THIS LEASE made the 5th day of April, 2001
BETWEEN:
YARMOUTH AREA INDUSTRIAL COMMISSION, an incorporated
Society under the laws of Nova Scotia (called
"Landlord")
- and -
RCOM CANADA, CORP., an unlimited company under the
laws of Nova Scotia (called "Tenant")
1. In consideration of the rents reserved and the covenants and agreements
herein on the part of the Tenant, the Landlord leases to the Tenant the lands
and premises situate at 000 Xxxxxx Xxxxxxxx, xx xxx Xxxxxxx xx Xxxxxx, Xxxxxx of
Yarmouth and Province of Nova Scotia, more particularly described in Schedule
"A" attached to this Lease (the "Premises"), which include a building(s) and
facilities to be constructed on the land in accordance with an offer to lease
entered into between the Landlord and Xxxxxxxx.xxx Inc. on behalf of its
nominee, the Tenant, which was executed by Xxxxxxxx.xxx Inc. on behalf of its
nominee, the Tenant, on March 9, 2001, accepted by the Landlord on March 9, 2001
and executed by the Landlord on March 13, 2001 (the "Offer to Lease"); the
initial building to contain approximately 20,000 square feet of useable/rentable
area on the main level (the "Building").
2. Subject to the provisions hereof, the Tenant shall hold the Premises
for the term of Five (5) years to be computed from the 1st day of September,
A.D., 2001 and fully to be complete on the 31st day of August, 2006 (the
"Term").
Rent
3. The Tenant paying therefor yearly and every year during the Term the
sum of Six Dollars ($6.00) per square foot of Rentable Area in equal, monthly
installments in advance on the 1st day of each month during the Term to the
Landlord at Yarmouth, Nova Scotia, or at the place that the Landlord may
hereafter designate, the first payment to be made on the 1st day of September
next. If the Term commences on any day other than the first or ends on any day
other than the last day of a month, rent for the fraction of a month at the
commencement and at the end of the Term shall be adjusted pro rata. For the
purposes of this Lease, "Rentable Area" shall mean the area determined by
B.O.M.A. measurement methods as verified by the Landlord's architect and agreed
to by the parties.
4. 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 which shall be in addition thereto.
5. Provided that if, due to the failure of the Landlord to complete
construction or
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to make available the services which the Landlord is obliged to furnish, the
Premises or any part thereof are not ready for occupancy at the commencement of
the Term, no part of the rent, or only a proportionate part thereof if the
Tenant occupies a part of the Premises, is payable for the period before the
date when the whole of the Premises are ready for occupancy, and the full rent
accrues only thereafter. A certificate of the Landlord's architect that the
construction of the Premises is complete and the services to be furnished by the
Landlord are available, which is accepted by the Tenant acting reasonably, is
conclusive.
Additional Rent
6. It is understood that the Tenant shall pay to the Landlord as
additional rent, the actual real property taxes and operating costs for the
Premises not to exceed Two Dollars and Fifty Cents ($2.50) per square foot of
Rentable Area per annum for the first year of the Term (September 1, 2001 to
August 31, 2002). The term "operating costs" shall include the Landlord's
reasonable costs of insurance, snow removal, lawn mowing and maintenance with
respect to the Premises.
7. The Landlord will have the right to estimate the amount of such taxes
and costs at the commencement of each lease year or at the commencement of the
Landlord's fiscal year and xxxx the Tenant such taxes and costs in monthly
installments in advance on the first day of each calendar month, subject to
review and adjustments at year end. The Landlord shall provide the Tenant with a
statement of its auditors showing how the actual additional rent was computed
for each year if such is requested in writing by the Tenant.
Recovery of Adjustments
8. The Landlord has the same rights and remedies in the event of default
by the Tenant in payment of an amount payable by Tenant pursuant to paragraphs 6
and 7, as the Landlord has in the case of default in payment of rent.
9. The Tenant shall pay, within ten (10) days from the date of execution
of this Lease, a deposit of FIFTY THOUSAND DOLLARS ($50,000.00) (the "Deposit")
to be held by the Landlord's solicitors, Pink MacDonald Xxxxxxx, "in trust" for
the Tenant and the Deposit is to apply to installments of net rent and
additional rent as they fall due under the Lease until the Deposit is exhausted.
