenantor, if any, and to each of their respective,
successors and permitted assignees.
16.8 Reasonableness
Except where specifically provided to the contrary in this Lease:
(a) whenever this Lease requires an approval, consent or authorization
by the Landlord or an agent of the Landlord, the approval, consent
or authorization shall not be unreasonably withheld or delayed;
(b) whenever this Lease requires a determination, estimation or other
action or exercise of discretion by the Landlord or an agent of the
Landlord, the determination, estimation, action or exercise of
discretion shall be reasonable and in accordance with any applicable
professional practice and standards; and
(c) whenever this Lease provides for costs, expenses and fees to be paid
by the Tenant, the costs, expenses and fees shall be reasonable.
16.9 Counterparts and Facsimile
This Lease may be executed in any number of counterparts. Each executed
counterpart shall be deemed to be an original and all executed counterparts
taken together shall constitute one agreement. Each of the parties hereto may
execute this Lease by signing any such counterpart. Each party hereto agrees
that a copy of any signature page of this Lease with a facsimile form of the
signature of the person or persons signing this Lease on behalf of such party
shall constitute all required evidence of the execution and delivery of this
Lease by such party.
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ARTICLE 17
SPECIAL PROVISIONS
17.1 Exercise of Rights by Landlord
Landlord shall act reasonably and as a prudent owner in exercising all rights
and so as not to interfere more than is reasonably necessary under the
circumstances with Tenant's use and enjoyment of the Premises.
17.2 Parking
The Tenant shall have access and use of, in common with other occupants of the
Complex, and at no additional cost, three (3) unreserved parking spots on the
designated parking areas on the Lands for every 1,000 square feet of the Area of
the Leased Premises for the use of its employees and visitors.
17.3 Security
The Tenant shall comply with security measures in place for the Complex. The
Landlord shall consult with the Tenant in the establishment or changes to such
requirements for the Leased Premises, provided that any special requirements of
the Landlord or the Tenant shall be at such party's costs.
17.4 Cleaning/Janitorial Services/Garbage Removal
The Tenant shall at its sole cost and expense, provide janitorial and garbage
removal services to the Leased Premises as would a prudent owner. The Tenant
shall ensure that materials subject to hazardous waste regulations or other
Environmental Laws are disposed of by Tenant at Tenant's expense as required by
such Environmental Laws, and where so prohibited, not as part of the regular
garbage. The Landlord may from time to time monitor the disposal and removal of
all general waste and Hazardous Substances. The Landlord's costs and expenses
associated with such activities shall be charged to the Tenant as an additional
service pursuant to section 4.3.
17.5 Emergency Response Team
The Landlord and Tenant shall cooperate in the establishment and operation of a
joint emergency response team with the purpose of responding to all
environmental, health and safety emergencies at the Leased Premises.
ARTICLE 18
CONSTRUCTION
18.1 Construction Obligations of the Tenant
(a) The Tenant covenants and agrees that it shall at its sole cost and
expense Complete the construction of the Leased Premises (which have
been designed to comprise approximately 103,000 square feet, more or
less, of rentable area) on the
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Phase V Lands in the location shown on the Site Plan, and the
attendant exterior amenities (including without limitation, all
parking areas, driveways and landscaping) in accordance with the
Site Plan (including without limitation, making the necessary
financial deposits to the municipality) and the Plans and
Specifications (collectively, the "Phase V Work"). The Tenant shall
not vary or amend the Site Plan or the Plans and Specifications
without having first obtained the prior written consent of the
Landlord. The Landlord need not consent to any change or revision
which in its opinion, acting reasonably, adversely affects the
structure of the building, reduces building functionality, or the
aesthetics of the interior or exterior of the building, or reduces
the useful life of the building, or generally degrades the quality
of the building. The Landlord confirms that if it has not provided
its acceptance or rejection of a proposed change or revision within
ten (10) business days of Notice from the Tenant, it shall be deemed
to have accepted such change or revision. All agreed amendments to
the Plans and Specifications shall be dated and initialled by the
parties for identification purposes.
(b) The Phase V Work shall be carried out in a good and workmanlike
manner and with quality materials in accordance with the Site Plan
and Plans and Specifications, and in compliance with building
permits and site plan approvals therefor and Applicable Laws.
Services required for the Leased Premises as of the Date of
Substantial Completion shall be installed and paid for by the Tenant
and the Tenant shall not arrange for the installation of such
services by the regional, metropolitan or municipal government in
such a way that the cost thereof shall be assessed as a local
improvement, impost, levy or charge to be included in Taxes levied
against the Complex or the Leased Premises. The Tenant agrees to
initially retain ▇▇▇▇▇ Contractors Limited as general contractor to
perform the Phase V Work. Tenant agrees that it will not change the
general contractor without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or
delayed. The Landlord confirms that if it has not provided its
acceptance or rejection of a proposed replacement general contractor
within ten (10) business days of Notice from the Tenant, it shall be
deemed to have accepted such replacement general contractor.
