AGREEMENT NO. RGDCR45709
AGREEMENT FOR EXTENSION OF TERM
(AMENDMENT NO. 3)
This Agreement for Extension of Term is entered into by and between U S WEST
Business Resources, Inc., a Colorado corporation, with offices for transaction
of business located at 000 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, as
agent for U S WEST Communications, Inc. ("Customer") and Applied Digital Access,
Inc., with offices for transaction of business located at 0000 Xxxxxxxx Xxxx Xxx
Xxxxx, Xxxxxxxxxx 00000 ("Supplier").
RECITALS
Customer and Supplier entered into that certain agreement styled " General
Purchasing Agreement," dated February 15,1994, as amended by Amendment No.1
dated February 1,1996, and Amendment No. 2 dated August 17,1996 (the
"Agreement");
The term of the Agreement will automatically expire on February 16, 1997 (the
"Expiration Date"); and Customer and Supplier wish to extend the term of the
Agreement beyond the Expiration Date under the terms and conditions hereof.
AGREEMENT
In consideration of mutual promises and advantages to the parties, the parties
incorporate by reference and agree to the accuracy of the above recitals and
further agree that the Agreement shall not expire on the Expiration Date, but
shall automatically renew for an additional four (4) month period commencing on
February 17,1997, and will automatically expire on June 16, 1997. All other
terms and conditions of the Agreement remain unchanged and shall all continue in
full force and effect.
The term "Customer" as used herein may be applicable to one or more parties and
the singular shall include the plural. If there shall be more than one party
referred to as Customer herein, then their obligations shall be several, not
joint.
The parties intending to be legally bound have executed this Agreement for
Extension of Term as of the dates set forth below in multiple counterparts each
of which is deemed an original but all of which together shall constitute one
and the same instrument.
U S WEST BUSINESS RESOURCES, INC., APPLIED DIGITAL ACCESS, INC.
AS AGENT FOR U S WEST COMMUNICATIONS, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxx X. Xxxxx
------------------------- ----------------------
(Authorized Signature) (Authorized Signature)
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxx
----------------- ---------------
(Print or Type Name or Signatory) (Print or Type Name or Signatory)
Contract Agent Chief Financial Officer
-------------- ----------------------
(Title) (Title)
January 30,1997 January 30,1997
--------------- -----------------
(Execution Date) (Execution Date)
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CONFIDENTIAL. DISCLOSURE AND DISTRIBUTE SOLELY TO THOSE INDIVIDUALS
WHO HAVE A NEED TO KNOW.
XXXXXXXX XXXXXX XXXX XXXX
XXXXXXX, XXXXXXX XXXXXXXX
LEASE
THIS INDENTURE made as of January 1, 1997 pursuant to the LAND TRANSFER FORM
ACT, PART 2
BETWEEN:
2725321 CANADA INC., c/o PPM Real Estate Managers (Canada) Limited,
000 - 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "LANDLORD")
OF THE FIRST PART
AND:
APPLIED DIGITAL ACCESS - CANADA, INC., 0000 Xxxxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx, X.X.X., 00000
(the "TENANT")
OF THE SECOND PART
ARTICLE 1
DEFINITIONS AND INTERPRETATION
DEFINITIONS
1.1 The parties agree that the following words shall have the meanings set
forth below and used in this Lease.
ADDITIONAL RENT means all amounts payable by the Tenant hereunder
excluding Basic Rent;
AGREEMENT TO LEASE means the agreement between the parties hereto
pursuant to which they have entered into this Lease;
AREA OF THE DEMISED PREMISES means as of the date hereof the number of
square feet set out in Schedule "A" hereto subject to revision in
accordance with such Schedule;
BASIC RENT means the fixed annual rental payable pursuant to paragraph
3.1 hereof;
BUILDING means the building situate upon the Lands within which the
Demised Premises are located;
COMMENCEMENT DATE means the date on which the Term commences, as set
out in paragraph 2.1;
COMMON AREAS AND FACILITIES means those portions of the Development and
the facilities therein or thereon from time to time not occupied by the
Tenant or other tenants as their exclusive premises or otherwise
designated by the Landlord as being for the benefit of or for use by
the Tenant in common with others entitled to the use or benefit of the
same;
DEMISED PREMISES means those premises described in Schedule "A"
attached hereto;
DEVELOPMENT means the Lands and the Project;
GST means the Goods and Services Tax contained in Part IX of the EXCISE
TAX ACT, S.C. 1990, or any similar tax in substitution therefor or
addition thereto;
LANDS means those certain parcels or tracts of land located in the
Municipality of Burnaby, in the Province of British Columbia, and more
particularly described in Schedule "B" attached hereto;
OPERATING COSTS means an amount equivalent to the total amount (without
duplication) paid or payable whether by the Landlord or others on
behalf of the Landlord for managing, operating and maintaining the
Development including all of the component parts thereof such as are in
keeping with maintaining the standard of a first class industrial
complex including without limiting the generality of the foregoing, all
repairs and replacements required for such maintenance, other than
repairs to and replacements of the structure of the Building and other
buildings on the Project, the costs of providing electricity, water,
gas, fuel and other services and utilities (including heating and
air-conditioning) not otherwise paid by the tenants of the Project, the
costs of painting interior areas not normally rented to tenants and the
costs of painting and otherwise maintaining the outside of the Building
(including the roof thereof) and all other buildings on the Project
(other than those parts for which the Tenant is responsible), the costs
of maintaining roadways and parking areas lying in or adjacent to the
Project, snow removal, landscape maintenance, refuse removal and other
costs in connection with the maintenance of the Common Areas and
Facilities, sprinkler protection, fire, casualty, liability, rental and
other insurance costs (including self-insurance premiums not in excess
of normal insurance costs), security protection, the amount of all
salaries, wages, fringe benefits and other employment costs or payments
made paid to employees engaged in the maintenance or operation of the
Project, amounts paid to independent contractors for or in relation to
any services in connection with such maintenance or operation, the cost
of direct supervision and of management and other indirect expenses to
the extent allocable to the maintenance and operation of the Project,
the reasonable rental value of and costs associated with
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(having regard to the rentals prevailing from time to time for similar
space) space utilized by the Landlord or its property manager in
connection with the management, operation or maintenance of the
Project and all other expenses paid or payable by the Landlord in
connection with the operation of the Development and all of the
component parts thereof together with a fee for the administration and
management of the Project equal to the actual cost paid by the
Landlord to a third party to administer and manage the Project (which
shall be a commercially reasonable fee, having regard to the nature of
the management services performed and the operation of the Project as
a first class industrial complex) or, if the Landlord itself manages
the Project, a fee equal to the amount the Landlord might reasonably
pay to a third party for the administration and management of the
Project, but Operating Costs shall not include interest on debt or
capital retirement of debt or any amounts directly chargeable by the
Landlord to any tenant or tenants as otherwise provided herein. For
greater certainty, Operating Costs shall not include the cost of
structural and roof repairs or replacements (other than relating to
the roof membrane, asphalt or insulation, which will be included in
Operating Costs).
If the Landlord sells 100% of a legally subdivided portion of the
Development, as of the date of sale, the Operating Costs shall be
determined on the basis of the legally subdivided portion of
Development retained by the Landlord;
PROJECT means the improvements constructed or to be constructed on the
Lands from time to time, including without limitation, the Building;
PROPORTIONATE SHARE means the fraction, the numerator of which is the
Area of the Demised Premises and the denominator of which is the
aggregate area in square feet of all rentable premises from time to
time physically existing in the Project, whether actually rented or
not, including the Demised Premises;
RENT means Basic Rent, Additional Rent and all other amounts payable
to the Landlord hereunder;
TAXES means an amount equal to all taxes, rates, duties, levies and
assessments whatsoever, whether municipal, provincial, parliamentary
or otherwise, levied, imposed or assessed against the Lands and the
Project or upon the Landlord on account thereof, or from time to time,
levied, imposed or assessed for education, schools and local
improvements and including all costs and expenses incurred by the
Landlord in good faith in contesting, resisting or appealing any such
taxes, rates, duties, levies or assessments, but excluding Tenant's
Taxes and excluding income or profits taxes upon the income of the
Landlord to the extent that such taxes are not levied in lieu of
taxes, rates, duties, levies and assessments against the Lands and
Project or upon the Landlord on account thereof;
TENANT'S TAXES means without limitation all taxes, licences, rates,
duties and assessments imposed or levied by lawful authority in
respect of the use or occupancy of the Demised Premises by the Tenant
relating to or in respect of personal property in the Demised Premises
or the Building or the Project and all other business and trade
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fixtures, machinery and equipment, cabinetwork, furniture and movable
partitions owned or installed by the Tenant at the expense of the
Tenant or being the property of the Tenant in the Demised Premises or
the Building or the Project, or relating to or in respect of
improvements to the Demised Premises built, made or installed by the
Tenant or the Landlord or at the Landlord's or Tenant's request,
whether any such taxes are payable by law by the Tenant or by the
Landlord and whether such taxes are included by lawful authority in
the taxes, licences, rates, duties and assessments imposed or levied
on or with respect to the Lands or the Project. "Tenant's Taxes" shall
also include any and all penalties or other like charges for late
payment thereof;
TERM means the term of this Lease, as set out in paragraph 2.2, plus if
any extension thereof is provided for herein and such extension right
(or rights) is exercised by the Tenant in accordance herewith, the
period of such exercised extension (or extensions).
SCHEDULES
1.2 The provisions of Schedules hereto are incorporated herein and form
part of this Lease.
GOVERNING LAW
1.3 This Lease shall be construed and governed by the laws of the province
in which the Demised Premises are located, and each of the parties hereto
severally attorns to the jurisdiction of the courts of such province. Should any
provisions of this Lease be illegal or unenforceable it should be considered
separate and several from the Lease and its remaining provisions shall remain in
force and be binding upon the parties hereto as though the illegal or
unenforceable provision had never been included.
HEADINGS
1.4 The headings in this Lease form no part of this Lease and shall be
deemed to have been inserted for convenience of reference only.
INTERPRETATION
1.5 Unless the context otherwise requires, the word "Landlord" wherever
it is used herein shall be construed to include and shall mean the Landlord, its
successors and/or assigns, the word "Tenant" shall be construed to include and
shall mean the Tenant and the executors, administrators, successors and/or
assigns of the Tenant and when there are two or more Tenants or two or more
persons bound by the Tenant's covenants herein contained their obligations
hereunder shall be joint and several, the word "Tenant" and the personal pronoun
"it" relating thereto and used therewith shall be read and construed as Tenants,
and "his", "her", "its" or "their" respectively, as the number and gender of the
party or parties referred to each require and the number of the verb agreeing
therewith, shall be construed and agree with the said word or pronoun so
substituted.
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USE OF "HEREIN", "HEREOF", ETC.
1.6 In this Lease, "herein", "hereof", "hereby", "hereunder",
"hereto", "hereinafter" and similar expressions refer to this Lease and not to
any particular paragraph, section or other portion thereof, unless there is
something in the subject matter or context inconsistent therewith. Paragraphs
referred to by number are the paragraphs so numbered in this Lease. TERMS AS
COVENANTS
1.7 All terms of this Lease and obligations of the parties hereunder
shall be deemed to be covenants of the parties hereto, whether or not so stated
in this Lease.
ARTICLE 2
DEMISE, TERM AND USE
DEMISE
2.1 In consideration of the rents, covenants, conditions and
agreements hereinafter reserved and contained on the part of the Tenant to be
paid, observed and performed the Landlord does demise and lease unto the Tenant
all and singular the Demised Premises, upon the terms and conditions herein
contained. The Tenant acknowledges that the Demised Premises are leased on an
"as is, where is" basis, and that the Landlord is not required to expend any
money or perform any work with respect to the same.
TERM
2.2 TO HAVE AND TO HOLD the Demised Premises for and during the
term (the "Term") of three years commencing on January 1, 1997 (the
"Commencement Date") and ending on December 31, 1999.
USE
2.3 The Demised Premises shall be used by the Tenant for the purpose
of administrative office, research and manufacturing of electronic equipment and
for no other use whatsoever without the prior written consent of the Landlord,
which consent may be withheld by the Landlord, acting reasonably.
USE OF COMMON AREAS AND FACILITIES, ETC.
