THIS LEASE AMENDING AGREEMENT made the 26th day of May, 2005
BETWEEN:
YARMOUTH AREA INDUSTRIAL COMMISSION, an incorporated Society under the
laws of Nova Scotia
("Landlord")
- and -
RCOM CANADA, CORP., an unlimited company under the laws of Nova Scotia
("Tenant")
WHEREAS by a lease dated April 2001 (the "Lease") made between the Landlord and
the Tenant, the Landlord, demised and leased unto the Tenant the lands and
premises situate at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ and Province of Nova
Scotia, more particularly described in Schedule "A" attached to the Lease (the
"Building"), which include a building and facilities containing approximately
20,400 square feet of useable/rentable area on the main level of the Building
("Phase 1 Premises") together with certain rights and at the rent and subject to
the terms, covenants and conditions contained in the Lease for a term of five
(5) years to be fully completed on the 31st day of August, 2006.
AND WHEREAS the Landlord has agreed to lease to the Tenant an additional 10,000
square feet of useable/rentable area on the main level of the Building ("Phase 2
Premises"), and the Landlord and the Tenant agreed to amend the terms and
conditions of the Lease in the manner hereinafter stated.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises
and of the mutual covenant and agreements herein contained, the parties hereto
agree as follows:
1. PHASE I AND PHASE 2 PREMISES
The Landlord hereby leases to the Tenant the Phase 1 and Phase 2 Premises
comprised of approximately 30,400 square feet of the total space, and more
specifically as shown on Schedule "A", as adjusted and verified in
accordance with paragraph 1(h) of this Lease Amendment ("Leased Premises")
on the terms and conditions as follows:
(a) TERM
The term of this Lease Amendment shall be for three (3) years commencing on
September 1 ,2006 (the "Commencement Date"), and expiring on the 31st day
of August, 2009 (the "Lease Term"). It is agreed that the Lease Term shall
automatically renew in one-year increments for five (5) additional years,
unless the Landlord is notified otherwise by the Tenant. It is further
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agreed between the parties that the Tenant may terminate the Lease on six
month's written notice to the Landlord after the expiration of the third
year of the Lease.
(b) NET RENT
The Tenant shall pay to the Landlord net rent ("Net Rent") in equal monthly
installments in advance on the first day of each calendar month of the
Lease Term as follows:
Years 1-3
At the rate of SIX DOLLARS ($6.00) per square foot of Rentable Area per
annum or ONE HUNDRED EIGHTY TWO THOUSAND FOUR HUNDRED DOLLARS ($182,400.00)
per annum.
Year 4
SIX DOLLARS AND TWENTY-FIVE CENTS ($6.25) per square foot of Rental Area
per annum.
Year 5
SIX DOLLARS AND FIFTY CENTS ($6.50) per square foot of Rental Area per
annum.
Year 6
SIX DOLLARS AND SEVENTY-FIVE CENTS ($6.75) per square food of Rental Area
per annum.
Year 7
SEVEN DOLLARS ($7.00) per square foot of Rental Area per annum.
Year 8
SEVEN DOLLARS AND TWENTY-FIVE CENTS ($7.25) per square foot of Rental Area
per annum.
(c) ADDITIONAL RENT
It is understood that the Tenant shall pay to the Landlord Additional Rent,
to cover such costs as the realty tax and exterior operating costs, such as
snow removal, landscaping and major structural and systems repairs, for the
Leased Premises. This Additional Rent shall be in the amount of TWO DOLLARS
AND FIFTY CENTS ($2.50) per square foot of Rental Area per annum for the
entire eight (8) year potential Lease Term (__________, 20___ to
__________, 20____).
In addition to Additional Rent, the Tenant shall pay directly all charges
specifically assessed to the Leased Premises throughout the Lease Term, for
cleaning and waste removal, electricity, HVAC, annual HVAC maintenance
contract (exclusive of repairs) and business occupancy tax. For
clarification, it is agreed and understood that the HVAC system for the
Leased Premises will be a dedicated system and will be controlled by the
Tenant from within the Leased Premises, 24 hours a day, seven days a week.
It is understood that if the Tenant experiences a delay in occupying the
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Phase 2 portion of the Leased Premises or needs to vacate the Phase 2
Leased Premises at any time during the Lease Term, the Landlord agrees to
reduce "Additional Rent" accordingly to reflect any decreased cost
associated with the Phase 2 Leased Premises being vacant.