The Deposit shall earn interest for the benefit of the Tenant.
Right to Renew
10. Provided it is not in material default under this Lease, and provided
it gives notice to the Landlord at least nine (9) months prior to the expiry of
the then current term, the Tenant shall have the option to renew this Lease for
up to two (2) successive further terms of five (5) years each under the same
terms and conditions as herein provided, except as follows:
i) there shall be no right of further renewal beyond the second
renewal term;
ii) rental for the renewal terms shall be as follows:
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FIRST RENEWAL TERM:
At the rate of SEVEN DOLLARS ($7.00) per square foot of
Rentable Area per annum
SECOND RENEWAL TERM:
At the rate of EIGHT DOLLARS ($8.00) per square foot of
Rentable Area per annum.
Expansion Option
11. Provided the Tenant is not in material default of its obligations under
the Lease, Landlord hereby grants to Tenant the right to require the Landlord to
cause to be constructed, and the Landlord hereby undertakes to do so, another
building on the Premises (in the approximate location as shown as "Area for
Future Call Centre" on Schedule "A" to the Offer to Lease) of similar quality,
design and finish as the initial Building to be constructed containing a minimum
of 10,000 and a maximum of 15,000 square feet of Rentable Area (the "Additional
Space") upon the following terms and conditions:
i) During the period between January 1 and August 31 of each
year, no later than six (6) months prior to the time Landlord
is required to make Additional Space available to Tenant,
Tenant shall notify Landlord in writing that Tenant elects to
exercise this right.
During the period between September 1 and December 31 of each
year, no later than eight (8) months prior to the time
Landlord is required to make Additional Space available to
Tenant, Tenant shall notify Landlord in writing that Tenant
elects to exercise this right.
ii) In the event the Tenant exercises the option for Additional
Space prior to August 31, 2003, all terms as in this Lease
will apply including the rent and Tenant's Improvements. It is
agreed that the payment of rent for Additional Space shall
commence on the date the Additional Space has been completed
in accordance with the Tenant's reasonable requirements for
the Additional Space.
iii) In the event the Tenant exercises the option for Additional
Space in the period commencing September 1, 2003 and
expiring August 31, 2006, all terms as in this Lease will
apply including the Tenant's Improvements, except that the
rent for the Premises will be adjusted to $7.00 per square
foot of Rentable Area once the Additional Space has been
completed in accordance with the Tenant's reasonable
requirements for the Additional Space. At such time also,
the initial Term of the Lease shall be extended to the date
which is five years from the date of such completion of the
Additional Space and the two options to renew shall be
available to the Tenant to commence successively thereafter.
Rent for the renewal terms shall then be increased by one
dollar ($1.00) per square foot of Rentable Area per annum.
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iv) Landlord shall grade, pave and otherwise improve a portion of
the Premises designated by Tenant in order to provide Tenant
with additional parking spaces in the ratio of ten (10) spaces
per 1,000 square feet of Additional Space.
v) The Option to Purchase contained in section 26 hereof shall be
amended to reflect the costs of the Additional Space upon such
terms as the parties agree at such time .
Prior Entry
12. The Building shall be constructed and completed in accordance with
specifications contained or referred to in Schedule "B" hereto and be available
for occupancy by the Tenant for installation of its trade fixtures, on/or before
August 1, 2001 ("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.
13. In the event Building is not substantially completed to the Tenant's
satisfaction and available for occupancy by the Tenant for installation of its
trade fixtures by the Prior Entry Date for causes within the Landlord's control,
the Landlord shall adjust the commencement date to thirty (30) days from the
date of such satisfactory completion of the Building at the Tenant's sole
discretion, acting reasonably.
14. The Landlord shall have given the Tenant at least thirty (30) days
written notice prior to the date the Building is so completed. It is further
agreed that the Landlord shall provide the Tenant with temporary office
facilities at the Community College, Yarmouth Campus, from such date through the
date the Tenant is able to occupy the Building, at no cost to the Tenant. It is
agreed that the temporary facilities as mentioned herein will include a minimum
of 3,500 useable square feet of premises, in addition to ample free on-site
parking. Additionally, the Landlord agrees to provide the Tenant with a credit
of one (1) month of net rent for every two weeks of delay in the Prior Entry
Date.