2.4 In addition to the leasehold interest herein granted, the Tenant shall
have and the Landlord hereby grants to the Tenant its employees, agents,
customers and invitees, in common with the Landlord and all other persons
authorized by the Landlord from time to time, a licence over the Common Areas
and Facilities for the purpose of gaining access to and better using the Demised
Premises, provided however that this right shall in no way restrict the
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Landlord from maintaining or improving the Common Areas and Facilities or of
changing the location of or adding to the Building or any other building on or
constructing a new building or buildings on the Lands. Without limiting the
generality of the foregoing, but subject to the above limitations, the Tenant
shall have the following rights in common with all others from time to time
entitled thereto:
(a) the right to use the driveways situate upon the Lands hereto for
the purpose of ingress and egress from the Demised Premises; and
(b) the right to park its passenger motor vehicles and those of its
employees and customers upon the Lands subject always, however,
to any restrictions thereon which the Landlord may from time to
time impose (which the Landlord may do) including, without
limitation the designation of parking spaces for the exclusive
use of other tenants of the Project and their employees and
customers.
POSSESSION
2.5 DELETED.
EXAMINATION OF DEMISED PREMISES
2.6 The Tenant shall examine the Demised Premises and the Building before
taking possession hereunder and such taking of possession will be, in the
absence of agreement in writing to the contrary, evidence that on the
Commencement Date the Demised Premises and the Building were in good order and
satisfactory condition. No promise of the Landlord to alter, remodel or improve
the Demised Premises or the Building and no representation respecting the
condition of the Demised Premises or the Building has been made by the Landlord
other than those contained herein or made a part hereof.
OVERHOLDING
2.7 If at the expiration of the Term of this Lease the Tenant shall
hold over with the consent of the Landlord, the tenancy of the Tenant thereafter
shall, in the absence of written agreement to the contrary, be from
month-to-month only at a rental per month equal to one-tenth of the Rent payable
for the year immediately preceding such expiration, payable monthly in advance
on the first day of each month and shall be subject to all other terms and
conditions of this Lease.
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ARTICLE 3
RENT AND OTHER PAYMENTS
BASIC RENT
3.1 YIELDING AND PAYING THEREFOR yearly and every year during the said
Term set out in paragraph 2.2 (for clarity, not inclusive of extensions thereof
if any are provided for herein) as Basic Rent unto the Landlord the sum of
$307,248.00 in lawful money of Canada to be paid in advance in equal consecutive
monthly instalments of $25,604.00 on the first day of each and every month
during the Term (but not any extensions thereof) to the Landlord, but subject
however to the provisions of paragraph 5 of Schedule "F" hereto. If the Term
commences on any day other than the first or ends on any day other than the last
day of a calendar month, the Basic Rent and Additional Rent for the fractions of
a month at the commencement and at the end of the Term shall be adjusted on a
per diem basis.
PAYMENTS TO LANDLORD
3.2 All payments required to be made to the Landlord by the Tenant under
or in respect of this Lease shall be made in lawful currency of Canada, to the
agent of the Landlord, PPM Real Estate Managers (Canada) Limited at the address
set out on page 1 hereof or at such place or places or other agent as the
Landlord may designate in writing.
ADDITIONAL RENT
3.3 All amounts payable by the Tenant pursuant to paragraphs 4.3, 4.4
and 4.5 hereof shall be payable as Additional Rent. In addition, all sums paid
or expenses incurred hereunder by the Landlord, which ought to have been paid or
incurred by the Tenant, or for which the Landlord hereunder is entitled to
reimbursement from the Tenant, and any interest owing to the Landlord hereunder
may be recovered by the Landlord as Additional Rent by any and all remedies
available to it for the recovery of Rent in arrears.
PAYMENTS TO OTHERS
3.4 If the Tenant is required hereunder to make any payments other than
to the Landlord, the Tenant shall make such payments promptly and before any
interest or penalty for non-payment attaches thereto. In addition, the Tenant
shall produce to the Landlord from time to time at the request of the Landlord
evidence satisfactory to the Landlord acting reasonably of the due payment by
the Tenant of all payments required to be made by the Tenant under this Lease.
INTEREST ON OVERDUE AMOUNTS
3.5 The Tenant shall pay to the Landlord interest at the rate of six
percent (6%) per annum over the prime rate being charged by the Landlord's bank,
from time to time on all payments of rent and other sums required to be made
under the provisions of this Lease which
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have become overdue so long as such payments remain unpaid, provided that the
provisions of this paragraph shall not limit any other rights or remedies of the
Landlord.
DISPUTES
3.6 In the event of a dispute as to the amount of Operating Costs,
or the inclusion of any cost, expense or amount in Operating Costs, then such
dispute shall be referred to the Landlord's auditor, whose decision shall be
final and binding upon the parties hereto.
DEPOSIT
3.7 The Landlord hereby acknowledges receipt from the Tenant of the
sum of $73,011.09 (the "Deposit"), which shall be applied firstly toward Rent
and GST thereon for the second month of the Term, with the balance to be held by
the Landlord without interest as security for the payment of Rent and
performance of the Tenant's obligations under this Lease. If at any time the
Tenant is in default of its obligations hereunder, the Landlord may, either
before or after terminating this Lease, apply the whole or any part of the
Deposit to cure such default or to compensate the Landlord for any loss or
expense incurred by the Landlord as a result thereof, and such application of
the Deposit shall be without prejudice to the Landlord's right to pursue any
other remedy set forth in this Lease or available at law. If the whole or any
part of the Deposit is so applied by the Landlord, the Tenant will forthwith pay
to the Landlord a sufficient amount to restore the Deposit to the amount thereof
prior to such application by the Landlord. If the Tenant promptly pays all Rent
as it falls due and performs all of its obligations under this Lease, the
Landlord will repay the Deposit to the Tenant within 60 days after the
termination of this Lease. The Landlord may deliver and assign the Deposit to
any purchaser of the Landlord's interest in the Demised Premises and thereupon
the Landlord will be discharged of any further liability with respect to such
Deposit.
ARTICLE 4
MISCELLANEOUS COVENANTS OF THE TENANT
The Tenant covenants with the Landlord as follows:
PAY RENT
4.1 The Tenant shall, during the Term, pay unto the Landlord the Basic
Rent hereby reserved in the manner hereinbefore mentioned without any set-off or
deduction whatsoever save as specifically provided for herein, together with all
GST payable in respect of this Lease as and when required to do so by the
Landlord.
PAY TENANT'S TAXES
4.2 The Tenant shall pay all Tenant's Taxes on or before the due date
thereof. If the Tenant neglects or refuses to pay any Tenant's Taxes, the
Landlord may, at its option, pay
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the same and recover the amount paid by all remedies available to it for the
recovery of Rent in arrears.
PAY UTILITIES
4.3 The Tenant shall pay all rates and charges for water, gas and electric
light and/or power, heating, fuel, telephone or other utilities supplied to or
used in the Demised Premises as separately metered or separately invoiced by the
supplier thereof, and, if not so separately metered or invoiced, the Tenant's
Proportionate Share of such rates and charges; PROVIDED HOWEVER that if the
Landlord, acting reasonably, determines that an allocation of such rates or
charges on a Proportionate Share basis would not be equitable, the Landlord may
allocate such rates and charges on a reasonable basis amongst the various
tenants of the Building or of the Development, and the Tenant shall pay its
share of the same as reasonably determined by the Landlord.
PAY PROPORTIONATE SHARE OF TAXES
4.4 The Tenant shall during and in respect of the Term pay its
Proportionate Share of Taxes. The Tenant's Proportionate Share of Taxes shall be
estimated by the Landlord for such period as the Landlord may determine (not to
exceed 12 months) and the Tenant shall pay the same to the Landlord in equal
monthly instalments together with the regular monthly instalments of Basic Rent
as set out in paragraph 3.1. The Landlord shall furnish to the Tenant an
estimate of the Proportionate Share of Taxes payable by the Tenant during the
period so determined by the Landlord. At the end of such period, the Landlord
shall furnish the Tenant with a statement showing the actual amount of the
Proportionate Share of Taxes paid and payable by the Tenant and if an
overpayment has been made by the Tenant, the Landlord shall credit such amount
to the Tenant's Proportionate Share of Taxes for the ensuing period and if there
is no ensuing period such amount shall be paid to the Tenant and if an amount
remains owing to the Landlord in respect of the Tenant's Proportionate Share of
Taxes, the Tenant shall forthwith pay such amount to the Landlord.
PAY PROPORTIONATE SHARE OF OPERATING COSTS
4.5 The Tenant shall during and in respect of the Term pay its
Proportionate Share of Operating Costs as follows: the Tenant's Proportionate
Share of Operating Costs shall be estimated by the Landlord for such period as
the Landlord may determine (not to exceed 12 months) and the Tenant shall pay
the same to the Landlord in equal monthly instalments together with the regular
monthly instalments of Basic Rent as set out in paragraph 3.1. The Landlord
shall furnish to the Tenant an estimate of the Proportionate Share of Operating
Costs payable by the Tenant during the period so determined by the Landlord. At
the end of such period, the Landlord shall furnish the Tenant with a statement
showing the actual amount of the Proportionate Share of Operating Costs paid and
payable by the Tenant, and the Landlord and Tenant covenant and agree each with
the other that if an overpayment of the Tenant's Proportionate Share of
Operating Costs has been made by the Tenant, the Landlord shall credit such
amount to the Tenant's Proportionate Share of Operating Costs for the ensuing
period and if there is no ensuing period such amount shall be paid to the Tenant
and if an amount remains
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owing to the Landlord in respect of the Tenant's Proportionate Share of
Operating Costs, the Tenant shall forthwith pay such amount to the Landlord.
NO NUISANCE
4.6 The Tenant shall not at any time during the Term, use, exercise or
carry on or permit or suffer to be used, exercised or carried on, in or upon the
Demised Premises or any part thereof any noxious, noisome or offensive act,
trade, business, occupation or calling, and no act, matter or thing whatsoever
shall at any time during the Term be done in or upon the Demised Premises or any
part thereof which shall or may be or grow to the annoyance, nuisance, damage or
disturbance of the occupiers or owners of the Lands, Project or adjoining land
and properties.
COMPLY WITH LAWS, ETC.
4.7 The Tenant shall comply promptly at its expense with all laws,
ordinances, regulations, requirements and recommendations which may be
applicable to the Tenant or to the manner of use of the Demised Premises, and
shall comply with any and all federal, provincial, civic, municipal and other
authorities or association of insurance underwriters or agents and all notices
in pursuance of same and whether served upon the Landlord or the Tenant. Without
limiting the generality of the foregoing, the Tenant shall comply fully with the
provisions of Schedule "D" hereto.
COMPLY WITH RULES AND REGULATIONS
4.8 The Tenant shall observe and comply with the rules and regulations
attached hereto as Schedule "C" with such reasonable variations, modifications
and additions as shall from time to time be made by the Landlord and any other
and further reasonable rules and regulations that may be made by the Landlord
and communicated to the Tenant in writing, and the Tenant shall cause its
agents, servants or employees to observe and comply with the same. All such
rules and regulations shall be read as forming part of the terms and conditions
of this Lease as if the same were embodied herein as covenants of the Tenant,
and the Tenant's failure to keep and observe such rules and regulations shall
constitute a breach of this Lease.
GOODS, CHATTELS, ETC. NOT TO BE REMOVED
4.9 The Tenant agrees that all goods, chattels and fixtures when moved
into the Demised Premises shall not except in the normal course of business, be
removed from the Demised Premises until all Rent due or to become due during the
Term of this Lease and all utility charges are fully paid. The Tenant further
covenants and agrees that if the Tenant shall at any time be in default under
any of the terms, covenants or agreements contained herein, the Landlord shall
have a lien on all of the Tenants goods, chattels and fixtures located in the
Demised Premises, but excluding however electronic data storage equipment,
backup tapes and software media, as security against loss or damage resulting
from any such default, and such goods, chattels and fixtures shall not be
removed from the Demised Premises by the Tenant until such default is cured
unless the Landlord directs otherwise.