(d) BUSINESS OCCUPANCY TAXES AND REAL PROPERTY TAXES
The Parties acknowledge that it is likely the Province of Nova Scotia will
terminate business occupancy taxes thereby increasing real property taxes.
The Tenant is currently responsible for paying its business occupancy tax.
The Parties agree that if the business occupancy tax is terminated and real
property taxes are increased in relation to the property then the Tenant
shall pay the increase in real property taxes each year, being the
difference between the real property taxes for the year previous to
business occupancy taxes being terminated and the real property taxes after
the business occupancy taxes have been terminated. The real property tax
for the property for the year 2004-2005 was $33,371.03 and the start date
for a given tax year is April 1st 2005-2006.
(e) PRIOR ENTRY
The Leased Premises shall be available for occupancy by the Tenant for
installation of its trade fixtures, on/or before _______________ , 20____
("the Prior Entry Date"). It is agreed and understood that the Tenant will
remain governed by all applicable terms of the Lease as if the Lease were
in full force and effect, save only as to any Net Rent and Additional Rent
payable which in no event shall commence prior to the Commencement Date.
In the event the Leased Premises are not substantially completed, to the
Tenant's satisfaction and available for occupancy by the Tenant for
installation of its trade fixtures on/or before _______________, 20____,
for causes within Landlord's control, the Landlord shall adjust the
Commencement Date to thirty (30) days from the date of satisfactory
delivery of the finished premises to the Tenant, at Tenant's sole
discretion, acting reasonably.
In the event Landlord fails to so complete the Leased Premises for causes
beyond Landlord's control, such as, strikes, acts of God, then the Prior
Entry and Commencement Dates shall be postponed for the period of such
delay.
(f) LANDLORD'S WORK
Provided this Lease Amendment has been executed by both parties, the
Landlord agrees that it shall be responsible, for all of its items
identified in Schedule "B", at it's sole cost, and they shall remain the
sole property of the Landlord.
(g) TENANT'S IMPROVEMENTS
In addition to the Landlord's Work, the Landlord agrees to undertake the
Tenants leasehold improvement consistent with details based on final
mutually agreeable finished specifications and the final construction plan
to be prepared by the Landlord's Architect. The Tenant agrees that they
shall be responsible for these leasehold improvements and for the costs of
these leasehold improvements.
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The nature and scope of the Tenant's Work shall be mutually agreed upon by
both parties in writing, prior to commencement of construction. It is
agreed that the Landlord will act as project manager for design and
construction of the Tenant's leasehold improvements and that this service
will be provided at no additional cost to the Tenant. The Tenant shall be
responsible for design and construction costs of Tenant's leasehold
improvements.
Notwithstanding the above, it is agreed and understood that the Tenant will
act reasonably and diligently in the approval of finished specifications
and construction plans submitted by the Landlord's Architect.
It is agreed and understood that RCOM Inc. or its nominee, may at its
option, install and supply the following items at their own expense:
Hook-up of systems furniture (including electrical hook-up) Voice and data
cabling Furniture and appliances Other Tenant Leasehold Improvements
The Landlord agrees to contribute to a maximum of $125,000.00, including
HST, of the Tenants cost for the following improvements if the Tenant shall
choose to do the same:
(i) Expansion of existing security camera system to provide total site
coverage.
(ii) Upgrading of the existing lunch room to include hot food kitchen
capability.
(iii) Installation of an upgraded fire-suppression system in the server
room.
(iv) Installation of a backup air conditioning system in the server room.
(v) Installation of an interoffice video conferencing system.
(vi) Construction of an improved employee outside break area.
(h) AREA MEASUREMENT
The area of the Leased Premises shall be verified by the Landlord's
architect in accordance with B.O.M.A. measurement methods and a signed
certificate stating the actual measurement of the Leased Premises shall be
issued to the Tenant. The actual rental shall be adjusted upwards or
downwards in accordance with actual area measurement.
(i) RIGHT TO RENEW
(a) For the purposes of this section (i) the term default shall be
defined as meaning any material breach under the Lease or this Lease
Amendment that has not been remedied by the Tenant, within a
reasonable period, of the Tenant receiving written notification of
such breach from the Landlord.