15. In the event the Landlord fails to so complete the Building for causes
beyond the Landlord's control, such as strikes, and acts of God, then the Prior
Entry Date and commencement date shall be postponed for the period of such
delay.
Tenants Covenants
16. The Tenant covenants with the Landlord:
a) Rent-- to pay rent;
b) Electric charges -- to pay (1) the cost of electric current
supplied to the Premises; and (2) the cost of electric light
bulbs, tubes, starters, and ballasts used to replace those
installed at the commencement of the term;
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c) Business and school taxes -- to pay business occupancy and
other taxes (excluding real property taxes which are to be
paid by Landlord), charges, rates, duties and assessments
levied in respect of the Tenant's occupancy of the Premises or
in respect of the personal property or business of the Tenant
on the Premises as and when they become due;
d) Cleaning and waste removal-- to arrange and pay for reasonable
cleaning and waste removal;
e) HVAC -- to pay for all heating, ventilation and
air-conditioning, including the HVAC maintenance contract,
provided such contract is agreed to by the Tenant (but
excluding major repairs, which shall be deemed to include any
repair or replacement cost in excess of $1,000);
f) Utilities and services-- pay for all utilities and services
consumed by the Tenant in respect of the Premises;
g) Repair-- to repair, reasonable wear and tear and damage by
fire, lightning and tempest only excepted, and to permit the
Landlord to enter and view the state of repair and to repair
according to notice in writing, reasonable wear and tear and
damage by fire, lightning and tempest only excepted; and to
leave the Premises in good repair, reasonable wear and tear
and damage by fire, lightning and tempest excepted. It is
agreed that the Tenant shall not have any obligation with
respect to major repairs or repairs or replacements which
are of a structural nature nor any obligation to restore the
Premises to base building or original condition at the
termination of the Lease and the Landlord agrees to accept
the Premises in the condition and configuration in which
they are structured at that time.
h) Assigning or subletting -- the Tenant shall have the right to
sublet the Premises in whole or in part at any time or times
during the Term or renewal thereof only with the Landlord's
prior written consent, which consent is not to be unreasonably
or arbitrarily withheld or delayed, which subletting, in whole
or in part, shall not release the Tenant from any of its
obligations under this Lease;
i) Tenant's Insurance - Throughout the Term, including any
renewals thereof, the Tenant shall at its expense, take and
keep in force the following insurance:
(I) fire and standard extended perils or "all risks"
coverage on insurable property;
(II) Two Million Dollars ($2,000,000) inclusive limits
occurrence form general commercial liability
insurance; and
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(III) such other form of insurance in such amounts as the
Landlord may reasonably request. At the request of
Landlord, Tenant will obtain a waiver of the
insurer's right of subrogation as against Landlord
under such insurance, provided such waiver is
obtainable by Tenant from its insurers.
j) Use of Premises and insurance-- (i) not to use the Premises
except for the purpose of a call centre and for related
general office purposes and other related uses, so as, at
all times, to be in compliance with all bylaws and
regulations which are now or hereafter will be set forth by
the Municipality of the District of Yarmouth, Province of
Nova Scotia or the Government of Canada, as they are
applicable to the Premises, and not to carry on or permit to
be carried on therein any other trade or business; (ii) not
to do, omit or permit to be done or omitted upon the
Premises anything which causes the rate of insurance upon
the Building to be increased; (iii) if the rate of insurance
upon the Building is increased by the use made of the
Premises or by anything done, omitted or permitted to be
done or omitted by the Tenant or by anyone permitted by the
Tenant to be upon the Premises, the Tenant shall pay to the
Landlord the amount of the increase; (iv) if any insurance
policy upon the Building is cancelled by the insurer because
of the use or occupation of the Premises or any part thereof
by the Tenant or by any assignee or subtenant of the Tenant
or by anyone permitted by the Tenant to be upon the Premises
the Landlord may at its option determine this Lease
forthwith by leaving upon the Premises notices in writing of
its intention to terminate and thereupon rent and any other
payments for which the Tenant is liable under this lease
shall be apportioned and paid in full to the date of
determination and the Tenant shall immediately deliver up
possession of the Premises to the Landlord and the Landlord
may re-enter and repossess them;
k) Observance of law -- in his use and occupation of the
Premises, not to violate any law or ordinance or any order,
rule, regulation or requirement of any federal, provincial, or
municipal government or any department, commission, board or
officer thereof;
l) Water and nuisance -- not to do or suffer any waste or damage,