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USE OF DEMISED PREMISES
4.10 The Tenant shall not use the Demised Premises nor suffer or permit
the Demised Premises to be used for any other purpose than that provided for in
paragraph 2.3, nor shall the Tenant use the Demised Premises in any way which
will impair the efficient and proper operation of the sprinkler system in the
Building.
CONTINUOUS OCCUPATION
4.11 The Tenant shall commence the use of the Demised Premises referred
to in paragraph 2.3 within 30 days from the Commencement Date and shall carry on
such use continuously during the Term.
SIGNS
4.12 The Tenant shall not, without the Landlord's prior written
permission, paint, display, inscribe, place or affix any sign, picture,
advertisement, notice, lettering or direction on any part of the outside of the
Building or the Project or visible from the outside of the Building or the
Project or in any corridor, hallway, entrance or other public part of the
Building or Project; PROVIDED THAT the Landlord shall prescribe a uniform
pattern for identification signs for tenants to be placed on the outside of the
main door leading into the Demised Premises; FURTHER PROVIDED THAT at the
request of the Tenant and at the Tenant's expense, the Landlord shall cause such
a sign to be placed in position.
PEACEFUL SURRENDER
4.13 The Tenant shall, at the expiration or sooner termination of the
said Term, peaceably surrender and yield up unto the Landlord the Demised
Premises with the appurtenances, together with all fixtures or erections which
at any time during the said Term shall be made therein or thereon (other than
tenant's or trade fixtures removed pursuant to paragraph 4.15 or Alterations
which the Landlord requires to be removed pursuant to paragraph 7.2(b)) in good
and substantial repair and condition, reasonable wear and tear and damage by
fire or other insured peril excepted, and deliver to the Landlord all keys to
the Demised Premises which the Tenant has in its possession.
CONDITION AT EXPIRATION
4.14 The Tenant shall immediately before the expiration or sooner
termination of the Lease wash the floors, windows, doors, walls and woodwork of
the Demised Premises. The Tenant further covenants that the Tenant will not upon
such expiration or sooner termination leave upon the Demised Premises any
rubbish or waste material and will leave the Demised Premises in a clean and
tidy condition. Without limiting the generality of the foregoing, the Tenant
shall ensure that all trade fixtures and other items which the Tenant has the
right or obligation hereunder to remove from the Demised Premises are fully
removed, and any damaged caused by such removal is fully made good, on or before
the last day of the Term.
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REMOVAL OF FIXTURES
4.15 Subject to paragraph 4.9 hereof the Tenant may at the expiration
of the Term hereby granted, take, remove and carry away from the Demised
Premises all fixtures, fittings, shelving, counters or other articles upon the
Demised Premises in the nature of trade or tenants' fixtures, but the Tenant
shall in such removal do no damage to the Demised Premises, or shall make good
any damage which the Tenant may occasion thereto; PROVIDED THAT the Tenant shall
not remove or carry away from the Demised Premises any part of the Building or
any plumbing, heating, air-conditioning or ventilating plant or equipment or
other Building services; PROVIDED FURTHER that notwithstanding anything herein
contained the Landlord shall have the right upon the termination of this Lease
by effluxion of time or otherwise to require the Tenant to remove its
installations, alterations, additions, partitions and fixtures or anything in
the nature of leasehold improvements made or installed by the Tenant or by the
Landlord on behalf of the Tenant and to make good any damage caused to the
Demised Premises by such removal.
USE OF WASHROOMS
4.16 The Tenant shall keep and maintain the washrooms in a sanitary
condition, and shall not use the washrooms, or suffer or permit its customers,
licensees, invitees, servants, agents, or employees to use the washrooms for any
purpose other than the purpose for which they were designed.
OVERLOADING
4.17 The Tenant shall not do or suffer or permit any waste or
damage, disfigurement or injury to the Demised Premises or the fixtures and
equipment thereof or permit or suffer any overloading of any floor thereof, and
shall not place in, on or about the Demised Premises any fixtures, equipment,
machinery or materials of a weight beyond the capacity for which the Building is
designed, or to the extent that will cause damage to the Building or cause
excessive vibration. The Tenant shall repair any damage done to the Demised
Premises or the Building by reason of any excessive weight placed in the Demised
Premises or excessive vibration caused in the Demised Premises.
NUISANCE AND WASTE
4.18 The Tenant shall not cause or suffer or permit any oil or grease
or any harmful, objectionable, dangerous, poisonous or explosive matter or
substance to be discharged into the Demised Premises or the Building or the
Development or into the driveways, common areas, ditches, water courses,
culverts, drains or sewers in or adjacent thereto, and will take all reasonable
measure for insuring that any effluent discharged will not be corrosive,
poisonous or otherwise harmful, or cause obstruction, deposit or pollution
within the Demised Premises, or the Building, or the Development or the
driveways, common areas, ditches, water courses, culverts, drains, or sewers
thereof. Without limiting the generality of the foregoing, the Tenant shall
comply fully with the provisions of Schedule "D" hereto.
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ACCESS
4.19 The Tenant shall not permit any vehicles belonging to the Tenant,
its customers, invitees, licensees, agents or servants to cause obstruction on
any roads, driveways or common areas in the neighbourhood of the Development or
prevent the ingress or egress to all other tenants in the Building and the
Development and will use its best endeavours to ensure that persons doing
business with the Tenant and its servants and workers shall not permit any
vehicles to cause such obstruction as aforesaid.
USE OF YARD AREAS
4.20 The Tenant shall not place, nor suffer or permit its customers,
invitees, licensees, agents or servants to place any materials in the yard or
yards of the Project or the adjacent driveways, parking or common areas thereof
and shall cause no obstruction to vehicles operating on the said adjacent
driveways, parking or common areas.
NO AUCTION
4.21 The Tenant shall not at any time permit any sale by auction
to be held within the Demised Premises or upon the Lands or any part thereof.
ESTOPPEL CERTIFICATES
4.22 To provide within 15 calendar days of the request and at the
cost of the Landlord (such cost to be reasonable) an estoppel certificate for
the Landlord, addressed to the Landlord and any potential buyer or mortgagee,
binding upon the Tenant, in the Landlord's standard form containing such
statements as the Landlord may reasonably require with reasonable promptness
upon request by the Landlord.
LANDLORD MAY PERFORM TENANT'S COVENANTS
4.23 If the Tenant shall fail to perform or cause to be performed each
and every one of the covenants and obligations of the Tenant in this Lease
contained the Landlord shall have the right (but shall not be obligated) to
perform or cause the same to be performed and to do or cause to be done such
things as may be necessary or incidental thereto (including without limiting the
foregoing, the right to make repairs, installations, erections and expend
moneys) and all payments, expenses, charges, fees and disbursements, including
reasonable solicitors' fees and disbursements, incurred or paid by or on behalf
of the Landlord in respect thereof shall be paid by the Tenant to the Landlord
forthwith.
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ARTICLE 5
LANDLORD'S COVENANTS
The Landlord covenants with the Tenant as follows:
QUIET ENJOYMENT
5.1 The Tenant, paying the Rent hereby reserved and performing the
covenants herein on the Tenant's part contained, shall and may peaceably possess
and enjoy the Demised Premises for the Term hereby granted without any
interruption or disturbance from the Landlord or any other person or persons
lawfully claiming by, from or under the Landlord; SUBJECT ALWAYS to the terms,
covenants and conditions contained in this Lease.
TAXES
5.2 The Landlord shall pay or cause to be paid Taxes subject to
contribution by the Tenant as provided in paragraph 4.4 hereof.
MANAGEMENT, OPERATION AND MAINTENANCE
5.3 The Landlord acting reasonably shall manage, operate, maintain, repair
and replace the Project and Lands subject to the cost and expense thereof being
contributed to by the Tenant as provided in paragraph 4.5 hereof.
ARTICLE 6
INSURANCE AND INDEMNITY
TENANT INSURANCE
6.1 The Tenant shall, at its expense, provide and maintain in force
during the Term:
(a) plate glass insurance, for the benefit of the Landlord and the Tenant,
covering all plate glass in the Demised Premises, including plate glass
windows and doors, in an amount equal to the full insurable value thereof;
(b) owned automobile insurance with respect to all motor vehicles owned by
the Tenant and operated in its business;
(c) comprehensive general liability of not less than $3,000,000.00 per
occurrence and property damage insurance, including fire, tenant's legal
liability insurance, for the benefit of injury or death to one or more
persons, or property damage, occurring in the Demised Premises or the
Building or on the Development; and
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(d) insurance in respect of fire and such other perils as are from time to
time defined in the usual extended coverage endorsement covering the
Tenant's leasehold improvements, trade fixtures and furniture and equipment
to the full insurable value thereof.
DETAILS OF POLICIES
6.2 All policies of insurance required to be maintained by the Tenant
shall have the following provisions or characteristics:
(a) all insurance shall be effected with insurers and brokers and
upon terms and conditions satisfactory to the Landlord, acting
reasonably;
(b) to the extent applicable, all policies of insurance shall
contain a waiver of subrogation clause in favour of the Landlord
and shall also contain a clause requiring the insurer not to
cancel or change the insurance without first giving the Landlord
30 days' prior written notice thereof; and
(c) all policies of insurance shall be written to protect the
Landlord and its mortgagees, if any, and the Tenant,
notwithstanding any act or neglect of such parties which might
otherwise result in the forfeiture of such policies or any of
them.
PROOF OF INSURANCE
6.3 The Tenant shall provide, upon request, proof of new or continued
insurance to the Landlord at least 7 days prior to the expiration date recited
in any of the Tenant's insurance policies, such proof to be in form and content
satisfactory to the Landlord, acting reasonably. The Tenant agrees that if it
does not provide or maintain in force such insurance, the Landlord may, but
shall not be obligated to, take out the necessary insurance and pay the premium
therefor for periods of one year at a time, and the Tenant shall pay to the
Landlord as Additional Rent the amount of such premium immediately on demand. In
the event the Landlord takes out insurance as aforesaid, the Landlord shall in
no way be responsible for the sufficiency of such insurance.
PRIORITY OF CLAIMS
6.4 If both the Landlord and the Tenant have claims to be indemnified
under any such insurance, the indemnity shall be applied first to the settlement
of the claim of the Landlord and the balance, if any, to the settlement of the
claim of the Tenant.
ACTS CONFLICTING WITH INSURANCE
6.5 The Tenant shall not do or permit to be done any act or thing
which may render void or voidable or conflict with the requirements of any
policy or policies of insurance, including any regulations of fire insurance
underwriters applicable to such policy or policies, whereby the Demised Premises
or the Building or the Development are insured or which may cause any increase
in premium to be paid in respect of any such policy. If any such policy or
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policies is or are cancelled by reason of any act or omission of the Tenant, the
Landlord shall have the right at its option to terminate this Lease forthwith by
giving written notice of termination to the Tenant, and if the premium to be
paid in respect of any such policy is increased by any act or omission of the
Tenant (including the use of the Demised Premises described in paragraph 2.3),
the Tenant shall pay to the Landlord the amount by which said premium shall be
so increased.
INDEMNITY TO THE LANDLORD
6.6 The Tenant shall indemnify and save harmless the Landlord from any
and all liabilities, damages, costs, claims, suits or actions arising out of:
(a) any breach, violation or non-performance of any covenant,
condition or agreement in this Lease set forth and contained on the
part of the Tenant to be fulfilled, kept, observed or performed;
(b) any occurrence in, upon, about or at the Demised Premises, except
to the extent caused by the negligence or wilful misconduct of the
Landlord;
(c) any and all costs incurred by the Landlord in making good any
damage caused to the Development including the furnishing and
amenities thereof as a result of the negligent or wilful act or
omission of the Tenant or any person for whom the Tenant is in law
responsible; and
(d) any injury to any licensee, invitee, agent or employee of the
Tenant, including death resulting at any time therefrom, occurring in
or about the Development, except to the extent caused by the
negligence or wilful misconduct of the Landlord;
and this indemnity shall survive the expiry or sooner termination of this Lease.