(c) The Tenant shall ensure that its general contractor replacement
general contractor, as the case may be, takes out and keeps in force
contractor's general liability insurance, all risks property
insurance insuring physical loss or damage to the Phase V Work
during the course of construction, including without limitation,
damage due to flood or earthquakes, for the full replacement value
of the Phase V Work, and boiler and pressure vessel insurance issued
on a broad form basis in an amount not less than replacement value
(collectively, the "Contractor's Insurance"). The term of each
policy of insurance comprising the Contractor's Insurance shall be
from the date of the commencement of the Phase V Work until ten (10)
days after the Phase V Work has been completed. The Tenant shall
during the term of the Contractor's Insurance monitor the limit of
both the all risks property insurance and the boiler and pressure
insurance included in the Contractor's Insurance to include the cost
of changes in the Phase V Work. The
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Tenant shall also ensure that the Landlord is added as a named
insured, as "Owner" both to the all risk property insurance and the
boiler and pressure vessel insurance included in the Contractor's
Insurance, and as an additional insured to the Contractor's general
liability policy. Prior to the Commencement Date, the Tenant shall
require its general contractor or replacement general contractor, as
the case may be, to provide the Landlord with proof that the
Contractor's Insurance is in place and in good standing and to
promptly provide the Landlord, on request, a certified true copy of
each insurance policy comprising the Contractor's Insurance. If the
general contractor or replacement general contractor, as the case
may be, fails to provide or maintain the Contractor's Insurance as
required by this subsection 18.1(c), the Landlord shall have the
right to provide and maintain such insurance, in which case the cost
thereof shall be payable by the Tenant to the Landlord on demand. In
the case of an insured loss, any deductible amount payable under the
Contractor's Insurance and paid or absorbed by the Landlord shall be
reimbursed by the Tenant forthwith on demand.
(d) The Tenant shall diligently proceed to obtain all necessary permits
and approvals and as soon as possible and following the obtaining
thereof shall proceed with the construction and completion of Phase
V Work.
(e) During the course of construction, the Landlord and its employees
and consultants shall have reasonable access to the Leased Premises
to inspect and examine all work being carried out, provided that
such right of inspection and examination shall not be exercised in a
manner which would interfere with the construction and completion of
the Phase V Work. If the Landlord gives the Tenant Notice that the
Phase V Work being carried out is deficient or is otherwise not in
compliance with the Plans and Specifications or the Site Plan, which
Notice shall contain particulars of the alleged deficiency or
non-compliance, the Tenant shall immediately provide a copy of such
Notice to the Tenant's Architect and shall immediately attempt to
cure such deficiency or non-compliance by enforcing its remedies as
appropriate in accordance with the provisions of the construction
contract with its general contractor or otherwise with the intention
that such alleged deficiency or non-compliance be rectified in the
shortest possible time. The Tenant's Architect shall promptly notify
the Landlord whether or to the extent he/she concurs with the
provisions of the Landlord's notice. Either the Landlord or Tenant
may refer the decision of the Tenant's Architect to arbitration.
(f) Within thirty (30) days of the Date of Substantial Completion, the
Tenant shall deliver to the Landlord (i) copies of all guarantees
and warranties provided by any contractors, subcontractors, or
material suppliers with respect to the Phase V Work, and (ii) a
certificate issued by the Tenant's Architect certifying that the
Phase V Work has been Completed in accordance with all Applicable
Laws and in accordance with the Site Plan and the Plans and
Specifications. The Tenant agrees to use its best efforts to
complete any incomplete work as noted in the Tenant's Architect's
certificate (or as determined by arbitration) promptly and in a good
and workmanlike manner and agrees to use its best efforts to cause
any
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noted deficiencies or incomplete work to be remedied within a
reasonable period given the nature of the deficiency.
(g) Any dispute between Landlord and Tenant arising under any provisions
of this Article which cannot be resolved by good faith negotiations
shall be determined by arbitration in accordance with the
Arbitration Act, 1991 of Ontario, as amended or replaced from time
to time.
ARTICLE 19
IMPROVEMENT ALLOWANCE
19.1 Improvement Allowance
Provided the Tenant is not then in default, the Landlord shall pay to the
Tenant, once only as a contribution toward the cost of the Phase V Work to be
carried out by the Tenant pursuant to Article 18, an improvement allowance in
the amount of One Hundred and Twenty Dollars ($120) multiplied by the number of
square feet comprising the Area of the Leased Premises.