(b) Provided it is not in Default under the Lease or this Lease
Amendment and provided it gives notice to the Landlord at least six
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(6) months prior to the expiry of the final automatically renewed
Lease Term, the Tenant shall have the option to renew the lease for
three (3) successive further terms of three (3) years each, under the
same terms and conditions as herein provided, except as follows:
I) term rent and additional rent to be agreed upon.
(j) RESTORATION/MAKE GOOD
It is agreed that the Tenant shall not have the obligation to restore the
Leased Premises to base building or original condition at the termination
of this Lease Amendment, other than major structural changes, and the
Landlord agreed to accept the Leased Premises in the condition and
configuration in which they are structured at the termination of this Lease
Amendment.
(k) HARMONIZED SALES TAX
All amounts to be paid hereunder shall be paid in Canadian funds and all
amounts referred to herein are exclusive of any applicable Harmonized Sales
Tax (with the exception of funds paid in letter "g") which shall be in
addition thereto and shall be paid by the appropriate party.
(l) RESTRICTIVE COVENANTS
The Landlord represents and warrants that there are no restrictive
covenants in place with existing tenants or otherwise, which would prevent
the Tenant from entering into a lease with the Landlord at the Building.
(m) TENANTS CONDITIONS PRECEDENT
The obligation of the Tenant to be bound by the terms of this Lease
Amendment is subject to the following conditions precedent:
a) The Tenant receiving a contractual binding commitment from the
Government of Nova Scotia to provide financial incentives to the
Tenant, in an amount and on terms acceptable to the Tenant to be
determined on or before Twenty (20) Business Days from the date of
acceptance of this Lease Amendment by both parties and confirmed in
writing by the Tenant
b) The Tenant providing written confirmation approving the plans for
the Leased Premises prior to the commencement of construction.
The above conditions are for the sole benefit of the Tenant. If the Tenant
fails to notify the Landlord by 5:00 p.m. on the 20th day following the
date of acceptance of this Lease Amendment for satisfaction of a condition
precedent that such condition precedent has been satisfied or waived, then
this Lease Amendment shall be deemed null and void and neither party will
have any further legal or financial obligation to the other.
(n) SIGNAGE
The Tenant, at the Tenant's expense shall have the right to install
Landlord approved exterior signage on the bulkhead area above the Leased
Premises. The Tenant's signage shall include its corporate logo and read
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"▇▇▇▇▇▇▇▇.▇▇▇". The Tenant shall insure, erect and maintain such signage at
its own expense, and shall obtain all necessary municipal and other permits
and approvals. Notwithstanding the above, it is agreed and understood that
the Tenant shall be entitled to change the name and corporate logo on such
signage from time to time.
(o) ACCESS
It is agreed that the Tenant, its employees, and invitees shall have the
right, twenty-four (24) hours per day, seven (7) days per week throughout
the Lease Term and any renewal thereof to have access to the Leased
Premises and parking facilities for the building.
(p) HOURS OF OPERATION
The Tenant shall occupy the Leased Premises on such lawful days and such
lawful hours as the Tenant in its sole discretion shall determine.
(q) RELOCATION
During the Lease Term and any renewal thereof, the Lease shall not contain
any provision permitting the Landlord to relocate the Tenant.
(r) NON DISTURBANCE
The Landlord shall provide the Tenant, at the Landlord's cost a
Non-Disturbance Agreement from any mortgages of the Building and property.
The Landlord shall also, if and when the Landlord changes or the property
of which the Leased Premises are located is mortgaged, changed or granted
as security for any reason, use its reasonable efforts to provide a
Non-Disturbance Agreement from any future head landlord or present or
future mortgagee or other person in whose favor the property is secured,
and in the case of a future landlord, mortgagee or secured party, prior to
such party becoming a landlord, mortgagee or secured party.
(s) NON-ASSIGNMENT
The Lease or this Lease Amendment may not be assigned by the Landlord or
Tenant without the prior consent of the other, not to be unreasonably
withheld.