disfiguration or injury to the Premises or the fixtures and
equipment therein or permit or suffer any overloading of the
floors thereof; and not to use or permit the use of any part
of the Premises for any dangerous, noxious, or offensive trade
or business and not to cause or maintain any nuisance in, at
or on the Premises;
m) Entry by Landlord -- to permit the Landlord or its agents to
enter upon the Premises upon reasonable notice and at
reasonable times for the purpose of inspecting and of making
repairs, alterations, or improvements to the Premises or to
the Building, and the Tenant is not entitled to compensation
for any inconvenience, nuisance or discomfort occasioned
thereby;
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n) Indemnity -- to indemnify the Landlord against all claims by
any person, firm, or corporation arising from the conduct of
work by or through any act of negligence of the Tenant or any
assignee, subtenant, agent, contractor, servant, employee or
licensee of the Tenant, and against all reasonable costs,
counsel fees, expenses and liabilities incurred in or about
any claim or action or proceeding brought therein, provided
that:
(I) the Landlord has promptly notified the Tenant of any
such claim after first becoming aware or having
notice thereof;
(II) the Landlord has provided the Tenant with the option
to participate in the defense of such claim at the
Tenant's expense; and
(III) the claim does not relate to any peril or hazard
against which the Landlord is or ought to have been
insured under the terms of this Lease;
o) Exhibiting Premises -- if the Tenant does not exercise either
right of renewal hereunder, to permit the Landlord or its
agents to exhibit the Premises to prospective tenants upon
reasonable notice during normal business hours of the last
nine (9) months of the then current term;
p) Alterations, etc -- the Tenant shall have the right to make
alterations and installations to the Premises at its sole cost
and expense, provided the Tenant has received the prior
written consent of the Landlord, such consent not to be
unreasonably withheld or delayed;
q) Signs -- The Tenant, at the Tenant's expense shall have the
right to install Landlord approved exterior signage on the
Building and at the Premises. The Tenant shall insure, erect
and maintain such signage at its own expense, and shall obtain
all necessary municipal and other permits and approvals.
Landlord's Covenants
17. The Landlord covenants with the Tenant:
a) Quiet enjoyment - for quiet enjoyment of the Premises,
including any buildings to be constructed thereon, without any
interruption or disturbance from the Landlord, or any other
person(s) lawfully claiming by, from or under the Landlord,
and the Landlord represents and warrants that it has good and
marketable title to the Premises free and clear of all
encumbrances and has the requisite power and authority to
enter into this Lease;
b) Taxes - to pay the real property taxes levied against the
Premises or the Landlord on account thereof;
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c) Landlord's work - to provide all items identified in Schedule
"B" of the Offer to Lease, at the Landlord's sole cost, being
agreed that all such items shall remain the sole property of
the Landlord and to ensure that the Building will be
constructed and structurally maintained with quality
workmanship in a first-class manner in compliance with all
laws, regulations, by-laws, codes and applicable industry
standards in a manner that will enable the Tenant to utilize
the Building for its intended purposes throughout the Term and
any renewals thereof;
d) Tenant's improvements -- Subject to the Tenant acting
reasonably and diligently in the approval of final
specifications and construction plans submitted by the
Landlord's architects, and at the expense of the Tenant to
install the Tenant's leasehold improvements, all subject to
the provisions of paragraph 9 of the Offer to Lease;
e) Parking -- Before the Prior Entry Date, to provide the Tenant
with two hundred (200) non-designated outside parking spaces,
immediately adjacent to the Building. The parking will be
paved surface parking adjacent to the Building and will be
lighted. The Landlord shall designate ten (10) visitor/staff
parking stalls by appropriate signage immediately adjacent to
the Building and further agrees to designate handicap parking
according to lawful requirements or custom. In the event the
Tenant experiences problems accessing the parking as
stipulated above, the Landlord agrees to remedy the problem
immediately with a mutually agreeable solution;
f) Landlord's insurance - the Landlord shall take out and keep in
force throughout the Term, including any renewals thereof,
upon such terms and conditions and in such amounts as would be
maintained by a prudent owner of a property similar to the
Building the following insurance:
(I) public liability and property damage liability
insurance with respect to the Building and Premises;
(II) fire and standard extended perils or "all risks"
coverage and boiler and machinery insurance on all
real and personal property owned by Landlord or for
which it is legally responsible comprising or located
upon the Building or Premises; and
(III) such other forms of insurance as Landlord may from
time to time consider advisable.