Such improvement allowance shall be paid to the Tenant upon the later of:
(a) the Completion of the Phase V Work;
(b) the expiration of all applicable statutory construction lien periods
with respect to the Phase V Work;
(c) receipt by the Landlord from the Tenant of each of the following:
(i) a statutory declaration of an officer of the Tenant that the
Phase V Work has been Completed, the statutory construction
lien periods with respect to the Phase V Work have expired and
no liens are outstanding, all accounts for work, services and
material have been paid and that the Tenant has met all its
obligations to its contractors, subcontractors and suppliers
with respect to the Phase V Work;
(ii) evidence of compliance with the requirements of the Province
of Ontario with regard to worker's compensation insurance
including all payments due thereunder;
(iii) evidence in a form satisfactory to the Landlord, acting
reasonably, that the Phase V Lands comply with all applicable
zoning provisions as a stand-alone parcel of land so as to
permit the financing and re- sale of the Phase V Lands as a
separate parcel of land, including without limitation, if
required, an access and parking arrangement in accordance with
the subdivision control provisions of the Planning Act
(Ontario) with the Landlord as owner of the adjoining parcels
of lands (it being agreed and understood by the parties that
such parking and access may have to be located on such
adjoining lands notwithstanding anything in this Lease to
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the contrary), a minor variance of the setback requirement of
the municipality, and a minor variance to the applicable
zoning bylaw or a zoning bylaw amendment, as applicable,
permitting the whole of the Leased Premises to be used for
office purposes, in each case at the sole cost and expense of
the Tenant and on terms satisfactory to the Landlord, acting
reasonably; and
(iv) if requested by the Landlord, copies of all contracts,
subcontracts, invoices and any other documentation which
evidences the cost of the Phase V Work; and
(d) the Tenant shall have commenced carrying on business from the Leased
Premises.
Concurrent with the payment of the improvement allowance, the Tenant shall
deliver to the Landlord a waiver in writing of the Tenant's Option (as defined
in section 19.2 of this Lease) confirming that the Option is void and of no
further force or effect.
19.2 Option to Purchase
If the Landlord fails to pay to the Tenant the improvement allowance described
in section 19.1 of this Lease as and when required by section 19.1 of this
Lease, assuming any arbitration commenced with respect to any dispute between
the Landlord and the Tenant regarding the provisions of Article 19 shall have
been either completed and a decision rendered by the arbitrator or arbitrators,
as the case may be, in respect of the same, or such arbitration has been
abandoned by the consent of the parties, the Landlord grants to the Tenant an
option (the "Option") to purchase the Phase V Lands together with all
improvements thereon, including without limitation, the Leased Premises, from
the Landlord at the price and upon the terms and conditions more particularly
set out in this section 19.2.
19.2.1. The Option shall be exercised by Notice by the Tenant to the Landlord
that unless the Landlord pays the improvement allowance, or the amount
then remaining outstanding, as the case may be, within ten (10) days of
the Landlord's receipt of the Tenant's Notice (the "Cure Period"), the
Tenant shall be deemed to have exercised its Option. The Tenant's Notice
exercising the Option shall specify the date for the completion of the
purchase (the "Closing Date"), which date shall be not later than thirty
(30) days following the expiration of the Cure Period. In the event of
and upon: (a) the exercise of the Option in the manner set out in this
subsection 19.2.1 and (b) the Landlord's failure to pay the improvement
allowance, or the amount then remaining outstanding, as the case may be,
within the Cure Period; this section 19.2 and the Tenant's Notice
exercising the Option shall then become a binding agreement of purchase
and sale between the parties to be completed upon the terms set out in
this section 19.2. If the Landlord pays the improvement allowance in
full within the Cure Period, the Option shall be null and void and of no
further force or effect.
19.2.2. The purchase price payable for the Phase V Lands shall be One Hundred
and Seventy-Five Thousand Dollars ($175,000) per acre of land comprising
the Phase V Lands plus the amount, if any, paid by the Landlord to the
Tenant on account of the improvement
-36-
allowance prior to the expiration of the Cure Period. The exact area of
the Phase V Lands shall be as set forth in a surveyor's certificate to
be delivered by the Landlord to the Tenant within twenty (20) days
following the expiration of the Cure Period. The purchase price shall be
paid and satisfied in full by certified cheque or bank draft on the
Closing Date. The purchase price shall be subject to adjustment for
pre-paid Rents but shall not otherwise be subject to adjustment.
19.2.3. The Landlord represents and warrants to the Tenant that:
(a) it is not and will not at the Closing Date be a non-resident
of Canada within the meaning of the Income Act of Canada;
(b) it is a corporation dully incorporated and organized and
validly existing under the laws of the Province of Ontario;
(c) it has all necessary corporate authority to grant the Option
and, in the event of the exercise of the Option by the Tenant,
the completion of the transaction contemplated in the Option
will be duly authorized by all necessary corporate action on
the part of the Landlord;
(d) the granting of the Option and the completion of the
transaction contemplated hereby will not result in the
violation of any indenture or other agreement, written or
oral, to which the Landlord may be a party or by which the
Landlord is bound; and
(e) on the Closing Date, the Phase V Lands shall be free and clear
of all encumbrances, except (i) encumbrances to be discharged
from the purchase price payable to the Landlord where the
Landlord has delivered to the Tenant a signed statement of the
encumbrancer as to the amount required to obtain a discharge
of the encumbrance on the Closing Date together with a
direction executed by the Landlord authorizing payment of that
amount from the purchase price directly to the encumbrancer
and the Landlord's solicitor's undertaking to obtain and
register a discharge of the encumbrance within a reasonable
time after the Closing Date, (ii) those encumbrances existing
when the Landlord obtained title to the Phase V Lands from the
Tenant, and (iii) any other encumbrances which have been
agreed to by the Tenant in writing or incurred by or on behalf
of the Tenant, or as a result of any act or omission of the
Tenant or those for whom the Tenant is in law responsible,
including without limitation, any municipal agreements or
easements required by or entered into as a result of the Phase
V Work.