FURTHER INDEMNITY
6.7 Notwithstanding anything to the contrary herein contained, if the
Project or the Building or any part thereof or any appurtenance thereto, becomes
damaged or destroyed through the negligence or wilful act or omission of the
Tenant or any person for whom the Tenant is in law responsible, then all
necessary repairs, replacements or alterations shall at the sole option of the
Landlord, be made either by the Landlord or the Tenant, but in any event, the
expense thereof shall be borne by the Tenant who shall pay the same to the
Landlord forthwith on demand and the same shall be collectible by the Landlord
from the Tenant as if Rent in arrears; the provisions of paragraph 7.1(c) shall
apply to this paragraph if the Tenant is required to carry out the repairs,
replacements or alterations pursuant to this paragraph.
LANDLORD NOT RESPONSIBLE FOR INJURIES, LOSS, DAMAGE
6.8 The Landlord shall not be responsible in any way for any injury
(including death) to any person or for any loss of or damage to any property
belonging to the Tenant or to other occupants of the Demised Premises or to
their respective customers, invitees,
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licensees, agents, servants or any other persons from time to time attending at
the Demised Premises while such person or property is in or about the Building
or Development or any roadways, parking areas, lawns, sidewalks, steps,
truckways, platforms, corridors, or stairways in connection therewith, including
without limiting the foregoing, any loss of or damage to any such property
caused by theft or breakage, or by steam, water, rain or snow which may leak
into, issue or flow from any part of the Building or Development or any adjacent
or neighbouring lands or premises or from any other place or quarter or for any
loss of or damage caused by or attributable to the condition or arrangement of
any electric or other wiring or for any damage caused by smoke or anything done
or omitted to be done by the Landlord or by any other tenant of premises in the
Building or the Project or for any other loss whatsoever with respect to the
Demised Premises and/or any business carried on therein.
NO LIABILITY FOR INDIRECT DAMAGES
6.9 Under no circumstances shall the Landlord be liable for
indirect or consequential damage or damages for personal discomfort, illness or
death by reason of the non-performance or partial performance of any covenants
of the Landlord herein contained including, without limiting the generality of
the foregoing, the heating of the Demised Premises or the operation of the
air-conditioning equipment, plumbing or other equipment in the Building or the
Demised Premises.
LANDLORD INSURANCE
6.10 The Landlord shall take out and keep in force during the Term
insurance with respect to the Development except for the leasehold improvements
in the Demised Premises. The insurance to be maintained by the Landlord shall be
in respect of periods and to amounts and on terms and conditions which from time
to time are insurable at a reasonable premium and which are normally insured by
reasonably prudent owners of properties similar to the Development, all as from
time to time determined at reasonable intervals by insurance advisors selected
by the Landlord, and whose opinion shall be conclusive. Unless and until the
insurance advisors shall state that any such perils are not customarily insured
against by owners of properties similar to the Development, the perils to be
insured against by the Landlord shall include, without limitation, public
liability, boilers and machinery and fire and extended perils and may include at
the option of the Landlord losses suffered by the Landlord in its capacity as
Landlord through business interruption.
ARTICLE 7
REPAIRS AND ALTERATIONS
REPAIRS
7.1 (a) The Tenant shall, during the Term and at the Tenant's sole cost and
expense, well and sufficiently renew, rebuild, repair, replace,
operate, maintain, paint and keep the Demised Premises, with the
appurtenances and all fixtures including plumbing, electrical, heating,
air-conditioning and other facilities and systems, in good and
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substantial repair when, where and so often as need shall be,
reasonable wear and tear and damage by fire and other risks against
which the Landlord is insured only excepted.
(b) The Landlord and its agents shall have the right at all reasonable
times during the Term, to enter the Demised Premises to examine the
condition thereof, and the Tenant shall well and sufficiently repair
and make good the Demised Premises according to notice from the
Landlord, such repairs to be made as expeditiously as possible but in
any event within the time provided for by the Landlord.
(c) The Tenant shall, when necessary and whether upon receipt of notice
from the Landlord or not, effect and pay for such repairs, replacements
or alterations as may be the responsibility of the Tenant under this
Lease by the use of contractors or other qualified workers designated
or approved by the Landlord in writing. If the Tenant fails to comply
with the Landlord's request to effect such repairs, replacements or
alterations within the time provided for by the Landlord, then the
Landlord may cause such repairs, replacements or alterations to be
undertaken. In that event, or in the event that the Landlord elects to
make the repairs, replacements or alterations referred to in paragraph
6.7, then the Landlord shall be entitled to recover from the Tenant a
fee of supervision for the carrying out of such repairs, replacements
or alterations, such fee to be an amount equal to 15% of the moneys
expended or of the cost of repairs, replacements or alterations carried
out by or under the supervision of the Landlord, which amount shall be
in addition to the cost of such work or moneys expended, and the cost
of such work or moneys expended together with the said fee shall be
collectible by the Landlord from the Tenant as if Rent in arrears. The
Rent hereunder shall in no wise xxxxx while such repairs, replacements
or alterations are being made by reason of loss or interruption of the
business of the Tenant because of the prosecution of any such work.
(d) The Tenant shall throughout the term operate and maintain the
heating, ventilating, air-conditioning and humidity control equipment
(herein referred to as "HVAC") within or serving the Demised Premises
in such a manner as to maintain reasonable conditions of temperature,
air circulation and humidity within the Demised Premises as determined
by the Landlord. The Tenant shall comply with such reasonable rules and
regulations as the Landlord shall make from time to time respecting the
maintenance, repair and operation of the HVAC and shall, upon the
request of the Landlord and at the cost of the Tenant, obtain and
maintain throughout the term a preventative maintenance contract for
the HVAC with a maintenance company acceptable to the Landlord.
ALTERATIONS
7.2 (a) The Tenant shall not without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, make any
installations, alterations, repairs or improvements in or to the
Demised Premises (collectively "Alterations"). The Tenant shall submit
to the Landlord detailed plans and specifications of any Alterations
when applying for consent, and the Landlord reserves the right to
recover from the
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Tenant the cost of having its architects or engineers examine such
plans and specifications. The Landlord may require that any or all
work to be done, or materials to be supplied hereunder shall be done
or supplied by the Landlord's contractors and/or workers provided that
the cost of such work or materials shall be reasonable or by
contractors and/or workers engaged by the Tenant but first approved by
the Landlord. In any event, any or all work to be done or materials to
be supplied hereunder shall be at the sole cost and expense of the
Tenant and shall be done and supplied and paid for in the manner and
according to such terms and conditions, if any as the Landlord may
prescribe. Any connections of apparatus to the electrical system other
than a connection to an existing base receptacle shall be deemed to be
an Alteration within the meaning of this paragraph. No connection to
an existing base receptacle shall be made if such connection would, if
made, overload the capacity of such receptacle.
(b) Any Alterations, business and trade fixtures, machinery and
equipment, cabinet work, furniture or immovable partitions attached to
the Demised Premises in any way other than by their own weight and all
plumbing or wiring installed by or on behalf of the Tenant shall be
deemed to become the Landlord's property forthwith upon their being so
attached. Notwithstanding the foregoing, the Landlord may by written
notice to the Tenant at least 60 days prior to the expiry of the Term
elect to require the Tenant to remove all or any part of the
Alterations, business and trade fixtures, machinery and equipment,
cabinet work, furniture or immovable partitions owned or installed by
the Tenant at the expiration of this Lease, in which case such removal
shall be done at the Tenant's expense and the Tenant shall, at its
expense, repair any damage to the Demised Premises caused by such
removal. If the Tenant does not remove such property forthwith upon
written notice from the Landlord, the Landlord may remove the same,
and the cost of such removal and the cost of repairing any damage to
the Demised Premises occasioned thereby shall be paid to the Landlord
by the Tenant forthwith upon demand, and the Landlord will not be
responsible for any loss or damage to such property caused by such
removal.
(c) The Tenant shall promptly pay all charges incurred by the Tenant
for any work, materials or services that may be done, supplied or
performed in respect of the Demised Premises and shall forthwith
discharge any liens at any time filed against the Lands or any part
thereof and shall keep the Lands free from liens. If the Tenant fails
to do so, the Landlord may, but shall be under no obligation to, pay
into Court the amount required to obtain a discharge of any such lien
in the name of the Tenant and any amount so paid together with all
disbursements and costs in respect of such proceedings on a solicitor
and client basis shall be forthwith due and payable by the Tenant to
the Landlord as Additional Rent. The Tenant shall allow the Landlord
to post and keep posted on the Demised Premises any notices that the
Landlord may desire to post under the provisions of applicable
builders' or mechanics' lien or other legislation.
(d) The Tenant shall not without the prior written consent of the
Landlord put up any window drapes, blinds, awnings or other similar
things or cover the floors with anything other than loose rugs.
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NOTICE OF ACCIDENTS, DEFECTS, ETC.
7.3 The Tenant shall give the Landlord prompt written notice of any damage
to or defect in the heating and air-conditioning apparatus, water pipes, gas
pipes, telephone lines, electric light or other wires or other casualty.
CARE OF DEMISED PREMISES
7.4 (a) The Tenant shall take good care of the Demised Premises and keep
same in a clean, tidy and healthy condition.
(b) The Tenant shall at its own expense be responsible for and shall
maintain and replace from time to time as may be reasonably necessary
during the Term of this Lease all light fixtures, bulbs, tubes,
ballasts, starters and fuses in the Demised Premises. Notwithstanding
the foregoing, the Landlord shall have the right to attend to such
maintenance and replacements, but the expense thereof shall remain the
responsibility of the Tenant.
(c) The Tenant shall at its own expense replace or repair, under the
direction and to the reasonable satisfaction of the Landlord, the
glass, locks and trimmings of the doors and window in or upon the
Demised Premises which become damaged or broken.
(d) The Tenant shall not allow any ashes, refuse, garbage or other
loose or objectionable material to accumulate in or about the Demised
Premise.
(e) The Tenant shall place in containers of a type approved by the
Landlord all garbage and refuse and such containers shall be deposited
for pick-up at such times and places as are designated in writing from
time to time by the Landlord.
(f) The Tenant shall maintain in good operating condition and to the
satisfaction of the Landlord the water, sewer and gas connections and
all other mechanical systems in the Demised Premises and shall keep the
same in clean and good working order. It is understood and agreed that
in case the said fixtures and equipment or any part thereof shall be
damaged or destroyed or become incapable of performing their function,
the Tenant shall repair or replace the same to the satisfaction of the
Landlord.
(g) The Tenant shall make all repairs and replacements to the Demised
Premises made necessary by reason of burglary or attempted burglary.
(h) The Tenant shall heat the Demised Premises at all reasonable times
and shall maintain such heat at a temperature required to prevent
damage of any nature or kind whatsoever to the Demised Premises, and if
damage does occur to the Demised Premises due to the Tenant's failure
to heat, the Tenant agrees to pay for the repairs arising thereby.
(i) The Tenant shall keep well painted the painted portions of the
interior of the Demised Premises.
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LANDLORD'S RIGHT TO DO WORK
7.5 (a) The Landlord shall have the right to make additions to and/or
improvements or installations in and/or repairs to the Building and/or
the Project and/or the Common Areas and Facilities and whenever
reference is made in this Lease to the Building or the Project or the
Common Areas and Facilities, it shall mean the Building and/or Project
and/or the Common Areas and Facilities as the same may be changed,
added to or improved from time to time and in relation to any such
additions, improvements, installations, or repairs the Landlord may
cause such reasonable obstructions of and interference with the use or
enjoyment of the Project, the Building, the Demised Premises and/or
Common Areas and Facilities as may be reasonably necessary for the
purposes aforesaid and may interrupt or suspend the supply of
electricity, water or other services when necessary and until said
additions, improvements, installations or repairs shall have been
completed, there shall be no abatement in Rent nor shall the Landlord
be liable by reason thereof.
(b) The Landlord and any persons authorized by the Landlord shall have
the right to use, install, maintain and/or repair pipes, wires, ducts
or other installations in, under or through the Demised Premises for or
in connection with the supply of any services to the Demised Premises
or any other premises in the Building. Such services shall include,
without limiting the generality of the foregoing, gas, electricity,
water, sanitation, telephone, heating, air-conditioning and
ventilation. There shall be no abatement of Rent while such use,
installation, maintenance and/or repair is being carried out, by reason
of loss or interruption of the business of the Tenant because of the
prosecution of any such work.