At the request of Tenant, Landlord will obtain a waiver of the
insurer's right of subrogation as against Tenant under such
insurance, provided that such waiver is obtainable by Landlord
from its insurers. The Landlord shall make all reasonable
attempts to utilize the proceeds of insurance, as well as to
exercise any and all reasonable recourses available to
Landlord against any contractor, builder, supplier or any
third party in order to reduce any liability of Tenant for
repairs.
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Provisos
18. Provided always and it is agreed as follows:
a) Fixtures -- The Tenant may remove his fixtures, but all
installations, alterations, additions, partitions and fixtures
except trade or Tenant's fixtures upon the Premises, whether
placed there by the Tenant or the Landlord, are the Landlord's
property without compensation therefor to the Tenant and shall
not be removed from the Premises at any time, either during or
after the Term.
b) Damage to premises - If during the term the Premises are
damaged by fire, lightning or tempest, then and in every such
event if the damage or destruction is such that the Building
is rendered wholly unfit for occupancy, or it is impossible or
unsafe to use and occupy it, and if in either event the
damage, in the opinion of a reputable firm of architects
selected by the Tenant to be given to the Tenant within ten
days of the happening of the damage:
(I) cannot be repaired with reasonable diligence within
120 days from the happening of the damage, either
party may within five days next succeeding the
giving of the opinion terminate this Lease by
giving to the other notice in writing, in which
event this Lease shall cease as of the date of the
damage and the rent and all other payments for
which the Tenant is liable under this Lease shall
be apportioned and paid in full to the date of
damage. If neither the Landlord nor the Tenant
terminates this Lease, then the Landlord shall
repair the Premises with all reasonable speed and
the rent shall xxxxx from the date of the
happening of the damage until the damage shall be
made good and the Tenant can again use and occupy
the Premises; or
(II) can be repaired with reasonable diligence within 120
days from the happening of the damage, then the rent
shall xxxxx from the date of the happening of the
damage until the damage shall be made good and the
Tenant can again use the Premises and the Landlord
shall repair the damage with all reasonable speed; or
(III) is such that the Premises are capable of being
partially used for the purposes for which they are
leased, then until the damage has been repaired the
rent shall be reduced by the fraction that the area
of that part of the Building which is rendered unfit
for occupancy is to the area of the Building, and the
Landlord shall repair the damage with all reasonable
speed.
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c) Damage to property -- The Landlord is not liable nor
responsible in any way for any loss or damage or injury to any
property belonging to the Tenant or to its employees or to any
other person while the property is on the Premises or in the
Building unless the loss, damage, or injury is caused by the
negligence, act, fault or default of the Landlord or of its
employees, servants, agents or others for when the Landlord is
responsible at law.
d) Impossibility of performance -- It is agreed that whenever the
Landlord or Tenant is, in good faith, unable to fulfill, or
is delayed or restricted in fulfilling any obligation
hereunder for the supply or provision of any service or
utility or the doing of any work or the making of any
repairs because it is unable to obtain the material, goods,
equipment, service, utility or labour required to enable it
to fulfill the obligations or by reason of any statute, law
or order-in-council or any regulation or order passed or
made pursuant thereto or by reason of the order or direction
of any administrator, controller or board, or of any
government department or officer or other authority, or by
reason of not being able to obtain any permission or
authority required thereby, or by reason of any other cause
beyond its control, such party is relieved from the
fulfillment of the obligation for the period of the delay
and the party so delayed is entitled to perform that
obligation within a reasonable period after the end of the
period of delay and the other party is not entitled to
compensation for any inconvenience, nuisance or discomfort
thereby occasioned.