The representations and warranties contained in this subsection
19.2.3 shall be true and correct as of the Closing Date and a
certificate to this effect will be delivered by the Landlord to
the Tenant on closing.
The Tenant acknowledges that except as set forth in this
subsection 19.2.3, the Option granted hereunder and any
purchase by the Tenant of the Phase V Lands are made without
representations and warranties by the Landlord and are made on
the completely "as is, where is" basis without recourse to the
Landlord.
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19.2.4. The deed or transfer conveying the Phase V Lands shall be prepared at
the expense of the Tenant. The Tenant may direct that the Phase V Lands
be conveyed by the Landlord to a transferee other than the Tenant. If
requested by either the Landlord or the Tenant, the other party will
deliver on closing the statements contemplated by subsection 50(22) of
the Planning Act of Ontario.
The Option and any agreement of purchase and sale arising from its
exercise shall be subject to compliance with the subdivision control
provisions of the Planning Act of Ontario, as amended from time to time,
which compliance shall be at the sole expense of the Tenant.
IN WITNESS WHEREOF...
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IN WITNESS WHEREOF the parties hereto have executed this Lease.
DATED this 27th day of March, 2001
MITEL RESEARCH PARK CORPORATION
Per: /s/
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
Per:
--------------------------------
Name:
Title:
I/We have the authority to bind the
corporation
DATED this 27th day of March, 2001
MITEL CORPORATION
Per: /s/
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Treasurer
I/We have the authority to bind the
corporation
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SCHEDULE "A-1"
LEGAL DESCRIPTION OF THE LAND
PIN 04517-0533 (LT)
Parcel 8-1, in the Register for Section 4M-280, being Block 8 on Plan 4M-280,
save and except Parts 19 and 20 on Plan 4R-11340, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0535 (LT)
Parcel 10-1, in the Register for Section 4M-280, being Block 10 on Plan 4M-280,
Subject to Instrument Numbers LT237263, LT476569 and NS62066, in the City of
Ottawa, formerly City of Kanata.
PIN 04517-0537 (LT)
Parcel 12-1, in the Register for Section 4M-280, being Block 12 on Plan 4M-280,
Subject to Instrument Numbers LT237263 and LT476569, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0560 (LT)
Parcel 26-1, in the Register for Section 4M-280, being Block 26 on Plan 4M-280,
Subject to Instrument Numbers LT405509, LT646448, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0561 (LT)
Parcel 27-1, in the Register for Section 4M-280, being Block 27 on Plan 4M-280,
Subject to Instrument Numbers LT405509, LT646448, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0562 (LT)
Parcel 28-1, in the Register for Section 4M-280, being Block 28 on Plan 4M-280,
Subject to Instrument Numbers LT405509, LT646448, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0569 (LT)
Parcel 33-3, in the Register for Section 4M-280, being Part of Block 33 on Plan
4M-280, being Parts 2 and 17 on Plan 4R-4098, Subject to Instrument Numbers
LT323584 and LT236161, in the City of Ottawa, formerly City of Kanata.
PIN 045717-0574(LT)
Parcel 34-3, in the Register for Section 4M-280, being Part of Block 34, Plan
4M-280, being Parts 1 and 18 on Plan 4R-4098, Subject to Instrument Number
LT323584, in the City of Ottawa, formerly City of Kanata.
-40-
PIN 04517-0577 (LT)
Parcel 35-1, in the Register for Section 4M-280, being Block 35 on Plan 4M-280,
Subject to Instrument Number LT323584, in the City of Ottawa, formerly City of
Kanata.
PIN 04517-0578 (LT)
Parcel 36-1, in the Register for Section 4M-280, being Block 36 on Plan 4M-280,
Subject to Instrument Number LT323584 and LT236161, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0644 (LT)
Block 9 on Plan 4M-280, Save and Except Parts 1, 2 and 3 on Plan 4R-11713, in
the City of Ottawa, formerly City of Kanata.
PIN 04517-0646 (LT)
Block 11 on Plan 4M-280, Save and Except Part 4 on Plan 4R-11713, in the City of
Ottawa, formerly City of Kanata. Subject to an Easement in favour of ▇▇▇▇ Canada
over Part 2 on Plan 5R-4290, as in Instrument Number NS62066, subject to an
Easement in favour of The Corporation of the City of Nepean, as in Instrument
No. LT237263, in the City of Ottawa, formerly City of Kanata.
PIN 04517-0648 (LT)
Block 13 on Plan 4M-280, save and Except Part 5 on Plan 4R-11713, Kanata.
Subject to an Easement in favour of the Corporation of the City of Kanata, as in
Instrument Number LT237263, subject to an Easement in favour of ▇▇▇▇ Canada over
Part 6 on Plan 4R-11713, as in Instrument No. LT966819, in the City of Ottawa,
formerly City of Kanata.
PIN 04517-0650 (LT)
Block 14 on Plan 4M-280, Save and Except Part 7 on Plan 4R-11713, Kanata,
subject to an Easement in favour of ▇▇▇▇ Canada over Part 9 on Plan 4R-11713, as
in LT966819, in the City of Ottawa, formerly City of Kanata.