(c) The Landlord and any persons authorized by the Landlord shall have
the right to enter upon the Demised Premises to make such decorations,
repairs, alterations, improvements or additions as it may deem
advisable and the Landlord or any persons authorized by the Landlord
shall be allowed to take all material into and upon the Demised
Premises that may be required therefor. There shall be no abatement of
Rent while such decorations, repairs, alterations, improvements or
additions are being made by reason of loss or interruption of the
business of the Tenant because of the prosecution of any such work.
(d) The Landlord shall provide reasonable advance notice prior to
exercising its rights under the preceding provisions of this paragraph
7.05 save in the case of a real or apprehended emergency, when no such
notice shall be required, and all additions, improvements, installation
or repairs performed by the Landlord under the preceding provisions of
this paragraph 7.05 shall be made as expeditiously as reasonably
possible and in a manner which interferes as little as possible with
the Tenant's permitted use of the Demised Premises.
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LANDLORD'S RIGHT TO INSPECT AND DISPLAY SIGN
7.6 During the Term hereby created any person or persons may inspect the
Demised Premises and all parts thereof at all reasonable times on producing a
written order to that effect signed by the Landlord or its agents. In addition,
the Landlord shall have the right during the last three months of the Term to
show the Demised Premises to prospective tenants during normal business hours
upon reasonable advance notice and to place upon the Demised Premises a notice
of reasonable dimensions and reasonably placed so as not to interfere with the
business of the Tenant, stating that the Demised Premises are for rent and
further provided that the Tenant will not remove such notice or permit the same
to be removed and will co-operate with the Landlord in the showing of the
Demised Premises.
LANDLORD'S REPAIRS
7.7 The Landlord covenants with the Tenant:
(a) subject to Article 9, to keep in a good and reasonable state
of repair, and consistent with the general standards of buildings of
similar age, character and comparable location in British Columbia:
(i) the Building (other than the Demised Premises and
premises of other tenants) including the foundation,
roof, exterior walls including exterior glass portions
thereof, the systems for interior climate control, the
elevators, entrances, stairways, corridors and lobbies
and washrooms and other Common Areas and Facilities
from time to time provided for use in common by the
Tenant and other tenants of the Building and the
systems provided for bringing utilities to the Demised
Premises; and
(ii) the structural members or elements of the Building; and
(b) to repair defects in construction performed or installations made
by the Landlord in the Demised Premises and damage in respect of fire
or other perils against which the Landlord is required to or has in
fact maintained insurance coverage hereunder.
ARTICLE 8
TRANSFER AND ASSIGNMENT
ASSIGNING OR SUBLETTING
8.1 The Tenant shall not assign this lease or sublet, part with or
share possession of the Demised Premises or by licence permit any other person
or corporation to occupy the Demised Premises in whole or in part and shall not
mortgage this Lease or any right hereunder or interest herein (herein a
"Transfer") without the prior written consent of the Landlord, which consent,
subject as hereinafter provided shall not be unreasonably withheld. At the time
that the Tenant requests the consent of the Landlord, the Tenant shall deliver
to the Landlord
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such information in writing as the Landlord may reasonably require respecting
the proposed assignee, subtenant, occupant or licensee (herein the "Transferee")
including without limitation:
(a) the identity of the proposed Transferee;
(b) the specific terms and conditions of such proposed assignment,
sublease or other dealing;
(c) the names and addresses of the beneficial owners of the shares
of any proposed corporate Transferee;
(d) current information on the financial affairs and business
experience of the proposed Transferee, including references; and
(e) such other information as the Landlord may reasonably require.
Within 15 days of receiving all of the information required as set out above,
the Landlord shall by written notice advise the Tenant that the Landlord
consents or does not consent to the Transfer or, alternatively, that the
Landlord has elected to exercise its right under paragraph 8.4.
NO RELEASE
8.2 In no event shall any Transfer, whether the Landlord has consented
to the same or not, release or relieve the Tenant from its obligations to
perform fully all of the terms, covenants and conditions of this Lease on its
part to be performed and in any event the Tenant shall be liable for the
Landlord's reasonable costs incurred in connection with the Tenant's request for
consent.
CHANGE OF CONTROL
8.3 If the Tenant is a non-reporting or closely held company, any change
in control of such company shall be deemed to be a Transfer for the purposes
hereof.
RIGHT OF LANDLORD TO TERMINATE
8.4 Notwithstanding anything to the contrary herein contained, upon the
Landlord receiving a request from the Tenant to consent to a Transfer, the
Landlord shall have the right to terminate this Lease with respect to the
portion of the Demised Premises which is the subject of the Transfer, such right
to be exercised by written notice within 15 days of the Landlord receiving all
of the information required pursuant to paragraph 8.1. Should the Landlord
exercise its right of termination as aforesaid, the Tenant shall have a further
period of 15 days from receipt of the Landlord's notice to withdraw its request
for consent to the Transfer, failing which this Lease shall terminate with
respect to the portion of the Demised Premises which is the subject of the
Transfer as of the date set out in the Landlord's notice of termination (which
shall be not less than 30 nor more than 60 days from the date of such
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notice), and the Tenant shall pay Rent to the date of termination for such
portion of the Demised Premises, following which this Lease shall cease with
respect to such portion and all obligations hereunder (save such as have arisen
prior to the date of termination) shall cease.
SALE BY LANDLORD
8.5 In the event of a sale or conveyance by the Landlord of the Lands on
which the Building is located or in the event of an assignment of this Lease by
the Landlord, then to the extent such purchaser or assignee assumes the
obligations of the Landlord hereunder the same shall operate to release the
Landlord from any future liability upon any of the covenants or conditions,
express or implied, herein contained on the part of the Landlord, and in such
event the Tenant agrees to look solely to the responsibility of the successor in
interest of the Landlord. If any security is given by the Tenant to secure
performance of the Tenant's covenants hereunder, the Landlord may transfer such
security, to the purchaser of the reversion and thereupon the Landlord shall be
discharged from any further liability in reference thereto.
ARTICLE 9
DAMAGE OR DESTRUCTION
DAMAGE OR DESTRUCTION WITHOUT TERMINATION
9.1 If during the Term hereby demised or any extension thereof the Demised
Premises shall be damaged or destroyed by a peril or perils in respect of which
the Landlord is insured, the Rent shall xxxxx in proportion to that part of the
Demised Premises rendered unfit for occupancy bears to the whole of the Demises
Premises until the Demised Premises are rebuilt; and the Landlord agrees that it
will with reasonable diligence repair the Demised Premises unless the Tenant is
obligated to repair under the terms hereof or unless this Lease is terminated as
hereinafter provided; subject always to the provisions of paragraph 9.2 or 9.3.
DAMAGE OR DESTRUCTION WITH TERMINATION
9.2 If the Demised Premises or the Building of which the Demised Premises
form a part or the Project are damaged or destroyed by any cause whatsoever and
if in the opinion of the Landlord reasonably arrived at, the Demised Premises
cannot be repaired, rebuilt or made fit for the purposes of the Tenant or any
other premises in the Building or the Project cannot be repaired, rebuilt or
made fit for the purposes of other tenants, in either case within 90 days of the
damage or destruction, the Landlord may, at its option, terminate this Lease by
giving the Tenant within 30 days of such damage or destruction notice of
termination and thereupon the Basic Rent, Additional Rent and any other payments
for which the Tenant is liable under this Lease shall be apportioned and paid to
the date of such damage or destruction and the Tenant shall immediately deliver
up possession of the Demised Premises to the Landlord; PROVIDED THAT
notwithstanding the termination of this Lease as in this paragraph set forth,
the Tenant shall remain liable for any outstanding obligations of the Tenant
under this Lease as at the time of such termination.
24
DAMAGE OR DESTRUCTION OF BUILDING
9.3 If the Building or part thereof shall be damaged or destroyed and
such damage or destruction, in the opinion of the Landlord, materially
interferes with the enjoyment of the Demised Premises by the Tenant, the Rent in
respect of the Demised Premises shall xxxxx in proportion to such interference
during the period such interference shall continue.
ARTICLE 10
DEFAULT AND RE-ENTRY
RE-ENTRY
10.1 (a) It is hereby expressly agreed that if and whenever the Rent hereby
reserved, or any part thereof, shall be unpaid for seven days after the
date on which the same ought to have been paid, although no formal
demand shall have been made therefor, or in case of the breach or
non-performance of any of the covenants or agreements herein contained
on the part of the Tenant which breach or non-performance continues for
a period of 15 days after written notice from the Landlord, or if the
Demised Premises are vacated or become vacant or remain unoccupied for
five days or are not used for the purpose specified then and in any of
such cases the Landlord shall have the immediate right to re-enter and
take possession of the Demised Premises whereupon, at the Landlord's
option, the balance of the Term shall be forfeit and the Landlord may
remove all persons and property from the Demised Premises and such
property so removed may be stored wherever the Landlord chooses at the
Tenant's cost and expense.
(b) Should the Landlord elect to re-enter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to
any notice provided for by law, it may either terminate this Lease or
it may from time to time without terminating this Lease make such
alterations and repairs as may be necessary in order to relet the
Demised Premises, and may relet the Demised Premises or any part
thereof for such term or terms (which may be for a term extending
beyond the Term of this Lease) at such rental or rentals and upon such
other terms and conditions as the Landlord in its sole discretion may
deem advisable; upon each such reletting, all rents received by the
Landlord from such reletting for the unexpired portion of the Term
shall be applied, first, to the payment of any indebtedness other than
Rent due hereunder from the Tenant to the Landlord; secondly, to the
payment of any costs and expenses of such reletting, including
brokerage fees and solicitors' fees and of costs of such alterations
and repairs; thirdly, to the payment of Basic Rent and Additional Rent
due and unpaid hereunder and the residue, if any, shall be held by the
Landlord and applied in payment of future Rent as the same may become
due and payable hereunder. If such rents received from such reletting
during any month are less than that required to be paid during that
month by the Tenant hereunder, the Tenant shall pay all such deficiency
to the Landlord. Such deficiency shall be calculated and paid monthly.
No such re-entry
25
or taking possession of the Demised Premises by the Landlord shall be
construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to the Tenant or left on the
Demised Premises. Notwithstanding any such reletting without
termination, the Landlord may at any time thereafter elect to
terminate this Lease for such breach. Should the Landlord at any time
terminate this Lease for any breach, in addition to any other remedies
it may have it may recover from the Tenant all damages it may incur by
reason of such breach, including the cost of re-entering the Demised
Premises, reasonable solicitors' fees and including the worth at the
time of such termination of the excess, if any, of the amount of rent
charges equivalent to Rent reserved in this Lease for the remainder of
the Term over the then reasonable rental value of the Demised Premises
for the remainder of the Term, all of which amounts shall be
immediately due and payable by the Tenant to the Landlord.
BANKRUPTCY
10.2 If the Term hereby granted shall be at any time seized or
taken in execution or in attachment by any creditor of the Tenant or if the
Tenant shall make any assignment for the benefit of creditors, or becoming
bankrupt or insolvent shall take the benefit of any Act that may be in force for
bankrupt or insolvent debtors, or if the Tenant should abandon the Demised
Premises then in any such case the said Term shall at the option of the
Landlord, immediately become forfeited and void and the then current month's
Rent and Rent for the three months next following shall immediately become due
and payable and in such case it shall be lawful for the Landlord at any time
thereafter to re-enter into or upon the Demised Premises, or any part thereof,
and the same to have again, repossess and enjoy as of its former estate anything
herein contained to the contrary notwithstanding, and neither this Lease nor any
interest therein nor any estate created hereby shall pass to or enure to the
benefit of any trustee in bankruptcy or any receiver or any assignee for the
benefit of creditors or otherwise by operation of law. For the purposes of
section 65.2(3)(a) of the BANKRUPTCY AND INSOLVENCY ACT (Canada) the Tenant
acknowledges that the six months rent referred to therein shall mean six months
Rent hereunder calculated from the date on which the repudiation of this Lease
takes effect pursuant to such Act.