(t) PARKING
Throughout the Lease Term and any subsequent renewals, the Landlord shall
provide the Tenant with three hundred (300) non-designated outside parking
spaces, immediately adjacent to the Leased Premises, in the Building
parking lot, free of charge. The parking will be paved surface parking,
adjacent to the premises and will be lighted. The Landlord shall designate
ten (10) visitor/staff parking stalls by appropriate signage immediately
adjacent to the Leased Premises and further agrees to designate handicap
parking according to building code.
In the event the Tenant requires additional parking spaces over and above
the 300 as stipulated above, the Landlord agrees to remedy the problem
immediately with a mutually agreeable solution.
2. NOTICES
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All notices to be given under the Lease or this Lease Amendment shall be in
writing and shall be communicated by personal delivery, by internationally
recognized overnight courier (such as FEDEX or UPS) as well as by
facsimile:
In the case of RCOM:
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
And to ▇▇▇▇▇▇▇▇.▇▇▇'s in-house General Counsel:
▇▇▇▇▇▇▇▇.▇▇▇
Attention: Legal Department
▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
And to ▇▇▇▇▇▇▇▇.▇▇▇'s Property Manager: or CEO
▇▇▇▇▇▇▇▇.▇▇▇
Attention: Property Manager or CEO
▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:▇▇▇-▇▇▇-▇▇▇▇
In the case of the Landlord:
Yarmouth Area Industrial Commission
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
Provided that either party may, by notice to the other, designate another
address to which notices mailed or delivered more than ten days thereafter
shall be addressed.
3. FACSIMILE AND COUNTERPARTS
This Lease Amendment may be delivered by facsimile machine and signed on a
facsimile copy. Both parties accept the facsimile copy as a legal and
binding document. The originals will be delivered to the Landlord and
Tenant once this Lease Amendment is fully executed. It is further agreed
that this Lease Amendment may be executed in one or more counterparts with
the same effect as if all parties had signed the same document. All
counterparts shall be construed together and shall for all purposes
constitute one agreement, binding on the parties, notwithstanding the fact
that all parties have not signed the same counterpart.
4. ORIGINAL LEASE
All other terms and conditions of the Lease shall remain in full force and
effect and shall be read with any changes required by the forgoing
amendments and any capitalized terms not specifically defined herein shall
have the meaning ascribed to them in the Agreement. In the event of any
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conflict or inconsistency between the Lease and the provisions of this
Amending Agreement the latter shall prevail to the extent necessary to
resolve any such conflict or inconsistency.
5. SUCCESSORS AND ASSIGNS
This Lease Agreement shall enure to the benefit of and be binding upon the
parties hereto, and their respective heirs, executors, administrators,
successors and assigns.
IN WITNESS WHEREOF, the Parties have executed this Lease Amendment, this 26th
day of May, 2005.
SIGNED, SEALED AND DELIVERED ) YARMOUTH AREA INDUSTRIAL
In the Presence of: ) COMMISSION
)
) /s/ J.R. Rose
) ------------------------------
) Per:
)
) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ Jacquard ) ------------------------------
-------------------------------- ) Per:
Witness )
) RCOM CANADA
)
) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
) ------------------------------
) Per:
)
) President
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ) ------------------------------
-------------------------------- ) Per:
Witness as to ▇. ▇▇▇▇▇▇ signature )
)
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SCHEDULE "A"
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SCHEDULE "B"
The Landlord, at the Landlord's expense shall provide the following:
ARCHITECT & ENGINEERING DRAWINGS & SPECIFICATIONS: Complete architectural and
engineering drawings and specifications for the Premises required to complete
the Landlord's and Tenant's Work in accordance with the Tenant's Design
Requirements, which Design Requirements shall include, but not be limited to,
the requirement that the Phase 2 Premises be fully integrated and conjoined with
the Phase 1 Premises and in addition, that the Phase 2 Premises incorporate the
same design and look as the Phase 1 Premises so that, for all purposes, it
appears to be one structure.
ELECTRICAL & CABLE DISTRIBUTION: Electrical service shall be provided to the
demised premises sufficient to provide 5 ▇▇▇▇▇ per rentable square foot at 120
volt for power distribution and 2 ▇▇▇▇▇ per rentable square foot at 346 Volt for
lighting. Voice and data outlets shall be roughed in with draw strings or pack
poles to all areas in the Premises, based on final design requirements of
Tenant.
CEILING HEIGHT: To be 11.0 feet above the concrete floor.