PIN 04517-0652 (LT)
Part of Block 15 on Plan 4M-280, being Part 10 on Plan 4R-11713, Kanata, subject
to an Easement in favour of the Corporation of the City of Kanata, as in
Instrument No. LT476569, in the City of Ottawa, formerly City of Kanata.
PIN 04517-0660 (LT)
Block 22 on Plan 4M-280, Save and Except Parts 11 and 12 on Plan 4R-11340,
subject to an Easement in favour of the Corporation of the City of Kanata, as in
LT236160, in the City of Ottawa, formerly City of Kanata.
-41-
PIN 04517-0662 (LT)
Block 23 on Plan 4M-280, Save and Except Parts 13 and 14 on Plan 4R-11340, in
the City of Ottawa, formerly City of Kanata.
PIN 04517-0664 (LT)
Block 24 on Plan 4M-280, Save and Except Parts 15 and 16 on Plan 4R-11340, in
the City of Ottawa, formerly City of Kanata.
PIN 04517-0666 (LT)
Block 25 on Plan 4M-280, Save and Except Parts 17 and 18 on Plan 4R-11340,
Subject to an Easement in favour of ▇▇▇▇ Canada over Part 6 on Plan 4R-4626, as
in Instrument Number LT405509, in the City of Ottawa, formerly City of Kanata.
-42-
SCHEDULE "A-2"
LEGAL DESCRIPTION OF THE PHASE V LANDS
PIN 04517-0664 (LT)
Block 24 on Plan 4M-280, Save and Except Parts 15 and 16 on Plan 4R-11340, in
the City of Ottawa, formerly City of Kanata.
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SCHEDULE "B-1"
SITE PLAN SHOWING THE LANDS
[SITE PLAN MAP]
-44-
SCHEDULE "B-2"
SITE PLAN SHOWING THE PHASE V LANDS
[SITE PLAN MAP]
-45-
SCHEDULE "C"
LEASED PREMISES SHOWN IN HEAVY BLACK OUTLINE
[LEASED PREMISES MAP]
-46-
SCHEDULE "D"
RULES AND REGULATIONS
1. Animals and Birds
No animals (except seeing eye dogs) or birds shall be kept in the Leased
Premises.
2. Care of Interior of Leased Premises
The Tenant shall keep the interior of the Leased Premises clean, orderly
and tidy. The Tenant shall keep perishable items properly refrigerated.
The Tenant shall deposit all debris, trash and recyclables in appropriate
areas, at times and in such manner as the Landlord shall reasonably
designate.
3. Doors, Windows and Window Coverings
The skylights and windows that reflect or admit light into any place in
the Complex shall not be covered or obstructed by the Tenant, and no
awnings, curtains or blinds shall be installed without the prior written
consent of the Landlord. Windows and doors shall not be left open so as to
admit rain or snow or to interfere with the heating or cooling of the
Complex. The Tenant shall not and shall not permit its employees,
contractors, agents or invitees to throw anything out of the windows or
doors of the Complex or into any passageways, stairways, lightwells, or
elevator shafts of the Complex.
4. Loading, Unloading, Delivery of Merchandise
Deliveries, shipments and all loading and unloading of all items to and
from the Leased Premises shall be made at and from the Tenant's loading
bays in such manner as the Landlord shall reasonably designate.
5. Obstruction of Plumbing and Washroom Facilities
The Tenant agrees that it will not use or permit its employees,
contractors, agents or invitees to use the plumbing or washroom facilities
of the Leased Premises or the Complex for any purpose other than that for
which they were constructed.
6. Overloading of Floors
The Tenant shall not permit any floor of the Leased Premises to be
overloaded. All equipment and other heavy objects liable to injure or
destroy any part of the Leased Premises or the Complex shall be moved at
such times, by such means and by such persons as the Landlord shall
reasonably direct. Upon the termination of this Lease the Tenant shall
forthwith inform the Landlord in writing of the combinations of all locks,
safes and vaults in or on the Leased Premises.
-47-
7. Parking
The Tenant and all persons employed by or doing business with the Tenant
shall park not more than the number of motor vehicles which the Landlord
has expressly permitted, provided that no person or tenant shall have the
exclusive use of any particular parking space and no motor vehicle shall
be parked on any portion of the Complex which is a loading zone or is not
designated by the Landlord for parking or where signs are in place
indicating that parking is prohibited and the Tenant shall reimburse the
Landlord on demand for the cost of removal of any motor vehicle which is
parked in excess of the number expressly allowed by the Landlord, parked
for a period of time deemed by the Landlord to be excessive or parked in
breach of this clause and which belong to or is parked by any person
employed by or doing business with the Tenant.
8. Radio and Television
The Tenant shall remove any radio, television or other similar device in
the Leased Premises if in the judgement of the Landlord and in agreement
with the Tenant such radio, television or other similar device is creating
a nuisance. The Tenant shall not in any case erect or cause to be erected
any aerial anywhere in the Complex without the express written consent of
the Landlord.