WAIVER OF EXEMPTION FROM DISTRESS
10.3 In consideration of the premises and of the leasing and letting
by the Landlord to the Tenant of the Demised Premises for the Term hereby
created (and it is upon that express understanding that these presents are
entered into), notwithstanding anything contained in any Statute or in any
Statute which may hereafter be passed, none of the goods or chattels of the
Tenant at any time during the continuance of the Term hereby created on the
Demised Premises shall be exempt from levy by distress for Rent in arrears by
the Tenant as provided for in any such Statute or any amendment or amendments
thereto upon any claim being made for such exemption by the Tenant or on
distress being made by the Landlord this covenant and agreement may be pleaded
as an estoppel against the Tenant in any action brought to test the right to the
levying upon any such goods as are named as exempted in any such Statute or
amendment or amendments thereto; the Tenant waives, as the Tenant hereby does,
all and every benefit that could or might have accrued to the Tenant under and
by virtue of any such statute or any amendment or amendments thereto but for
this covenant.
26
FOLLOW CHATTELS
10.4 In case of removal by the Tenant of the goods and chattels of the
Tenant from the Demised Premises, the Landlord may follow the same for 30 days
or such longer period of time as may be permitted by law.
OVERLOOKING AND CONDONING
10.5 Any condoning, excusing or overlooking by the Landlord of any
default, breach or non-observance by the Tenant at any time or times in respect
of any covenant, proviso or condition herein contained shall not operate as a
waiver of the Landlord's rights hereunder in respect of any subsequent default,
breach or non-observance nor as to defeat or affect in any way the rights of the
Landlord hereunder in respect of any subsequent default, breach or
non-observance.
ARTICLE 11
SUBORDINATION
SUBORDINATION
11.1 The Tenant covenants and agrees with the Landlord that the Tenant
shall from time to time upon the written request of the Landlord, enter into an
indenture:
(a) subordinating the Term hereby demised and the rights of the Tenant
hereunder to any mortgage, including any deed of trust and mortgage and
all indentures supplemental thereto, or any ground lease, present or
future, which includes the Demised Premises; or at the option of the
Landlord
(b) agreeing that the Term hereby demised shall be prior to any such
mortgage, including any deed of trust and mortgage and all indentures
supplemental thereto, or ground lease,
provided if the Tenant fails to execute any such indenture with reasonable
promptness upon request by the Landlord, the Tenant hereby irrevocably
authorizes and appoints the Landlord as its attorney to execute the same on the
Tenant's behalf. Notwithstanding any such postponement or subordination as
aforesaid, the Tenant agrees that its obligations under this Lease shall remain
in full force and effect notwithstanding any action at any time taken by a
mortgagee or head landlord of the Lands or any part thereof to enforce the
security of any such mortgage, including any deed of trust and mortgage and all
indentures supplemental thereto, or ground lease; PROVIDED ALWAYS however, that
any postponement or subordination given hereunder shall reserve to the Tenant
the right to continue in possession of the Demised Premises under the Terms of
this Lease so long as the Tenant shall not be in default hereunder.
27
ARTICLE 12
NOTICES
NOTICES
12.1 Any notice, advice, document or writing required or contemplated
by any provision hereof shall be given in writing and if to the Landlord, either
delivered personally or transmitted by facsimile to an officer of the Landlord's
agent, PPM Real Estate Managers (Canada) Limited or mailed by prepaid mail
addressed to the Landlord care of PPM Real Estate Managers (Canada) Limited at
the following address:
PPM Real Estate Managers (Canada) Limited
000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(facsimile number: (000) 000-0000)
with a copy to:
PPM Real Estate Managers (Canada) Limited
1200, 000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
(facsimile number: (000) 000-0000)
Attention: Senior Vice-President
and if to the Tenant, either delivered personally to the Tenant (or to an
officer of the Tenant, if a corporation) or mailed by prepaid mail addressed to
the Tenant at the Demised Premises, or if an address of the Tenant is shown in
the description of the Tenant above, to such address. Every such notice, advice,
document or writing shall be deemed to have been given when delivered
personally, upon the usual confirmation of transmission and receipt if sent by
facsimile, or if mailed as aforesaid, upon the fifth day after being mailed save
and except in the event of a labour dispute or other disruption affecting postal
service occurring within five days of the date of mailing in which event notice
will not be deemed to have been received until actually received. The Landlord
may from time to time by notice in writing to the Tenant designate another
address as the address to which notices are to be mailed to it, or specify with
greater particularity the address and persons to which such notices are to be
mailed and may require that copies of notices be sent to an agent designated by
it. The Tenant may, if an address of the Tenant is shown in the description of
the Tenant above, from time to time by notice in writing to the Landlord,
designate another address as the address to which notices are to be mailed to
it, or specify with greater particularity the address to which such notices are
to be mailed.
28
ARTICLE 13
MISCELLANEOUS PROVISIONS
UNAVOIDABLE FAILURES OR DELAYS
13.1 Notwithstanding anything to the contrary in the Lease contained, if
either party hereto shall be bona fide delayed or hindered in or prevented from
the performance of any term, covenant or act required hereunder by reason of
strikes, labour troubles inability to procure materials or services, failure of
power, restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, act of God, or other reason whether of a like nature
or not, not the fault of the party delayed in performing work or doing acts
required under the terms of this Lease, then performance of such terms,
covenants or acts shall be extended for a period equivalent to the period of
such delay. The provisions of this paragraph shall not operate to excuse the
Tenant from the prompt payment of Basic Rent, Additional Rent, or any other
amounts which it is required by the terms of this Lease to pay. This paragraph
shall not be construed to include in the reasons for any such delays, financial
impecuniosity or incapacity.
ENTIRE AGREEMENT
13.2 This Lease and the Schedules (including the rules and
regulations) attached hereto and which form part hereof set forth all the
covenants, promises, agreements, conditions and understandings, between the
Landlord and the Tenant concerning the Demised Premises and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon the Landlord or the Tenant unless in writing
and signed by each of them except the rules and regulations adopted and
promulgated by the Landlord and in accordance with the provisions of this Lease.
SUBDIVISION
13.3 The Tenant will at the request of the Landlord and at no expense
to the Tenant execute all consents, sign all subdivision plans and do all things
necessary to permit the subdivision of the Lands.
REGISTRATION
13.4 The Tenant shall not have the right to register this Lease
without the prior consent of the Landlord, which consent may be withheld in the
Landlord's sole discretion, and the Landlord shall not be obliged to deliver
this Lease in registrable form. Should the Landlord consent to such
registration, or should the Landlord require this Lease to be registered, then
the parties shall re-execute this Lease in registrable form and such
registration and the preparation of any plan necessary therefore shall be done
by and at the sole cost and expense of the party desiring to register this
Lease.
29
NET LEASE INTENT
13.5 The Tenant acknowledges and agrees that it is intended that this
Lease shall be a completely carefree net lease for the Landlord except as
expressly herein set out and that the Landlord shall not be responsible during
the Term hereof for any costs, charges, expenses and outlays of any nature
whatsoever arising from or relating to the Demised Premises, or the contents
thereof and without limiting the generality of the foregoing, the Tenant shall
be liable for the payment of all charges, impositions and expenses of every
nature and kind relating to the Demised Premises and the contents thereof and
its Proportionate Share of all charges, impositions, and expenses of every
nature and kind relating to those parts of the Building, Project and Lands not
intended for leasing and the Tenant covenants with the Landlord accordingly.
TIME OF ESSENCE
13.6 Time shall be of the essence of this Lease.
BINDING EFFECT
13.7 This Lease and everything herein contained shall enure to the benefit
and be binding upon the heirs, executors, administrators, successors, assigns
and other legal representatives, as the case may be of each of the parties
hereto, subject to the granting of consent by the Landlord as provided in
paragraph 8.1 to any assignment or sublease.
RELOCATION OF DEMISED PREMISES
13.8 DELETED.
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the day and
year first above written.
The Corporate Seal of )
2725321 CANADA INC. )
was affixed in the presence of: )
)
/s/ Xxxx X. Xxxxxx )
----------------------- ) C/S
Xxxx X. Xxxxxx )
Vice President )
)
/s/ Xxxx X. Xxxxxxxx )
----------------------- )
Xxxx X. Xxxxxxxx )
Vice President )
30
The Corporate Seal of APPLIED )
DIGITAL ACCESS - CANADA, INC. )
was affixed in the presence of: )
)
/s/ Xxxxx X. Xxxxx )
----------------------- ) C/S
Xxxxx X. Xxxxx, Chief Financial Officer )
)
)
)
----------------------- )
Authorized Signatory )
31
SCHEDULE "A"
Referred to in the attached Lease made as of January 1, 1997 between 2725321
CANADA INC. as Landlord, and APPLIED DIGITAL ACCESS - CANADA, INC. as Tenant.
The Demised Premises are that part of the Building situate on the Lands legally
described in Schedule "B" hereto. The Demised Premises are shown outlined in
heavy black line on the sketch plan attached to this Schedule "A".
The Demised Premises shall exclude the outside face of all perimeter walls of
the Demised Premises but shall include windows and doors in the perimeter wall.
In calculating the Area of the Demised Premises or of the Building the
calculation shall be computed by measuring from the exterior surface of the
Building, in the case of exterior walls, and to the centre of partitions that
separate the Demised Premises from adjoining rentable areas or Common Areas and
Facilities. There shall be no deduction for vestibules or other recesses inside
the building line or for columns, ducts, projection or other structural elements
necessary to the Building. The Demised Premises includes all installations,
fixtures, furnishings and amenities located within the Demised Premises.
The Area of the Demised Premises is hereby estimated to be 25,604 square feet,
provided the Landlord may have the Area of the Demised Premises measured by its
architect or engineer, and if the same is different from the figure set forth
above then Basic Rent and the Tenant's Proportionate Share shall be adjusted
accordingly, such adjustment to be retroactive to the Commencement Date.
[ATTACH SKETCH PLAN OF BUILDING]
[NOTE: OUTLINE THE DEMISED PREMISES IN HEAVY BLACK LINE]
SCHEDULE "B"
Referred to in the attached Lease made as of January 1, 1997 between 2725321
CANADA INC. as Landlord, and APPLIED DIGITAL ACCESS - CANADA, INC. as Tenant.
LEGAL DESCRIPTION OF LANDS
Lots A and B
District Xxx 00
Xxxxx 0, Xxx Xxxxxxxxxxx Xxxxxxxx
Xxxx 00000
MUNICIPAL ADDRESS OF DEMISED PREMISES
0000 - 0000 Xxxxxxxx Xxxxx
Xxxxxxx, X.X.
X0X 0X0
SCHEDULE "C"
Referred to in the attached Lease made as of January 1, 1997 between 2725321
CANADA INC. as Landlord, and APPLIED DIGITAL ACCESS - CANADA, INC. as Tenant.
RULES AND REGULATIONS
1. Tenants shall not burn any trash or garbage in or about the Demised
Premises or anywhere within the confines of the Lands.
2. Tenants shall not keep or display any merchandise on or otherwise obstruct
any part of the Lands except as is specifically permitted in this Lease.
3. Floors shall not be overloaded.
4. All loading and unloading of merchandise, supplies, materials, garbage,
refuse and other chattels shall be made only through or by means of such
doorways as the Landlord shall designate in writing from time to time.
5. Tenants shall in connection with their advertising in relation to the
business carried on in the Demised Premises use and promote the name
IMPERIAL SQUARE LAKE CITY or such other name as the Landlord may from time
to time designate and in using such name in any advertisement, sign,
poster, printing or other writing tenants will print, write or designate
the same in a manner to be determined from time to time by the Landlord and
in no other manner. Tenant shall not use such name in regard to any
business other than their business upon the Demised Premises. Tenants agree
that they will not carry on or permit to be carried on any business in the
Demised Premises under a name or style other than their own name or call or
permit the Demised Premises or any business carried on therein to be called
any name other than their own name, without the prior written consent of
the Landlord.
6. Tenants shall, upon written notice from the Landlord, within five days
furnish the Landlord with the current Provincial License Number of any
vehicle owned or used by employees of tenants.
7. Tenants shall not bring upon their premises any equipment, motor or any
other thing which may damage the Building or the Project.
8. No merchandise, supplies, materials, garbage, refuse or other chattels
shall be allowed to remain on any common area, and must at all time be
contained within the Demised Premises.
9. The Tenant shall not use or occupy in any manner whatsoever the area of
recess, if any, between the lease line of the Demised Premises and the
store front of the Demised Premises, and the Landlord reserves the entire
control over such area.