e) Default of Tenant -- If the rent is not paid when due, whether
lawfully demanded or not, or in the case of breach or
non-observance or non-performance of any of the covenants or
agreements herein contained or referred to on the part of the
Tenant to be observed and performed, or in the case the Term
is taken in execution or attachment for any cause, then the
Landlord is entitled to enter upon the Premises or any part
thereof in the name of the whole and to repossess and enjoy
the Premises as of its former estate.
f) Bankruptcy of Tenant-- Or in the case the Term or any of the
goods and chattels of the Tenant are seized in execution or
attachment by a creditor of the Tenant or if the Tenant
makes any assignment for the benefit of creditors or any
bulk sale or becomes bankrupt or insolvent or takes the
benefit of any act now or hereafter in force for bankrupt or
insolvent debtors and an order is made for the winding-up of
the Tenant, then this Lease shall at the option of the
Landlord cease and the Term shall immediately be forfeited
and the current month's rent and the next ensuing three
months' rent shall immediately become due and payable and
the Landlord may re-enter and take possession of the
Premises as though the Tenant or other occupant of the
Premises was holding over after the expiration of the Term.
g) Distress -- The Tenant waives the benefit of any present or
future statute taking away or limiting the Landlord's right of
distress, and agrees that none of the goods and chattels of
the Tenant on the Premises at any time during the Term is
exempt from levy by distress for rent in arrears.
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h) Right of Re-Entry-- On the Landlord's becoming entitled to
re-enter the Premises under any of the provisions of this
Lease, the Landlord in addition to all other rights, may do
so as the agent of the Tenant, using force if necessary,
without being liable for prosecution therefor, and may relet
the Premises as agent of the Tenant, and receive the rent
therefor, and as agent of the Tenant may take possession of
furniture or other property on the Premises and sell it at
public or private sale without notice or apply the proceeds
of sale and rent derived from reletting the Premises upon
account of the rent under this lease, and the Tenant is
liable to the Landlord for any deficiency.
i) Right of Termination -- On the Landlord's becoming entitled to
reenter the Premises under any of the provisions of this
Lease, the Landlord, in addition to all other rights, has the
right to determine this Lease forthwith by leaving upon the
Premises notice in writing of its intention, and thereupon
rent and any other payments for which the Tenant is liable
under this Lease shall be computed, apportioned and paid in
full to the date of such determination, and the Tenant shall
immediately deliver up possession of the Premises to the
Landlord, and the Landlord may re-enter and repossess the
Premises.
j) Non-waiver -- Any condoning, excusing or overlooking by the
Landlord of any default, breach or non-observance by the
Tenant of any covenant, proviso or condition herein contained
does not operate as a waiver of the Landlord's rights
hereunder in respect of subsequent defaults, breaches or
non-observances and does not defeat or affect in any way the
rights of the Landlord herein in respect of any subsequent
defaults or breaches.
k) Overholding -- If the Tenant continues to occupy the Premises
after the expiration of this Lease with or without the consent
of the Landlord, and without any further written agreement,
the Tenant shall be a monthly tenant at the rent and on the
terms and conditions herein set out except as to length of
tenancy.
l) Notice -- Any notice required by this Lease is deemed
sufficiently given if contained in writing, enclosed in a
sealed envelope and addressed --
In the case of notice to the Landlord:
Yarmouth Area Industrial Commission
XX Xxx 000
Xxxxxxxx, XX X0X 0X0
Telecopier: 000-000-0000
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In the case of notice to the Tenant:
RCOM CANADA, CORP.
c/o Xxxxxxxx.xxx, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: 212-629-9305
and in the case of notice to the Tenant, to the address and
attention of the registered agent of the Tenant as contained
in the records of the Nova Scotia Registry of Joint Stock
Companies, and deposited in one of Her Majesty's post offices
in Yarmouth County, registered and postage prepaid. The date
of receipt of the notice is the date on which it is delivered.
Provided that either party may, by notice to the other,
designate another address in Canada to which notices mailed or
delivered more than ten days thereafter shall be addressed.