9. Signs, Advertising and Displays
The Tenant shall not, in or about the Leased Premises without the written
consent of the Landlord, erect exterior signs, install window or door
signs, affix window or door lettering, erect awnings or canopies or
display advertising media or devices which may be seen or heard outside
the Leased Premises. The Tenant shall remove forthwith all signs,
lettering, awnings, canopies and displays which are found by the Landlord
to be objectionable. The Tenant shall indemnify and save harmless the
Landlord from all claims, demands, loss or damage to any person or
property arising out of or in any way caused by the erection, maintenance,
or removal of any sign or other installation erected or installed on or
about the exterior of the Leased Premises. The Tenant shall at its own
expense, maintain in good condition and repair all such signs, lettering,
awnings, canopies and displays, shall keep all displays and signs lit
during reasonable business hours and shall observe and comply with all
requirements of any competent authority regarding the erection and
maintenance of signs including the payment of licence or other fees.
10. Temperature and Humidity of Leased Premises
To the extent that the Tenant may exercise control, the Tenant shall keep
the Leased Premises at a temperature sufficient to prevent the freezing of
pipes in the Leased Premises and the Tenant shall keep the temperature and
humidity of the Leased Premises at a reasonable level. The Tenant shall
not vent the Leased Premises into other enclosed parts of the Complex nor
appropriate warm or cool air from other enclosed parts of the Complex.
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11. Use of Entrances, Etc.
The sidewalks, entrances, lobbies, elevators, stairways and corridors (if
applicable) of the Complex shall not be obstructed by the Tenant or used
by it f or any other purpose than for ingress and egress to and from the
Leased Premises and the Tenant shall not place or allow to be placed in
any such areas any waste paper, dust, garbage, refuse or anything whatever
that shall tend to make such areas appear unclean or untidy.
12. Wheeled Vehicles
All wheeled vehicles used within the Leased Premises shall be equipped
with rubber wheels and rubber guards so as not to damage the floors and
walls of the Complex. No motorized vehicles shall be permitted for loading
or unloading or parking purposes within the Leased Premises other than
electrically or propane operated material handling equipment, except with
the prior written consent of the Landlord, and the Tenant shall comply
with the rules and regulations of any regulatory agency having
jurisdiction in that regard, in the use, operation and storage of all such
equipment.
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SCHEDULE "E"
METHODOLOGY TO DETERMINE ADJUSTMENTS TO THE BASIC RENT RATE
If any adjustment to the amount of the Basic Rent payable by the Tenant under
section 3.1 of this Lease is required by the provisions of section 3.1 of this
Lease, the amount of that adjustment shall be calculated in accordance with the
methodology set out in this Schedule "E". If adjustments are required because of
cost increments or decrements pursuant to more than one of the provisions of
section 2 below, then only the net effect of those adjustments shall be
considered for computing the effect of those adjustments on the amount of Basic
Rent payable by the Tenant.
1. Assumptions: The Basic Rent payable by the Tenant under section 3.1 is
based in part on the following assumptions:
(a) that the interest rate payable under the Phase V Mortgage Financing
is 8.5%, compounded semi-annually and payable monthly in arrears;
(b) that the amortization period with respect to the Phase V Mortgage
Financing is a period of twenty-five (25) years; and
(c) that the term of the Phase V Mortgage Financing is a period of ten
(10) years.
2. Changes to Assumptions:
(a) if the interest rate payable under the Phase V Mortgage Financing is
more than 8.5%, then the Basic Rent payable by the Tenant under
section 3.1 shall be increased by $0.05 per square foot of the Area
of the Leased Premises for each five (5) basis point increase in the
amount of the interest rate payable under the Phase V Mortgage
Financing (and increments of less than five (5) basis points shall
be prorated accordingly);
(b) if the interest rate payable under the Phase V Mortgage Financing is
less than 8.5%, then the Basic Rent payable by the Tenant under
section 3.1 shall be decreased by $0.05 per square foot of the Area
of the Leased Premises for each five (5) basis point decrease in the
amount of the interest rate payable under the Phase V Mortgage
Financing (and decrements of less than five (5) basis points shall
be prorated accordingly); and
(c) if the amortization period with respect to the Phase V Mortgage
Financing is less than twenty-five (25) years, then the Basic Rent
payable by the Tenant under section 3.1 shall be increased by $0.24
per square foot of the Area of the Leased Premises for each one (1)
year decrease in the amortization period with respect to the Phase V
Mortgage Financing.
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SCHEDULE "F"
CONSENT BY LANDLORD TO SUBLEASE
1. [_] is the landlord (the "Landlord") of those certain "Leased Premises" as
defined in section [_] of that certain lease agreement dated as of [_]
(the "Lease"), made and entered into by and between the Landlord and 0
(the "Tenant") which Lease is incorporated herein by this reference. The
Lease contains a restriction against assignment or subletting by the
Tenant without the Landlord's prior written consent thereto. The Landlord
does hereby consent, subject to the following terms and conditions, to the
proposed offer to sublease agreement (the "Sublease") by and between the
Tenant, as sublandlord, to [_] (the "Subtenant") of that part of Leased
Premises comprising approximately [_] ([_]) square feet as more
particularly described in such Sublease as the "[_] " (such part being
hereinafter called the "Sublet Premises"), a copy of which Sublease is
attached hereto as Schedule "A" and is incorporated herein by this
reference.