PLUMBING: Water and sewage service to the demised premises to confirm with
municipal and provincial code and of adequate capacity to meet Tenant
requirements.
WASHROOM: The premises shall have finished men's and women's washrooms, to be
mutually agreed upon, complete with partitions, fixtures and ventilation and in
sufficient number to conform to municipal and provincial code.
CEILING: Supply and installation of 2 X 4 grid suspended t-bar ceiling including
3/4 inch lay in acoustical ceiling tiles.
INTERIOR LIGHTING: Supply and installation of 2 X 4 T8 luminaries fixtures to
the demised premises with energy saving ballast's providing 60 foot candles
throughout using 3" X 3" deep cell parabolic lenses in open and meeting room
areas. K12 plastic lenses shall be installed in the utility and storage rooms.
Circuiting for night lighting and emergency exit lighting shall also be
provided. Pot lights complete with dimmers shall be provided in all training
rooms, meeting rooms, reception, hallways and lunch room in accordance with the
Tenant's Design Requirements.
DEMISING WALLS: Drywall, tape, sand and prime the interior of all exterior
walls, cores, demising walls and all columns, finished to receive paint or vinyl
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wall covering. All demising walls to be constructed of 2 X 6 metal studs
insulated for soundproofing to underside of deck with appropriate fire ratings
in accordance with municipal and provincial building code. Landlord shall
provide a finish coat of paint or wallpaper in all areas throughout the Premises
based on final design requirements of Tenant.
BREEZEWAY: Either covered or not covered. Adjoining main entrance. No additional
rent charge.
HVAC: Separate system for premises distributed and zoned consistent with the
demised premises and of adequate capacity to fulfill the solar loads, people
loads of one person per 100 square feet, lighting load of 2.0 ▇▇▇▇▇ per rentable
square foot, and equipment power loads of 5.0 ▇▇▇▇▇ per square foot (excluding
power requirements for any of the Building's equipment). The system shall be
capable of running 24 hours, 7 days a week. A separate Air Conditioning unit
shall be provided and installed in the Tenant's network room to provide 24 hour
cooling. All units shall be provided with economizer cycle and heat reclaiming
capabilities.
SPRINKLER SYSTEM: A complete IAO approved fire sprinkler system with remote
installed at ceiling height, meeting the requirements of the final layout of the
demised premises. In addition a multizone fire alarm system with remote alarm
monitoring shall be installed throughout the building. A preaction system shall
be provided for the Tenant's computer room and electrical room.
WINDOWS: The Landlord shall provide exterior windows in accordance with the
final specifications for the Building to be mutually agreed by both the Landlord
and Tenant.
WINDOW COVERINGS: Aluminum horizontal mini-blinds to be supplied and installed
on all exterior and interior windows. Blinds shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ grade or
equivalent.
SIGNAGE: Landlord will provide electrical power source to the exterior of the
building where the ▇▇▇▇▇▇▇▇.▇▇▇ signage will be installed.
FLOOR: Floor throughout demised premises shall be smooth, monolithic concrete
floor ready for Tenant finish. Carpeting and floor tile shall be supplied and
installed by the Landlord according to final design requirements of Tenant. The
parties shall agree on costs of flooring.
ENTRANCE: Separate entrance door(s) required into demised premises for employees
and general public in accordance with the Tenant's Design Requirements.
REMOTE SWITCHING CENTRE (RSC): A mutually agreeable area in the Building
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shall be designated for the Remote Switching Centre in accordance with the
telephone company specifications. It is agreed and understood that this location
shall have access to a secure external entrance for installation and repairs.
FIRE & SAFETY SYSTEMS: Landlord to provide fire spray retardant on the ceiling
deck of the premises in addition to installation of all required fire hose
cabinets and all other life safety systems in accordance with Building Codes.
EXTERIOR LIGHTING: The parking area will be illuminated by freestanding light
standards. Illumination levels will be as per the recommendation of the
Illuminating Engineers Society of Canada.
LANDSCAPING: The Landlord agrees to incorporate upgraded landscaping in the area
outside of the Tenants main entrance to the Premises, in accordance with the
Tenant's Design Requirements.
STANDARD OF WORK: All Landlord's work shall be done and completed in a good and
workmanlike manner in full compliance with the Building Code and all other
applicable municipal, provincial and federal laws.
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