Time of Essence
19. Time shall be of the essence in all respects.
Sole Agreement
20. There are no covenants, agreements, conditions or material
representations relating to the subject matter of this Lease, which will subsist
between the parties upon its acceptance, except as expressly set forth herein or
in the Offer to Lease.
Vacating the Leased Premises
21. Tenant shall not be in default for vacating the Premises prior to the
expiration date of the Term so long as the Tenant continues to pay rent
hereunder and is not in default on the other provisions of the Lease, and
written notice is provided to the Landlord at least thirty (30) days in advance
of vacating the Premises.
Satellite Dish
22. The Tenant shall be permitted to install and maintain a satellite dish
on the roof of the Building at no charge to the Tenant during the Term and any
extension or renewals thereof. The Tenant shall be responsible for all costs
associated with the installation, maintenance and removal of the satellite dish.
Environmental
23. Landlord covenants, warrants and represents that the Premises and the
Building are, and will be at the Prior Entry Date and commencement date, free of
any friable asbestos-containing materials.
24. Landlord covenants, warrants and represents that to the best of its
knowledge, after thorough investigation, the Premises and the Building
(including the land thereunder) do not, and will not at the Prior Entry Date or
commencement date, contain any environmental contaminants ("toxic
contamination") of any kind (including PCBs, except for PCBs that are totally
contained within light fixtures and exterior transformers).
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25. The Landlord agrees to indemnify and hold the Tenant harmless from any
and all damages, losses, expenses (including reasonable attorneys fees), claims
or actions related to or arising out of any discovery of friable asbestos or
toxic contamination at the Premises or the Building (including the land
thereunder), and in particular, to pay the full cost of any environmental
clean-up which may be ordered under applicable legislation (excepting always any
clean-up required with respect to materials introduced onto the Premises by the
Tenant).
Option to Xxxxxxxx
00. Landlord hereby grants to Tenant the option to purchase the Premises at any
time during the term of this Lease, or any extension thereof, provided the
Tenant is not in material default of its obligations hereunder. It is agreed and
understood that the Tenant may purchase the Premises, based on the date and
price as summarized in the amortization schedule attached as Schedule "C" to the
Offer to Lease with the requirement that the Landlord shall convey good and
marketable title thereto, free and clear of all liens and encumbrances, by full
warranty deed, such title to be insurable by a nationally known title company at
standard rates for an ALTA policy.
Right of First Refusal to Purchase
27. If at any time during the term of this Lease, or any extension thereof,
the Landlord shall (a) elect to sell the Premises, or part thereof as a
condominium unit, or (b) receives a bona fide offer from a third party to
purchase the Premises, or part thereof, which the Landlord is willing to accept,
then in either event the Landlord shall notify the Tenant thereof and afford to
Tenant a period of thirty (30) days in which to elect to purchase the Premises,
or part thereof, on the terms offered. In the event Tenant notifies Landlord
within such thirty (30) day period that Tenant elects to purchase the Premises,
or part thereof, then on a mutually agreeable date within thirty (30) days
thereafter Landlord shall sell to Tenant, and Tenant shall purchase from
Landlord, the Premises, or part thereof, upon such terms, provided that Landlord
can convey good and marketable title thereto, free and clear of all liens and
encumbrances, by full warranty deed, such title to be insurable by a nationally
known title company at standard rates for an ALTA policy, which provision may be
waived by the Tenant, in its sole discretion. In the event Tenant declines to
purchase the Premises, or part thereof, or fails to respond to Landlord's
notice, then Landlord shall be free to sell the Premises, or part thereof, or
accept such offer by such third party, on the same terms and conditions for a
period of ninety (90) days thereafter, but in the event the Premises, or part
thereof, is not so sold within such ninety (90) day period, then Landlord shall
be again obligated to offer the Premises, or part thereof, for sale to Tenant as
provided herein.
Further Assurances
28. The parties covenant and agree with each other to execute such further
documents as may be reasonably requested by the other to give effect to, or
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notice of, the provisions contained herein, including but not limited to a short
form Notice of Lease for registration purposes and a separate agreement
detailing the Option to Purchase.
Amendments
29. Any amendments to this Lease shall be in writing and signed by both
parties.
Headings
30. The headings in this Lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or enlarge the
scope or meaning of this lease nor of any provisions hereof.