2. The Landlord's consent is expressly conditional upon the performance and
observance by the Tenant of the covenants, conditions and agreements in
the Lease, and this consent shall in no way affect or release the Tenant
from its liabilities and responsibilities under the terms of the Lease.
The Tenant acknowledges that, notwithstanding the terms of the Sublease,
it shall remain principally liable and responsible for all liabilities and
responsibilities of "Tenant" under the Lease.
3. This consent is given without prejudice to the Landlord's rights under the
Lease, this consent being limited to the Sublease to the Subtenant, and
shall not be deemed to be an authorization for or consent to any further
or other assignment or subletting or parting with or sharing possession of
all or any part of the Leased Premises or the Sublet Premises.
4. The Landlord joins in this consent solely to grant its consent and, by
doing so, the Landlord does not thereby:
(a) make any representations or warranties; or
(b) acknowledge or approve of any of the terms of the Sublease as
between the Tenant, as sublandlord, and the Subtenant.
Further, nothing contained in the Sublease or this consent shall be
construed as modifying, waiving or affecting any of the provisions,
covenants and conditions or any of the Landlord's rights or remedies under
the Lease.
5. In consideration of the Landlord's consent to the Sublease, the Tenant and
Subtenant agree as follows:
(a) The Subtenant covenants that the Sublease shall be subject to and
subordinate to the Lease and further covenants and agrees that the
Subtenant will observe, comply with and perform all terms,
conditions and covenants in the Lease and to perform all obligations
of any kind whatsoever of the "Tenant" under the Lease
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as and when the same are due to be performed by the Tenant pursuant
to the terms of the Lease and to be subject to all of the Landlord's
rights thereunder during the entire term of the Sublease, as though
the Subtenant was named "Tenant" under the Lease, to the extent that
such covenants, obligations, terms and conditions relate to that
portion of the Leased Premises sublet to the Subtenant under the
Sublease. The Subtenant further expressly acknowledges and agrees to
be subject to the prohibition in the Lease against subletting,
assigning, mortgaging or encumbering or permitting the occupation or
use of all or part of the Leased Premises by others.
(b) The Tenant and Subtenant each represent and warrant that they have
dealt with no broker, finder, agent or other person in connection
with the Sublease other than [_] (the "Broker"), and they agree to
indemnify and hold the Landlord harmless from and against any claims
or causes of action for a commission or other form of compensation
arising from the Sublease or the Lease, whether advanced by the
Broker or any other person or entity. The provisions of this
paragraph shall survive the termination of the Lease, the Sublease
and any renewal or extension of either or both of them.
(c) The Subtenant waives any rights it may have as under-lessee under
section 21 of the Commercial Tenancies Act, R.S.O. 1990 c. L.7, as
amended or replaced from time to time (the "Act"), or any like
rights under common law. For the purpose of clarity, the Subtenant
agrees that notwithstanding the Landlord has consented to the
Sublease, the Subtenant shall not claim or apply for an order
vesting the term of the Sublease, the Leased Premises, or any part
thereof, in the Subtenant, upon the Landlord re-entering the Leased
Premises or forfeiting the Lease.
(d) The Subtenant waives any rights it may have as under-tenant under
subsection 32(2) of the Act or any like rights under common law. For
the purpose of clarity, the Subtenant agrees that notwithstanding
the Landlord has consented to the Sublease, if the Landlord
distrains or threatens to distrain any goods or chattels situate on
the Sublet Premises, the Subtenant shall not seek to protect such
chattels from the Landlord's distress as contemplated by subsection
32 (2) of the Act.
(e) The Subtenant waives any rights it may have under subsection 39(2)
of the Act, or any like rights under common law. For the purpose of
clarity, the Subtenant agrees that notwithstanding the Landlord has
consented to the Sublease, if a receiving order in bankruptcy, or a
winding-up order has been made against the Tenant, the Subtenant
hereby agrees not to exercise its election as under-lessee to stand
in the same position with the Landlord as though the Subtenant were
a direct lessee of the Landlord.
6. The Tenant and Subtenant jointly and severally acknowledge 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 the Landlord's consent to the Sublease save
as expressly set out herein and that this consent agreement constitutes
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the entire agreement between the Landlord and the Subtenant and may not be
modified except by subsequent agreement in writing and executed by the
Landlord, the Tenant and the Subtenant.
IN WITNESS WHEREOF the undersigned have executed this consent as of [_] .