10. Wherever any window area is not used for the purpose of entrances, offices
or show areas, the Tenant must construct at its own expense, enclosures or
decorative screens as specified and approved by the Landlord, so as to
protect the windows in that area from damage.
11. If any additional locks or bolts of any kind shall be placed upon any of
the doors or windows of the Demised Premises, or if any changes shall be
made in existing locks or mechanisms thereof, the Tenant shall provide the
Landlord with a duplicate key or keys so as to allow the Landlord access to
the Demised Premises as and when required. The Tenant shall at the end of
the Term or renewal term as the case may be, return to the Landlord all
keys to the Demises Premises and to all other areas of the Building or the
Project which may have been supplied to the Tenant.
12. No animals or motor vehicles shall be brought into the Demised Premises or
the Building.
13. DELETED.
14. The doors and windows or other apertures that reflect or admit light or air
into the passageways or into any portion of the Demised Premises or the
Building shall not be covered or obstructed by the Tenant in any manner
whatsoever.
15. Windows shall not be left open so as to admit rain or snow.
16. It shall be the responsibility of the Tenant to prevent any person from
throwing objects out of windows or into the ducts or stairwells of the
Demised Premises or the Building, and the Tenant shall pay for any cost,
damage or injury resulting from any such act or acts.
17. Keys or other devices which are made available to the Tenant for the
purpose of providing access to the exterior doors of the Building shall not
be duplicated and shall be returned to the Landlord immediately upon
termination of this Lease.
The foregoing rules and regulations as from time to time amended, are not
necessarily of uniform application but may be waived in whole or in part in
respect of other tenants without affecting their enforceability with respect to
the Tenant or the Demised Premises. For the benefit and welfare of all or any
tenants of premises upon the Lands as it may exist from time to time, the
Landlord shall have the right to issue further Rules and Regulations and such
further Rules and Regulations shall thereupon be binding on all tenants.
2
SCHEDULE "D"
Referred to in the attached Lease made as of January 1, 1997 between 2725321
CANADA INC. as Landlord, and APPLIED DIGITAL ACCESS - CANADA, INC. as Tenant.
HAZARDOUS SUBSTANCES
DEFINITIONS
1. In this Schedule "D":
"HAZARDOUS SUBSTANCE" means:
(a) any radioactive material;
(b) any explosive;
(c) any substance that, if added to any water, would degrade or
alter or form part of a process of degradation or alteration of
the quality of that water to the extent that it is detrimental to
its use by man or by any animal, fish or plant;
(d) any solid, liquid, gas or odour or combination of any of them
that, if emitted into the air, would create or contribute to the
creation of a condition of the air that:
(i) endangers the health, safety or welfare of persons
or the health or animal life;
(ii) interferes with normal enjoyment of life or property; or
(iii) causes damage to plant life or to property;
(e) any toxic substance;
(f) any substance declared to be hazardous or toxic under any
Law, Regulation or Order (as defined below) now or hereafter
enacted or promulgated by any governmental authority having
jurisdiction over the Landlord, the Tenant, the Demised Premises
or the Development of which the Demised Premises form a part; and
(g) any other substance which is or may become hazardous,
dangerous or toxic to persons or property;
"LAWS" means all applicable federal, provincial, state, municipal, or local
laws, by-laws, statutes, or ordinances, including, without limitation, the
following: the Canadian ENVIRONMENTAL PROTECTION ACT, the British Columbia WASTE
MANAGEMENT ACT and other applicable laws relating to the environment,
occupational safety, product liability and transportation;
"REGULATIONS" mean all rules, regulations or the like promulgated under or
pursuant to any Laws; and
"ORDERS" mean all applicable orders, decisions, or the like rendered by any
ministry, department or administrative or regulatory agency.
TENANT'S COVENANT AS TO USE
2. Without limiting the generality of the covenants of the Tenant in the
Lease contained, the Tenant covenants and agrees that the Tenant will not bring
upon the Demised Premises or any part thereof any Hazardous Substances and if at
any time, notwithstanding the foregoing covenant of the Tenant, there shall be
any Hazardous Substances upon the Demised Premises or a part thereof whether or
not brought thereupon by the Tenant, the Tenant shall, at its own expense:
(a) immediately give the Landlord notice specifying the nature and
location of the Hazardous Substances and thereafter give the Landlord
from time to time written notice of the extent and nature of the
Tenant's compliance with the following provisions of this paragraph;
(b) promptly remove the Hazardous Substances from the Demised Premises
in a manner which conforms with all Laws, Regulations and Orders
governing the movement of the same and the reasonable requirements of
the Landlord in connection with the movement; and
(c) if requested by the Landlord, obtain at the Tenant's cost and
expense from an independent consultant designated or approved by the
Landlord verifying the complete and proper removal thereof from the
Demised Premises or, if such is not the case, reporting as to the
extent and nature of any failure to comply with the foregoing
provisions of this paragraph.
COMPLIANCE WITH LAWS
3. Without limiting the generality of the covenants of the Tenant in the
Lease contained, the Tenant shall, at its own cost and expense, comply with all
Laws, Regulations and Orders from time to time in force relating to the
Landlord, the Tenant, the business of the Tenant, the Demised Premises or the
Development relating to Hazardous Substances and the protection of the
environment and shall immediately give written notice to the Landlord of the
occurrence of any event in the Demised Premises or on the Development which is
in breach of any such Laws, Regulations or Orders or a contravention thereof
and, if the Tenant shall, either alone or with others, cause the occurrence of
such event, the Tenant shall, at its own expense:
2
(a) immediately give the Landlord notice of the occurrence and the
contravention and thereafter give the Landlord from time to time
written notice of the extent and nature of the Tenant's compliance with
the following provisions of this paragraph;
(b) promptly remedy the contravention in a manner which conforms with
all Laws, Regulations and Orders governing the movement of the same;
and
(c) if requested by the Landlord, obtain at the Tenant's cost and
expense from an independent consultant designated or approved by the
Landlord verifying the complete and proper remedying of the
contravention or, if such is not the case, reporting as to the extent
and nature of any failure to comply with the foregoing provisions of
this paragraph.
The Tenant shall, at its own expense, remedy any damage to the Demised Premises
and the Development caused by such event within the Demised Premises or by the
performance of the Tenant's obligations under this paragraph as a result of such
occurrence. If the Tenant fails to do so, the Landlord may at its option remedy
the damage, and may recover its cost and expenses of so doing from the Tenant as
Additional Rent under the Lease.
If any governmental authority having jurisdiction shall require the clean-up of
any Hazardous Substances held, released, spilled, abandoned or placed upon the
Demised Premises or the Development or released into the environment by the
Tenant in the course of the Tenant's business or as a result of the Tenant's use
or occupancy of the Demised Premises, then the Tenant shall, at its own expense,
prepare all necessary studies, plans and proposals and submit the same for
approval, provide all bonds and other security required by governmental
authorities having jurisdiction and carry out the work required and shall keep
the Landlord fully informed and provide to the Landlord full information with
respect to the proposed plans and comply with the Landlord's reasonable
requirements with respect to such plans. The Tenant agrees that if the Landlord
determines, in its own discretion, that the Landlord, its property or its
reputation is placed in any jeopardy by the requirement for any such work, the
Landlord may itself undertake such work or any part thereof at the cost and
expense of the Tenant.
ENQUIRIES BY LANDLORD
4. The Tenant hereby authorizes the Landlord to make enquiries from time
to time of any government or governmental agency with respect to the Tenant's
compliance with any and all laws and regulations pertaining to the Tenant, the
Tenant's business and the Demised Premises including without limitation Laws,
Regulations and Orders pertaining to Hazardous Substances and the protection of
the environment; and the Tenant covenants and agrees that the Tenant will from
time to time provide to the Landlord such written authorization as the Landlord
may reasonably require in order to facilitate the obtaining of such information.
Without limiting the generality of the foregoing, the Landlord shall have the
right, during the last 3 months of the Term, to cause an independent
environmental audit or assessment of the Demised Premises or the Building to be
performed, and if such audit or assessment indicates
3
the presence of Hazardous Substances the Tenant shall bear the cost of such
audit or assessment, together with the cost of the clean-up, removal,
containment, treatment, detoxification or neutralization, as the case may be, of
such Hazardous Substances.
EVENT OF DEFAULT
5. The presence of any Hazardous Substances in the Demised Premises
without the prior written approval of the Landlord shall be considered to be an
event of default for the purposes of the Lease.
OWNERSHIP OF HAZARDOUS SUBSTANCES
6. If the Tenant shall bring or create upon the Development or the
Demised Premises any Hazardous Substance or if the conduct of the Tenant's
business shall cause thereto be any Hazardous Substance upon the Development or
the Demised Premises then, notwithstanding any rule of law to the contrary, such
Hazardous Substance shall be and remain the sole and exclusive property of the
Tenant and shall not become the property of Landlord notwithstanding the degree
of affixation of the Hazardous Substance or the goods containing the Hazardous
Substance to the Demised Premises or the Development and notwithstanding the
expiry or earlier termination of this Lease.
SURVIVAL OF COVENANTS
7. The obligations of the Tenant hereunder relating to Hazardous
Substances shall survive the expiry or earlier termination of this Lease save
only that, to the extent that the performance of those obligations requires
access to or entry upon the Demised Premises or the Development or any part
thereof, the Tenant shall have such entry and access only at such times and upon
such terms and conditions as the Landlord may from time to time specify; and the
Landlord may, at the Tenant's cost and expense, itself or by its agents,
servants, employees, contractors and subcontractors, undertake the performance
of any necessary work in order to complete such obligations of the Tenant; but
having commenced such work, the Landlord shall have no obligation to the Tenant
to complete such work.
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SCHEDULE "E"
Referred to in the attached Lease made as of January 1, 1997 between 2725321
CANADA INC. as Landlord, and APPLIED DIGITAL ACCESS - CANADA, INC. as Tenant.
INDEMNITY AGREEMENT
THIS AGREEMENT made as of January 1, 1997,
BETWEEN:
APPLIED DIGITAL ACCESS, INC., 0000 Xxxxxxxx Xxxx, Xxx Xxxxx,
----------------------------
Xxxxxxxxxx, X.X.X. 00000
(hereinafter called the "Covenantor")
AND:
2725321 CANADA INC., c/o PPM Real Estate Managers (Canada) Limited,
-------------------
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0.
(hereinafter called the "Landlord")
In consideration of the Landlord entering into the lease (the "Lease") made as
of January 1, 1997 between the Landlord and APPLIED DIGITAL ACCESS - CANADA,
INC. (the "Tenant") and of other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the Covenantor, the
Covenantor hereby represents and warrants to the Landlord that it is financially
interested in the affairs of the Tenant and covenants and agrees with the
Landlord as follows:
1. The Covenantor is financially interested in the affairs of the Tenant,
and the granting of this Indemnity Agreement is in the best interests of the
Covenantor.
2. The Covenantor shall indemnify and save harmless the Landlord in
respect of any default by the Tenant in the carrying out of each and every one
of the Tenant's covenants and agreements in the Lease set out.
3. If any default is made by the Tenant under the Lease the Covenantor
shall on demand of the Landlord forthwith remedy such default.
4. The Covenantor shall indemnify and save harmless the Landlord with
respect to all losses, costs, expenses, claims, liabilities and damages that may
be suffered or incurred by the Landlord by reason of or relating to, directly or
indirectly, any default by the Tenant under the Lease.
5. This indemnity is absolute and unconditional.
6. The Landlord shall not be bound or required to proceed against the
Tenant or any other obliged person or to have recourse to or exhaust any
security from time to time held by it for the performance of the covenants or
agreements of the Tenant in the Lease contained or to pursue any other remedy
whatsoever which may be available to the Landlord before proceeding against the
Covenantor.
7. The obligations of the Covenantor under this Agreement shall extend
to the Term of the Lease and any overholding by the Tenant and to any renewal or
extension of the Term of the Lease, whether such renewal or extension is entered
into by the Tenant or by an assignee of the Tenant.
8. No proceeding under this Agreement and no recovery made as a result
thereof will be a bar or a defence to any further proceeding under this
Agreement.
9. The Covenantor waives the right to receive notice of any default
by the Tenant under the Lease.