Effect of Lease
31. This Lease and everything herein contained shall extend to and bind and
may be taken advantage of by the successors and permitted assigns, of each of
the parties hereto. Should either party request the other's consent to an
assignment of this Lease, such consent shall not be unreasonably withheld.
Dispute Resolution
32. In the event of a dispute hereunder, the parties shall make all reasonable
efforts to resolve their dispute by amicable negotiations. If a dispute has not
been resolved within ten (10) days after the responding party has replied (or
failing such reply within ten (10) days after receipt of the notice) either
party may refer the dispute to be finally resolved by a final, conclusive and
binding arbitration by a single arbitrator under the provisions of the
Commercial Arbitration Act (Nova Scotia). The parties shall agree jointly on the
appointment of an arbitrator, failing which, either party may apply to court for
the appointment of an arbitrator. Each party shall bear its own costs in
connection with matter referred to dispute resolution provided however, the cost
of the arbitrator shall be paid in accordance with the decision of the
arbitrator.
EXECUTED ) YARMOUTH AREA INDUSTRIAL
In the Presence of : ) COMMISSION
)
) Per: /s/ Illegible
) ----------------------------
)
/s/ Illegible ) Per: /s/ Illegible
------------------------------ ) ----------------------------
Witness )
)
) RCOM CANADA, CORP.
)
) Per: /s/ Xxxx Xxxxxx
) ----------------------------
)
/s/ Illegible ) Per:
------------------------------ ) ----------------------------
Witness )
15
SCHEDULE "A"
ALL THAT certain lot, piece or parcel of land situate on County Crescent No. 458
at Hebron, in the County of Yarmouth and Province of Nova Scotia and more
particularly shown as Lot 23 on a plan of subdivision entitled Final Plan of
Subdivision of lands of the Yarmouth Area Industrial Commission situate at
Xxxxxx Xxxxxxxx Xx. 000 xx Xxxxxx, Xxxxxxxx Xxxxxx, XX dated March 18, 2001 and
prepared by Xxxxx Xxxxxxx, NSLS, P. Eng. And more particularly described as
follows:
BEGINNING at an iron rod on the Westerly sideline of an easement in favour of
the own of Yarmouth and at the Southeasterly corner of lands now or formerly of
Shag Holdings Limited;
THENCE 195E 06' 20" 101.050 metres along the Westerly sideline of the Town of
Yarmouth Easement to a survey marker at other lands of the Yarmouth Area
Industrial Commission;
THENCE 281E 37' 20" 144.558 metres along said other lands of the Yarmouth Area
Industrial Commission to a survey marker at the Southeasterly corner of other
lands (Lot 15) of the Yarmouth Area Industrial Commission;
THENCE 17E 21' 20" 92.000 metres along the Southeasterly boundary of said Lot 15
to a survey marker on the Southerly sideline of County Crescent No. 458 and at
the Northeasterly corner of Lot 15;
THENCE 101E 37' 20" 46.000 metres along the sideline of County Crescent No. 458
to a survey marker;
THENCE 101E 37' 20" 10.317 metres along the sideline of County Crescent No. 458
to a survey marker at a point of curvature;
THENCE following a curve to the right, said curve having a radius of 30.760
metres, a chord bearing and distance of 112E 56' 00" 12.067 metres, an arc
distance of 12.146 metres along the sideline of County Crescent No. 458 to a
survey marker at a point of curvature;
THENCE 124E 14' 40" 13.243 metres along the sideline of County Crescent No. 458
to a survey marker at a point of curvature;
THENCE following a curve to the left, said curve having a radius of 23.250
metres, a chord bearing and distance of 114E 46' 40" 7.648 metres, an arc
distance of 7.683 metres along the sideline of County Crescent No. 458 to a
survey marker at a point of curvature.
[The above Lot 23 being a consolidation of Lots 12, 13 and 14 as shown on
Schedule "A" to the Offer to Lease.]
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SCHEDULE "B"
[NOTE TO DRAFT: EITHER ATTACH RELEVANT BUILDING
SPECIFICATIONS OR REFER TO REPORTS/PLANS, ETC.
WHICH CONTAIN SUCH PARTICULARS]