SIGNED, SEALED AND DELIVERED) )
In the presence of ) [_] [Landlord]
) Per: c/s
) -------------------------------
) Name:
) ------------------------------
) Title:
) -----------------------------
)
) [_] [Tenant]
) Per: c/s
) -------------------------------
) Name:
) ------------------------------
) Title:
) -----------------------------
SIGNED, SEALED AND DELIVERED) )
In the presence of ) [_] [Subtenant]
) Per: c/s
) -------------------------------
) Name:
) ------------------------------
) Title:
) -----------------------------
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SCHEDULE "G"
TENANT SIGNAGE
The Tenant shall be entitled to two signs on the exterior facade of the Leased
Premises, each of which signs shall be not larger in area than the existing
Mitel signs on what is known as Phase IV of the Complex. Such signage shall be
installed on the exterior facade of the Leased Premises below the parapet and
shall be illuminated. One such sign shall face March Road and the other shall
face ▇▇▇▇▇▇▇ Drive. The Tenant shall have exclusive signage rights on the Leased
Premises.
Additionally, the Tenant shall have curb signage rights on all monuments leading
to the Leased Premises, lawn signage at each lobby entrance (quantity 2), within
20 feet of the main doors indicating the building address and Tenant's corporate
name. The Tenant shall also be entitled to a directional sign over the shipping
and receiving area of the Leased Premises. Finally, the Tenant shall be
entitled, with the Landlord's prior written consent, to hang banners on the
Leased Premises and illuminate the Leased Premises or parts thereof for
promotional purposes.
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Form 6
Construction Lien Act
CERTIFICATE OF SUBSTANTIAL PERFORMANCE
OF THE CONTRACT UNDER SECTION 32 OF THE ACT
City of Ottawa
--------------------------------------------------------------------------------
(County/District or Regional Municipality/City in which premises are situate)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, (▇▇▇▇▇▇) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
--------------------------------------------------------------------------------
(Street address and city, town etc. or, if there is no street address, the
location of the premises)
This is to certify that the contract for the following improvement:
Base Building Construction of a New 5 Storey Offfice Building
--------------------------------------------------------------------------------
(short description of the improvement)
to the above premises was substantially
performed on October 11, 2001
---------------------------------------
(date substantially performed)
Date certificate signed: 11/10/01 /s/
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Associates Inc.
---------------------------------------
(payment certifier where there is one)
---------------------------------------
owner and contractor, where there
is no payment certifier)
Name of owner: Zarlink Semiconductor
-----------------------------------------------------
Address for service; ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇ ▇▇▇.), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇. ▇▇▇ ▇▇▇
-----------------------------------------------------
Name of contractor: ▇▇▇▇▇ Contractors Limited
-----------------------------------------------------
Address for service: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇. ▇▇▇ ▇▇▇
-----------------------------------------------------
Name of payment certifier: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Associates Inc.
-----------------------------------------------------
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
-----------------------------------------------------
(Use A or B whichever is appropriate)
A. Identification of premises for preservation of liens:
Concession ▇, ▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇ 23 & 24
--------------------------------------------------------------------------
(where liens attach to premises, reference to lot and plan or registration
number)
B. Office to which claim for lien and affidavit must be given to preserve
lien:
--------------------------------------------------------------------------
(where liens do not attach to premises)
R.O. 1990, Reg. 175, Form 6
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ACKNOWLEDGEMENT OF RENT COMMENCEMENT DATE AND BASIC RENT PAYABLE
The undersigned acknowledge that pursuant to a lease between the
undersigned dated March 27, 2001 for a building municipally known as ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Lease"):
(a) the Rent Commencement Date (as defined in the Lease) is October 11,
2001;
(b) the Rental Rate as defined by the Lease is as follows:
(i) for the period from October 11, 2001 to and including January
13, 2002, Fifteen Dollars ($15.00) per square foot per year,
and as such the monthly Basic Rent payable by Zarlink
Semiconductor Inc. during such period is One Hundred and
Twenty-Two Thousand, Eight Hundred and Ten Dollars ($122,810)
per month;
(ii) for the period from January 14, 2002 (being the date of the
Phase V Mortgage Financing as defined in the Lease) to and
including February 1, 2007, Fifteen Dollars and Seventy Seven
Cents ($15.77) per square foot per year, and as such the Basic
Rent payable by Zarlink Semiconductor Inc. during such period
is One Million, Five Hundred and Forty-Nine. Thousand, Three
Hundred and Seventy Dollars and Ninety-Six Cents
($1,549,370.96) per annum; and
(iii) for the period commencing February 2, 2007 to and including
October 10, 2011 (being the Termination Date as defined in the
Lease), Fifteen Dollars ($15.00) per square foot per year
subject to adjustment in accordance with section 3.1 and
Schedule "E" to the Lease.
IN WITNESS OF WHICH Mitel Research Park Corporation has executed this
Acknowledgement this 10th day of January, 2002.
SIGNED, SEALED AND DELIVERED) In ) MITEL RESEARCH PARK CORPORATION
the presence of )
) Per:/S/
) -----------------------------
)
) Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
) ----------------------------
)
) Title: Treasurer
) ---------------------------
IN WITNESS OF WHICH Zarlink Semiconductor Inc. has executed this
Acknowledgement this 10th day of January, 2002.
SIGNED, SEALED AND DELIVERED) In
the presence of ) ZARLINK SEMICONDUCTOR INC.
)
) Per:/S/
) -----------------------------
)
) Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
) ----------------------------
)
) Title: Vice-President, Treasurer
) ---------------------------
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