10. The obligations of the Covenantor under this Agreement shall in no way
be released, discharged, reduced or otherwise affected by:
(a) modifications, releases or discharges granted to the Tenant in
respect of its obligations to keep, observe or perform its covenants
and agreements under the Lease;
(b) any agreement or other dealing between the Landlord and the Tenant
having the effect of amending or altering the Lease or the obligations
of the Tenant thereunder;
(c) any neglect, delay or forbearance of the Landlord in demanding,
requiring or enforcing the keeping, observance or performance by the
Tenant of any of its covenants or agreements under the Lease or by the
Covenantor of any of its obligations under this Agreement;
(d) granting any extension of time, waivers, or indulgences;
(e) any assignment of the Lease or subletting by the Tenant or any
trustee in bankruptcy, receiver or other successor or any consent of
the Landlord to any assignment or subletting;
(f) bankruptcy, insolvency or dissolution of the Tenant or the
Covenantor;
(g) any other compromising, modifying or releasing of the Tenant's
obligations under the Lease through the operation of any statute or
law;
2
(h) any event or occurrence which would have the effect at law of
terminating or rendering unenforceable any covenants or agreements of
the Tenant in the Lease contained or of the Covenantor hereunder;
(i) any failure by the Landlord to give notice to the Covenantor of
any default by the Tenant under the Lease;
(j) any re-entry by the Landlord onto the premises demised under, or
termination of, the Lease;
(k) any change in the constitution of the Tenant, if a partnership; or
(l) any other matter, thing, act or omission of the Landlord
whatsoever.
11. Without limiting the generality of the foregoing, the Covenantor
shall be bound by the terms and provisions of the Lease in the same manner as
though the Covenantor were the tenant named in the Lease.
12. Except in the case of a surrender accepted by the Landlord, if the
lease is terminated, or if the Lease is disclaimed pursuant to any statute, or
if the Lease is repudiated by the Tenant pursuant to the provisions of the
BANKRUPTCY AND INSOLVENCY ACT (Canada), then and in any of such cases at the
option of the Landlord to be exercised at any time within 6 months thereafter
the Covenantor shall execute and deliver a new lease of the premises demised
under the Lease between the Landlord as landlord and the Covenantor as tenant
for a term equal in duration to the residue of the Term of the Lease remaining
unexpired immediately prior to the effective date of such termination,
disclaimer or repudiation. Such new lease shall contain the same landlord's and
tenant's obligations respectively and the same covenants, obligations and
agreements, terms and conditions in all respects (including the proviso for
re-entry) as are contained in the Lease. If the Covenantor fails to execute and
deliver a new lease as aforesaid, the Covenantor shall be deemed to have
executed and delivered the same.
13. The benefit of the Covenantor's covenants herein may, from time to
time, be assigned, collaterally, conditionally or otherwise, to any other entity
to whom the Landlord assigns the benefits of the Lease and such other assignee
shall be entitled to enforce the provisions hereof against the Covenantor as
though such assignee were the original contracting party hereto with the
Covenantor.
14. This Agreement shall extend to and be binding upon the Covenantor,
its heirs, executors, administrators, successors and assigns and shall enure to
the benefit of and may be enforced by the Landlord, its successors and assigns
and any mortgagee, chargee, or other encumbrancer of all or any part of the
premises demised under the Lease.
15. This Agreement shall be construed in accordance with the laws of the
Province of British Columbia.
3
IN WITNESS WHEREOF this Agreement has been executed by the Covenantor as of the
day and year first above written.
The Corporate Seal of APPLIED )
DIGITAL ACCESS, INC. )
was hereunto affixed in the presence of: )
)
) C/S
--------------------------------------- )
)
)
--------------------------------------- )
)
4
SCHEDULE "F"
Referred to in the attached Lease made as of January 1, 1997 between 2725321
CANADA INC. as Landlord, and APPLIED DIGITAL ACCESS - CANADA, INC. as Tenant.
SPECIAL PROVISIONS
1. EXTENSION OF TERM - Provided the Tenant has not been in default in the
performance of its obligations pursuant to the Lease, and provided the Tenant is
Applied Digital Access - Canada, Inc. and is itself in possession of the whole
of the Demised Premises or has sublet the Demised Premises, or a portion
thereof, in accordance with the Lease, the Tenant will have the right to extend
the Term, upon giving the Landlord notice of its intention to do so no earlier
than March 31, 1999 and no later than June 30, 1999, for a further period of two
years (the "Extended Term") upon the same terms and conditions as are set out in
the Lease, except that:
(a) there will be no further right to extend the Term following
the expiration of the Extended Term;
(b) any requirement on the Landlord's part to do any Landlord's Work or
pay to the Tenant any construction allowance, inducement, loan or other
amount in connection with the Lease or improvements in the Demised
Premises, and any right of first refusal, will not apply during the
Extended Term; and
(c) the annual Basic Rent shall be mutually agreed upon between the
Landlord and the Tenant based upon the current market Basic Rent for
comparably sized and improved premises in similar buildings in the
area, as designated by the Landlord as at October 1, 1999, provided
that the annual Basic Rent for the Extended Term shall not be less than
the annual Basic Rent payable by the Tenant for the last 12 months of
the initial Term, and provided further that if the parties are unable
to agree to such annual Basic Rent by no later than 30 days prior to
the expiry of the initial Term, then the annual Basic Rent shall be
determined by arbitration in accordance with the COMMERCIAL ARBITRATION
ACT of British Columbia as then in force and applying the criteria set
out above. If the annual Basic Rent has not been determined by the
commencement of the Extended Term, the Tenant shall pay Basic Rent at
the rate applicable to overholding as set out in the Lease, and within
10 days after the Basic Rent for the Extended Term is determined, the
parties shall retroactively adjust the Basic Rent owing from the
commencement of the Extended Term.
If the Tenant fails to exercise this option to extend the Term in accordance
with the foregoing, or if the foregoing conditions are not satisfied, this
option to extend shall be null and void.
2. AVAILABLE SPACE - The Landlord shall undertake to use reasonable efforts to
keep the Tenant informed on the availability of any space available for lease
direct from the Landlord in the Building. Notwithstanding the foregoing, the
failure by the Landlord to so inform the Tenant shall not give rise to any
liability whatsoever to the Tenant on the part of the Landlord.
3. ACCESS - the Tenant shall have access to the Demised Premises 24 hours per
day each and every day of the year throughout the Term, except for unforeseen
Building emergencies, and subject to the Landlord's security procedures. The
Tenant shall have the right to have heating, ventilating, air-conditioning,
hydro and elevator service as it may require outside of normal business hours,
upon reasonable request and any reasonable cost(s) related thereto shall be the
Tenant's responsibility.
4. PARKING - So long as the Tenant is Applied Digital Access - Canada, Inc. and
is itself in occupation of the whole of the Demised Premises or has sublet the
Demised Premises, or a portion thereof, in accordance with the Lease, and
provided the Tenant has not been in default in the performance of its
obligations pursuant to the Lease, the Landlord will make available to the
Tenant for its use 51 reserved parking spaces identified by the Tenant's name in
a location to be designated by the Landlord from time to time at no cost to the
Tenant throughout the Term or any extension thereof.
5. FREE BASIC RENT - Provided the Tenant is in possession of the Demised
Premises, has executed the Lease and is not in default thereunder, the Tenant
shall not be required to pay Basic Rent for the first month of the Term,
provided the Tenant shall pay all Additional Rent provided for in the Lease
throughout such period.
2
I N D E X
ARTICLE DESCRIPTION PAGE
------- ----------- ----
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions............................................1
1.2 Schedules..............................................4
1.3 Governing Law..........................................4
1.4 Headings...............................................4
1.5 Interpretation.........................................4
1.6 Use of "herein", "hereof", etc.........................5
1.7 Terms as Covenants.....................................5
ARTICLE 2 DEMISE, TERM AND USE
2.1 Demise.................................................5
2.2 Term...................................................5
2.3 Use....................................................5
2.4 Use of common areas and facilities, etc................6
2.5 Possession.............................................6
2.6 Examination of Demised Premises........................6
2.7 Overholding............................................6
ARTICLE 3 RENT AND OTHER PAYMENTS
3.1 Basic Rent.............................................7
3.2 Payments to Landlord...................................7
3.3 Additional Rent........................................7
3.4 Payments to Others.....................................7
3.5 Interest on Overdue Amounts............................8
3.6 Disputes...............................................8
3.7 Deposit................................................8
ARTICLE 4 MISCELLANEOUS COVENANTS OF THE TENANT
4.1 Pay Rent...............................................8
4.2 Pay Tenant's Taxes.....................................9
4.3 Pay Utilities..........................................9
4.4 Pay Proportionate Share of Taxes.......................9
4.5 Pay Proportionate Share of Operating Costs.............9
4.6 No Nuisance...........................................10
4.7 Comply with Laws, etc.................................10
4.8 Comply with Rules and Regulations.....................10
4.9 Goods, Chattels, etc. Not to be removed...............11
4.10 Use of Demised Premises...............................11
4.11 Continuous Occupation.................................11
4.12 Signs.................................................11
4.13 Peaceful Surrender....................................11
4.14 Condition at Expiration...............................12
4.15 Removal of Fixtures...................................12
4.16 Use of Washrooms......................................12
4.17 Overloading...........................................12
4.18 Nuisance and Waste....................................13
ARTICLE DESCRIPTION PAGE
------- ----------- ----
4.19 Access................................................13
4.20 Use of Yard Areas.....................................13
4.21 No Auction............................................13
4.22 Estoppel Certificates.................................13
4.23 Landlord May Perform Tenant's Covenants...............14
ARTICLE 5 LANDLORD'S COVENANTS
5.1 Quiet Enjoyment.......................................14
5.2 Taxes.................................................14
5.3 Management, Operation and Maintenance.................14
ARTICLE 6 INSURANCE AND INDEMNITY
6.1 Tenant Insurance......................................15
6.2 Details of Policies...................................15
6.3 Proof of Insurance....................................16
6.4 Priority of Claims....................................16
6.5 Acts Conflicting with Insurance.......................16
6.6 Indemnity to the Landlord.............................16
6.7 Further Indemnity.....................................17
6.8 Landlord not Responsible for Injuries, Loss, Damage...17
6.9 No Liability for Indirect Damages.....................17
6.10 Landlord Insurance....................................18
ARTICLE 7 REPAIRS AND ALTERATIONS
7.1 Repairs...............................................18
7.2 Alterations...........................................19
7.3 Notice of Accidents, Defects, etc.....................20
7.4 Care of Demised Premises..............................20
7.5 Landlord's Right to do Work...........................21
7.6 Landlord's Right to Inspect and Display Sign..........22
7.7 Landlord's Repairs....................................23
ARTICLE 8 TRANSFER AND ASSIGNMENT
8.1 Assigning or Subletting...............................23
8.2 No Release............................................24
8.3 Change of Control.....................................24
8.4 Right of Landlord to Terminate........................24
8.5 Sale by Landlord......................................25
ARTICLE 9 DAMAGE OR DESTRUCTION
9.1 Damage or Destruction Without Termination.............25
9.2 Damage or Destruction with Termination................25
9.3 Damage or Destruction of Building.....................26
ARTICLE DESCRIPTION PAGE
------- ----------- ----
ARTICLE 10 DEFAULT AND RE-ENTRY
10.1 Re-entry 26
10.2 Bankruptcy............................................27
10.3 Waiver of Exemption from Distress.....................27
10.4 Follow Chattels.......................................28
10.5 Overlooking and Condoning.............................28
ARTICLE 11 SUBORDINATION
11.1 Subordination.........................................28
ARTICLE 12 NOTICES
12.1 Notices .............................................29
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 Unavoidable Failures or Delays........................30
13.2 Entire Agreement......................................30
13.3 Subdivision...........................................30
13.4 Registration..........................................31
13.5 Net Lease Intent......................................31
13.6 Time of Essence.......................................31
13.7 Binding Effect........................................31
13.8 Relocation of Demised Premises........................32
Schedule "A" Demised Premises
Schedule "B" Legal and Municipal Descriptions
Schedule "C" Rules and Regulations
Schedule "D" Hazardous Substances
Schedule "E" Indemnity Agreement
Schedule "F" Special Provisions
